Timmins v. Hale

• Decision Date: 31 May 1927
• Citation: 256 P. 770,122 Or. 24
• Parties: TIMMINS v. HALE. [a1]
• Court: Oregon Supreme Court

256 P. 770

122 Or. 24

TIMMINS v. HALE. ^[a1]

Supreme Court of Oregon

May 31, 1927

Appeal from Circuit Court, Multnomah County; Geo. W Stapleton, Judge.

Action by D.J. Timmins against J.R. Hale. From an order setting aside a judgment for plaintiff and granting defendant a new trial, plaintiff appeals. Reversed and remanded, with directions.

H.S McCutchan, of Portland, for appellant.

John M Pipes, of Portland (John M. Pipes and George A. Pipes, both of Portland, on the brief), for respondent.

RAND J.

This is an appeal from an order setting aside a judgment for plaintiff and granting a new trial to defendant. The action was for malicious prosecution, and plaintiff had verdict and judgment for $10,230; $5,000 as general damages, $5,000 as exemplary damages, and $230 as special damages. The order recites eight grounds upon which the action of the court was based, which we have numbered for our own convenience. These are:

"That, in consequence of inadvertence to which the attention of the court was not called, and to which no exception was taken, the defendant has not had his cause properly presented.

"(1) In this respect the court finds that it should have instructed the jury more specifically in regard to plaintiff's claim that the written lease in evidence was modified by an oral agreement, and should have told the jury that the plaintiff had the burden of proof to show such modification.

"(2) The court should also have instructed the jury concerning the evidence in relation to the value of the furniture described in the lease, and in this respect called their attention to the testimony on behalf of plaintiff to the effect that the furniture was of the value of about $500, and to plaintiff's written option to buy the said furniture for $3,500.

"(3) The court should have, by a proper instruction, limited the effect of the impeaching testimony of Mr. McCutchan and the unsigned statement of Mrs. Tuetschman which was in evidence. The effect of this testimony and this statement could only have been to impeach Mrs. Tuetschman, and should have been limited for that purpose.

"(4) The court should not have submitted to the jury to find whether the judgment of the committing magistrate had been overcome by fraud and perjury, for the reason that such fraud and perjury was not sufficiently pleaded.

"(5) The court also finds that the verdict and judgment should be set aside and a new trial granted on account of errors occurring at the trial which were excepted to by the defendant.

"In this respect the court should not have submitted to the jury to find whether or not there was probable cause for the arrest of the plaintiff.

"(6) The court also finds that the certificate of honorable discharge from the army was introduced over defendant's objection and exception, and the court is of the opinion that this should have been ruled out, and it was not relevant to prove the general reputation of plaintiff in this community.

"(7) The court finds that defendant was entitled to an instruction to the effect that the dismissal of the prosecution against plaintiff was in the control of the district attorney. An instruction on this point was requested, and an exception taken to the court's failure to give it.

"(8) The court also finds, from a consideration of the whole case, that the jury was influenced by passion and prejudice, which prevented a fair trial, and as a result of this passion and prejudice the damages were excessive."

Before discussing these matters, it is proper to consider the power of a trial court to set aside a judgment and grant a new trial in the light of the former decisions of this court and of the 1910 amendment to the state Constitution. The Constitution now provides that "no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict." Article 7, § 3c. This court said in Archambeau v. Edmunson, 87 Or. 476, 486 (171 P. 186, 189), that, before the adoption of this amendment, "*** the granting or denial of a motion for a new trial was a matter resting within the discretion of the trial court, whose action upon the application would not be disturbed upon appeal, except in case of a manifest abuse of what should have been an exercise of sound judgment. *** Since that amendment became operative it has been held that the granting of a new trial was not a matter of discretion; that an order for the rehearing of a cause could not be sanctioned except when the court had committed some error, which, if properly excepted to or seasonably called to the attention of the court and the motion denied, would have been sufficient cause for a reversal of the judgment if it had been brought up for review; and that under such circumstances the trial court upon motion or sua sponte possessed adequate power and was authorized within the prescribed time, to correct the error which it had committed by granting a new trial."

After stating the rule as above, the court then said:

"The rule thus established ought in our opinion to be enlarged so that, when by reason of some misapplication of the principles of law to which no exception has been taken, or in consequence of some inadvertence to which attention has not been called, if the court is satisfied that a party has not had his cause properly presented, justice which should be dispensed in all cases sanctions the setting aside of a judgment rendered upon a verdict and the granting of a new trial, when such action of the lower court does not violate article 7, section 3 of the Constitution of Oregon, respecting the quantum of evidence."

In Bottig v. Polsky, 101 Or. 530, 201 P. 188, the correctness of this latter rule was questioned, for the court said:

"If the question were res integra, it might be difficult to reach the conclusion adopted in Archambeau v. Edmunson," [256 P. 773] --but nevertheless the same rule was followed in that case because of the doctrine of stare decisis which binds a court to follow its previous decisions.

In Spokane County v. Pacific Bridge Co., 106 Or. 550, 213 P. 151, it was held that:

"The authority of a trial court to set aside a verdict and judgment and grant a new trial is not restricted to the cases indicated in the foregoing statement of plaintiff's contention, but extends to cases where, by reason of some misapplication of the principles of law, to which no exception has been taken, or in consequence of some inadvertence to which attention has not been called, the court is satisfied that a party has not had his cause properly presented."

The rule stated in the case last cited is restated and followed in American National Bank v. Kerley, 109 Or. 155, 194, 220 P. 116, 32 A.L.R. 262, and in Southern Oregon Co. v. Kight, 112 Or. 66, 228 P. 132, 832, and is now well settled, and, as said in American National Bank v. Kerley, an order granting a new trial "must be affirmed if during the trial any prejudicial error was committed of which the respondents can complain."

From these decisions it is now settled law in this state that a trial court is authorized to set aside a judgment and grant a new trial because of some error of law occurring upon the trial as to matters not called to the attention of the court during the trial and as to matters to which no exception was taken. But, before the court is authorized to act, the error must have been prejudicial, and it must have prevented the party in whose interest the power is invoked from having his case fairly presented and tried, and we think it must have been an error which, if the matter had been seasonably called to the attention of the court, and an adverse ruling made and an exception taken, would have been sufficient to justify the reversal of the judgment upon appeal; for, as has been said, "no man is entitled to more than one fair trial," and therefore insignificant errors or irregularities which are not prejudicial are not grounds upon which a trial court is authorized to exercise the power of setting aside a judgment on a verdict and granting a new trial. In respect to the necessity of there having been a ruling in the lower court and an exception taken which is requisite to a reversal upon appeal, there is a clear and well-recognized distinction between the power of the trial court on the one hand to set aside a judgment and grant a new trial and the power of the Supreme Court to reverse a judgment upon appeal, for it has been repeatedly held by this court that it is not error alone, but error legally excepted to, that constitutes grounds for reversal. Maddox v. McHattan, 111 Or. 324, 224 P. 833, 226 P. 427, and authorities there cited.

There are other grounds provided for by statute for the setting aside of a judgment and the granting of a new trial in the granting of which the trial court exercises a discretionary power. But as to the matters hereinbefore referred to, namely, the setting aside of a judgment and granting a new trial because of errors of law occurring upon the trial, the court, in granting the motion, or in setting aside the judgment upon his own motion, exercises no discretionary power, for in such case the court is controlled by positive rules of law. Having thus defined the powers of a trial court to set aside a judgment and grant a new trial for errors at law occurring upon the trial, we will now consider the grounds assigned by the court for its decision and state facts pertinent thereto.

The first ground assigned as the reason for granting a new trial is that the court should have instructed the jury that plaintiff had the burden of proving that the written lease had been modified by parol. There is no mention of the lease in the complaint. The...