Puffer v. American Central Ins. Co.

• Decision Date: 21 November 1906
• Citation: 87 P. 523,48 Or. 475
• Parties: PUFFER et al. v. AMERICAN CENTRAL INS. CO.
• Court: Oregon Supreme Court

87 P. 523

48 Or. 475

PUFFER et al. v. AMERICAN CENTRAL INS. CO.

Supreme Court of Oregon

November 21, 1906

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by W.C. Puffer and another against the American Central Insurance Company. From a judgment for plaintiffs, defendant appeals, Reversed and remanded.

Milton W. Smith, for appellant.

Harrison G. Platt, for respondents.

BEAN, C.J.

This is an action at law to recover money. After the issues had been made up, it was referred to a referee to "make and report findings of fact and conclusions of law," because the trial would involve the examination of a long account on both sides. The evidence was taken by the referee, but he failed or neglected to make and report any findings of fact or conclusions of law, and some three years after his appointment he was ordered by the court, on plaintiff's motion, without notice to the defendant, to return the record, including the testimony taken before him, which was done accordingly. The court thereupon, against the protest of the defendant, and over its objection and exception proceeded to a trial of the cause without the intervention of a jury. Findings and judgment were made and rendered in favor of the plaintiff, and defendant appeals.

A trial judge has no authority to act as a referee in a law action without the consent of parties ( Dinsmore v. Smith, 17 Wis. 20); nor to try such an action unless a jury is waived in the manner provided by statute ( American Mortgage Co. v. Hutchinson, 19 Or. 334, 24 P. 515; Wilkes v. Cornelius, 21 Or. 345, 23 P. 473). The Constitution guaranties to every suitor in a law action the right to a trial by jury, and he cannot be deprived of this right by the court on its own motion, or that of his adversary, unless the issues involve the examination of a long account. In the latter case an action may be referred to a referee, "to hear and decide the whole issue, or to report upon any specific question of fact involved therein" (B. & C. Comp. § 161); but in such case the conclusions of the referee are to be deemed and considered as a verdict of a jury ( Id. § 168). A litigant in a law action, therefore, is entitled, as a matter of right, to have the facts determined by a jury, or, if the cause is referable, the conclusions of a trior of facts, whose findings shall have the same force and effect. The court may set aside the findings of a referee, and order...