Fischer v. Howard
| Decision Date | 17 June 1954 |
| Citation | 271 P.2d 1059,201 Or. 426,49 A.L.R.2d 1301 |
| Parties | , 49 A.L.R.2d 1301 FISCHER v. HOWARD. |
| Court | Oregon Supreme Court |
William Schroeder, Vale, Roy Kilpatrick, Canyon City, for appellant. On the brief were Lytle, Kilpatrick & Schroeder, Vale.
Martin P. Gallagher, Ontario, for respondent. On the brief were Gallagher & Gallagher, Ontario.
This is an appeal by the defendant from an order of the circuit court which sustained a motion made by the plaintiff for a new trial. The action in which the challenged order was made was based upon two charges of assault and battery. The complaint (amended) averred that the defendant, on June 23, 1950, and again on July 29, 1950, assaulted and beat the plaintiff. For the purported assault of June 23 the plaintiff sought $100 special, $1,000 general, and $2,500 punitive damages. For that of July 29 he demanded $500 special, $7,500 general, and $5,000 punitive damages. The answer (amended), in addition to denying the assaults and the alleged injuries, pleaded self-defense.
Following is a copy of the verdict which the jury returned:
'We, the Jury duly empanelled in the above entitled cause find for the plaintiff on his first cause of action and fix his damages as follows:
Compensatory Damages .. $ None
Punitive Damages ...... $ None
and also find for the plaintiff on his second cause of action and fix his damages on the second cause of action as follows:
Compensatory Damages .. $ 1.00
Punitive Damages ...... $ 1.00
Special Damages ....... $35.00 "
The verdict bore the signatures of all twelve jurors. When the verdict was returned, counsel for both parties were present. Neither made any objection to the verdict nor asked that the jury be sent out again to express its verdict in a different form.
Based upon the verdict, the court entered a judgment which, after reciting the verdict, proceeded as follows:
'It is ordered and adjudged that the plaintiff, Robert Fischer, do have and recover of and from the said defendant, Max Howard, the sum of $37.00; * * *.'
Two days after the discharge of the jury and the filing of its verdict the plaintiff presented his motion for a new trial; it reads:
'(1) Misconduct of the jury in failing to award Plaintiff substantial general damages.
'(2) That after finding that the Plaintiff was entitled to special, compensatory and punitive damages, the verdict of the jury in fixing Plaintiff's compensatory damages at the sum of $1.00, was arbitrary, and capricious, against the uncontradicted evidence and contrary to the instructions of the Court.
'(3) That after finding that Plaintiff was entitled to special, compensatory and punitive damages, the jury arbitrarily and capriciously refused to allow Plaintiff any adequate compensation for pain, suffering, humiliation and loss of time, contrary to the uncontradicted evidence, and contrary to the instructions of the Court.
'(4) That action of the jury in allowing Plaintiff special damages of $35.00 for medical expenses, and refusing to allow adequate compensatory damages for pain, suffering, humiliation and loss of time for the injuries, which made the medical service necessary, is inconsistent, and the result of prejudice and caprice, and is contrary to the uncontradicted evidence and instructions of the Court.'
The plaintiff and the defendant lived upon adjacent tracts of land in Malheur County. Their two affrays, which they termed grapplings, stemmed from a dispute over water rights. They occurred upon, or near to, a road which separated the properties. Near at hand was an irrigating ditch--the source of their misunderstandings and personal animosities. In the course of the first grappling, the plaintiff suffered a twisted neck, so he swore, which necessitated the services of a chiropractic physician. He paid the latter $25 and lost several days from his employment. Before the second affray was over, the rolling struggle had taken the participants into the irrigation ditch. The cooling effect of the water quickly ended the matter. According to the plaintiff, he suffered a fractured rib in the second encounter and lost one month from his employment. He paid the physician who treated the fracture $35. The wages which he lost due to the injuries of the second encounter amounted to $300 or slightly more.
The two grapplings were substantially alike. In each instance, the defendant came upon the scene empty-handed, but the plaintiff possessed a shovel with which he was removing a dam from the irrigation ditch. In each instance, after some preliminary maneuvers had taken place, the defendant grabbed the shovel, threw it away and then the struggle ran its course. The parties were evenly matched; each was a lightweight.
The testimony, as transcribed, covers 325 pages. In addition, there are several exhibits. Much of the time of the trial was consumed in the efforts of each of the parties to prove that he, not the other, was entitled to the water in the ditch.
The plaintiff claims that the verdict upon the first cause of action is for him and follows that claim with an argument that, although the jury found for him, it failed to assess his damages. Reliance is had upon § 5-405, O.C.L.A., ORS 17.425, which says 'When a verdict is found for the plaintiff in an action for recovery of money, * * * they jury shall also assess the amount of recovery; * * *.'
Based upon that line of reasoning, it is claimed that the trial judge erred when he entered judgment upon the verdict which was returned upon the first cause of action.
The verdict upon the second cause of action is attacked by a different process of reasoning. Snyder v. Amermann, Jr., 194 Or. 675, 243 P.2d 1082, and Hall v. Cornett, 193 Or. 634, 240 P.2d 231, ruled that if a jury awards a plaintiff in a personal injury action the amount of his special damages, it must also award him general damages. It is claimed that the award in the second cause of action of $1.00 as compensatory damages is nominal only, and therefore inadequate in view of the fact that the jury sustained the plaintiff's claim for special damages.
In defense of the verdict and the resulting judgment, the defendant argues that the verdict was, in effect, for him and cites Snyder v. Portland Railway, Light & Power Co., 107 Or. 673, 215 P. 887. Proceeding with that proposition [that the verdict was virtually for him], he claims that the jury was under no duty to assess the plaintiff's damages. Further, he submits that the plaintiff waived his right to object to any informality or irregularity in the verdict when he permitted the trial judge of discharge the jury without making any objection whatever to the manner in which the jury had expressed itself. The defendant calls attention to the fact that before the jury was discharged the plaintiff was fully apprised of the form of the verdict and that he had no more information concerning the verdict when he moved for a new trial than when the jury was discharged.
It will be noticed that the action under review arose out of an episode--a physical encounter between two neighbors--that any juror could readily understand. The case called for the application of no principles of law concerning physical encounters that were alien to the man in the street. As a result of a request made by one of the parties, the painstaking trial judge reduced his instructions to typewritten form and sent them with the jurors to the jury room. In language that any juror could readily understand, the instructions stated that if the jury found for the plaintiff upon the first, second, or both causes of action, it was their duty to go on and assess his damages. They distinguished between compensatory, special and punitive damages. In language suitable for laymen, the instructions delineated the rules that govern the award of each of those classes of damages.
We have mentioned the fact that when the verdict was returned, counsel for both parties were present. The trial judge, after acquainting the parties with the verdict, inquired whether either wished to have the jury polled. Each replied in the negative.
Section 5-319, O.C.L.A., ORS 17.355 says:
'* * * If the verdict is informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.'
Neither of the parties asked, before the jury was discharged, that it be required to correct any part of the verdict or that it 'be again sent out.' After the trial judge's inquiry as to whether or not anyone wished the jury polled had been answered in the negative, and no objection had been made to the verdict, the latter was filed and the jury was discharged.
When the previous decisions of this court which were concerned with verdicts similar to the one returned upon the first cause of action are examined without reference to the records in those cases, some appear to be in discord with others. Presently we will review all of our precedents and in so doing we will consult the records in the office of our clerk concerning some of the cases where resort to the file will be helpful.
Experience shows that, notwithstanding the efforts of trial judges to see that the jurors, witnesses and all others conform to the governing rules, irregularities sometimes occur. If, in such instances, counsel for the losing party, upon observing a departure from the governing rule, may remain silent but, nevertheless, later gain a new trial upon the very irregularity of which he was fully informed when he chose silence, his adversary will be put to expense, the time of the courts which is needed to keep their dockets abreast of demand will be subjected to strain, and the loser will get two bites at the cherry.
The foregoing convinces us that the rule which should control situations of the kind now before us is important. Cases presenting irregularities and informalities in...
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...of recovery by designating no amount of recovery, the Council reversed this court's decision to the contrary in Fischer v. Howard, 201 Or. 426, 458, 271 P.2d 1059 (1954). See Fredric R. Merrill, Oregon Rules of Civil Procedure: 1984 Handbook 140 (1984) “The last sentence of 61 A(2) allows a......
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...Hall v. Cornett, 193 Or. 634, 240 P.2d 231 (1952); Snyder v. Amermann, Jr., 194 Or. 675, 243 P.2d 1082 (1932); Fischer v. Howard, 201 Or. 426, 271 P.2d 1059 (1954); Stein v. Handy, 212 Or. 225, 319 P.2d 935 (1957); Edmonds v. Erion 221 Or. 104, 350 P.2d 700 (1960); Mullins v. Rowe, 222 Or. ......
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