Erwin v. Thomas
Decision Date | 13 December 1973 |
Parties | Herbert F. ERWIN, Appellant, v. Darleen THOMAS, Guardian Ad Litem of Wilbur E. Thomas, and Shepler Refrigeration, Inc., Respondents. |
Court | Oregon Supreme Court |
Michael J. Esler and Chris P. Ledwidge, Portland, argued the cause for appellant. With them on the briefs were Keane, Haessler, Harper, Pearlman & Copeland, David W. Harper and Ledwidge & Ledwidge, Portland.
Charles R. Holloway, III, Portland, argued the cause for respondents. With him on the brief were Tooze, Kerr & Peterson, Portland.
A truck the defendant Thomas was driving struck plaintiff's car traveling in the opposite direction and caused personal injury to plaintiff. In the ensuing trial the jury returned a verdict for the defendants and plaintiff appeals.
Plaintiff contends the trial court erred in permitting defendants' counsel, in closing argument, to repudiate an alleged judicial admission made in defendants' opening statement. In his opening statement defendants' counsel stated:
'* * * The evidence will be that Mr. Thomas' car hydroplaned across the center line and ran into the front end of Mr. Erwin's car.
In closing argument defendants' counsel argued:
The trial court overruled plaintiff's counsel's objection and defendants' counsel continued:
In his opinion denying plaintiff's motion for a new trial, the trial court commented: ...
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Migis v. Autozone, Inc., A150540
...is precluded from assigning as error a denial of a motion for a new trial based on the insufficiency of the evidence. Erwin v. Thomas, 267 Or. 311, 314, 516 P.2d 1279...
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State v. Harris
...proof of the fact, and not merely a statement of assertion or concession, made for some independent purpose." Erwin v. Thomas, 267 Or. 311, 313, 516 P.2d 1279 (1973) (quoting 9 Wigmore, Evidence, § 2594, 596 (3d ed.)) (emphasis added). A guilty plea ordinarily constitutes such a waiver with......
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Edward D. Jones & Co. v. Mishler
...evidence is insufficient, cannot be assigned as error on appeal." Bednarz, 95 Or.App. at 163,768 P.2d 422 (citing Erwin v. Thomas, 267 Or. 311, 314, 516 P.2d 1279 (1973)). Whether the problem here is seen as one of trial-level waiver, because plaintiff did not move for dismissal of defendan......
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Lystarczyk v. Smits
...to present evidence on that issue. McLhinney v. Landsdell Corp. of Maryland (1969), 254 Md. 7, 254 A.2d 177, 180; Erwin v. Thomas (1973), 267 Or. 311, 516 P.2d 1279, 1280; DeArmon v. City of St. Louis (1975), Mo.App., 525 S.W.2d 795, 799; Fireman's Fund American Insurance Companies v. Centr......