Wallace v. Portland Ry., Light & Power Co.
| Decision Date | 26 March 1918 |
| Citation | 88 Or. 219,170 P. 283 |
| Parties | WALLACE v. PORTLAND RY., LIGHT & POWER CO. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.
Action by Selma L. Wallace against the Portland Railway, Light & Power Company, a corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.
See also, 159 P. 974.
The plaintiff, a married woman, alleging herself to have been six months advanced in pregnancy, avers in substance that she was a passenger on one of the defendant's street cars and gave timely warning that she desired to get off at her usual place; that when the car arrived there it stopped, and while she was in the act of alighting the defendant by its servants in charge thereof started the car suddenly, whereby she was thrown with great force upon the pavement, sustaining sundry hurts, and that "as a result of said injuries plaintiff suffered a miscarriage of the child with which she was then pregnant, thereby losing the life of said child she was then and there bearing." She recites various expenses which she was compelled to incur to her special damage, and concludes her statement on that subject with this language:
"That by reason of said pain, nervous shock, and internal injuries general impairment of health, and the loss of her child, of which she was at the time of the infliction of said injuries pregnant, plaintiff was damaged" in a sum mentioned.
The answer denies all the allegations of the complaint except the corporate existence of the defendant, and avers in substance that on the occasion mentioned by the plaintiff she undertook to get off the car while it was still in motion, and that her action in that respect was negligent and was a direct cause of her injury. This is denied by the reply. In the abstract of record there are but two assignments of error, the first of which reads thus:
The second specification of error is the refusal of the court to allow Mrs. Wright, a witness called for the defendant, to answer whether or not she was told by the plaintiff and her husband, prior to the occurrence of the accident, that they were contemplating an operation upon the plaintiff. The defendant appealed from a judgment in favor of the plaintiff as a result of a jury trial of the action. After its perfection of the appeal and the deposit in this court of the transcript, the defendant filed here a motion to set aside the judgment obtained in the action in favor of the plaintiff and against the defendant, and supported it by affidavits to the effect that the only witness who testified directly to the fact that the car stopped, and that the plaintiff was thrown to the pavement and injured by a sudden starting of the car before she had time to alight, had confessed that he had committed perjury in so testifying. This was combatted by ex parte affidavits on the part of the plaintiff. There has accumulated since then a number of affidavits on both sides, to the effect that the grand jury of Multnomah county indicted the witness for his confessed perjury, and also in the same manner accused the plaintiff, her husband, and a third party of the crime of subornation of that perjury; that the witness himself and the third party mentioned pleaded guilty; that when the case of the plaintiff's husband was called for trial and the jury had been impaneled, the trial judge of his own volition directed the jury to return a verdict of not guilty without having heard any testimony whatever in the case; further, that he called up the cases of the witness and the third party spoken of, directed their pleas of guilty to be withdrawn and pleas of not guilty to be substituted, and peremptorily dismissed both those criminal actions. Much is said in the affidavits for the defendant about the "indisposition of the judge" as the cause of such an arbitrary disposition of the indictments. It appears in all this mass of papers that a similar motion was made in the circuit court, but long after the time for filing a motion for a new trial had elapsed, and that it had been denied there.
Frank J. Lonergan, of Portland (Griffith, Leiter & Allen, of Portland, on the brief), for appellant. Hamilton Johnstone, of Portland (Asher & Johnstone, of Portland, on the brief), for respondent.
BURNETT, J. (after stating the facts as above).
We must remember that this is an appellate court, with the exception only that in our discretion we may take original jurisdiction in mandamus, quo warranto, and habeas corpus proceedings. Section 2, art. 7, Oregon Const. It is said in section 548, L. O. L., treating of appeals, that:
"A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise."
No appeal has been taken from the action of the circuit court denying the motion substantially identical in terms with the one filed before us. The action of the circuit court on that motion is not presented here for review. We cannot entertain such an original motion. It is true that in proper cases a judgment of any court may be set aside for fraud collateral to the issues of the case which worked out a wrongful result to the detriment of the parties seeking to overturn the decision, but it must be done in that instance by an original suit. The production of perjured testimony does not constitute fraud collateral to the issue. Friese v. Hummel, 26 Or. 145, 37 P. 458, 46 Am. St. Rep. 610. The necessary issues cannot be framed and tried here upon ex parte affidavits.
It is specified in section 103, L. O. L., that a court may also "in its discretion, and upon such terms as may be just at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect." Conceding for the moment that the defendant was surprised by the afterward discovered perjury of the witness in question, yet in the plain terms of the statute just quoted it rests in the discretion of the court...
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