Johnson v. Ladd

Decision Date18 July 1933
Citation24 P.2d 17,144 Or. 268
PartiesJOHNSON v. LADD. [*]
CourtOregon Supreme Court

In Banc.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Anna Johnson against Thornton Ladd for personal injuries. From a judgment for plaintiff in the sum of $15,000 defendant appeals.

Affirmed.

See also, 14 P.2d 280.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for appellant.

Arthur I. Moulton and William P. Lord, both of Portland (Lord &amp Moulton, of Portland, on the brief), for respondent.

B. A Green, of Portland, for Oregon State Federation of Labor, amicus curiæ.

KELLY Justice.

On April 8, 1927, plaintiff, being employed by defendant as a cook, and, in the absence of the nurse, being intrusted with the care of the three year old son of defendant, went for a ride in defendant's car taking the child with her. The car was driven by a Mr. Anderson, who was in the employ of defendant as a gardener. The machine ran against a telephone pole injuring plaintiff.

Plaintiff charged Anderson with negligence, imputable to defendant, in the operation of the automobile, in driving too fast, in failing to keep a proper lookout ahead, failing to notice a signal given by a motor truck which had signaled that it intended to turn to the left, and in attempting to pass said motor truck.

This is the second appeal herein. On the former appeal, this court held that plaintiff and the driver of the automobile were not fellow servants so as to relieve the master of the negligence of the driver. Johnson v. Ladd, 138 Or. 371, 5 P.2d 1062.

Seven purported errors are assigned.

. Mr. Joe Hammersly, a policeman, with nearly two years' experience as such officer, assigned to traffic work, who testified that he was familiar with the type of car in suit, namely, a Franklin of the year 1925, with two wheel brakes; that he had driven such cars; and that he was able to tell the distance within which such a car could be stopped when going at a speed of twenty-five miles an hour, was asked: "How far or what length would it take?"

To that question, objection was interposed thus: "Mr. Senn. I object to that as incompetent, irrelevant and immaterial."

This objection was overruled and defendant's first assignment of error is based upon that ruling. A review of the authorities convinces us that no error was thereby committed. Crandall v. Krause, 165 Ill. App.

15; Johnson v. Quinn, 130 Minn. 134, 153 N.W. 267; Withey v. Fowler Co., 164 Iowa, 377, 145 N.W. 923; Hughey v. Lennox, 142 Ark. 593, 219 S.W. 323; Berkovitz v. American River Gravel Co., 191 Cal. 195, 215 P. 675; Friedler v. Hekeler, 96 Conn. 29, 112 A. 651; Young v. Patrick, 323 Ill. 200, 153 N.E. 623; Tucker v. Carter (Mo. App.) 211 S.W. 138; Scholl v. Grayson, 147 Mo.App. 652, 127 S.W. 415; Blado v. Draper, 89 Neb. 787, 132 N.W. 410; Cheek v. Fox, 7 Tenn. Civ. App. 160; Miller v. Eversole, 184 Ill.App. 362; Meier v. Wagner, 27 Cal.App. 579, 150 P. 797; Foley v. Lord, 232 Mass. 368, 122 N.E. 393; Bishop v. Wight (C. C. A.) 221 F. 392, 395; Morris v. Montgomery, 229 Mich. 509, 201 N.W. 496.

Seasonably, a motion for nonsuit was interposed upon the ground that no negligence was shown on the part of defendant's driver, and that plaintiff and said driver were not fellow servants. Defendant's second assignment of error is based upon the court's action in overruling this motion.

The record discloses testimony tending to prove that a signal of intention to turn was given by the driver of the motor truck ahead by extending a wooden bar in the shape of a hand and arm two feet long; that defendant's car was in good mechanical condition; that before the impact, defendant's auto skidded fifty or sixty feet. In this state of the record, the question of whether defendant's driver was negligent in whole or in part as charged was properly submitted to the jury.

The question whether plaintiff and said driver were fellow servants was decided upon the former appeal and that decision became and is the law of the case. Adskim v. O.-W. R. & N. Co., 134 Or. 574, 294 P. 605; Hansen v. Bedell Co., 132 Or. 332, 285 P. 823; Douglas v. Rumelin, 130 Or. 375, 280 P. 329; Farmers' Bank of Weston v. Ellis et al., 126 Or. 602, 268 P. 1009; Levine v. Levine, 121 Or. 44, 252 P. 972; Booth-Kelly Lumber Co. v. Oregon, etc., R. R. Co., 117 Or. 438, 243 P. 773; Hostetler v. Eccles, 112 Or. 572, 230 P. 549; Reed v. Hollister, 106 Or. 407, 212 P. 367; William Hanley Co. v. Combs, 60 Or. 609, 119 P. 333; Stager v. Troy Laundry Co., 41 Or. 141, 68 P. 405; British Ins. Co. v. Lambert, 32 Or. 496, 52 P. 180; Portland Trust Co. v. Coulter, 23 Or. 131, 31 P. 280, 282; Kane v. Rippey, 22 Or. 299, 29 P. 1005; Murphy v. City of Albina, 22 Or. 106, 29 P. 353, 29 Am. St. Rep. 578; Applegate v. Dowell, 17 Or. 299, 20 P. 429; Thompson v. Hawley, 16 Or. 251, 19 P. 84; Powell v. Dayton, etc., R. R. Co., 14 Or. 22, 12 P. 83.

Assignments three, four, and five are based upon alleged error in giving certain instructions. No exception was saved to the giving of any instructions and hence the questions sought to be presented are not regularly before us. Moreover, the supplemental bill of exceptions discloses that the instructions as actually given by the learned trial judge are not erroneous.

Assignment six urges that error was committed by the court's refusal to give a requested instruction to the effect that no recovery could be had for permanent injury. In her complaint, plaintiff alleged that "plaintiff's health and bodily vigor have been permanently injured."

Dr. L. K. Poyntz, a medical expert, specializing in diagnosis, in answer to a question, based upon plaintiff's symptoms, as reflected in the record, as to whether plaintiff's condition is permanent or not, testified, "I think it is permanent." Taking the view, which is most favorable to plaintiff, a deduction could be drawn from that answer and other testimony of this witness that the permanency mentioned applied to the disability resulting from the accident in suit and not from plaintiff's other maladies. The request to instruct to the contrary was properly refused.

The seventh assignment of error is based upon the contention that excessive damages were awarded.

The evidence discloses that plaintiff was confined to the hospital for two weeks at one time and again for a month and eight days; that she remained at the home of her sister for three weeks; that she lost her wages for four months; that except for these intervals, she has been able to perform her customary, work; that her earning capacity is $90 per month and board and room. The case is not free from difficulty where, on the one hand we seek to distinguish between the result of the accident in suit, and, on the other, plaintiff's disability because of her chronic catarrh, the effect of thyroidectomy, prior impaired vision, appendectomy, and a former aural abscess, for which no claim could be or is made that defendant is liable. Taking the view most favorable to plaintiff, we find that she suffered contusions on her face, chest, and left forearm and a concussion of the brain resulting in headaches, nervousness, and occasional lapses of memory; that the vision of the right eye and the hearing of the left ear are impaired; and that she suffers bodily pains thereby rendering her usual work more difficult of accomplishment. No skull or other fracture is shown. At the time of the accident, plaintiff was forty-five years of age. The attending physician's fee was $160.50, and the hospital fees were $254.

Mr. Justice BELT, Mr. Justice ROSSMAN, and the writer are of the opinion that the evidence does not support a judgment in the entire amount of $15,000, and that we have power to reduce it; but three members of the court hold that the action of the jury in assessing the damages is conclusive, and that under the provisions of section 3 of article 7 of the state Constitution this court is without authority to change the judgment. In the written opinion of Mr. Justice BAILEY, rendered contemporaneously herewith, the view of those members of the court on that point is stated.

Upon that phase of the case, the view of the writer is that by the terms of the Constitution, error warranting reversal is not made a condition precedent to the exercise of the right by the Supreme Court to direct the entry of such judgment as should have been entered in the court below.

This court is on record as having determined a definite specific amount in another case similar to the one at bar, beyond which there was no evidence to support a judgment, and in which case the amount of the judgment entered in the court below was reduced. Martin v. Oregon Stages, Inc., 129 Or. 435, 277 P. 291. The only distinction between that case and the instant case is that in the former, error, other than as to the amount of the award, appeared, while in the case at bar, the record does not disclose any error except that the amount of damages assessed is too large.

To the writer, it is inconceivable that error in the alleged indiscreet conduct of one juror affords any basis whatever for determining whether or not the award of damages is excessive. If this court is able to determine the point beyond which there is no evidence to support a given judgment in a case where such error appears, it certainly is not any less able so to determine in a case where no such error occurs.

If it be said that where no such error appears, the jury must be deemed to have tried the fact, and that a re-examination thereof is constitutionally inhibited, the answer at once is obvious that in cases where the court can affirmatively say there is no evidence to support the verdict, such constitutional inhibition does not apply.

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4 cases
  • Fry v. Ashley
    • United States
    • Supreme Court of Oregon
    • July 12, 1961
    ...of exceptions was controlling as against the transcript of testimony of the official reporter. Johnson v. Ladd, 144 Or. 268, 14 P.2d 280, 24 P.2d 17, and cases there cited. See, also, Frangos v. Edmunds, 179 Or. 577, 602, 173 P.2d 596; Karberg v. Leahy, 144 Or. 687, 690, 26 P.2d 56; Latoure......
  • Jackson v. United Rys. Co.
    • United States
    • Supreme Court of Oregon
    • January 16, 1934
    ...to a jury, we have no authority to "arrogate to ourselves power we do not possess" to deprive the plaintiff of a trial by jury. Johnson v. Ladd (Or.) 24 P.2d 17; Slocum v. York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann. Cas. 1914D, 1029; Pederson v. Delaware, etc., R. Co.......
  • Shelton v. Lowell
    • United States
    • Supreme Court of Oregon
    • November 6, 1952
    ...Corp., 75 Or. 588, 144 P. 574, 147 P. 756. See also the opinion of Mr. Justice Bailey in Johnson v. Ladd, 144 Or. 268, 280, 14 P.2d 280, 24 P.2d 17. From the record we are of the opinion that defendants were guilty of negligence in leaving their stalled truck and trailer on the highway for ......
  • Tuttle v. Beem
    • United States
    • Supreme Court of Oregon
    • July 18, 1933

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