Decided March 23, 1909.
On Petition for Further Rehearing.
[100 Pac. 298.]
Opinion by
Mr. Chief Justice Moore.8. The defendant’s counsel contended in a petition for a rehearing that, in upholding the directed verdict returned herein, this court, without determining that the evidence given necessarily justified the conclusion reached by the trial court, attempted to establish a rule of practice that is not regulated by statute; that the right of trial by jury is guaranteed in all civil cases (Section 17, Article I, Constitution of Oregon), unless waived in the manner prescribed by law (Section 157, B. & C. Comp.), and that the bill of exceptions does not show that the defendant relinquished its right to such a trial, nor can its renunciation be reasonably assumed from any failure to request that the cause should have been submitted to a jury after the motion for a nonsuit was denied. In support of the principle thus asserted, attention is called to the case of Coffin v. Hutchinson, 22 Or. 554, 557 (30 Pac. 424). In considering the correctness of a verdict there directed for the plaintiff upon the failure of the defendants to offer any evidence after their motion for a nonsuit was denied, it is said: “A fair test in such case is, if the jury, in the absence of a special direction, were to find a verdict the other way, ought it to be set aside ?” *363In the case cited it does not appear that any request was made for the directed verdict that was returned evidently on the court’s own motion, and, though the plaintiff’s counsel did not join in waiving the jury trial to which his client was entitled, he did not except to the ruling that was made in his favor. It can readily be seen that, if a verdict for the sum claimed in the complaint can be directed for the plaintiff without a request therefor, the court, upon its own motion, could order a finding for a part of the demand when, in its opinion, the evidence tended to show that such an award should be made, thereby depriving that party of a trial by jury, the right to which he had not relinquished. If no greater sum could legally have been given by the jury than was so ordered, the plaintiff would not be prejudiced in any manner; and, this being so, a fair test in such case should be: If the jury, in the absence of special direction, were to find any other verdict, ought it to be set aside? We believe this is the extent of the rule that should have been announcd in Coffin v. Hutchinson, 22 Or. 554, 557 (30 Pac. 424), when a motion for a judgment of nonsuit is denied, and the court of its own motion directs a verdict for the plaintiff.
9. In the case at bar each party relinquished the right to a jury trial, which right the defendant did not revive by any request to have the cause submitted to the jury, after the motion for a judgment of nonsuit was denied. Such a motion, when overruled, is not waived in this State by evidence introduced by the defendant, unless a defect in the plaintiff’s proof is thus cured by establishing the material facts necessary to authorize a recovery conformable to the averments of the complaint. Bennett v. Northern Pac. Ex. Co., 12 Or. 49 (6 Pac. 160); Carney v. Duniway, 35 Or. 131 (57 Pac. 192: 58 Pac. 105); Trickey v. Clark, 50 Or. 516 (93 Pac. 457).
10. So, too, upon principle, the defendant, by requesting that a cause be submitted to the jury,- after a denial *364of his motion for a nonsuit, does not waive his application therefor, but manifests a desire to take the opinion of the jurors as to the facts involved to which he is entitled by law rather than to accept the judgment of the court thereon.
11. When he moves for a judgment, of nonsuit, he expressly waives in the manner prescribed (Section 157, B. & C. Comp.) the right to a jury trial, and, if he would revive that right after the nonsuit is denied, he should request the court to submit the cause to the jury.
12. The practice herein approved is not prescribed by statute, nor was the rule invoked at the rehearing. In order finally to dispose of causes on appeal, it is occasionally incumbent upon the court to adopt a procedure that was not requested at the trial. If the mode thus selected impels the speedy enforcement of a right, or induces the hasty redress of a wrong, and, as a correct exposition of the law, is appropriate to the facts involved, it is controlling and ought to be adopted, though the legal principle applied may not have been suggested by either party. We believe the rule selected meets these several requirements.
13. The right of a defendant to a jury trial in civil cases must be maintained inviolate, but, when that party waives that right by requesting the trial court to grant a judgment of nonsuit, on the ground that the evidence of the adverse party is insufficient to authorize the cause to be referréd to the triers of fact, such express renunciation ought to be obligatory upon the party making it until he changes the position thus voluntarily assumed, either by introducing evidence after the motion for the nonsuit is denied, or by requesting the court to submit the cause to the jury.
Since the defendant herein did not make such a demand, or offer any evidence after the motion was decided, we must adhere to the rule adopted in the preceding opinion; and hence the petition for a rehearing is denied.
Further Eehearing Denied.