The facts in the case are sufficiently set forth in the opinion of Mr. Justice KELLY, in which he concludes that no error was committed by the circuit court, with the exception, if such be error, of denying the motion for a new trial on the ground that the verdict was excessive.
We shall therefore address ourselves to the question of whether or not this court has authority, in an action to recover damages for personal injuries, tried by a jury, to re-examine the facts, where no error was committed by the trial court, other than the alleged error that there is no evidence to support the verdict for the full amount, and enter a judgment for a less amount than allowed by the jury, on the ground that the verdict was or appeared to be excessive. Can this court in the case at bar, under authority of section 3, article VII, of our Constitution, "affirmatively say there is no evidence to support the verdict" for $15,000, but that there is some evidence to support a verdict for $7,500 or some other definite amount less than $15,000?
Section 2-802, Oregon Code 1930, specifies certain grounds upon which a judgment may be set aside and a new trial granted. Two of these grounds are as follows: "(5) Excessive damages, appearing to have been given under the influence of passion or prejudice", and "(6) Insufficiency of the evidence to justify the verdict * * *." This section is a part of the original code of civil procedure of 1862, and has not been materially amended.
Mr. Justice THAYER, in Nelson v. Oregon Railway NavigationCo., 13 Or. 141 (9 P. 321), in referring to the right of this court to reduce the verdict on the ground that it was excessive, said: *Page 281
"These findings were relevant to the issues made in the pleadings, but the appellant's counsel contended on the argument that they did not justify the amount of the recovery. This may be so as a matter of fact, but we could not so find as a matter of law. This court would hardly be authorized to find that the verdict was too large, unless it could determine, as a matter of law, the precise amount, or limit, to which it should have been restricted. We have nothing to do with the facts of the case, and yet I can not see how we can interfere with the judgment unless we review the facts. Where the verdict of a jury is excessive, it is the duty of the nisi prius court to set it aside, but its refusal to do so can not be reviewed by this court. Nothing but questions of law appearing upon the transcript can be reviewed here. The verdict herein may have been much larger than this court would have allowed under the evidence in the case, or in view of the facts found by the jury. Still we have no right to set it aside, or reverse or modify the judgment entered thereon. The jury are judges of the fact, and however widely our view might disagree with theirs matters nothing. We have no right to invade their province, however sanguine we may be that they have committed error."
This court has ever since the above decision consistently held, in construing this section of our code, that it will not review the circuit court's exercise of discretion in refusing to grant a new trial on the ground that the verdict is excessive: McQuaidv. Portland Vancouver R.R. Co., 19 Or. 535 (25 P. 26); Kumliv. Southern Pacific Co., 21 Or. 505, 512 (28 P. 637); Coos BayCo. v. Endicott, 34 Or. 573, 578 (57 P. 61); Sorenson v. OregonPower Co., 47 Or. 24, 34 (82 P. 10); Lindsay v. Grande RondeLumber Co., 48 Or. 430, 439 (87 P. 145); Albright v. Keats AutoCo., 85 Or. 134 (166 P. 758).
In Timmins v. Hale, 122 Or. 24 (256 P. 770), this court, in referring to the right of the trial court to set *Page 282 aside a verdict on the ground that the damages were excessive, said:
"The contention that the trial court may grant a new trial because of his belief that the damages are excessive is wholly untenable. In this case there is nothing in the record showing any misconduct upon the part of the jury. The whole contention is that the damages were excessive and because excessive, the jury must have been swayed by passion or prejudice. The statute prescribes that `A former judgment may be set aside and a new trial granted on the motion of the party aggrieved, for any of the following causes materially affecting the substantial rights of such party: * * * 5. Excessive damages, appearing to have been given under the influence of passion or prejudice'. Section 174. The power to set aside a judgment on a verdict upon this particular ground was taken away from the courts by the amendment of the Constitution (Art. VII, § 3), which declares that `no fact tried by a jury shall be otherwise re-examined in any court of this state unless the court can affirmatively say that there is no evidence to support the verdict'.
"In Buchanan v. Lewis A. Hicks Co., 66 Or. 503 (134 P. 1191), it was held that after the adoption of this amendment of the Constitution, trial courts no longer have the power to grant a new trial because of the belief that the damages awarded are excessive, and that judgments can not be reversed upon appeal upon that ground. This constitutional provision was again considered by this court in Sigel v. Portland Ry., L. P. Co.,67 Or. 285 (135 P. 866), where the same ruling was made, and this was in effect held in the Archambeau case. Hence, since there is nothing in the record showing any misconduct on the part of the jury, it was not proper for the court to set aside the judgment upon the ground that the damages were excessive and its action can not be sustained on that ground."
The question of the right of the courts of this state to set aside judgments on the ground that they are excessive *Page 283 has been before this court numerous times since the amendment of article VII, section 3, of our Constitution in 1910. Mr. Justice MOORE, in Buchanan v. Lewis A. Hicks Co., 66 Or. 503 (133 P. 780, 134 P. 1191), stated:
"If in the trial of an action at law an error has been committed by the court, and upon appeal from the judgment the supreme court from an examination of the entire testimony, the instructions, and all other matters material to the decision, can determine what conclusion should have been reached, it may disregard such errors, when substantial justice would thereby be promoted, and direct the proper verdict to be entered. It will thus be seen that the right, upon appeal, to correct a judgment rests upon an error of law committed by the trial court and not upon the re-examination of any fact tried by a jury, except in cases where the supreme court can affirmatively say there is no evidence to support the verdict. The clauses of the amended section of the Constitution referred to should not, in our opinion, be construed together in order to overturn the verdict herein. * * *
"In the case at bar the verdict comes within the rule thus announced, and as we can not affirmatively say the conclusion of the jury is not supported by evidence, the amendment prohibiting the re-examination of any fact thus tried and supported necessarily modifies section 174, subdivision 5, L.O.L., and that part of subdivision 6 which reads as follows: `Insufficiency of the evidence to justify the verdict or other decision'."
Again Mr. Justice MOORE, in Nelson v. St. Helens Timber Co.,66 Or. 570 (133 P. 1167, 135 P. 169), had under consideration the authority of the trial court to grant a new trial on the ground that the verdict was excessive and that the evidence was insufficient to support the verdict. In referring to the sufficiency of the evidence, he said: *Page 284
"In the case at bar one of the facts tried by the jury was the amount of damages suffered by the plaintiff in consequence of the injury inflicted upon him by the alleged negligence of the defendant. From a careful examination of all the testimony given at the trial, we can not affirmatively say there is no evidence to support the verdict. In this particular, at least, the clause of the organic law hereinbefore quoted has been modified, so that part of subdivision 6 of section 174, L.O.L., which reads as follows: `Insufficiency of the evidence to justify the verdict', is not applicable, when the verdict is supported by evidence. The trial court, therefore, properly concluded that it was powerless under the facts established to set aside the judgment and to grant a new trial on the ground assigned."
In Sigel v. Portland Ry., L. P. Co., 67 Or. 285 (135 P. 866), the trial court set aside the verdict, because excessive, and granted a new trial. Mr. Justice BEAN, in reversing the circuit court, commented as follows:
"The judgment on the verdict could not be set aside without the re-examination of a question of fact which had been tried by a jury upon legal evidence and under proper instructions as to the law: Forrest v. Portland Ry., L. P. Co., 64 Or. 240 (129 P. 1048, 1050). Therefore, under the rule announced in Buchanan v. Hicks Co., 66 Or. 503 (134 P. 1191), neither this court nor the circuit court is authorized to set aside the verdict and grant a new trial: Consor v. Andrew, 61 Or. 483 (123 P. 46); State v. Rader, 62 Or. 37 (124 P. 195); Sullivan v. Wakefield, 65 Or. 528 (133 P. 641)."
Hoag v. Washington-Oregon Corporation, 75 Or. 588 (144 P. 574, 147 P. 756), involved the right of the court to re-examine the facts in a personal injury case, tried by the jury, where errors had been committed by the trial court. Mr. Justice McBRIDE, on *Page 285 rehearing, referred to the constitutional provision under discussion by saying that "the language is ample to authorize this court to try out here any case in which error was committed in the court below to the same extent and with the same right to enter judgment as is now exercised in equity cases".
In answering the contention that the court was, by its procedure in re-examining the evidence and entering a judgment, depriving the defendant of the right to a trial by jury, the opinion stated that no one had a constitutional right to appeal, and any one desiring to exercise that right did so cum onere. In so far as the respondent was concerned, the court remarked that he was not complaining and that until he did so the question might be considered as academic.
In Kveset v. Grace Co., 77 Or. 83 (150 P. 281), this court construed the instructions of the trial court as equivalent to telling the jury that sympathy for one injured was an element to be considered in determining the damages suffered. This was held to be error. Nevertheless, this court stated that it could not affirmatively say that the verdict was excessive. The plaintiff in that case received what is known as a Pott's fracture of the ankle. The verdict was for $3,100. In referring to what other courts had held not excessive awards for the fracture of one leg, this court stated that the amounts varied from $350 to $9,000.
The case of Malpica v. Cannery Supply Co., 95 Or. 242 (187 P. 596), is of considerable interest in this discussion. There the jury awarded the plaintiff $12,000 and a motion was made in the lower court for a new trial on the ground that the verdict was excessive. The court in denying this motion stated in the judgment entry that there was no evidence introduced *Page 286 which would justify a verdict in excess of $2,000, but that the court was of the opinion that it had no power to set aside the verdict because it was excessive, or to require plaintiff to remit that part of the judgment in excess of $2,000.
On the appeal, after referring to Hoag v. Washington-OregonCorporation, supra, and noting that "the majority opinion was expressly founded upon the fact that there was prejudicial error in the giving of instructions", this court calls attention to article VII, section 3, and says:
"The purpose of this amendment was to prohibit courts from setting aside or modifying judgments founded upon verdicts of juries, where there is no prejudicial error in the record. In this case the jury was properly instructed, and there is no assignment of error except as to the amount of the verdict. Under such circumstances, it was for the jury only to fix the amount of plaintiff's damages, which it did by a unanimous verdict.
"The circuit court was of the opinion that the plaintiff should not recover more than $2,000, and it is probable that other juries might return a verdict for much less than $12,000; but the fact remains that the plaintiff was injured, that his disability is permanent, and that in addition to his pain and suffering the use of his arm is greatly impaired. There is no fixed standard as to the amount that the plaintiff should recover for his injuries. That is a question of fact for the jury, and different juries would return different verdicts under the same state of facts.
"The record shows that the defendant had a fair trial, and its only exception is to the amount of the verdict. There is nothing in the record to indicate any passion or prejudice. Although in the opinion of this court the amount of damages awarded might be deemed excessive, we can not affirmatively say that there is *Page 287 no evidence to support it. Under the record in the case, this court is powerless to grant relief. The judgment is affirmed."
In Mount v. Welsh, 118 Or. 568 (247 P. 815), Mr. Justice BROWN reaffirmed what had been said numerous times prior thereto, that "it is well settled that the right to correct a judgment under this constituional provision is based upon error of law committed by the trial court".
In Gillilan v. Portland Crematorium, 120 Or. 286 (249 P. 627), plaintiff had a verdict for $2,500. Defendant's motion for a new trial was denied, but the court sua sponte reduced the amount of the judgment to $1,260. Both the defendant and the plaintiff appealed. This court decided that the alleged errors assigned by the defendant were without merit. In passing upon plaintiff's cross-appeal, Mr. Justice BELT, speaking for the court, said:
"Plaintiff in his cross-appeal assigns error in reducing the judgment from $2,500 to $1,260. By virtue of Article VII, Section 3c of the Oregon Constitution, the supreme court has authority, where material error exists in a record, to retry the case and render such a judgment as, in its opinion, should have been rendered in the court below: Hoag v. Washington-Oregon Corp.,75 Or. 588 (144 P. 574, 147 P. 756); Mount v. Welsh, 118 Or. 568 (247 P. 815). However, the Constitution does not vest this authority in the circuit courts. Furthermore, the record discloses no material error. It was error for the trial court to substitute its judgment on the question of damages for that of the jury.
"The judgment entered for $1,260 is reversed and the cause is remanded, with directions to enter judgment for $2,500 in favor of plaintiff." *Page 288
Mr. Justice COSHOW in Noble v. Sears, 122 Or. 162 (257 P. 809), disposed of the alleged error of the trial court in refusing to grant a new trial as follows:
"The sixth assignment is that the court erred in overruling the motion for a new trial. The new trial was based upon the errors already considered and the claim of the defendant that the amount allowed plaintiff is excessive and, therefore, the result of passion and prejudice. We believe there is no merit in defendant's contention in that regard. Under Article VII, Section 3c, of the Constitution, having found no error in the conduct of the trial, this court is not at liberty to investigate the facts: Hoag v. Washington-Oregon Corp., 75 Or. 588 (144 P. 574, 147 P. 756); Mount v. Welsh, 118 Or. 568, 598 (247 P. 815)."
In Wood v. Young, 127 Or. 235 (271 P. 734), Mr. Justice BROWN, answering the contention that the evidence was insufficient to support the verdict, said:
"Were we to determine this cause from the whole of the evidence, our verdict might be in contrariety to that returned by the jury. But we are not to try the case de novo. The law says that the jury are the sole judges of the credibility of the witnesses, and of the effect and value to be attached to the testimony of each and all of them. Furthermore, in view of the evidence adduced, this court is not authorized to re-examine the facts, for the reason that we can not `affirmatively say there is no evidence to support the verdict'. Oregon Constitution, Article VII, § 3-c."
In Pierce v. Northern Pacific Ry. Co., 127 Or. 461 (271 P. 976, 62 A.L.R. 644), the plaintiff recovered judgment of $2,500 against the defendant for its failure to deliver Pullman accomodation to her. Mr. Justice COSHOW, in writing the opinion for the majority of the court, disposed of the contention that the verdict was excessive in the following language:
"Defendant complains that the verdict is so large that it is apparently the result of passion and prejudice. *Page 289 The testimony indicates without question that plaintiff was worn out when she arrived at Stevenson and was ill for quite a period of time. She was humiliated by passengers discovering her predicament and in their kindness assisted her by purchasing a sleeper for her the last night she was on the train. We believe the verdict to be large, but do not believe we are authorized under the provisions of our Constitution to interfere. The case was fairly presented to the jury and the jury is the sole judge of the facts: Constitution, Article VII, § 3c."
In Martin v. Oregon Stages, Inc., 129 Or. 435 (277 P. 291), this court held that the lower court had committed error in denying a motion for a new trial. It therefore proceeded to re-examine the record and fix the amount which plaintiff was entitled to recover.
Lane v. Schilling, 130 Or. 119 (279 P. 267), involved an action for libel. Finding that the instructions were erroneous, the court re-examined the evidence and reduced the judgment to $4,000.
Mr. Justice McBRIDE, in Donaghy v. Oregon-Washington R. N.Co., 133 Or. 663 (288 P. 1003, 291 P. 1017), after holding that error had been committed by the trial court, stated that "Section 3c, Article VII, of our Constitution, as amended in 1910, authorizes this court, where error has been committed in the lower court, to re-examine the case on the facts on appeal and to enter such judgment as seems equitable under the circumstances".
In Wychgel v. States Steamship Co., 135 Or. 475 (296 P. 863), plaintiff recovered judgment for $30,000, which was by this court reduced to $15,000 on the ground that it was excessive. There was no error committed by the trial court. Mr. Chief Justice BEAN, in *Page 290 referring to the question of the excessive amount of the award, prefaced his remarks as follows:
"The defendant assigns as error and strongly urges that the verdict is excessive and there is no evidence to support the amount of it; that the court must decide this question under the federal rule of burden of proof, and that even under the Oregon rule, section 3-c, Article VII, of the Constitution of Oregon, which provides, inter alia, `that no fact tried by a jury shall be otherwise re-examined in any court of this state unless the court can affirmatively say there is no evidence to support the verdict'."
This statement and the action of this court in reducing the amount of the judgment must be considered in the light of the opening statement of the opinion, reading as follows:
"Plaintiff having elected to bring this action under section 33 of the Merchant Marine Act of 1920 and the Federal Employers' Liability Act, his rights and obligations depend upon the principles of law as interpreted and applied in the federal courts: New Orleans N.E.R. Co. v. Harris, 247 U.S. 367 (38 S. Ct. 535, 62 L.Ed., 1167)."
It is also instructive, in this connection, to consider the case of New Orleans N.E.R.R. Co. v. Harris, referred to in the foregoing quotation. It was there said:
"The federal courts have long held that where suit is brought against a railroad for injuries to an employe resulting from its negligence, such negligence is an affirmative fact which plaintiff must establish. The Nitro-Glycerine Case, 15 Wall. 524, 537; Patton v. Texas Pacific Ry. Co., 179 U.S. 658, 663; Looney v. Metropolitan R.R. Co., 200 U.S. 480, 487; Southern Ry. Co. v. Bennett, 233 U.S. 80, 85. In proceedings brought under the Federal Employers' Liability Act *Page 291 rights and obligations depend upon it and applicable principles of common law as interpreted and applied in federal courts; and negligence is essential to recovery. Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 501, 502; Southern Ry. Co. v. Gray,241 U.S. 333, 339; New York Central R.R. Co. v. Winfield,244 U.S. 147, 150; Erie R.R. Co. v. Winfield, 244 U.S. 170, 172. These established principles and our holding in Central Vermont Ry. Co. v. White, 238 U.S. 507, 511, 512, we think make it clear that the question of burden of proof is a matter of substance and not subject to control by laws of the several states."
That this court had in mind, in deciding the Wychgel case, the distinction above pointed out, is further apparent from the citation, in the opinion, of Engfors v. Nelson Steamship Co.,131 Or. 108 (280 P. 337). See also, Hopkins v. S., P. S. Ry.,137 Or. 287 (298 P. 914, 2 P.2d 1105).
In Emmons v. Skaggs, 138 Or. 70 (4 P.2d 1115), Mr. Chief Justice BEAN disposes of the contention that this court should re-examine the facts on the ground that the verdict was excessive, in the following language:
"The defendant urges that the court should find that this is a case where it ought to exercise the powers vested in it by the Oregon Constitution, Article VII, § 3, and retry the case. We find no error in the record. Therefore this court is not authorized to retry the case. The testimony tends to show that the plaintiff was seriously and permanently injured. Under the constitution, the alleged excessiveness of the verdict can not be questioned, unless the court is in a position to affirmatively say there was no evidence to support the verdict: Malpica v. Cannery Supply Co., 95 Or. 242 (187 P. 596)."
Mr. Justice ROSSMAN, in Associated Oil Co. v. La Branch,139 Or. 410 (10 P.2d 597), states that *Page 292 "Article VII, Section 3, Oregon Constitution * * * provides that if this court, upon the discovery of error, `shall be of the opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered'".
See also, in this connection: Knight v. Beyers, 70 Or. 413 (134 P. 787); Johnson v. Meyers, 91 Or. 179 (177 P. 631);Farmers' Loan Mortgage Co. v. Hansen, 123 Or. 72 (260 P. 999); Obermeier v. Mortgage Co. Holland-America, 123 Or. 469 (259 P. 1064, 260 P. 1099, 262 P. 261); Holliday v. Riesland,138 Or. 31 (4 P.2d 1119); Burgess v. Charles A. Wing Agency,139 Or. 614 (11 P.2d 811); McCulley v. Homestead Bakery,141 Or. 460 (18 P.2d 226).
I have here attempted to point out the fact that this court has never before assumed authority under section 3, article VII of the Constitution as amended, to re-examine the evidence in any case and enter a judgment different from that based on the verdict of a jury unless the lower court has committed some error by which the parties litigant have been deprived of a fair trial. The constitutional provision above referred to does not confer upon this court jurisdiction to retry every law action, in the same manner as suits in equity, and enter judgment according to our opinion of what may be just and equitable. For on appeal in actions at law it is only errors properly assigned that will be considered: Taffe v. Smyth, 62 Or. 227 (125 P. 308); Marks v.First National Bank, 84 Or. 601 (165 P. 673); Service v.Sumpter Valley Ry. Co., 88 Or. 554 (171 P. 202).
We have seen that prior to 1910, when article VII of our Constitution was amended, this court could not review the action of the trial court in refusing to grant *Page 293 a new trial on the ground of excessiveness of the verdict. Since the adoption of the amendment of 1910, the trial court no longer, according to the decisions of this court as already pointed out, has any authority to grant a new trial on the ground that the verdict is excessive. Before being deprived of this authority, the trial court could not, when no error had been committed but the verdict was excessive, re-examine the facts and enter judgment for a less amount than that found by the jury. It could, however, overrule a motion for a new trial on condition that the plaintiff remit all in excess of a designated amount: Sorensonv. Oregon Power Co., 47 Or. 24 (82 P. 10).
Section 17, article I, of our Constitution, providing that "in all civil cases, the right of trial by jury shall remain inviolate", has not been repealed by section 3, article VII:State v. McDonald, 59 Or. 520 (117 P. 281); Schnitzer v.Stein, 96 Or. 343 (189 P. 984); Union Central Co. v. DeschutesValley Co., 139 Or. 222 (3 P.2d 536, 8 P.2d 587).
If trial by jury in civil cases is a constitutional right, as this court has affirmed many times before and since the amendment of article VII of our Constitution in 1910, of what particular benefit is such a right, if this court can ignore the verdict in all cases — for that is what a contrary opinion of this court on this particular point would ultimately lead to — and enter such judgment as it believes to be warranted by the evidence?
By such procedure this court would be substituting its opinion for that of the jury. It may be that, in our opinion, the verdict is excessive, or the evidence is insufficient to support the verdict to its full amount, or — and this seems to me a new and devious method of *Page 294 reasoning — there is no evidence to support a verdict in a sum in excess of a certain amount. Section 3, article VII, prohibits us from re-examining the facts on the first two grounds, wherefore we should not attempt to effect the same result through sophistry and circumlocution.
Before our Constitution was amended in 1910 it was the duty of the trial court on a motion for a new trial to weigh the evidence and if the verdict was against the clear weight of the evidence to grant a new trial: Serles v. Serles, 35 Or. 289 (57 P. 634;Multnomah County v. Willamette T. Co., 49 Or. 204 (89 P. 389). Following the amendment the relative weight of the testimony is a matter solely for the jury: Schneider v. Tapfer, 92 Or. 520 (180 P. 107); Mitchell v. Southern Pacific Co., 105 Or. 310 (209 P. 718); Sather v. Giaconi, 110 Or. 433 (220 P. 740). If the jury is the sole judge of the weight of the evidence, how is it possible for this court, in determining the amount of damages suffered by a plaintiff in a personal injury case, to decide the question without invading the province of the jury? If it can not be done without weighing the testimony, then this court is precluded from undertaking the task. Surely the judgment of twelve men and women, arrived at after seeing the witnesses and weighing their testimony, will be much more satisfactory than any guess we may make from reading the same.
Section 2-308, Oregon Code 1930, provides that, "in charging the jury, the court * * * shall inform the jury that they are the exclusive judges of all questions of fact". At no time has this court held that this mandate has been repealed, superseded or modified. *Page 295
Mr. Justice BURNETT, in Casciato v. Mason, 69 Or. 455 (138 P. 841), in answering the suggestion that this court retry the case, said:
"It is argued in the brief, however, that we should take the full report of the testimony accompanying the bill of exceptions and in effect, under Article VII, Section 3, of the state Constitution, retry the case ourselves on the evidence thus adduced, and reach a conclusion of fact different from that returned by the jury in the verdict. We can not properly do this, for it would be to invade the province of the jury and emasculate the institution of trial by that method which the Constitution of the state, even in its amended form, declares must be preserved."
The fervor with which the federal courts have guarded and upheld the constitutional right of trial by jury is well illustrated by the following cases: Slocum v. New York Life Ins.Co., 228 U.S. 364 (33 S. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029); Wilson v. Everett, 139 U.S. 616 (11 S. Ct. 664,35 L. Ed. 286); Arkansas Valley Land, etc. Co. v. Mann, 130 U.S. 72 (9 S. Ct. 458, 32 L. Ed. 854); Metropolitan R. Co. v. Moore,121 U.S. 558 (7 S. Ct. 1334, 30 L. Ed. 1022); Hodges v. Easton,106 U.S. 408 (1 S. Ct. 307, 27 L. Ed. 169). We ought not to be less zealous in preserving this "fundamental guarantee of the rights and liberties of the people". Our declaration in this regard should be more than "as sounding brass, or a tinkling cymbal".
"A verdict", said Mr. Justice BURNETT in Forrest v. PortlandRy., L. P. Co., 64 Or. 240 (129 P. 1048), "that is immune from re-examination except for an entire want of evidence is not any and every decision that may be reached by a body of twelve men who happen to sit in a jury box and hear the testimony *Page 296 in the presence of a court, but it means one reached under the form of law as prescribed for a jury trial within the meaning of the constitution from the beginning. * * * An invulnerable verdict must be a conclusion of fact by a jury regularly impaneled, as the result of a trial in which the rights of all parties in respect to the admission or exclusion of testimony have been observed in all material particulars under proper instructions of the court as to the law".
See also, State v. Rader, 62 Or. 37 (124 P. 195); Sullivanv. Wakefield, 65 Or. 528 (133 P. 641); Boatright v. PortlandRy., L. P. Co., 68 Or. 26 (135 P. 771).
It would seem strange indeed for this court to describe the kind of verdict which is "immune from re-examination", as it has done in the instances above cited and many others to which reference might be made, and then to avoid the effect of such decisions and the constitutional inhibition by merely saying that, in our opinion, the evidence is insufficient to support a verdict in an amount greater than a certain sum.
Many unjust results of litigation can be corrected, if the trial court will exercise the right it has to grant a new trial. This power of the circuit court is described by the opinion inArchambeau v. Edmunson, 87 Or. 475 (171 P. 186), as follows:
"Since that amendment became operative it has been held that the granting of a new trial was not a matter of discretion; that an order for the rehearing of a cause could not be sanctioned except when the court had committed some error, which if properly excepted to or seasonably called to the attention of the court and the motion denied, would have been sufficient cause for a reversal of the judgment if it had been brought up for review; and that under such circumstances *Page 297 the trial court upon motion or sua sponte possessed adequate power and was authorized within the prescribed time, to correct the error which it had committed by granting a new trial. [Citing many authorities.]
"The rule thus established ought in our opinion to be enlarged so that, when by reason of some misapplication of the principles of law to which no exception has been taken, or in consequence of some inadvertence to which attention has not been called, if the court is satisfied that a party has not had his cause properly presented, justice which should be dispensed in all cases sanctions the setting aside of a judgment rendered upon a verdict and the granting of a new trial, when such action of the lower court does not violate Article VII, Section 3, of the Constitution of Oregon respecting the quantum of evidence."
See also: Cathcart v. Marshfield, 89 Or. 401 (174 P. 138);Duniway v. Hadley, 91 Or. 343 (178 P. 942); Veazie v. Columbiaetc. R.R. Co., 111 Or. 1 (224 P. 1094).
It is obvious that we can not logically hold that we have the right, when no error has been committed by the circuit court, to re-examine the facts tried by a jury, without reversing our previous decisions. We can not by suppositions decide realities. Nor can we arrogate to ourselves power which we do not possess.
The judgment appealed from should be affirmed.
RAND, C.J., and BEAN, J., concur. *Page 298