Paul v. McCudden , 256 Or. 143 ( 1970 )

471 P.2d 437 (1970)

Wolfgang PAUL, Respondent,
v.
Dona McCudden, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 5, 1970. Decided July 9, 1970.

R.L. Marceau, Bend, argued the cause for appellant. With him on the briefs were L.C. Johnson, and McKay, Panner, Johnson & Marceau, Bend.

Ronald L. Bryant, Redmond, argued the cause for respondent. With him on the brief were Walter I. Edmonds, Jr., and Larkin & Bryant, Redmond.

Argued and Submitted at Pendleton, May 5, 1970.

PER CURIAM.

Plaintiff was awarded a jury verdict for $10,000 general damages and $15,000 punitive damages for an alleged assault committed on plaintiff by defendant's agents. During the trial, defendant failed to move for a directed verdict and failed to except to any of the instructions given by the trial court and does not otherwise call to our attention any alleged errors of the trial court made at any time during the trial. Later defendant moved for a new trial on the sole ground that there was no evidence to sustain the verdict. The motion was denied. Defendant's appeal claims the trial court erred in denying its motion.

In Wills v. Petros et al., 1960, 225 Or. 122, 357 P.2d 394, and other cases cited in that opinion we have held that "``* * * when a party having knowledge of an error or an irregularity during the trial fails to call it to the attention of the court and remains silent, speculating on the result, he is deemed to have waived the error, and the denial of a motion for a new trial based upon that ground presents no reviewable question. Schafer v. Fraser, 206 Or. 446, 489-490, 290 P.2d 190, 294 P.2d 609; State v. Foot You, 24 Or. 61, 68, 32 P. 1031, 33 P. 537.'" Wills v. Petros et al., supra, at page 129, 357 P.2d at page 398.

The judgment must be affirmed.