Shields v. Campbell

Citation277 Or. 71,559 P.2d 1275
PartiesMarjorie Ann SHIELDS, Appellant, v. Howard H. CAMPBELL, Respondent.
Decision Date27 January 1977
CourtSupreme Court of Oregon

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.

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 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.

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 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 complains defendant introduced through expert witnesses. Plaintiff's expert testified he had examined the signature card and the tax report. In answer to further questioning, he testified that a lawyer, in the exercise of reasonable care and skill, would have offered these documents in evidence during the original litigation. He was then asked to express an opinion 'based upon a reasonable legal probability' whether the result at the trial level or on appeal in the earlier case would have been different had those two documents been introduced. He unequivocally opined that the result would have been different.

The plaintiff also called as a witness the judge who tried the original case, who testified that he could not tell whether the introduction of the signature card would have made any difference to his decision.

On his case in chief, the defendant offered himself and two other lawyers practicing in Portland as witnesses. During the course of the testimony of each of these witnesses, they discussed what they believed to be the state of the law concerning ownership of joint bank accounts at the time of the trial of the earlier case. These discussions were based upon the witnesses' understanding of an earlier decision of this court in Greenwood v. Beeson, 253 Or. 318, 454 P.2d 633 (1969).

Defendant, without objection from plaintiff, discussed his understanding of the Greenwood case to attempt to persuade the jury that the state of the law prior to the Shields case, in his opinion, required a finding in the earlier trial that the plaintiff here was the owner of the moneys deposited in the savings account. It appears this was for the purpose of showing that his failure to introduce the two documents was merely a mistake in judgment based upon his understanding of the law and not a failure to exercise that degree of care required of him in the circumstances.

As his next witness, defendant called the attorney who had represented Lola in the earlier case both on trial and upon appeal. This witness discussed Greenwood but contradicted the defendant by stating that it was the witness's understanding that Greenwood did not mean that the survivor automatically takes the money upon the death of the other joint owner of a bank account. This discussion was again without objection from plaintiff. His opinion could not have been prejudicial to plaintiff, since his interpretation of Greenwood is the same which plaintiff urges upon us now.

As his third witness, defendant called another lawyer practicing in Portland, who did not mention the Greenwood case at all upon direct examination. His discussion of Greenwood took place only upon cross-examination by plaintiff. Plaintiff is in no position to complain about this witness's discussion of Greenwood. See City of Salem v. Cannon, supra.

That the party who complains of the receipt of evidence must make timely objection is not a new idea. In Fidelity Sec. Corp. v. Brugman, 137 Or. 38, 1 P.2d 131 (1931), where the appellant had made a timely objection which was overruled and sought to advance...

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