Dean v. Willamette Bridge Ry. Co.

• Decision Date: 29 March 1892
• Citation: 22 Or. 167,29 P. 440
• Parties: DEAN v. WILLAMETTE BRIDGE RY. CO. [*]
• Court: Oregon Supreme Court

29 P. 440

22 Or. 167

DEAN v. WILLAMETTE BRIDGE RY. CO. ^[*]

Supreme Court of Oregon

March 29, 1892

Appeal from circuit court, Multnomah county, E.D. SHATTUCK, Judge.

Action for personal injury by Thomas Dean against the Willamette Bridge Railway Company. Plaintiff had judgment on default of an answer, and from the assessment of damages by a jury defendant appeals. Reversed.

Dolph, Bellinger, Mallory & Simon, for appellant.

McGinn Sears & Simon, for respondent.

LORD J.

This is an action to recover damages for injuries which the plaintiff alleges he sustained, while a passenger on a car of the defendant company, as the result of its negligence. The facts show that the defendant suffered a default, and claimed under subdivision 2, § 249, Hill's Code, that the court should assess the damages. Upon demand by the plaintiff, the court ordered the clerk to call a jury to assess the damages. A jury was thereupon impaneled, who, after hearing the evidence, returned a verdict for the plaintiff. The defendant took no part in the proceeding further than making the necessary objections and saving exceptions to the action of the trial court. Upon the verdict thus given judgment was subsequently entered, and from this judgment the defendant has appealed. The error upon which the defendant relies to reverse the judgment is the refusal of the trial court to hear the testimony and assess the damages without the intervention of a jury, as provided by the second subdivision of section 249, as amended by the act of 1891, (Sess.Laws, p 173.) That subdivision is as follows: "In other actions including all actions sounding in damages or torts, as opposed to an action for debt, if no answer be filed with the clerk of the court within the time specified in the summons or such further time as may have been granted by the court or judge thereof, the clerk shall, upon a written motion of the plaintiff being filed, enter the default of the defendant, and thereafter the plaintiff may apply at the first or any subsequent term of court for the relief demanded in the complaint; and in all such cases, where judgment is rendered otherwise than on a verdict in favor of the plaintiff, the court, without the intervention of the jury, shall assess the damages which he shall recover. The court may hear the proof itself, or make an order of reference to hear and report the testimony. The defendant shall not be precluded, by reason of his default, from offering proof in mitigation of damages. In making such assessment of damages the court shall appoint a time therefor upon notice to the parties to the action. The party aggrieved by the assessment of damages shall have the right to appeal therefrom." The language of the statute is plain and unmistakable,--the court shall assess the damages "without the intervention of a jury." Nor is this controverted, for it is not claimed by counsel for the plaintiff that the action of the trial court can be sustained by any construction of the statute. His contention is that the statute is unconstitutional, in that it deprives the plaintiff of the right of trial by jury He says: "Notwithstanding the statute, the plaintiff, not having waived his right to trial by jury, was entitled under the constitution to have the damages assessed by a jury." In other words, his contention is that the assessment of damages by a jury after default is a trial by jury of a civil case in the sense of the constitution. The provision of the constitution of this state relating to trial by jury in civil cases is section 17 of article 1, Hill's Code, and is as follows: "In all civil cases the right of trial by jury shall remain inviolate." This provision of the constitution creates no new right to trial by jury. It simply secures to suitors the right to trial by jury in all cases where that right existed at the time the constitution was adopted. "This language of the constitution," said BOISE, J., "indicates that the right of trial by jury shall continue to all suitors in courts in all cases in which it was secured to them by the law and practice of the courts at the time of the adoption of the constitution." Tribou v. Strowbridge, 7 Or. 158. KELLY, C.J., said: "It was intended as a safeguard in the trial of those cases for which it is stipulated that the courts shall remain open, and wherein the parties to the suit shall have a trial by due course of law." Kendall v Post, 8 Or. 146. A like provision is found in the constitution of the state of Indiana. In Allen v Anderson, 57 Ind. 389, it was held that the provision of section 20, art. 1, of the constitution of that state, that "in all civil cases the right of trial by jury shall remain inviolate," was adopted in reference to the common-law right of trial by jury. "This provision of the constitution," said BIDDLE, C.J., "was adopted in reference to the common-law right of trial by jury, as the language plainly imports, namely, that the right 'shall remain inviolate,'--that is, continue as it was. The words 'in all civil actions' mean in all civil actions at the common law, as debt, covenant, assumpsit, trover, replevin, trespass, action on the case, etc."

The question, then, for our determination is whether subdivision 2 of section 249 is repugnant to the constitution, in that it impairs or destroys the right of trial by jury as it existed according to the course of common law. When it is understood what is meant by a trial by jury at common law, we will be prepared to understand whether the assessment of damages by a jury in actions of tort upon default is a matter of right, or merely of practice. In the English practice, where the defendant suffers a default in a tort, a writ of inquiry was generally directed to the sheriff, commanding him, "by the oaths of twelve honest and lawful men, to inquire into the damages, and return such inquisition into court." Before the writ was issued an interlocutory judgment was entered "that the plaintiff ought to recover his damages." In the execution of the writ the sheriff acts as judge, and tries, by a jury, the amount of damages the plaintiff has sustained. When their verdict is rendered,--which must be for some damages,--the sheriff returns the inquisition, and judgment is entered that the plaintiff recover the damages so assessed. Steph. Pl. 133 134; 3 Bl.Comm. 397, 398. In such case, as the defendant admitted by his default that the plaintiff had a cause of action as alleged, all that the plaintiff was required to prove or the defendant was allowed to dispute was the amount of damages. It thus appears at common law, where the defendant failed to answer, after having been duly summoned, a judgment by default was entered against him, which established the plaintiff's right to recover damages, and only left to the defendant the right to dispute the amount of such recovery, which was usually ascertained upon a writ of inquiry in the manner described. By some of the old authorities a writ of inquiry is considered a mere instrument to inform the conscience of the court. In Bruce v. Rawlins, 3 Wils. 62, WILMOT, C.J., said: "This is an inquest of office to inform the conscience of the court, who, if they please, may themselves assess the damages." In Beardnor v. Carrington, 2 Wils. 248, a like doctrine was announced by the same distinguished judge, where he said: "There is a difference between a principal verdict and a writ of inquiry of damages, the latter being only an inquest of office to inform the conscience of the court, and which they might have assessed themselves without any inquest at all." Hewit v. Mantell, 2 Wils. 372. In 7 Vin.Abr. 301, it is said that "on demurrer in law the justices may award damages for the party by their discretion, or award a writ to inquire of damages at their election." "Where judgment is by default, the court may give the damages, without putting the party to the trouble of a writ of inquiry." Id. 308. "The court may not only assess damages originally, but increase the damages previously assessed by the jury." Id. 270. In Finlayson's Reeves' History of English Law it is said: "After a writ of inquiry, the court might either increase or abridge both the damages and costs, as they pleased, because this was only an inquest of office to inform the court, who might have assessed the damages without an inquest." And in a note it is added: "There was this distinction between trial by jury and mere inquisition, or inquiry by a jury to assess damages: that, in the latter case, the inquisition was only to inform the mind of the court, and it was at their discretion whether they would award judgment for the amount found by the jury; whereas, upon trial, they had no jurisdiction to interfere as to the amount of damages in cases of tort, except as to costs." Volume 3, pp. 567, 568. According to these authorities, the distinction is plainly made between a trial by jury in an action for damages and the proceeding by writ of inquiry to ascertain the damages due from the defendant against whom an interlocutory judgment has been entered by default. In the former case the defendant has appeared and answered and put in issue the facts alleged in the declaration as the plaintiff's cause of action, and a trial upon all such issues of fact must be by a jury; while in the latter the only purpose of the writ in authorizing the jury to inquire into the damages is to inform the mind or conscience of the court. This being its object, unless the court choose to issue the writ for its own information, it necessarily follows that it is discretionary with the court whether it will issue the writ, or, when issued, whether it will award the amount of damages found by the jury, or assess the damages itself...