Maulding v. Clackamas County

• Decision Date: 10 May 1977
• Citation: 278 Or. 359,563 P.2d 731
• Parties: Edwin M. MAULDING, Jr., Petitioner, v. CLACKAMAS COUNTY, a political subdivision of the State of Oregon, Respondent.
• Court: Oregon Supreme Court

Page 731

563 P.2d 731

278 Or. 359

Edwin M. MAULDING, Jr., Petitioner, v. CLACKAMAS COUNTY, a political subdivision of the State of Oregon, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 5, 1977.

Decided May 10, 1977.

Raymond R. Bagley, Jr., Jack, Goodwin & Urbigkeit, Oregon City, argued the cause and filed briefs for petitioner.

Edward H. Warren, Portland, argued the cause for respondent. With him on the briefs were Donald E. Hershiser, and Hershiser, Mitchell & Warren, Portland.

HOWELL, Justice.

Plaintiff was injured when he fell while unloading refuse at defendant's garbage disposal facility. A jury returned a verdict for defendant, but the trial court granted plaintiff's motion for a new trial. The Court of Appeals reversed the trial court, 27 Or.App. 571, 557 P.2d 41 (1977), and plaintiff appeals.

At the trial plaintiff requested and the court gave the Oregon State Bar Uniform Instruction on Comparative Negligence. The instruction stated that the plaintiff could recover only if the defendant's negligence was greater than plaintiff's negligence. Later, the jury returned to ask what they should do if they found the parties equally negligent. The court instructed that in such case plaintiff could not recover. Plaintiff did not except to this additional instruction. However, both instructions were wrong because, unbeknown to the parties and the court, the legislature had changed the law to provide that when the parties are found to be equally negligent, the plaintiff may recover one-half of his damages. Oregon Laws 1975, ch. 599, § 1. The change had become effective on September 13, 1975, approximately two weeks before the trial. The jury returned a verdict for defendant on October 2, 1975. Some time thereafter, the new statute came to the attention of plaintiff's attorney, and, on October 16, 1975, he moved for a new trial on the grounds that the instruction was erroneous because of the recent change in the law. ¹ Judgment on the verdict for defendant was filed on October 22, 1975. The order granting the new trial was not entered until November 24, more than 30 days after the filing of the judgment.

On defendant's appeal, the Court of Appeals reversed the order granting the new trial on the grounds plaintiff invited the error by requesting the erroneous instruction. We granted pliantiff's petition for review.

We have two statutes which relate to the granting of a new trial by the trial court. ORS 17.610 relating to new trials on motion of a party states:

'A former judgment may be set aside and a new trial granted On the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:

'* * *.

'(7) Error in law occurring at the trial, And expected to by the party making the application.' (Emphasis added)

Pursuant to ORS 17.630, a new trial may be granted on the court's own motion as well:

'If a new trial is granted by the court on its own motion, the order shall so state and shall be made within 30 days after the filing of the judgment. Such order shall contain a statement setting forth fully the grounds upon which the order was made, which statement shall be a part of the record in the case. In event an appeal is taken from such an order, the order shall be affirmed only on grounds set forth in the order or because of reversible error affirmatively appearing in the record.' (Emphasis added)

It is clear from these two statutes that if the new trial is allowed on motion of the aggrieved party it must be based upon an error of law which was properly excepted to at the trial. If the order is granted on the trial court's own motion, it is not restricted to error properly excepted to, but it must be made within 30 days of the filing of the judgment. See, e.g., Fleet v. May Dept. Stores, Inc., 262 Or. 592, 500 P.2d 1054 (1972). ²

Recently, in Beglau v. Albertus, 272 Or. 170, 536 P.2d 1251 (1975), we examined the history of orders granting new trials. In that case, like this one, the trial court had granted a motion for a new trial even though the error had not been excepted to or otherwise raised at the time of trial. In discussing previous cases, we pointed out that prior to 1933 the trial court, when exercising its common law powers and granting a new trial on its own motion for prejudicial error not excepted to, did not have to act within 30 days. However, in 1933 the legislature enacted the predecessor to ORS 17.630, which required the trial court to enter any such orders made on its own motion within 30 days after the filing of the judgment. ³

Subsequent to 1933, this court decided numerous cases dealing with new trials. Some failed to mention either of the statutes restricting new trial orders; they merely stated that the trial court could grant a new trial as a matter of course even though no exception had been taken. Finally, in Correia v. Bennett and Johnson et ux., 199 Or. 374, 261 P.2d 851 (1953), where the motion was made by the aggrieved party and the error had not been excepted to, the court declared that:

'* * * The mere fact that no exception was saved at the time of trial did not bar defendant from thus claiming error on account thereof in his motion for a new trial * * *.

'* * *.

'* * * Where such error occurs on a trial, whether excepted to or not, it may form the ground of a motion for a new trial, and such motion, based thereon, may properly be allowed. Or, for such error appearing of record, the trial court may at any time within 30 days after the entry of judgment award a new trial on its own motion.' 199 Or. at 381--82, 261 P.2d at 855.

This statement is clearly incorrect insofar as it applies to motions made by aggrieved parties, for it is directly contrary to ORS 17.610(7), which requires that an exception have been taken. The statement is, however, a correct interpretation of ORS 17.630, which applies to orders made on the court's own motion.

Unfortunately, the error arising from combining the two statutes and ignoring the specific statutory restriction in ORS 17.610(7) in the Correia case has been perpetuated in several subsequent decisions of this court, although usually only in dicta. See, e.g., Young v. Crown Zellerbach, 244 Or. 251, 417 P.2d 394 (1966); Lundquist v. Irvine, 243 Or. 274, 413 P.2d 416 (1966); Lee v. Caldwell, 229 Or. 174, 366 P.2d 913 (1961); Hillman v. North. Wasco Co. P.U.D., 213 Or. 264, 323 P.2d 664 (1958); and Hays v. Herman, 213 Or. 140, 322 P.2d 119, 69 A.L.R.2d 947 (1958). ⁴ Ultimately, in Beglau v. Albertus, supra, we reviewed our previous cases in this area and divided them into three categories:

'(1) Cases in which such orders have allowed motions for new trials based upon grounds specified in ORS 17.610, including 'error in law occurring at the trial, and excepted to by the party making the application'; (2) Cases in which trial courts have granted new trials upon their 'own motion'; and (3) Cases in which new trials were granted because of substantial and prejudicial error to which no proper exception or objection was taken, but which was raised by motion for new trial * * *.' 272 Or. at 181--82, 536 P.2d at 1257. (Footnotes omitted.)

Thus, in Beglau we recognized that a third category, one not based on either statute, had evolved through Correia and other cases in which new trials had been granted regardless of whether the error had been excepted to, as required by ORS 17.610(7), or whether the new trial was granted on the motion of the trial court and entered within the 30-day statutory period, ORS 17.630. In that opinion we also recognized the contentions which were raised by Chief Justice O'Connell's dissent in that case which criticized Correia and its progeny for conflicting with the statutory requirements set forth in ORS 17.610 and 17.630, ⁵ but we declined to consider those arguments in Beglau because they had not been raised by the parties. 272 Or. at 185--86, 536 P.2d 1251. ⁶

However, in the instant case, unlike Beglau, the defendant has challenged our decision in Correia and the subsequent cases which...