Karoblis v. Liebert

• Decision Date: 02 August 1973
• Citation: 512 P.2d 994,266 Or. 267
• Parties: Kim R. KAROBLIS, by her guardian ad litem, Eva Karoblis, Appellant, v. Elmer R. LIEBERT et al., Respondents.
• Court: Oregon Supreme Court

Page 994

512 P.2d 994

266 Or. 267

Kim R. KAROBLIS, by her guardian ad litem, Eva Karoblis, Appellant, v. Elmer R. LIEBERT et al., Respondents.

Supreme Court of Oregon.

Argued and Submitted July 11, 1973.

Decided Aug. 2, 1973.

Fred A. Granata, Portland, argued the cause for appellant. With him on the brief was Phil H. Ringle, Jr., of Ringle & Herndon, Gladstone.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe, and James F. Spiekerman, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, ^* JJ.

McALLISTER, Justice.

This case is before us for the second time. It was tried to the court, without a jury, and at the close of plaintiff's case in chief the trial court allowed defendants' motion for judgment of involuntary nonsuit. The plaintiff appealed from that judgment and we reversed, holding that plaintiff's evidence had been sufficient to permit a finding that defendants were liable. Karoblis v. Liebert, 263 Or. 64, ---, 501 P.2d 315, 318 (1972). We said:

'Since plaintiff proved a prima facie case we must reverse the judgment of nonsuit and remand the case for further proceedings not inconsistent with this opinion. The trial court must require defendants to put on their evidence or rest their case and then, as the trier of fact, decide the issues. It is so ordered.'

On remand, defendants rested without presenting any evidence, and the trial court, in its capacity as trier of fact, found for defendants. Plaintiff again appeals, contending now that because we held, on the first appeal, that plaintiff had 'proved a prima facie case,' the trial court was required to find in plaintiff's favor when the defendants declined to present any evidence. Plaintiff relies on the following language from Millar v. Semler, 137 Or. 610, 613, 2 P.2d 233, 234, 3 P.2d 987 (1931):

'Prima facie evidence of a fact, says Mr. Justice Story, is such evidence as in judgment of law is sufficient to establish the fact, and, if not rebutted, remains sufficient for the purpose * * *.'

We did not hold, however, that a prima facie case, if unrebutted, required the trier of fact to find in plaintiff's favor.

It is quite clear from our prior opinion in this case that we used the phrase 'prima facie case' to mean simply a case sufficient to be submitted to the trier of fact. See Rehm v. United States, 183 F.Supp. 157, 159 (E.D.N.Y.1960); City of Cleveland v. Keah, 157 Ohio St. 331, 105 N.E.2d 402, 405 (1952); McCoy v. Courtney, 25 Wash.2d 956, 172 P.2d 596, 600 (1946). As the trier of fact, the trial court, after de...