Erb v. Shope

• Decision Date: 14 June 1932
• Citation: 140 Or. 253,12 P.2d 308
• Parties: ERB v. SHOPE et al.
• Court: Oregon Supreme Court

12 P.2d 308

140 Or. 253

ERB v. SHOPE et al.

Supreme Court of Oregon

June 14, 1932

On Rehearing August 1, 1932.

Department 1.

Appeal from Circuit Court, Jackson County; H. D. Norton, Judge.

Action by Charles Erb, Jr., against Herman Shope and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Randall S. Jones, of Portland (E. L. McDougal, of Portland, on the brief), for appellants.

G. M Roberts, of Medford (Wm. M. McAllister, of Medford, on the brief), for respondent.

RAND J.

Defendants appeal from a judgment on the verdict. The action was for the recovery of damages sustained by plaintiff in a collision between an automobile driven by him and a truck owned and being operated by defendants. The collision occurred on the Pacific highway about two miles north of Grants Pass.

At the close of the testimony, defendants requested the court to give certain instructions which were embodied in twelve distinct numbered paragraphs. These instructions were not asked separately and the ruling taken upon each, but they were asked as a whole, and, upon the court's refusal to give them in the form requested, only a single exception was taken. The exception taken was in the following words:

"The defendants, if Your Honor please, desire to except to the refusal of the court to give the requested instructions tendered to the court by the defendant in the form in which they were tendered, and also to except to the modification of such instructions as Your Honor gave which were substantially the instructions requested by the defendant."

As said by Mr. Justice Strahan in Salomon v. Cress, 22 Or 177, 29 P. 439,

"This state of the record brings the case clearly within Murray v. Murray, 6 Or. 17. In that case this court, per Shattuck, J., declared the rule relative to exceptions of this kind as follows: '(1) When any part of a charge given is sound, a general exception to the charge as a whole cannot be sustained; (2) to maintain an exception to a refusal to charge an entire series of propositions, each one of the propositions must be sound (3) an exception to such portions of a charge as are variant from the requests made by the party, not pointing out the variance, cannot be sustained.'

"These propositions are fully sustained by authorities, state the correct rule of practice, and cannot be departed from by the court."

The rules so stated and restated, when applicable, have not been departed from but have been affirmed and applied by this court in its more recent decisions, among which we cite Swift v. Mulkey, 17 Or. 532, 21 P. 871; Jensen v. Foss, 24 Or. 158, 33 P. 535; McAlister v. Long, 33 Or. 368, 54 P. 194; Hurst v. Hill, 96 Or. 311, 188 P. 973; Brosnan v Boggs, 101 Or. 472, 198 P. 890; Thomas v. Smith-Wagoner Co., 114 Or. 69 234 P. 814.

The first of the two clauses stating the exception taken does not relate to the refusal of the court to give the requested instructions, but only to the refusal of the court to give them in the form in which they were tendered. The language used in stating the exception implies that the instructions requested were given. In fact, the record shows that these instructions were actually given, but in the court's own language, and that the law was so accurately stated by the court that no objection or exception, other than that stated above, was made to any part thereof. This brings the case within the rule announced in McGilchrist v. Portland, E. & E. Ry. Co., 79 Or. 91, 98, 154 P. 419, 421, where the court said:

"*** When a court clearly announces a rule of law as a guide to the jury to enable them, from a consideration of the facts relating to a branch of the case, to determine an issue, it is unnecessary to give a requested instruction, though it may not contain the exact language of a part of the general charge."

The second clause of the exception wherein defendants "except to the modification of such instructions as Your Honor gave which were substantially the instructions requested by the defendant" comes within the rule that "an exception to such portions of a charge as are variant from the requests made by the party, not pointing out the variance, cannot be sustained." The...