Vancil v. Poulson

• Court: Supreme Court of Oregon
• Citation: 388 P.2d 444,236 Or. 314
• Parties: Daryl VANCIL, a minor, by his guardian, Mary Sanderson, Respondent, v. Vera F. POULSON, Executrix of the Estate of Elmer D. Poulson, Deceased, Appellant.
• Decision Date: 22 January 1964

Page 444

388 P.2d 444 236 Or. 314 Daryl VANCIL, a minor, by his guardian, Mary Sanderson, Respondent,
v.
Vera F. POULSON, Executrix of the Estate of Elmer D.
Poulson, Deceased, Appellant. Supreme Court of Oregon, In Banc. Argued and Submitted Sept. 10, 1963.
Reargued Dec. 2, 1963.
Decided Jan. 22, 1964.

Page 445

[236 Or. 315] Reginald S. Williams, Salem, argued the cause for appellant. On the brief were Osterman & Williams, Salem.

Francis E. Marsh, McMinnville, argued the cause for respondent. With him on the brief were Marsh, Marsh, Dashney & Cushing, McMinnville, and Frederic W. Young, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

[236 Or. 316] DENECKE, Justice.

This is an action against a decedent's representative for personal injuries caused by an automobile accident. Because of the death of the alleged wrongdoer the plaintiff must prove his claim 'upon some competent satisfactory evidence other than the testimony of the injured person.' ORS 30.080.

This statute requires that 'the injured person may not recover judgment unless he presents a prima facie case sufficient to go to the jury by evidence other than his own testimony.' Schnell v. Mullen, 222 Or. 454,

Page 446

457, 353 P.2d 567 (1960); De Witt v. Rissman, 218 Or. 549, 346 P.2d 104 (1959). The defendant assigns as error the denial of her motions for nonsuit and directed verdict and urges as a ground for such assignments that plaintiff failed to establish a prima facie case by evidence apart from his own testimony. Before considering this ground, however, we first must determine whether it properly can be asserted on appeal. Plaintiff strongly urges that it cannot be because it was not asserted as a ground at the time the motions for nonsuit and directed verdict were made.

At the close of plaintiff's case-in-chief defendant moved for an involuntary nonsuit:

'* * * on the following ground and for the following reasons: The plaintiff's own testimony shows contributory negligence as a matter of law in failing to maintain a lookout, through his own evidence. Also, there is not sufficient evidence here to go to the jury and no prima facie case has been made out sufficient to overcome the presumption of the lack of negligence on the part of this deceased defendant. There is no presumption at all to the effect that negligence is not presumed, and the law presumes and gives its presumption--that is, evidence that there was no negligence on the part [236 Or. 317] of the decedent driver of an automobile. And the evidence here is insufficient to take this to the jury. There is no positive evidence, except by inference, that the defendant--the defendant decedent, was in any way negligent in any of the particulars alleged in the complaint, and such an inference is, by no means, sufficient to overcome the presumption of lack of negligence that the law holds for this deceased defendant.'

This motion was denied.

At the close of all the evidence defendant moved as follows:

'* * * we move for a directed verdict in favor of the defendant on these grounds: First, there is no affirmative evidence of any negligence on the part of the decedent--of the defendant executrix which proximately caused the collision between the vehicle occupied by the late Mr. Poulson and that occupied and operated by the plaintiff Daryl Vancil. Further, on the ground that there is an affirmative and uncontradicted evidence, both from the plaintiff's own case in chief and from the defendant's case in chief, which affirmatively shows that the plaintiff was guilty of contributory negligence in operating his vehicle on his own left side of the marked center line separating the two lanes for travel on Highway 212 at the time and place of the collision, and that this negligence necessarily contributed to the cause of the collision and the injury and damage suffered by the plaintiff. Negligence, of course, is never presumed. There is a long line of authority on that.'

This motion was also denied.

Neither of these motions specifically refer to ORS 30.080 or to the fact that in a claim against a decedent there must be a prima facie case established by evidence other than the testimony of the claimant. Defendant[236 Or. 318] made no argument in support of the motion for a nonsuit. There was a brief exchange between the court and the defendant's counsel after the motion for a directed verdict:

'* * * [defendant's counsel] Negligence, of course, is never presumed. There is a long line of authority on that [end of the motion].

'THE COURT: Well, that's part of my instructions: 'Negligence is never presumed, but he who charges negligence must prove it by the preponderance of the evidence.'

'MR. WILLIAMS: And there just hasn't been any proof of negligence on the part of the decedent.

'THE COURT: I don't know I thought the plaintiff here testified that

Page 447

this accident took place on his side of the road and that Mr. Poulson was on his side of the road, and that he was on his own side of the road when the accident happened. I think that was his testimony, wasn't it?

'MR. WILLIAMS: Certainly the physical facts following that certainly refute that and if he did so testify,--he also testified that he had no recollection, particularly, about it.

'THE COURT: After the accident happened?

'MR. WILLIAMS: Either when it occurred or after the accident itself.'

If there were any requested instructions by the defendant, they are not in the record. The trial court did not instruct the jury to the effect that they could only find that decedent negligent if they found evidence of such negligence, apart from plaintiff's testimony. No exception was taken to the court's failure to so instruct.

The contention that the plaintiff must make a prima facie case by evidence apart from his own testimony [236 Or. 319] was specifically made for the first time in defendant's motion for a judgment notwithstanding the verdict. In denying this motion the trial court stated:

'Sub-paragraph A of the second ground set forth in the defendant's Motion as argued presents the only real question in this matter. There is no question relative to the law being as is stated in O.R.S. 30.080 to the effect that an injured person shall not recover judgment except upon some competent satisfactory evidence other than the testimony of the injured person. However, I do not feel that this question was presented to the Court upon the defendant's Motion for an involuntary nonsuit. * * *

* * *

* * *

'* * * I thought at that time and I still do--that there was testimony on the part of the plaintiff that at least made out a prima facie case of negligence upon the part of Mr. Poulson. Nowhere in his Motion was Section 30.080 O.R.S. mentioned nor was the proposition in any way presented to the Court that there was no satisfactory evidence in the record besides the testimony of this plaintiff Consequently, the Court did not consider this matter at that time because it was not in any way presented to the Court.

'The Supreme Court in the case of Edvalson vs Swick [190 Or. 473, 227 P.2d 183], 190 Ore at Page 478, uses this language: 'It is well settled that the motion of an adverse party for a nonsuit or for a directed verdict must specify the grounds therefor; and that when such a motion is denied, the grounds stated therein are conclusive on the moving party, and he may not urge for the first time on appeal additional grounds for the motion.' * * *

* * *

* * *

'These are the only grounds set forth in the Motion for a directed verdict and the holding in the case of Edvalson vs Swick is also applicable to a Motion for a directed verdict. * * *'

[236 Or. 320] An appellant cannot assert on appeal grounds for his motion for nonsuit or directed verdict which were not asserted when the motions were made at the...