Van Gordon v. Portland General Electric Company , 295 Or. 811 ( 1983 )

670 P.2d 1026 (1983) 295 Or. 811

Brock A. VAN GORDON, by Elizabeth Ann Van Gordon, His Guardian Ad Litem, Petitioner On Review,
v.
PORTLAND GENERAL ELECTRIC COMPANY, a Corporation, Respondent On Review.
Portland General Electric Company, a Corporation, Appellant,
v.
Kino Barker and Helene Barker, Respondents.

No. A7902-00508; CA 19901; SC 29945.

Supreme Court of Oregon, In Banc.^[*]

Submitted on Petition for Review September 16, 1983. Decided October 25, 1983.

Mark L. Cushing and Barbee B. Lyon, of Tonkon, Torp, Galen, Marmaduke & Booth, Portland, for the petition.

John R. Faust, Jr., of Schwabe, Williamson, Wyatt, Moore & Roberts, and James K. Buell, of Buell, Black & Dupuy, Portland, contra.

MEMORANDUM OPINION.

The facts in this case are set out in our opinion, Van Gordon v. PGE Co., 294 Or. 761, 662 P.2d 714 (1983).

Plaintiff petitions this court to accept review, to reverse the Court of Appeals, and to affirm the judgment in favor of the plaintiff. We decline review of all issues raised with the exception of requiring the Court of Appeals to apply the correct standard for evaluating evidential error.

OEC 103 provides:

"Rulings on evidence. (1) Effect of erroneous ruling. Evidential error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected * * *."

The commentary to this rule reads:

"* * * The Legislative Assembly intends that no presumption regarding evidential error operate in favor of either party in the appeal of a civil case. The Legislative Assembly approves the suggestion in Elam v. Soares, [282 Or. 93, 577 P.2d 1336 (1978)], that the concepts of ``presumptions' and ``burdens' as used in the trial of cases are not appropriate for application in the appellate process. 282 Or. at 103 [577 P.2d 1336]."

The Oregon Evidence Code comes from Oregon Laws 1981, chapter 892, and section 101 thereof provides:

"This Act shall take effect on January 1, 1982. The Oregon Evidence Code shall apply to actions, cases and proceedings commenced after the effective date of this Act. The Oregon Evidence Code also shall apply to further procedure in actions, cases and proceedings then pending except to the extent that application would not be feasible or would work injustice, in which event former evidential principles shall apply." (Emphasis added.)

The Court of Appeals simply ignored the statutory precept that the case of Elam v. Soares, 282 Or. 93, 577 P.2d 1336 (1978), was overruled.

By reference to the concurring and dissenting opinion in the previous decision in this case by the Court of Appeals, the majority opinion in the second review by the Court of Appeals concluded that the asserted error was not harmless (slip op 2). In adopting the earlier concurring and dissenting opinion, the court erred in concluding that error is presumed to be prejudicial. The court stated:

"Ordinarily, error in the admission of evidence is deemed prejudicial unless the contrary is affirmatively shown. Elam v. Soares, 282 Or. 93, 103, 577 P.2d 1336 (1978); Samuel v. Vanderheiden, 277 Or. 239, 248, 560 P.2d 636 (1977); Meyer v. Harvey Aluminum, 263 Or. 487, 495, 501 P.2d 795 (1972). * * *

"* * *

"* * * I conclude that the presumption of prejudice has not been ``affirmatively' rebutted." Van Gordon v. PGE Co., 59 Or. App. 740, 755-56, 757, 652 P.2d 817 (1982).

We remand this case, which has already been argued twice to the Court of Appeals and once to this court, to apply OEC 103.

NOTES

[*] Linde, J., did not participate in this decision.