Tucker v. State Industrial Accident Commission ( 1959 )

ROSSMAN, J.,

specially concurring.

I do not believe that the court ought to embrace the authority conferred by Art VII, § 3, Constitution of Oregon in disposing of this case. I am aware of no occasion for employing that authority. I likewise do not believe that it is necessary to vacate the circuit court’s judgment. We need do nothing more than correct a word or two that appears in the judgment. No assignment of error presented by the appellant is sustained by the prevailing opinion, yet the circuit court’s judgment is vacated, that is, reversed. Inadvertently, the trial judge, in preparing his judgment, employed terms which the majority criticize because of “indefiniteness.” We need go no further than render them definite.

It is clear from the prevailing opinion that the circuit court had in mind the same conception of the facts as we have, but it employed a couple of unfortunate terms.

The majority, in vacating the judgment and ordering the entry of a new one which will grant the injured workman relief for his hernia, will award him substantially more recovery than they say the challenged judgment grants him. Accordingly, the injured workman who is the respondent and who has not cross-appealed will secure more relief than the challenged judgment grants him notwithstanding the well established rule that a respondent can never secure more relief than the trial court awarded to him.

I think we need do no more than correct a word or two in the challenged judgment. To do as the majority proposes will constitute an unfortunate precedent.