Clubb v. Hanson

• Decision Date: 12 June 1975
• Citation: 75 Adv.Sh. 2084,272 Or. 236,536 P.2d 528
• Parties: James W. CLUBB, Respondent, v. Thomas N. HANSON, dba Hillyer Oil Company and Hillyer Oil Company, an Oregon Corporation, Appellants.
• Court: Oregon Supreme Court

Page 528

536 P.2d 528

272 Or. 236

James W. CLUBB, Respondent, v. Thomas N. HANSON, dba Hillyer Oil Company and Hillyer Oil Company, an Oregon Corporation, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 7, 1975.

Decided June 12, 1975.

Patrick Ford, Ford & Cowling, Medford, argued the cause and filed the brief for appellants.

Thomas C. Howser, Cottle & Howser, Ashland, argued the cause and filed the brief for respondent.

TONGUE, Justice.

This is an action for damages for personal injuries sustained by plaintiff when, according to his complaint, defendants' hydraulic jack either 'slipped' or was 'released' by defendants employee, causing plaintiff's truck to fall on him while he was replacing a spare tire under the rear of the truck. The case was tried before a jury, which returned a verdict in favor of plaintiff in the sum of $18,500. Defendants appeal from the resulting judgment. We affirm.

Defendants' assignments of error are: (1) The trial court erred in denying defendants' motions for nonsuit and directed verdict; (2) The trial court erred in denying defendants' motion to require plaintiff to elect between inconsistent specifications of negligence; and (3) The trial court erred in denying defendants' motion for a new trial for error relating to the submission to the jury of special interrogatories and for irregularity in the proceedings relating to answers by the jury to those special interrogatories.

1. The evidence was sufficient to support the verdict.

Because of direct conflicts in the testimony we must bear in mind that in determining whether there was sufficient evidence to support the verdict all conflicts in the evidence must be resolved in favor of the plaintiff and he is also entitled to the benefit of all favorable inferences which may be reasonably drawn from such evidence. Cronn v. Fisher, 245 Or. 407, 416, 422 P.2d 276 (1966).

Plaintiff drove his camper pickup truck to defendants' service station near Ashland to buy gasoline and to have a tire changed. He testified that he asked the attendant, Mr. Thompkins, if they had a jack strong enough to lift the truck and was told that they did. ¹ According to plaintiff, the attendant then jacked up the rear of the truck with a hydraulic bumper jack (not a hydraulic lift) and tried to get the spare tire out, but did not understand how to do so. After asking plaintiff if he knew how, the attendant got 'out from under' the truck and 'handed me the screwdriver,' after which plaintiff got under the truck and took the spare wheel out while the attendant was taking a rear wheel off. ²

Plaintiff testified that the attendant then 'rolled it around to me' and 'took the spare and he put it on.' Plaintiff placed the rear wheel 'in the mantle' under the back of the truck, but had not 'tightened it up completely' when he 'felt the pickup coming down.' He was pinned under the truck until the attendant, after first attempting to lift the rear of the truck with the help of some other men, then lifted it without difficulty using the jack, which was still under the rear bumper of the truck and which did not 'have to be reset,' according to the testimony of Mr. Thompkins. ³

One of the men who attempted to help the attendant lift the truck testified that he had been working nearby and that just before the truck fell he saw the attendant, Mr. Thompkins, go to the jack, where he stood 'with his hand on the handle' of the jack 'when it fell.' ⁴

The Ashland Chief of Police and a police sergeant also came to the scene of the accident. They both testified that when they arrived the jack was partly raised holding the truck. They interviewed Mr. Thompkins and he 'indicated the jack just slipped' or 'failed' and that 'it had slipped' or 'failed' on 'several previous occasions.' Plaintiff's wife also testified that after the accident Mr. Thompkins told her substantially the same thing. ⁵

[3,4] We hold that this evidence was sufficient to support the verdict because the jury could reasonably infer from this testimony that either defendants' attendant, whose hand was seen by a witness to be on the 'handle' of the jack when it fell, caused it to be 'released' or to 'fall' or that the jack 'slipped' or 'failed,' as it had also done on previous occasions, and that in either event defendants were negligent and that such negligence was the proximate cause of the accident.

Defendants say that there was no direct evidence that defendants' attendant 'released' the jack or that it malfunctioned. It is well established, however, that negligence may be established not only by direct evidence, but also by circumstantial evidence. See Schweiger et ux v. Solbeck et ux, 191 Or. 454, 466, 230 P.2d 195 (1951), and Ehler et ux v. Portland Gas & Coke Co., 223 Or. 28, 38, 352 P.2d 1102, 353 P.2d 864 (1960). We hold that there was sufficient circumstantial evidence to support such a finding by the jury in this case. Cf. Eitel v. Times, Inc., 221 Or. 585, 596--601, 352 P.2d 485 (1960), and Cowgill, Adm'r v. Boock, Adm'r, 189 Or. 282, 291, 218 P.2d 445 (1950).

Defendants also say that this is not a proper case for application of the rule of res ipsa loquitur because of plaintiff's contributory negligence, among other reasons. ⁶ No res ipsa instruction was given to the jury in this case, however, and the evidence, in our judgment, was sufficient to support a finding of negligence without resort to that rule.

2. The trial court did not err in denying defendants' motion to require plaintiff to elect between inconsistent specifications of negligence.

Defendants contend that alternative pleading is improper, at least as a general rule, citing Kornbrodt v. Equitable Trust Co., 137 Or. 386, 2 P.2d 236, 3 P.2d 127 (1931), and Oregon Farm Bureau v. Thompson, 235 Or. 162, 378 P.2d 563, 384 P.2d 182 (1963), and that this case does not present the 'rare circumstances' in which alternative pleading is permitted, as in Turney v. Southern Pac. Co., 44 Or. 280, 75 P. 144, 76 P. 1080 (1904).

The established rule on alternative pleading is stated in Jones v. Howe-Thompson, Inc., 143 Or. 337, 342--43, 22 P.2d 502, 504 (1933), as follows:

'Our rule of pleading * * * requires the pleader in the drafting of his pleading to make 'a plain and concise statement of the facts.' It says nothing about alternative language. Language which is alternative in form may not be sufficiently plain if the pleader plainly knows the truth, or should know it. But it occasionally must occur that after an accident has happened which has inflicted an injury upon one who now desires to sue, that he knows that the prospective defendant committed one or the other of two acts, and was negligent in either event, but is unable to determine with sufficient certainty which one so as to justify him in abandoning the one as a premise for his action and swearing to the other. Under such circumstances, if disjunctive language will not unfairly inconvenience the defendant, the plaintiff may employ alternatives in his complaint. * * * And as code pleading is more and more ridding itself of the shackles of common-law pleading alternative language, where the pleader does not know the truth, is winning to itself new support. * * *'

To the same effect, see In re Lenske, 269 Or. 146, 523 P.2d 1262 (1974). The same rule is recognized in Oregon Farm Bureau v. Thompson, Supra, 235 Or. at 184, 378 P.2d 563, cited by defendants.

In this case, as in Jones, it seems fair to assume that plaintiff did not know whether his injury was caused by the 'release' of the jack by defendants' attendant or because it 'slipped' or 'failed.' ⁷ In addition, defendants have made no showing that they were 'unfairly inconvenienced' by plaintiff's alternative pleading. Indeed, the fact that defendants made no such motion prior to answer or prior to trial, but waited until after the testimony was completed and both parties had rested, would indicate to the contrary.

3. Any error or inconsistency in the 'special findings of fact' by the jury is not properly presented for decision on appeal and was waived by defendants' failure to object when that verdict was returned.

Defendants' third assignment of error is not clear. ⁸ Insofar as that assignment appears to complain of the denial of defendants' motion for new trial, even if deemed to be sufficient as a matter of form under Rule 6.18 of the Rules of Procedure of this court (which requires that assignments of error 'must be specific and must set out verbatim the pertinent portions of the record'), that assignment is nevertheless insufficient as a matter of substance in that the denial of a motion for a new trial is not ordinarily an appealable order. Unemployment Comp. Com. v. Bates, 227 Or. 357, 360--61, 362 P.2d 321 (1961).

Insofar as this assignment of error attempts to appeal from the rulings of the court which were the grounds for defendants' motion for new trial (which is not set forth in the abstract of appellants' brief), the assignment is also insufficient, both in form and in substance. ⁹

Again, the assignment is not 'specific' and does not 'set out verbatim the pertinent portions of the record,' as required by Rule 6.18. ¹⁰ In addition, it does not appear that proper or any objections or exceptions were taken at the time of trial, so as to provide proper grounds either for a motion for a new trial under ORS 17.610 or for an appeal to this court upon the denial of such a motion. See Padel v. Narits, 247 Or. 566, 430 P.2d 1002 (1967), and Transamerica Title Ins. v. Millar, 258 Or. 258, 263, 482 P.2d 163 (1971).

Similarly, insofar as an 'error at law' is alleged in the submission to the jury of the issue of proximate cause 'contrary to the verdict form requested by defendants,' that proposed form of verdict does not appear in the record, much less any specific objection at the time of trial to the failure of the court to submit that form of verdict to the jury. Indeed, defendants...