Pfleeger v. Swanson

• Citation: 229 Or. 254,1 A.L.R.3d 707,367 P.2d 406
• Parties: , 1 A.L.R.3d 707 Chester L. PFLEEGER, Appellant, v. D. E. SWANSON and Elizabeth Swanson, dba Swanson Truck Service, and Chester Leonard Peterson, Respondents.
• Decision Date: 13 December 1961
• Court: Supreme Court of Oregon

Page 406

367 P.2d 406

229 Or. 254, 1 A.L.R.3d 707

Chester L. PFLEEGER, Appellant, v. D. E. SWANSON and Elizabeth Swanson, dba Swanson Truck

Service, and Chester Leonard Peterson, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted Oct. 10, 1961.

Decided Dec. 13, 1961.

Ben T. Gray, Portland, argued the cause and filed a brief for appellant.

Wayne Hilliard, Portland, argued the cause for respondents. With him on the brief were Koerner, Young, McColloch & Dezendorf, Portland, and George L. Wagner, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.

McALLISTER, Chief Justice.

This is an action to recover damages for personal injuries sustained by plaintiff when his automobile collided with a truck operated by defendants. During the voir dire examination of the jurors the plaintiff moved for a voluntary nonsuit, which motion was denied. The trial continued and resulted in a verdict for the defendants, and from the judgment entered thereon plaintiff appeals.

The sole question presented is whether plaintiff, before the selection of the jury had been completed, was entitled to a voluntary nonsuit as a matter of right.

At common law plaintiff was entitled to a voluntary nonsuit as a matter of right until a verdict had been returned. For a resume of the historical development of the common law rule see Hutchings v. Royal Bakery, 60 Or. 48, 50, 118 P. 185; Bobillot v. Clackamas County, 181 Or. 30, 179 P.2d 545; 89 A.L.R. 13, 17. Under the statute ¹ in effect in Oregon until 1941 the plaitniff, in the absence of a counterclaim, was entitled to a voluntary nonsuit as a matter of right 'at any time before trial.' Hutchings v. Royal Bakery, supra, Chance v. Carter, 81 Or. 229, 232, 158 P. 947, 948; Vermont Loan etc. Co. et al. v. Bramel, 111 Or. 50, 55 224 P. 1085.

The phraseology of the statute and the definition of a trial contained in what is now ORS 17.025 ² resulted in litigation to determine (1) whether the word 'trial' as used in OCLA 6-201 meant the trial of an issue of fact or the trial of an issue of law, or both, and (2) whether the court could in its discretion grant plaintiff a voluntary nonsuit after the trial had commenced and plaintiff was no longer entitled to a nonsuit as a matter of right.

The first question was answered in State v. Pacific Live Stock Co., 93 Or. 196, 182 P. 828, in which this court held (with two judges dissenting) that the word 'trial' in the statute referred to the trial of an issue of fact. The second question was answered in Hutchings v. Royal Bakery, supra, which held that the court could in its discretion grant plaintiff a voluntary nonsuit even after the trial had commenced and plaintiff was no longer entitled to a nonsuit as a matter of right.

In an apparent effort to eliminate the ambiguity in the statute the legislature amended OCLA § 6-201 by chapter 313, Oregon Laws 1941. The amended statute now ORS 18.230 ³, preserved plaintiff's absolute right to a nonsuit until 'the trial of the facts has commenced' and authorized the court in its discretion to allow a voluntary nonsuit after the plaintiff's right thereto had expired. The 1941 amendment thus in effect codified the holdings in Hutchings v. Royal Bakery, supra, and State v. Pacific Live Stock Co., supra.

The case at bar presents the question of when 'the trial of the facts' has commenced. More precisely the question is whether 'the trial of the facts' includes the selection of the jury.

Defendants contend that the selection of the jury is a part of the trial and cite the following authorities which so hold: State v. Crocket, 90 Mo. 37, 1 S.W. 753 (1886); Caples v. State, 3 Okla.Cr. 72, 104 P. 493, 26 L.R.A., N.S., 1033 (1909); In re McIntyre, 78 N.D. 10, 47 N.W.2d 527 (1951); Wilhite v. Agbayani, 2 Ill.App.2d 29, 118 N.E.2d 440 (1954); Kadota v. City & County of S. F., 166 Cal.App.2d 194, 333 P.2d 75 (1958); 53 Am.Jur, Trial, 29 § 4. However, it does not follow that because the voir dire examination of the jurors is a part of the trial that such examination is also a part of the 'trial of the facts.'

The word 'trial' is used, both in legal parlance and in statutes, to mean different things. Examples of the use of the word with different meanings in our statutes are pointed out in State v. Pacific Live Stock Co., supra. 'Trial' is an inclusive word and is defined in ORS 17.025 to include both the trial of issues of law and of fact. ORS 17.030 provides for the trial of an issue of fact by jury. Of course, a jury, until it is impaneled and sworn, cannot commence to try an issue of fact. Although the voir dire examination is a part of the trial, it is not a part of the trial of the facts. In the examination of a juror the issue is his qualification to sit in the cause on trial. Putnam v. Pacific Monthly Co., 68 Or. 36, 53, 130 P. 986, 136 P. 835, 45 L.R.A.,N.S., 338, L.R.A.1915F. Such examination is not the trial of the facts at issue between the parties.

In view of the history of ORS 18.230(1) we think the legislature intended the phrase 'trial of...