Paul v. State Industrial Accident Commission , 127 Or. 599 ( 1929 )

Rehearing Denied December 29, 1928. ON PETITION FOR REHEARING. (273 P. 337.) Plaintiffs have presented a very sincere petition for rehearing. First, they claim that the case should be treated as one of equity cognizance; that the jury's verdict was advisable only and that the instructions should be limited to matter controlling the answer to the questions submitted to the jury. The statute provides that the case shall be tried on an appeal in the Circuit Court as other cases are tried there. Either party has a right to demand a jury and "that in case of any trial of fact by a jury the court shall be bound by the decision of the jury as to the question of fact submitted to it." Or. L., § 6637. It is our opinion that the rules of trial at law must prevail in appeals from the Accident Commission to the Circuit Court. The action is in the nature of a special proceeding, and the verdict of the jury corresponds to a special verdict of the jury in other law actions. The court is bound by the findings of the jury to the same extent that it is in all law actions.

Petitioner further urges that the instructions of the court in the instant case were ample. This contention is based upon the principle that the instructions in a special proceeding, such as the one at bar, should be limited to the law applicable to the issues submitted to the jury for their special verdict. We think that the requested instructions which we hold should have been given do that. The precise matter at issue was the dependency of plaintiffs upon the decedent. There were two questions involved in that one issue, namely: the fact of the dependency and the extent of dependency. There was evidence tending to support the position taken by defendant to the effect that plaintiffs were not dependent upon decedent. The instructions requested and not given, set out in our former opinion, were confined to that issue.

Petitioner insists that defendant has waived the error of failing to give the instruction because it did not set it out in the abstract of record as an error relied upon. The present rules of the court do not require errors to be assigned in the abstract. Errors are now required to be assigned in the brief. See Revised Rules adopted February 21, 1928, Rule 10, 123 Or. 681.

The evidence in regard to board was admissible. The issues were so framed that the question of board was properly submitted to the jury for the purpose of determining the amount decedent contributed toward the support of plaintiffs. The amount required to support decedent could not be treated as supporting plaintiffs. Evidence that decedent may have rendered services to plaintiffs in payment of or part payment of his board and lodging was properly admissible. Such evidence was pertinent to determine the actual contributions by decedent to the support of the plaintiffs. It was not necessary for the pleadings to specifically mention every detail that enters into the question of maintenance and support of plaintiffs. The general allegations as framed by the complaint are sufficiently broad and precise to admit testimony of the incidentals which go to make the expenses of board and lodging and the amount contributed by decedent, both in money and in services.

There is no merit in the contention on the part of plaintiffs to the effect that the record as certified indicates the requested instructions were given. The record as it appears here distinctly sets out the instructions requested by defendant and not given. The record also shows that due exception was taken to the refusal of the court to give the requested instruction.

There is no merit in the contention that the court overlooked the legitimate inferences drawn by the jurors from plaintiffs' testimony. The court, in a sense, has nothing to do with the verdicts of the jury, unless error of law has been made by the judge presiding at the trial. Errors of law material to a fair trial require a reversal. We would have saved the plaintiffs and defendant the expense of another trial if the evidence had been complete enough so that we could have done justice to both plaintiffs and defendant.

Rehearing is denied.