Thomas v. Dad's Root Beer & Canada Dry Bottling Co. of Portland, Or.

• Decision Date: 07 December 1960
• Citation: 225 Or. 166,357 P.2d 418
• Parties: Gerald E. THOMAS, Appellant, v. DAD'S ROOT BEER & CANADA DRY BOTTLING CO. OF PORTLAND, OREGON, a corporation, Respondent.
• Court: Oregon Supreme Court

Page 418

357 P.2d 418

225 Or. 166

Gerald E. THOMAS, Appellant, v. DAD'S ROOT BEER & CANADA DRY BOTTLING CO. OF PORTLAND, OREGON, a corporation, Respondent.

Supreme Court of Oregon, Department 2.

Submitted Nov. 25, 1960.

Decided Dec. 7, 1960.

Hollister & Thomas, Portland, in support of the petition.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and HOWELL, JJ.

HOWELL, Justice pro tem.

In a petition for rehearing the defendant asserts that the original opinion incorrectly stated the facts when it was said, 'He [meaning the offending juror who conducted and reported the experiment] testified before the presiding judge of Multnomah county.' The defendant is correct. The juror did not appear before the presiding judge. His testimony was, however, taken at the Multnomah county courthouse before an official reporter. While the witness was nsot placed under oath, both counsel were present. The examination was conducted first by plaintiff's counsel, and then defendant's counsel cross-examined the witness. No objection was raised by counsel to the fact the witness was not sworn. This clearly constituted a waiver.

'* * * When a defect such as alleged here [failure to swear witness] is known at the time, the defect must be taken advantage of at once and the failure to do so is such acquiescence in the testimony as will preclude objection after the verdict.' State ex rel. Tucker v. Alvis, Ohio App., 89 N.E.2d 328.

'Both in civil and in criminal trials and in administrative hearings conducted without traditional court ritual, the right to object to the failure to have a witness properly sworn may be waived by failing to object in time * * *.' 98 C.J.S. Witnesses § 320, p. 22.

In addition to State v. Doud, 190 Or. 218, 225 P.2d 400, cited in our original opinion, see the following: Title Guarantee & Trust Co. v. Wilby, 78 Ohio App. 183, 69 N.E.2d 429; Martin v. Wolfson, 218 Minn. 557, 16 N.W.2d 884; State v. Hope, 100 Mo. 347, 13 S.W. 490, 8 L.R.A. 608; State v. Embrey, 62 N.M. 107, 305 P.2d 723; Wenham Transportation, Inc., v. Radio Const. Co., 190 Pa.Super. 504, 154 A.2d 301; 3 Wharton's Criminal Evidence 197, § 836.

We have considered the petition for rehearing in its entirety and except for the above correction, we adhere to the original opinion.

The petition for rehearing is denied.