Shields v. Campbell

• Court: Supreme Court of Oregon
• Writing for the Court: Before DENECKE; LENT
• Citation: 277 Or. 71,559 P.2d 1275
• Parties: Marjorie Ann SHIELDS, Appellant, v. Howard H. CAMPBELL, Respondent.
• Decision Date: 27 January 1977

Page 1275

559 P.2d 1275 277 Or. 71 Marjorie Ann SHIELDS, Appellant,
v.
Howard H. CAMPBELL, Respondent. Supreme Court of Oregon, In Banc. Argued and Submitted Jan. 5, 1977.
Decided Jan. 27, 1977.

[277 Or. 72]

Page 1277

John Bassett, Milwaukie, argued the cause and filed briefs for appellant.

Ridgway K. Foley, Jr., Portland, argued the cause for respondent. With him on the brief were James F. Spiekerman and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Before DENECKE, C.J., and HOLMAN, HOWELL, LENT, LINDE, MENGLER and BRADSHAW, JJ.

[277 Or. 73] LENT, Justice.

This is an action for damages allegedly sustained by plaintiff as a result of negligence of the defendant, who was her attorney in earlier litigation. Plaintiff appeals from the judgment for costs and disbursements against her following a verdict for defendant.

Plaintiff and her son, Ricky, had opened a joint savings account in a branch of the United States National Bank of Oregon. Several years later, after Ricky died intestate, his widow, Lola, as personal representative of the estate, filed a declaratory judgment proceeding to determine the ownership of the balance remaining in the savings account. The bank and this plaintiff were the named defendants, but the controversy was between Ricky's personal representative and this plaintiff. Defendant was retained by this plaintiff to represent her in the litigation. The trial judge, without a jury, declared Ricky's estate to be the owner of the bank account. This plaintiff's appeal resulted in the decision of this court in Shields v. U.S. Nat'l Bank/Shields, 266 Or. 562, 514 P.2d 348 (1973), in which the judgment was affirmed.

Plaintiff filed this action against defendant, alleging that he was negligent in his representation of her in the earlier case in failing to introduce in evidence two written instruments: the original agreement and signature card signed by Ricky and plaintiff at the time the account was opened and an inheritance tax report filed by Lola as personal representative in the probate of the estate.

The signature card by its terms provided that deposits credited to the account would be payable by the bank upon order of the survivor of Ricky and plaintiff and that such deposits upon the death of one would belong to the survivor. The tax report designates plaintiff as the survivor of the savings account 'carried jointly' with Ricky.

At the outset, we are confronted with plaintiff's [277 Or. 74] disregard of the requirements of Rule 6.18 of the Rules of Procedure of this court. ¹ Plaintiff failed to specify those portions of the record which show the error of which she complains. Rule 6.18 is designed to assist this court in performing its function and in coping with its ever-increasing workload. We should be completely justified in refusing to consider any claimed error in this case for failure to abide by the rule. Since, however, the alleged errors are asserted to be in receiving certain evidence, plaintiff faced an impossible task in complying with Rule 6.18, for the simple reason that the evidence was received without objection and without any motion to strike after it was received.

Page 1278

Plaintiff assigns as error the 'allowing into evidence and into jury room deliberations' a copy of the opinion of this court in Shields, supra. This exhibit was marked for identification and was offered in evidence by plaintiff. Before receiving the exhibit, the court specifically advised counsel that if the exhibit were received in evidence it would be subject to perusal by the jury. ² Following this warning, plaintiff's counsel again offered the exhibit, and it was received without objection. Thereafter, plaintiff used [277 Or. 75] the exhibit in her interrogation of witnesses and, in argument, stated in part as follows:

'But the second thing that you have to decide then is, assuming that this (the signature card and the tax report) would have been put into evidence, would there have been any difference in the final decision. And I would request that you carefully read through Exhibit No. 4. This is a photocopy of the Opinion of the Supreme Court. Now, I believe that the opinions of Mr. Pullen and Mr. Kennedy (defendant's experts), who testified here today as experts, that they have misread this case. And I would ask you to read it. And I think if you read it carefully, you will find, yourselves, that they have misread it.'

Plaintiff continued argument by reading from portions of the exhibit. We shall not allow plaintiff who presented this evidence to avoid it upon this appeal by arguing that the evidence was not admissible and therefore should not have been considered by the jury. See City of Salem v. Cannon, 235 Or. 463, 385 P.2d 740 (1963), where we said:

'* * * We know of no rule which permits a party to introduce evidence which, at the time of introduction, appears beneficial and then when it appears that the evidence was harmful to attempt, on appeal, to renounce his own evidence. * * *' (235 Or. at 464, 385 P.2d at 741)

By way of further assignment of error, plaintiff's brief states that:

'The Court erred in allowing expert or any testimony regarding the ultimate fact before the jury and also by allowing expert witnesses to testify to the jury on their interpretation of two Oregon Supreme Court decisions * * *'

Before proceeding to a discussion of the testimony of defendant's expert witnesses, we note that plaintiff called as a witness a practicing lawyer, who gave exactly the same kind of expert and opinion testimony which plaintiff...