Fisher v. Carlin

CourtSupreme Court of Oregon
Citation219 Or. 159,346 P.2d 641
PartiesFlora L. FISHER, Respondent, v. Phil A. CARLIN, sometimes known as Phil Carlin, Sr., and Florence F. Carlin, his wife, Appellants.
Decision Date25 November 1959

Frank W. King, Portland, for appellants. With him on the brief was Arthur E. Prag, Portland.

Clayton R. Hess, Portland, for respondent. On the brief were Hess & Hess, Portland.

Before McALLISTER, C. J., and SLOAN, O'CONNELL and KING, JJ.

McALLISTER, Chief Justice.

The plaintiff, Flora L. Fisher, brought this action to recover both general and punitive damages from the defendants, Phil and Florence Carlin, husband and wife, for wrongfully trimming and cutting maple trees on plaintiff's property. The jury awarded plaintiff $250 compensatory damages and $2,750 punitive damages and from the judgment based on said verdict, defendants appeal.

Defendants' only assignment of error reads as follows: 'The court erred in submitting to the jury the issue of punitive damages.' This assignment of error does not conform to our rules in that it fails to inform us how the question was raised in the court below. If a motion was made in the trial court to withdraw the issue of punitive damages from the jury, the motion should be set out haec verba in the brief. If the question was raised by objecting to the instructions of the court, the pertinent instructions and the objections made thereto both should be set out haec verba in the brief. The failure to comply with our rules requires us to search the transcript to ascertain whether the question was raised in the trial court and if so, how.

Our search of the record in this case discloses that no objection was made in the trial court to the submission to the jury of the issue of punitive damages. Defendants did not move to withdraw the issue from the jury and when excepting to the instructions, did not advise the court that they objected to the submission of this issue to the jury.

It is axiomatic that this court will only review error properly excepted to in the trial court. State v. Kader, 201 Or. 300, 334, 270 P.2d 160. However, because of the substantial amount of the punitive damages awarded by the jury as compared with the general damages we have, in spite of the defendants' failure to raise the point in the trial court, carefully reviewed the record in this case.

Both plaintiff and defendants live on a hillside overlooking downtown Portland. Defendants' home is behind and above the home of plaintiff and the two properties are separated by S. W. Cardinell drive. A considerable number of vine maple trees grow in the rear of the Fisher lot and on the easterly 15 feet of Cardinell drive abutting plaintiff's property. If these trees are permitted their natural growth they obscure the Carlins' view of the city. During 1952 the Carlins and Fishers had the trees trimmed and shared the expense. In 1954 and 1955 the Carlins wanted to trim the trees again but the Fishers refused. In 1954 the Fishers feared that in spite of their protest the Carlins intended to again top and trim the trees. They consulted an attorney who wrote the Carlins warning them not to cut or trim the trees on the Fisher property. In the spring of 1956 Mr. Carlin called on Mrs. Fisher, whose husband had died a few months earlier, and again requested permission to cut the trees. Mrs. Fisher denied his request and told Mr. Carlin that...

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16 cases
  • Hall v. Work
    • United States
    • Oregon Supreme Court
    • August 10, 1960
    ...v. Wolfard Bros., Inc., 204 Or. 241, 261 P.2d 679, 262 P.2d 917, 282 P.2d 627, 54 A.L.R.2d 1355; Genova v. Johnson, supra; and Fisher v. Carlin, Or., 346 P.2d 641. In the present case plaintiff breached the contract by failing to maintain fire, theft, accident and collision insurance and di......
  • Cox v. Stolworthy
    • United States
    • Idaho Supreme Court
    • April 27, 1972
    ...92 Idaho 902, 453 P.2d 551 (1969); Lewiston Pistol Club, Inc., v. Imthurn, 94 Idaho 264, 486 P.2d 275 (1971). See also Fisher v. Carlin, 219 Or. 159, 346 P.2d 641 (1959). Under the facts before the district court, there was no error in submitting to the jury the instruction on punitive dama......
  • Harrell v. Travelers Indem. Co.
    • United States
    • Oregon Supreme Court
    • July 20, 1977
    ...purpose to pay the economic cost of an injury he imposes on another, such as cutting a neighbor's trees to gain a view, Fisher v. Carlin, 219 Or. 159, 346 P.2d 641 (1959). Even then, the deterrent effect on an enterprise may not in fact be much different whether the enterprise negotiates an......
  • Andor by Affatigato v. United Air Lines, Inc.
    • United States
    • Oregon Supreme Court
    • July 28, 1987
    ...Imports, Inc., 238 Or. 580, 395 P.2d 922 (1964) (punitive damages for fraudulent representation in sale of automobile); Fisher v. Carlin, 219 Or. 159, 346 P.2d 641 (1959) (punitive damages for cutting neighbors' trees to improve defendants' view).3 Perhaps the best-known example of such cul......
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