Con. Freightways v. West Coast Freight

214 P.2d 475, 188 Or. 117
Oregon Supreme Court·Decided October 12, 1949·Published·Cited by 2 cases

Opinions

Action by Consolidated Freightways, Inc., against West Coast Fast Freight, Inc., to recover damages resulting to its truck from a collision with another truck on a public highway.

Defendant counterclaimed for damages to its truck, and the Circuit Court of Multnomah County, D.N. Mackay, J., entered detailed findings of fact and judgment *Page 119 for defendant on its counterclaim, and plaintiff appealed.

The Supreme Court, Lusk, C.J., affirmed the judgment holding that where plaintiff failed to object to findings entered and to request other additional or different findings, no question was properly presented on appeal. This is an appeal by the plaintiff from the judgment of the Circuit Court in an action tried to the court without jury.

The action arose out of a collision on a public highway in the state of Washington between trucks owned and operated by the respective parties. The plaintiff, charging negligence against the defendant, sought to recover for the damages to its truck; the defendant denied negligence on its part, and, in a counterclaim which alleged that the accident was caused by the negligence of the plaintiff, asked judgment for the damages to its truck. After a trial the court entered detailed findings of fact, the effect of which is that the accident was proximately caused by the negligence of the plaintiff and that the defendant was free from negligence. As a conclusion of law the court found that the defendant was entitled to recover a judgment in the sum of $1,332.82 and judgment was entered accordingly.

No objection to the findings or request for other different or additional findings was made by the plaintiff.

The plaintiff's brief contains two assignments of error, to the effect that the court erred in finding that the plaintiff was negligent and that such negligence, *Page 120 if any, was the proximate cause of the accident, both assignments being based on the claim that there is no substantial evidence to support the findings. Counsel for the defendant urge that these assignments present no question for the consideration of this court, for the reason that the plaintiff made no objections to the findings entered and failed to request other, additional or different findings.

The procedure to be followed in cases of this sort is outlined in § 5-502, O.C.L.A., which is printed in the margin.* As originally enacted in 1862 this statute, while requiring the court to make and file findings of fact and conclusions of law, contained no express provision for objections to, or requests for, findings. § 216, General Laws of Oregon 1845-1864 (Deady). Such provisions were added by amendments, first by Ch. 211, General Laws of Oregon 1925, and later by Ch. 165, General Laws of Oregon 1927. But whether under the statute in its original, or in its present form, it has uniformly been held that, in order to raise in the Supreme Court the question of the failure to make findings in accordance with a party's theory, the failure to find on an issue claimed to be material, or the sufficiency of the evidence to support a finding, the question *Page 121 must first be brought to the attention of the trial court by objections to proposed findings or requests for other, different or additional findings. The most recent decision is McPherson v.State Industrial Accident Commission, 169 Or. 190, 196,127 P.2d 344 (1942). Among many others applying the rule are SchoolDist. No. 106 v. New Amsterdam Casualty Co., 132 Or. 673, 676,288 P. 196; Maddox v. McHattan, 111 Or. 324, 326, 327,224 P. 833, 226 P. 427; Stroberg v. Merrill, 67 Or. 409, 410,135 P. 335; Taffe v. Smyth, 62 Or. 227, 229, 125 P. 308; Harris v.Harsch, 29 Or. 562, 568, 46 P. 141; Tatum v. Massie, 29 Or. 140,147, 44 P. 494; Noland v. Bull, 24 Or. 479, 481,33 P. 983; Umatilla Irrigation Co. v. Barnhart, 22 Or. 389, 390,30 P. 37; In re Fenstermacher, 19 Or. 504, 507, 508, 25 P. 142;Hicklin v. McClear, 18 Or. 126, 138, 22 P. 1057.

Three of our decisions are cited by the plaintiff to the proposition that "It is error to make a finding of fact with no satisfactory evidence to support it." Northwest Oil Co. v.Haslett Warehouse Co., 168 Or. 570, 123 P.2d 985; PacificWool Growers v. Draper Co., 158 Or. 1, 73 P.2d 1391;Silver Falls Timber Co. v. Eastern Western Lumber Co.,149 Or. 126, 184, 40 P.2d 703. With the substitution of the word "substantial" for "satisfactory", there can be no doubt of the correctness of the rule stated. But the question here, is how the error shall be made to appear, and, as has been frequently said, it is not error alone, but error legally excepted to, which constitutes ground for reversal. While formal exceptions are no longer required, except in the specific instances mentioned in Ch. 257, Oregon Laws 1941, it is still required that the appellant must first, in some fashion, have made his objection or request for a ruling to the trial court *Page 122 (Williams v. Ragan, 174 Or. 328, 337, 143 P.2d 209); in this instance in the manner already pointed out. As to the cases above cited, on which the plaintiff relies, it appears that in each of them the appellant made his record by objections to the findings and requests for findings.

The plaintiff also cites Burke Machinery Co. v. Copenhagen,138 Or. 314, 6 P.2d 886

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Con. Freightways v. West Coast Freight, 214 P.2d 475, 188 Or. 117 (Or. 1949).

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