Vancil v. Poulson
Jurisdiction | Oregon |
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. |
Citation | 388 P.2d 444,236 Or. 314 |
Court | Oregon Supreme Court |
Decision Date | 22 January 1964 |
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.
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. 454 457, 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:
This motion was denied.
At the close of all the evidence defendant moved as follows:
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 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].
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 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. * * *'
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 trial.Edvalson v. Swick, 190 Or. 473, 227 P.2d 183(1951).A motion for a judgment notwithstanding the verdict cannot be granted upon grounds not previously asserted in the motion for a directed verdict.ORS 18.140(1);SeeMcCormick v. Williams, Jr., 199 Or. 66, 69, 255 P.2d 1071(1953).
The question, then, is whether the defendant advanced, as a ground for either of her motions, the proposition that plaintiff could not recover because he had not established a prima facie case of negligence by evidence apart from his own testimony.It appears that the defendant did not have such ground in mind when the motions were made.The trial court was of the same opinion.The entire motions and the brief colloquy between court and counsel convince us that defendant was urging that all of plaintiff's evidence, including the testimony of the plaintiff, did not make out a case of negligence against the defendant.
The reason for the procedural rule that an appellate court will not consider a ground for a motion for a nonsuit or a directed verdict that was not asserted at the time the motion was made is apparent.An appellate court is a court of review.It reviews decisions on legal issues made by the trial court.The trial court in turn decides legal questions presented to it by the parties.Most of the trial court's rulings of law are not appealed; they are final.The parties are relatively satisfied to have one court, acting impartially and conscientiously, decide the question presented to it.Appellate courts should not decide new issues upon which the trial court had no opportunity to rule.
The ground stated by the defendant is so general that it could encompass the specific contention now made by defendant.'There is not sufficient evidence here to go to the jury' is a phrase that can include almost any possible contention that any defendant could advance.It apprises the trial court of nothing except defendant's belief that plaintiff has not made a sufficient case to go to the jury and no statement of grounds is necessary for that purpose.To hold that such motion sufficiently presented to the trial courtthe proposition that plaintiff could not recover because he had not made a prima facie...
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...notwithstanding a verdict upon grounds that were not previously asserted in a motion for a directed verdict, citing Vancil v. Poulson, 236 Or. 314, 320, 388 P.2d 444 (1964), Hamilton v. Lane County, 204 Or. App. 147, 152, 129 P.3d 235 (2006), and Kraemer v. Harding, 159 Or.App. 90, 113, 976......
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...also to testimony from one not an eyewitness to the accident concerning the point of impact on the highway.' In Vancil v. Poulson, 236 Or. 314, 327, 388 P.2d 444 (1964), we reaffirmed that holding. We are not called upon in this case to overrule either Bailey v. Rhodes, Supra, or Thomas v. ......
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Parrott v. Carr Chevrolet, Inc.
...punitive damages claim." See ORCP 63 A (condition precedent to motion for JNOV is motion for directed verdict); Vancil v. Poulson, 236 Or. 314, 320, 388 P.2d 444 (1964) (grounds asserted in motion for JNOV must have been raised in preceding motion for directed verdict). However, a party can......
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Kabban v. Mackin
...in connection with the negligence claim in their motion for directed verdict. Therefore, we decline to consider it. Vancil v. Poulson, 236 Or. 314, 320, 388 P.2d 444 (1964). Mackin and Hart also contend that the negligence claim should not have been submitted to the jury, because plaintiff ......