Cary v. Burris

Decision Date30 June 1942
Citation169 Or. 24,127 P.2d 126
PartiesCARY <I>v.</I> BURRIS
CourtOregon Supreme Court
                  See 28 R.C.L. 738
                  71 C.J., Workmen's Compensation, § 1658

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

WALTER TOOZE, Judge pro tempore.

Action by Elmer B. Cary against Paul Burris to recover for injuries sustained in a collision of automobiles. From an order setting aside a judgment for plaintiff, and granting a new trial, defendant appeals.


Ralph R. Bailey, of Portland (Maguire, Shields, Morrison & Biggs and Arthur C. Spencer, Jr., all of Portland, on the brief), for appellant.

Chester E. McCarty, of Portland (Glen McCarty, of Portland, on the brief), for respondent.


The plaintiff, while an employee of the federal government, sustained serious bodily injuries as the result of a collision between an automobile in which he was riding as a guest and another automobile driven by the defendant. Plaintiff brought this action for damages, alleging that, as a result of said collision, he had sustained general damages in the sum of $60,000 and special damages in the sum of $2,164.17 for medical, surgical and hospital treatment and nurse hire.

As a partial defense and in mitigation of plaintiff's claim for special damages, the defendant alleged that, at the time and place of the accident, the plaintiff was an employee of the United States and was entitled to the benefits of the United States government compensation act which included the payment by the government of medical and hospital services and for nurse hire and, on information and belief, alleged that all of said expenses had been so paid.

The reply admitted plaintiff's said employment and that the United States Employees' Compensation Commission had advanced all of said sums but that he would be required to reimburse the commission for said advances out of the proceeds of the judgment when collected.

The trial court charged the jury that plaintiff was not entitled to recover any of said items of special damages and withdrew the same from the consideration of the jury. The jury returned a verdict for $3,500 and judgment was given for that amount. The plaintiff then moved to set aside the judgment and for a new trial because of said instruction. This motion was sustained because of said alleged error and an order was entered setting aside the judgment and granting a new trial. From this order, the defendant has appealed.

The United States compensation act of September 7, 1916, (5 U.S.C.A., § 759), in part provides:

"Immediately after an injury sustained by an employee while in the performance of his duty, whether or not disability has arisen, and for a reasonable time thereafter, the United States shall furnish to such employee reasonable medical, surgical, and hospital services and supplies unless he refuses to accept them. Such services and supplies shall be furnished by United States medical officers and hospitals, but where this is not practicable shall be furnished by private physicians and hospitals designated or approved by the commission and paid for from the employees' compensation fund. * * *"

Section 776 of the act provides...

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14 cases
  • White v. Jubitz Corp., CC 040302468SC.
    • United States
    • Supreme Court of Oregon
    • October 15, 2009
    ...first considered how to address such circumstances and adopted what came to be known as the "collateral source rule." In Cary v. Burris, 169 Or. 24, 127 P.2d 126 (1942), the plaintiff, a federal employee injured in the performance of official duties, was entitled to the benefits of a federa......
  • Stanfield v. Laccoarce, 76-0111
    • United States
    • Supreme Court of Oregon
    • December 27, 1978
    ...injury case is receiving insurance or disability payments and the like is not admissible in mitigation of damages. Cary v. Burris, 169 Or. 24, 127 P.2d 126 (1942); Maxwell, The Collateral Source Rule in the American Law of Damages, 46 Minn.L.Rev. 669 (1962); Annot., 75 A.L.R.2d 885 (1961). ......
  • Reinan v. Pacific Motor Trucking Co.
    • United States
    • Supreme Court of Oregon
    • October 17, 1974
    ...cases. The prior decisions of this court which have uniformly and without exception applied the exclusionary rule are: Cary v. Burris, 169 Or. 24, 127 P.2d 126 (1942); French v. Christner, 173 Or. 158, 135 P.2d 464, 143 P.2d 674 (1944); Peterson v. State Farm Ins. Co., 238 Or. 106, 114, 393......
  • Seibel v. Liberty Homes, Inc.
    • United States
    • Supreme Court of Oregon
    • March 29, 1988
    ...... Reinan v. Pacific Motor Trucking Co., 270 Or. 208, 213, 527 P.2d 256 (1974); Cary v. Burris, 169 Or. 24, 28-9, 127 P.2d 126 (1942). .         Heretofore this court has applied the collateral source rule only in the tort ......
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