Johnson v. Smith
| Decision Date | 08 March 1976 |
| Citation | 546 P.2d 1087,24 Or.App. 621 |
| Parties | Shirley Louise JOHNSON, Appellant Cross-Respondent, v. Stanley SMITH, Defendant, State of Oregon, Respondent Cross-Appellant. |
| Court | Oregon Court of Appeals |
Raymond J. Conboy, Portland, argued the cause for appellant cross-respondent. With him on the briefs were Brian L. Welch and Pozzi, Wilson & Atchison, Portland.
Hugh B. Collins, Medford, argued the cause for respondent cross-appellant. With him on the briefs were Collins, Ferris & Velure, Medford.
Before SCHWAB, C.J., and FOLEY and FORT, JJ.
This suit was instituted by plaintiff, Shirley Johnson, for injuries sustained when defendant Smith drove his automobile into the rear end of plaintiff's automobile after plaintiff had stopped her automobile at the flooded portion of a highway maintained by defendant state of Oregon. Plaintiff alleged that the collision was partially caused by the state's failure to properly maintain a culvert under the highway or to warn drivers of the flooded condition of the highway. The claim against defendant Smith was settled during the course of the trial and the case proceeded to verdict against the state in the sum of approximately $20,000. After trial, the court granted the state's motion for a judgment notwithstanding the verdict, from which judgment plaintiff appeals. The state cross-appeals from the trial court's refusal to grant its motion for a directed verdict at the close of trial. 1
The central issue on appeal arises from plaintiff's failure to produce evidence at trial in support of her allegation that proper notice of plaintiff's claim had been given to the state as required by provisions of the Oregon Tort Claims Act, ORS 30.260 et seq. 2 Although plaintiff pleaded compliance with the notice requirements of that Act, it was not until after the state moved for judgment n.o.v. that plaintiff attempted to prove, by affidavit, that proper notice had, in fact, been given. Plaintiff's contention on appeal is that the state's motion for judgment n.o.v. was improperly granted because the state did not make a record during the trial sufficient to bring the issue of plaintiff's failure to prove notice to the trial court's attention as required to obtain a judgment n.o.v. We agree and remand with instructions to enter judgment upon the verdict for plaintiff against the state.
The statutory basis for granting a party's motion for judgment notwithstanding the verdict is ORS 18.140 which, in pertinent part, provides:
'(1) When it appears from the pleadings that the court has not jurisdiction of the subject of the action or the person of the defendant, or that the facts stated in the pleadings of the plaintiff or defendant, as the case may be, do not constitute a cause of action or defense thereto, Or when a motion for a directed verdict which should have been granted has been refused and a verdict is rendered against the applicant, the court may, on motion, render a judgment notwithstanding the verdict, or set aside any judgment which may have been entered and render another judgment, as the case may require.' (Emphasis supplied.)
Here, the state moved for judgment n.o.v. on the ground that its motion for a directed verdict was improperly refused resulting in a verdict against it.
It is well established, however, that ORS 18.140(1) does not authorize the granting of the motion for judgment n.o.v. upon grounds not previously asserted in a manner which specifically brings the issue to the trial court's attention by a motion for a directed verdict. Sellers v. Looper, 264 Or. 13, 503 P.2d 692 (1972); Vancil v. Poulson, 236 Or. 314, 388 P.2d 444 (1964). If a party fails to specifically raise a particular issue, it will not be heard on appeal to assert a new ground for its motion for a directed verdict. Sellers v. Looper, supra; See also Smith v. J. C. Penney Co., 99 Or.Adv.Sh. 1479, 525 P.2d 1299 (1974); Paul v. McCudden, 256 Or. 143, 471 P.2d 437 (1970).
In the case at bar, the only portions of the state's motion for a directed verdict relevant to plaintiff's failure to prove notice are the following:
'* * * (T)here has not been evidence sufficient to prove a cause of action against the State of Oregon (enumeration of issues not including proof of notice) * * * (T)he State of Oregon does not, under the circumstances disclosed by the pleadings and evidence in this case, consent to be sued.'
The trial court responded to the state's motion in the following manner:
It is clear from the trial judge's response to the state's motion for a directed verdict and from the following statements from his memorandum opinion accompanying his order granting the state's motion for judgment n.o.v. that the state did not bring the issue of proof of notice to the court's attention.
'* * *
'* * * Defendant State did, during the course of the trial, move for a directed verdict as well as a nonsuit on the basis that there was a failure of proof; however, counsel for the State did not point out specifically where the proof failed. I am sure that this was calculated by defense counsel so he would not draw attention to plaintiff of his failure to prove the required notice.
'* * *.'
Since the state's ambiguous reference to the notice requirements of the Oregon Tort Claims Act did not apprise the trial court of plaintiff's...
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