Fiore v. Ladd

• Decision Date: 30 April 1894
• Citation: 36 P. 572,25 Or. 423
• Parties: FIORE v. LADD et al.
• Court: Oregon Supreme Court

36 P. 572

25 Or. 423

FIORE v. LADD et al.

Supreme Court of Oregon

April 30, 1894

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by Severio Fiore against W.S. Ladd and William M. Ladd on a certificate of deposit. From a judgment entered on a verdict for defendants, plaintiff appeals. Reversed.

U.S.G Marquam, for appellant.

C.E.S Wood, for respondents.

BEAN J.

This is the second appeal in this case. The facts are sufficiently detailed in 22 Or. 202, 29 P. 435, and need not be repeated here. On the second trial, in which the evidence was substantially the same as on the first, the court read from the former opinion, as its entire charge to the jury, the three proposed instructions numbered 1, 2, and 3, for the refusal to give which a new trial was ordered, and, although repeatedly requested by plaintiff's counsel, refused to instruct upon his theory of the case, or as to the law applicable to the facts which his evidence tended to prove. Judging from the reasons given for the refusal to so instruct the jury, and the colloquy with counsel in reference thereto, the court must have thought that our decision on the former appeal in effect declared that the instructions refused contained the whole law of the case and that those given on the former trial were erroneous. But no such question was presented or determined, nor does it seem to us any inference to that effect can be drawn from the language of the opinion, which begins the discussion of the question by saying that "these instructions were designed to state the law as applicable to the facts as contended for by defendant," and concludes that, because they were not given, either as submitted or in substance, the case should be reversed. In other words, there was a phase of the case not covered by the general charge, which, in the opinion of the court, entitled the defendant to the instructions asked. But it does not follow, nor did the court intimate, that there were not other features of the case upon which the jury should be instructed. Indeed, the statement of the case discloses that there was a direct conflict in the evidence as to who had possession of and deposited the money in bank, and the instructions under consideration were only applicable to the defendant's theory, and had no reference to plaintiff's contention. The law is well settled that it is the duty of a trial court to instruct the jury upon the...