Davis v. Dumont

Citation627 P.2d 907,52 Or.App. 73
Decision Date14 July 1981
Docket NumberNo. A7905-02137,A7905-02137
PartiesRobert N. DAVIS, Appellant, v. Debi DUMONT & Chi Chau, Respondents. ; CA 18324.
CourtCourt of Appeals of Oregon

Raymond J. Conboy, Portland, argued the cause for appellant. With him on the brief were Elliott Lynn and Pozzi, Wilson, Atchison, Kahn & O'Leary, Portland.

Duane Vergeer, Portland, argued the cause for respondent Debi Dumont. On the brief were Thomas Sauberli, and Vergeer, Roehr & Sweek, Portland.

William A. Masters, Portland, argued the cause for respondent Chi Chau. With him on the brief were Charles T. Smith, and Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland.

Before RICHARDSON, P. J., and THORNTON and VAN HOOMISSEN, JJ.

VAN HOOMISSEN, Judge.

Plaintiff appeals entry of judgments in favor of both defendants in this action for damages arising out of an automobile accident on the Ross Island Bridge in Portland.

Defendant Chau struck an automobile while crossing the bridge and came to a stop in the inner westbound lane. Plaintiff, who was driving in the opposite direction, was forced to stop because Chau's vehicle was blocking his lane. Plaintiff got out of his car while Chau attempted to move his vehicle out of the way. As Chau was moving his vehicle, it was struck in the rear by defendant Dumont's car. The impact pushed Chau's vehicle forward, striking plaintiff, who sustained injuries to his right leg and thigh. Plaintiff sued both Chau and Dumont.

The case was tried to a jury. At the close of the trial, the trial court instructed the jury that any verdict they returned must have been agreed upon by at least nine jurors and that each question answered must have been agreed upon by the same nine jurors.

After some deliberation, the jury asked the court if it could return a verdict if the same nine jurors could not agree on the issue of each defendant's liability. After an off-the-record discussion with counsel, the court instructed the jury that if it found one defendant was not liable, it should consider the remaining questions as though that defendant were out of the case, and if it found neither defendant liable, it should return a verdict even if a different combination of nine jurors found the defendants not liable. Although plaintiff objected on other grounds, he did not object to the instruction that the same nine jurors did not have to agree about the absence of liability on the part of both defendants.

The jury returned a verdict in favor of both defendants. The vote was 10-2 in favor of Dumont and 9-3 in favor of Chau. When the jury was polled, it was shown that only eight jurors agreed with the verdict as to both defendants.

Plaintiff assigns as error the court's instruction and the receipt of the verdict. 1 Plaintiff argues that the verdict was invalid under the Oregon Constitution, Amended Article VII, § 5(7) and ORCP 59 G(2), which require that three-fourths of a jury must agree on a civil verdict. In support of his contention that the verdict was invalid, plaintiff relies on decisions relating to general verdicts and integrated special verdicts.

The Supreme Court has held that where there was a general verdict which required that the jury first determine two or more material issues, the same nine jurors must agree on each material issue. Clark v. Strain et al., 212 Or. 357, 319 P.2d 940 (1958).

In Munger v. S. I. A. C., 243 Or. 419, 414 P.2d 328 (1966), the Supreme Court held that where the jury was asked to decide special issues, the same nine jurors must agree on each special issue, and when only eight jurors agreed that appellant was permanently partially disabled and the extent of that disability was 70 percent, the verdict was invalid. The court said that where more than one question had to be answered to establish liability, there was no reason to distinguish between a general verdict and a special verdict, and nine jurors would have to agree on each question.

This case is unlike Clark and Munger. Here we have two defendants whose separate and independent conduct is alleged to have negligently caused injury to the plaintiff. The jury's decision in favor of one defendant would not be dependent on any decision it might make about the other defendant. If one defendant was found nonnegligent, he or she would be out of the case and the issue of the other defendant's liability and damages would then be submitted to the jury....

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4 cases
  • Cantua v. Creager
    • United States
    • Oregon Court of Appeals
    • 12 Julio 2000
    ...of post-trial motions. See, e.g., Burke v. American Network, Inc., 95 Or.App. 274, 276-77, 768 P.2d 924 (1989); Davis v. Dumont, 52 Or. App. 73, 76 n. 1, 627 P.2d 907, rev. den. 291 Or. 309, 634 P.2d 1346 (1981). We therefore do not address Defendant's due process objection about the puniti......
  • Congdon v. Berg
    • United States
    • Oregon Court of Appeals
    • 3 Abril 2013
    ...P.2d 279 (the same nine jurors do not need to agree on separate and independent questions involving separate claims); Davis v. Dumont, 52 Or.App. 73, 627 P.2d 907,rev. den.,291 Or. 309, 634 P.2d 1346 (1981) (same nine jurors need not agree on questions relating to separate defendants). Defe......
  • Hendrix v. Docusort, Inc., 69281
    • United States
    • Kansas Court of Appeals
    • 24 Septiembre 1993
    ...considered); Schabe v. Hampton Bays, 103 App.Div.2d 418, 421-27, 480 N.Y.S.2d 328 (1984) (any majority rule adopted); Davis v. Dumont, 52 Or.App. 73, 76-77, 627 P.2d 907 (qualified use of any majority rule; any 10 jurors may comprise majority so long as voting on interdependent questions is......
  • Davis v. Dumont
    • United States
    • Oregon Supreme Court
    • 14 Julio 1981
    ...1346 634 P.2d 1346 291 Or. 309 Davis v. Dumont Supreme Court of Oregon July 14, 1981 52 Or.App. 73, 627 P.2d 907 ...

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