Huber v. May , 239 Or. 544 ( 1965 )

239 Or. 544 (1965) 398 P.2d 481

HUBER
v.
MAY ET UX

Supreme Court of Oregon.

Submitted January 8, 1965. Affirmed January 29, 1965.

Marie Huber, Portland, pro se.

Edwin J. Peterson, and Tooze, Powers, Kerr, Tooze & Morrell, Portland, for respondents.

Before McALLISTER, Chief Justice, and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, Justices.

AFFIRMED.

SLOAN, J.

Plaintiff, pro se, has appealed from an adverse verdict and judgment in this action for loss of consortium. The claims of error are without substance. We will mention two of them.

1. At one point in this proceeding plaintiff was awarded a default judgment against defendants. When the default was discovered by defendants, a motion to set aside the judgment was allowed. The ruling of the court is not before us. The record of the proceedings before the court on the motion to set aside the default is not a part of the record here. "* * * Since the evidence is not before us it must be presumed that the findings and conclusions of the lower court were supported by the evidence: * * *." Whitlock v. U.S. Inter-Ins. Ass'n, 1932, 138 Or 383, 388, 6 P2d 1088. The papers and pleadings in the trial court file demonstrate without doubt, however, that the court did not abuse its discretion when the motion was allowed.

2. In the trial of this case the court directed a verdict in plaintiff's behalf on the issue of liability. The jury, none the less, returned a verdict for defendants. Plaintiff claims that the court should also have directed a verdict as to damages. The question of damages in this case was, of course, for the jury. Van Lom v. Schneiderman, 1949, 187 Or 89, 210 P2d 461. There is otherwise nothing in the matter presented here which would warrant another trial. The jury's verdict was final. The appeal is completely without merit.

Affirmed.