Nordling v. Johnston

• Decision Date: 14 September 1955
• Citation: 205 Or. 315,287 P.2d 420
• Parties: , 48 A.L.R.2d 1369 Seth NORDLING, Respondent and Cross-Appellant, v. Arthur JOHNSTON, Appellant.
• Court: Oregon Supreme Court

Page 420

287 P.2d 420

205 Or. 315, 48 A.L.R.2d 1369

Seth NORDLING, Respondent and Cross-Appellant, v. Arthur JOHNSTON, Appellant.

Supreme Court of Oregon, Department 2.

Submitted June 6, 1955.

Decided Sept. 14, 1955.

Barzee, Leedy, Keane & Erwin, Portland, for the motion.

Bailey, Lezak & Swink, Portland, contra.

Before WARNER, C. J., and LUSK, BRAND and LATOURETTE, JJ.

LUSK, Justice.

Defendant contends in a petition for rehearing that our decision violates the guaranty of the right to a jury trial found in the first sentence of Article VII, § 3 of the State Constitution, which reads:

'In actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.'

It is asserted that, contrary to the finding of the jury, we determined that the contract of hiring was joint and not several. It is true that the trial judge instructed the jury that plaintiff could not recover unless separate agreements of employment with the plaintiff and each of his assignors had been proved. But this was an erroneous instruction, both under the complaint and the evidence. Defendant's counsel contended in the Circuit Court, and urged in argument here, that the proof showed a joint contract, and we agreed. They also argued that the complaint alleged a several contract, but there we were compelled to disagree on the authority of McGinnis v. Keen, 189 Or. 445, 221 P.2d 907. In these circumstances, to sustain the verdict is not to re-examine 'otherwise' a fact found by the jury, but is to arrive at the same ultimate conclusion as the jury, though by a somewhat different route. There is no violation of the right of trial by jury in that process, for, with respect to the issue whether the contract was joint or several only one conclusion was possible, and it can be affirmatively said that there was no evidence to support a finding that the contract was several.

It is also urged that we erred in not applying the rule which restricts the parties on appeal to the theory of the case in the trial court. This contention is based upon the fact that in the Circuit Court the plaintiff appears to have claimed that the contract alleged in the complaint was several, whereas in this court he conceded that it was joint. The rule invoked by the defendant was thus stated in Edwards v. Hoevet, 185 Or. 284, 297, 200 P.2d 955, 960, 6 A.L.R.2d 104:

'This court is a court of review. We can not sustain verdicts and findings upon conceptions of the facts which the disfavored party never had an opportunity of contesting. A familiar rule of appellate practice restricts the appellant to the theory he pursued in the trial court. He can not in this court raise issues that he did not present and rely upon in the circuit court'.

In Stotts v. Johnson and Marshall, 192 Or. 403, 420, 234 P.2d 1059, 1066, 235 P.2d 560, we said that this rule 'prevents the appellant and the respondent alike from reaching out upon appeal for views concerning the facts and the issues which are inconsistent with or different from those which the party took in the trial court. The rule recognizes that an appellate court is a court of review and thus the operation of the rule restricts the scope of review.'

The Edwards case furnishes an apt illustration of a proper application of the rule. The plaintiff sued on an account stated and the jury returned a verdict in his favor. The Circuit Court entered judgment for the defendant notwithstanding the verdict and the plaintiff appealed, and in this court sought to sustain the verdict on the theory, not of an account stated, but of a promise to pay the debt of another. In refusing to give heed to this contention we said, 185 Or. at page 298, 200 P.2d at page 961:

'Were we to depart from the theory upon which this cause was tried in the circuit court and reinstate the verdict, under a belief that the appellant was entitled to prevail as the party in whose favor the respondent made a promise, it may be that we would thereby deprive the respondent of defenses he would have interposed had the complaint been framed upon the embraced theory.'

There is, of course, no such situation in this case. Had the plaintiff claimed in the Circuit Court that the contract was joint instead of several the result, under a proper interpretation of the evidence and a correct view of the law, would have been no different. Were we to remand the cause for a new trial and should the evidence be the same as before, the judge...