Nelson v. St. Helens Timber Co.

• Decision Date: 23 September 1913
• Citation: 135 P. 169,66 Or. 570
• Parties: NELSON v. ST. HELENS TIMBER CO.
• Court: Oregon Supreme Court

135 P. 169

66 Or. 570

NELSON v. ST. HELENS TIMBER CO.

Supreme Court of Oregon

September 23, 1913

On petition for rehearing. Petition denied.

For former opinion, see 133 P. 1167.

MOORE, J.

In a petition for a rehearing, attention is called to the fact that the transcript on appeal herein contains copies of the motion for a new trial and of the order denying that application. This part of the record was inadvertently overlooked when the former opinion was written and as no reference thereto was supposed to have been made except in the appellant's abstract of record, it was then thought the question was not properly presented for consideration, a conclusion now discovered to be erroneous.

The motion referred to challenges the judgment on the following grounds: (1) That plaintiff's counsel, over objection and exception, was permitted to interrogate the jurors relative to the liability of indemnity insurance; and (2) that the damages awarded are excessive, and resulted from the prejudice created by allowing such questions to be asked.

Neither the transcript on appeal, the bill of exceptions, nor the copy of the testimony brought up contains any reference to the questions propounded to the jurors on their voir dire examination. The purpose of an exception is to have incorporated in the record of the trial of a cause the action of the court, based either on its own motion or on the objection of a party, in determining some question material to the issues involved, the written evidence of which ruling without such exception, would not otherwise appear. No exception is necessary, if the decision is predicated upon a question of law, when the determination is entered in the journal, or made wholly upon matters in writing and on file in the court. L.O.L. § 172.

The preliminary qualification of a person as to his qualifications or bias when called to serve as a juror in the trial of a cause is usually conducted by orally asking questions, to which answers are given in the same manner. An objection to the proposed juror for cause and the ruling of the court thereon would not appear in the record without an exception, and the determination of the question could not be reviewed on appeal except by considering the questions and answers given on the subject in the court below. A party to an action cannot be permitted to speculate on the possibility of securing a favorable verdict, and, if disappointed in...