105 P. 706 | Or. | 1909
delivered the opinion of the court.
This is an action to recover damages for personal injuries. Plaintiff alleges that on October 22, 1906, she was a passenger upon a car of the defendant at the time said car collided with another car of defendant, the collision being caused by negligence of the defendant; that, by reason of said collision, plaintiff was thrown violently
1. The defendant suffered default for want of an answer to be entered against it, and thereupon the court proceeded to hear the proof and to assess the damages to which plaintiff was entitled, under the provision of Subd. 2, Section 185, B. & C. Comp., which provides that in actions sounding in tort, if no answer has been filed, the court, without the intervention of a jury, shall assess, the damages which plaintiff shall recover; that the court may hear the proof itself, and the defendant shall not be precluded, by reason of his default, from offering proof in mitigation of damages. At the close of the evidence, and after the court had orally announced that he had assessed the damages at $3,000, plaintiff moved the court to make specific findings of fact as to the items and amounts of each, upon which the court allowed damages. This motion was denied by the court. Defendant also moved the court for a new trial for the reason that the evidence was insufficient to justify the judgment, and that the damages were excessive. The defendant appeals.
Error is assigned upon the refusal of the court to permit Mrs. Loveridge, who was a passenger on the same car at the time of the accident, to state whether or not from the force of the collision the glass in the front of the car wasQbroken. The extent of the injury to the car was not material. It was not made an issue, and, the
2. Error is also assigned upon the refusal of the court to permit Mrs. Loveridge, who went through the car after the accident, to state what she found as to any one being hurt. The record does not show what was sought to be proved by the answer, but, assuming that she would have answered that she saw no one who appeared to be injured, it would be immaterial, as plaintiff in her testimony does not claim to have received any injury that might be visible to the casual observer and says that she made no complaint at the time. Such evidence, then, would not tend to contradict her as to the mannei in which she was thrown down or to the extent of her injuries.
3. Plaintiff’s husband testified that an December 8th, Dr. Cable, his wife’s physician, asked her this question, .“Do you still suffer these pains,” to which she answered, “Yes.” This was competent evidence under the rule that “the declarations of a party are received to prove his condition, ills, pains, and symptoms, whether arising from sickness or an injury by accident or violence.” State v. Mackey, 12 Or. 158 (6 Pac. 648). To the same effect are Thomas v. Herrall, 18 Or. 549 (23 Pac. 497), and 16 Cyc. 1160. “The representations of a sick person of the nature, symptoms, and effects- of the malady under which he is laboring at the time are received as original evidence. If made to a medical attendant, they are of greater weight as evidence;-but, if made to any other person, they are not on that account rejected.” 1 Greenleaf, Evidence, § 102.
4. The ruling of the court on sustaining an objection to the question asked Dr. Jones, “did she state anything to you about having been with Dr. Cable for.treatment?” was not error. The question gives no intimation as to
5. The principal assignment of error relied upon by defendant is the refusal of the court to make special findings as to the items and amounts of the damages allowed to plaintiff. Defendant insists that it was the duty of the court to make special findings of fact as to these items. The rule is well settled that the trial court must make findings Upon all1 the material issues; that is, the findings of fact must be sufficient to sustain the judgment (Moody v. Richards, 29 Or. 286: 45 Pac. 777; Chung v. Stephenson, 50 Or. 248: 89 Pac. 386, 805), but this rule relates to issues made by the pleadings (Section 158, B. & C. Comp.). Issues are defined by Section 109, B. & C. Comp.: “Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party and controverted by the other.” Section 111: “An issue of fact arises upon a material allegation in the complaint, controverted by the answer.” And these are the issues referred to by the decisions of this court, cited by defendant, to the effect that the findings must be based upon and as broad as the issues involved. Green v. Williams, 21 Kan. 64; Hardin v. Abbey, 57 Tex. 587, also cited by defendant, are based upon statute. In this case there are no issues based upon the pleadings, and there is but one question for trial, namely: How much is plaintiff damaged ? Therefore no other finding of fact can be required. Every interest of the defendant, the protection of which, it contends, requires such special findings, can be saved by proper exceptions at the trial. Other questions were suggested at the argument that related only to the facts, and are not before us.
The judgment is affirmed.' Affirmed.
