Petition for rehearing denied December 14, 1943 ON PETITION FOR REHEARING (144 P.2d 296) On Petition for Rehearing:
It is respectfully urged that the court erred: (1) In holding that there is no substantial evidence tending to show negligence and (2) in reversing the judgment without remanding the cause for a new trial.
We adhere to the original opinion holding that expert testimony was essential to show negligence on the *Page 681 part of a physician or surgeon in adopting a particular method to revive a person from fainting.
The second question as to whether this court, in an action at law, after reversal of a judgment on the ground of insufficiency of the evidence, should remand the case for a new trial is one worthy of careful consideration. In the instant case, the defendant moved for a nonsuit and a directed verdict. There was no ruling of the trial court which prevented the plaintiff from fully developing his case. No evidence was excluded which ought to have been received. Plaintiff undoubtedly has had his day in court. He is in no position to assert that his constitutional right of jury trial has been infringed upon. The motion for a directed verdict should have been allowed. Under this state of the record, we think this court, on appeal, has the authority to render final judgment or direct the trial court to enter the same. In taking such action, we are doing only that which ought to have been done by the circuit court. Nor are we substituting our judgment on a question of fact for that of the jury, as no question of fact is involved on a demurrer to the evidence. The only legal verdict that the court could have rendered, in the light of the evidence, would have been for the defendant.
The entire record is before us. By virtue of Art. VII, § 3, of the Constitution of Oregon, the Supreme Court is authorized to "direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity * * *" when "it can determine what judgment should have been entered in the court below * * *." One of the purposes of the above constitutional amendment was the facilitation of the disposal of cases on appeal: Wright v. Wimberly, 94 Or. 1, 184 P. 740; Knight v.Beyers, 70 Or. 413, *Page 682 134 P. 787. Regardless of what may be the practice in other jurisdictions (3 Am. Jur. 705) this court, where similar records have been involved, has, upon reversal of the judgment, refused to remand the cause for a new trial and has rendered final judgment here. See: Davis v. Payne, 108 Or. 72, 216 P. 195;Staples v. Senders, 164 Or. 244, 96 P.2d 215,101 P.2d 232; Hamilton v. Finch, 166 Or. 156, 109 P.2d 852,111 P.2d 81; Bunnell v. Parelius, 166 Or. 174, 111 P.2d 88;Freer v. Eugene, 166 Or. 107, 111 P.2d 85.
The petition for rehearing is denied. *Page 683