Correia v. Bennett

• Citation: 199 Or. 374,261 P.2d 851
• Parties: CORREIA v. BENNETT et al.
• Decision Date: 07 October 1953
• Court: Supreme Court of Oregon

Page 851

261 P.2d 851

199 Or. 374

CORREIA v. BENNETT et al.

Supreme Court of Oregon.

Argued and Submitted Sept. 23, 1953.

Decided Oct. 7, 1953.

Alfred T. McGill, of Portland, argued the cause and filed a brief for appellant.

Carl R. Wells, of Portland, argued the cause for respondent. On the brief were Easley & Whipple, of Portland.

Before LATOURETTE, C. J., and WARNER, TOOZE and PERRY, JJ.

TOOZE, Justice.

This is an action for damages for personal injuries sustained as the result of the alleged negligent operation of motor vehicles, brought by Ruth L. Correia, as plaintiff, against Stanleigh H. Bennett, Newton Johnson, and Olga M. Johnson, his wife, as defendants. The case was tried to a jury. Two verdicts were returned, one in favor of plaintiff and against the defendants Stanleigh H. Bennett and Newton Johnson in the sum of $4,250, and the other in favor of defendant Olga M. Johnson. Judgment was entered in favor of plaintiff against defendants Stanleigh H. Bennett and Newton Johnson, jointly and severally, in the sum of $4,250. Defendant Bennett moved the court for judgment in his favor notwithstanding the verdict, or, in the alternative, for a new trial. His motion for a new trial was sustained. Plaintiff appeals.

The plaintiff was riding as a passenger in a car driven by her husband Manuel Correia, which was involved in a collision at the intersection of North Lombard and North Wall streets in the city of Portland, Oregon, on October 3, 1948; as the proximate result of such collision, she suffered severe personal injuries. North Lombard street is an established through street, and vehicles approaching such street from intersecting streets and highways are required by law to stop before entering such thoroughfare.

The Correia car was headed in an easterly direction, and the defendant Bennett's car in a westerly direction on North Lombard street. At the same time, the defendant Newton Johnson was operating a motor vehicle owned by defendant Olga M. Johnson, his wife, in a southerly direction on North Wall street. Defendant Johnson entered North Lombard street without first stopping, and his vehicle collided with that of defendant Bennett. Defendant Bennett's car then collided with the car in which plaintiff was riding.

The trial court instructed the jury to return a verdict in favor of plaintiff against the defendant Newton Johnson.

The judgment as mentioned above was entered against defendants Bennett and Newton Johnson on January 25, 1952. On February 4, 1952, defendant Bennett filed his motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. On March 7, 1952, or 42 days after judgment was entered, the trial court entered an order denying the motion for judgment notwithstanding the verdict but sustaining the motion for a new trial. The order granting a new trial reads as follows:

'This matter came on for hearing before the undersigned, Judge of the Above Entitled Court, on the 7th day of March, 1952, upon defendant, Stanley H. Bennett's Motion for Judgment Notwithstanding the Verdict and in the Alternative for a New Trial, plaintiff appeared by her Attorney, Alfred T. McGill, and defendant Stanley H. Bennett appeared by his attorney, Norman Easley, defendant Olga M. and Newton Johnson, defendants, appearing not. Arguments were heard and the Court Finding that the defendant Stanleigh H. Bennett's Motion for Judgment Notwithstanding the Verdict is not well taken, and the Court further finding that error prejudicial to defendant Stanleigh H. Bennett was committed when the Court gave over emphasis when it instructed upon four different occasions to the effect that if the jury found that defendant Bennett after knowledge of defendant Johnson's disobedience to a stop sign nevertheless endeavored to beat defendant Johnson across the intersection, then he, the defendant Bennett was negligent.

'Now therefore, it is considered, ordered, adjudged and decreed: That defendant Stanleigh H. Bennett's Motion for Judgment Notwithstanding the Verdict, be and is hereby denied, and [sic]

'And it is further considered, adjudged and decreed that defendant Stanleigh H. Bennett's Motion in the Alternative for a new Trial be and hereby is allowed.' (Italics ours.)

We have emphasized a portion of the foregoing order. Plaintiff contends that that part of the order constitutes the sole ground assigned by the court for its order, and that under the record it amounted to an allowance of a new trial by the court on its own motion. This claim is based upon the proposition that upon the conclusion of the instructions to the jury the defendant Bennett did not save an exception based upon the ground that the court had overemphasized a part of its instructions, and that, therefore, that matter was not properly before the court as a part of the motion for new trial.

The law is well settled that the trial court is without power to grant a new trial on its own motion after the expiration of 30 days from the date of judgment. Rosencrans v. Bennett, 193 Or. 45, 236 P.2d 798, 800; § 5-806, O.C.L.A.

In the Rosencrans case the order granting a new trial was entered 42 days after the entry of judgment. The sole ground assigned in the order for the granting of the new trial was that 'plaintiffs' complaint does not state facts sufficient to constitute a cause of action based upon fraud.' Several grounds for a new trial were alleged in the motion therefor, but the motion 'was wholly devoid of anything remotely connected with the sufficiency of plaintiffs' complaint'. In disposing of this matter, Mr. Justice Latourette, at page 50 of 193 Or., at page 800 of 236 P.2d, said:

'It is obvious from reading the order of the trial court that the whole of such order was based on the insufficiency of plaintiffs' complaint, and, not being in response to defendant's motion, it was an order granted on its own motion, and, not having been entered within 30 days after the filing of the judgment, the same was void and of no effect.'

In the instant case, among the grounds assigned in the motion of defendant for a new trial were errors at law occurring at the trial and excepted to by defendant, being grounds for a new trial pursuant to the provisions of § 5-802, O.C.L.A.

The alleged errors under this portion of the motion concerned five instructions given by the court to the jury, all of which, together with the exceptions noted, are set forth in detail; also, the refusal of the court to give six requested instructions, as set forth at length in the motion. Then under subdivision C of the motion, defendant set forth the following ground:

'C. Under the doctrine of Archambeau v. Edmunson, 87 Or. 476, 171 P. 186, this defendant urges:

'1. The Court erred in giving the following repetitive instructions which gave undue emphasis to a particular phase of this case:

'I instruct you with reference to the conduct of defendant Bennett in this case that if you find from the evidence that the defendant Bennett in approaching the intersection where the accident occurred had reason to believe that the defendant Johnson's car was not going to stop upon entering the intersection and that the defendant Bennett, nevertheless, endeavored to pass in front of the defendant's car, such conduct on the part of the defendant Bennett would be negligence; and if that conduct caused or contributed directly to the collision of his car with the plaintiff's car, then he would be liable, and your verdict would be against the defendant Bennett. * * *.'

Additional instructions which to a certain degree repeated the foregoing are set forth in connection with this ground for the motion.

As before stated, at the time of trial no exception was saved by defendant Bennett to the giving of repetitious instructions that overemphasized a particular phase of the case. The mere fact that no exception was saved at the time of trial did not bar defendant from thus claiming error on account thereof in his motion for a new trial, nor did the court's action in adopting that...