Turner v. Cyrus

• Decision Date: 18 March 1919
• Citation: 91 Or. 462,179 P. 279
• Parties: TURNER v. CYRUS.
• Court: Oregon Supreme Court

179 P. 279

91 Or. 462

TURNER v. CYRUS.

Supreme Court of Oregon

March 18, 1919

Department 1.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by L. H. Turner against A. R. Cyrus. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

This is an action brought by L. H. Turner against A. R. Cyrus. The complaint alleges, in substance, that L. H. Turner & Co. authorized Cyrus to collect certain rents due to the former that Cyrus collected $150 "for and on account of the said L. H. Turner & Co."; that, although "L. H Turner & Co. demanded said $150 of" Cyrus, he refused to pay, "and the same is now due"; and that the account "was duly assigned to the plaintiff herein, and is now his property." The answer consisted of a general denial. Both parties consenting, the cause was tried to the court without the aid of a jury. After hearing the witnesses the court found "that the issues are with the plaintiff and that the allegations of his complaint filed in the above entitled action are true"; and based upon the quoted "findings of fact" the court drew the legal conclusion that the plaintiff was "entitled to the relief demanded" and adjudged that the plaintiff recover $150, with interest and costs and disbursements. The defendant appealed.

James W. Mott, of Astoria (Norblad & Hesse, of Astoria, on the brief), for appellant.

S. M Endicott, of Salem, for respondent.

HARRIS J.

The court made no findings of fact, except the "findings of fact" already quoted. The defendant contends that the "findings of fact" made by the court are not sufficient, within the rule applied in Drainage Dist. No. 4 v. Crow, 20 Or. 535, 26 P. 845. The plaintiff argues that, when properly construed, the opinion in Drainage Dist. No. 4 v. Crow, supra, does not announce that an omnibus finding that the allegations contained in a complaint are true or not true, as the case may be, is insufficient to sustain a judgment. The only question presented by this appeal is whether the judgment is legally sustained by the quoted "findings of fact." The question for decision cannot be adequately considered, unless we first examine our statutes, and then view them in the light of their history.

We read in section 152, L. O. L., that:

"The verdict of a jury is either general or special. A general verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court."

Section 157, L. O. L., prescribes how trial by a jury may be waived. Section 158, L. O. L., directs that, upon the trial of an issue of fact by the court, its decision shall be given in writing and--

"the decision shall state the facts found, and the conclusions of law separately, without argument or reason therefor. Such decision shall be40 entered in the journal, and judgment entered thereon accordingly. The court may deliver any argument or reason in support of such decision, either orally, or in writing, separate from the decision, and file the same with the clerk."

In passing, it may be noted that section 154, L. O. L., provides that the court may in all cases instruct the jury, "if they render a general verdict, to find upon particular questions of fact"; but this provision for findings "upon particular questions of fact" must not be confused with the provision for special verdicts found in section 152, L. O. L. The words "general" and "special" of themselves suggest at once the inherent difference between a general and special verdict. One pronounces generally upon the issues, either for the plaintiff or for the defendant; the other finds the facts only, leaving the judgment to the court.

It was expressly held in Moody v. Richards, 29 Or. 282, 285, 45 P. 777, 778, that--

"The statute making it incumbent upon the court to state the facts found, the consent of a party to submit his cause for trial without the intervention of a jury must be construed as a request for a special verdict, which necessitates a finding upon all the material issues involved in the action."

The ruling made in Moody v. Richards is in harmony with the generally accepted doctrine that the findings made by the judge, when deciding an action wherein the parties have waived their right to a jury, are in the nature of a special verdict (2 Thompson on Trials [2d Ed.] § 2658; 38 Cyc. 1953), and therefore the court must find the facts with the same degree of precision and particularity as is required of a jury when rendering a special verdict ( Ellis v. Lane, 85 Pa. 265, 270; Briere v. Taylor, 126 Wis. 347, 353, 105 N.W. 817; Anglo-American Land, M. & A. Co. v. Lombard, 132 F. 721, 734, 68 C. C. A. 89; Van Riper v. Baker, 44 Iowa, 450, 451). Since the standard fixed for a special verdict is the measure by which we must determine the sufficiency of findings made by the court, it becomes necessary to ascertain the requisites of a special verdict.

Originally a false general verdict rendered the jury liable to be attainted. Relief from the harsh consequences of a false general verdict was afforded by the introduction of special verdicts. The statute of Westm. II, 13 Edw. I, c. 30, § 2, expressly provided that--

"The justices of assize shall not compel the jurors to say precisely whether it be a disseisin or not, so as they state the truth of the fact, and pray the aid of the justices; but if they will say of their own accord that it is disseisin, their verdict shall be admitted at their own peril."

But there is authority for the statement that this statute was only a legislative affirmance of the common law. 2 Thompson on Trials (2d Ed.) § 2649; Clementson on Special Verdicts, 1. Regardless of whether special verdicts find their origin in the statute of Westm. II, or at a still earlier period, the practice of permitting special verdicts was recognized and the rules defining the requisites of such verdicts were thoroughly established. When speaking of the New York Code, which defined a special verdict in language identical with section 152 L. O. L., the court said, in Eiseman v. Swan, 19 N.Y. Super. Ct. 668, 671:

"There is nothing in the Code of Procedure to warrant the idea that the requisites of a special verdict are other or different now than they were before the Code was enacted."

We may assume, therefore, that our Code neither requires more nor will be satisfied with less than was requisite before its enactment.

When we consider the reason which gave rise to special verdicts, we at once perceive that it is the office of a special verdict to find and place on record all the essential facts, so that the judge can apply the law to those facts. The special verdict must find all the facts essential for a judgment; ultimate and constitutive rather than evidentiary facts should be stated; facts must be found expressly and specifically, not generally and impliedly; the findings must be certain and cannot be aided by intendment or by extrinsic facts. 38 Cyc. 1919, 1920; Clementson on Special Verdicts, 229, 264; 29 A. & E. Ency. of Law (2d Ed.) 1032; 2 Thompson on Trials (2d Ed.) § 2652. As expressed in Vansyckel v. Stewart, 77 Pa. 124, 127, "the special verdict must be self-sustaining or fall."

Stated broadly, the special verdict must pass upon and dispose of all the material issues; but this broad statement is subject to the qualification that a special verdict is sufficient if the court finds on an issue which ultimately determines and necessarily supports the judgment rendered, so that other issues in the case become immaterial. Lewis v. First National Bank, 46 Or. 182, 188, 78 P. 990; Oregon Auto-Dispatch v. Port. Cordage Co., 51 Or. 583, 586, 94 P. 36, 95 P. 498; Freeman v. Trummer, 50 Or. 287, 290, 91 P. 1077; Naylor v. McColloch, 54 Or. 305, 315, 103 P. 68; Henderson v. Reynolds, 57 Or. 186, 110 P. 979; Wells v. Great Northern Ry. Co., 59 Or. 165, 175, 114 P. 92, 116 P. 1070, 34 L. R. A. (N. S.) 818, 825; Clackamas Southern Ry. Co. v. Vick, 72 Or. 580, 144 P. 84; Columbia R.I. Co. v. Alameda L. Co., 87 Or. 277, 291, 168 P. 64, 440.

The courts of the different jurisdictions are agreed upon the functions to be performed by a special verdict; but the precedents are not entirely harmonious when deciding whether given language found in a special verdict operates as a complete performance of those functions. In two states, notably California and Minnesota, it has been repeatedly held that an omnibus finding to the effect that all the allegations of a complaint are true is sufficient even though such finding stands alone, and is unaided by any other statement of fact. McEwen v. Johnson, 7 Cal. 258; Johnson v. Klein, 70 Cal. 186, 11 P. 606; Williams v. Hall, 79 Cal. 606, 21 P. 965; Moody v. Tschabold, 52 Minn. 51, 53 N.W. 1023; Scott County School Dist. No. 73 v. Wrabeck, 31 Minn. 77, 16 N.W. 493; Norton v. Wilkes, 93 Minn. 411, 101 N.W. 619. But it is interesting to note that in both those jurisdictions the courts have on more than one occasion said that the practice of employing only a blanket finding is not to be commended. Davis v. Drew, 58 Cal. 152, 157; Heintz...