Denied September 23, 1913.
On Petition for Behearing.
(135 Pac. 169.)
Mr. Justice Mooredelivered the opinion of the court.
In a petition for a rehearing, attention is called to the fact that the transcript on appeal herein contains copies of the motion for a new trial and of the order denying that application. This part of the record *578was inadvertently overlooked when the former opinion was written, and as no reference thereto was supposed to have been made, except in the appellant’s abstract of record, it was then thought the question was not properly presented for consideration, a conclusion now discovered to be erroneous.
The motion referred to challenges the judgment on the following grounds: (1) That plaintiff’s counsel, over objection and exception, was permitted to interrogate the jurors relative to the liability of indemnity insurance; and (2) that the damages awarded are excessive, and resulted from the prejudice created by allowing such questions to be asked.
5. Neither the transcript on appeal, the bill of exceptions, nor the copy of the testimony brought up contains any reference to the questions propounded to the jurors on their voir dire examination. The purpose of an exception is to have incorporated in the record of the trial of a cause the action of the court, based either on its own motion or on the objection of a party, in determining some question material to the issues involved, the written evidence of which ruling, without such exception, would not otherwise appear. No exception is necessary, if the decision is predicated upon a question of law, when the determination is entered in the journal, or made wholly upon matters in writing and on file in the court: Section 172, L. O. L.
The preliminary qualification of a person as to his qualifications or bias when called to serve as a juror in the trial of a cause is usually conducted by orally asking questions, to which answers are given in the same manner. An objection to the proposed juror for cause and the ruling of the court thereon would not appear in the record without an exception, and the determination of the question could not be reviewed on appeal except by considering the questions ánd an*579swers given on the subject in the court below. A party to an action cannot be permitted to speculate on the possibility of securing a favorable verdict, and, if disappointed in this particular, set forth in a motion for a new trial errors alleged to have been committed by the court that do not otherwise appear in the record, and expect a re-examination of the questions thus insisted upon, for to sanction such a practice would necessarily dispense with a bill of exceptions, the use of which cannot be suspended. The recital in the motion for a new trial, as stated in the first ground therefor, is not properly before us.
6. Eliminating from the motion all reference to the examination of the jurors as to their qualifications, and also the alleged matter that induced the verdict, leaves for consideration a part of the second ground relied upon, viz., that the damages awarded are excessive. In. denying the motion, the order states that the conclusion thus reached was predicated upon a want of power in the court to grant the application based on a question of fact, and that no error of law was argued in presenting the motion.
A statute formerly permitted a judgment to be set aside and a new trial granted, on the motion of an aggrieved party for the following reasons, inter alia: “(5) Excessive damages, appearing to have been given under the influence of passion or prejudice; (6) insufficiency of the evidence to justify the verdict or other decision, or that'it is against law”: Section 174, L. O. L. Article VII, Section 3, of the Constitution of Oregon was amended November 8, 1910 (see Laws 1911, p. 7), and, as far as involved herein, now reads: “In actions at law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court in this state, unless the court *580can affirmatively say there is no evidence to support the verdict. ’ ’
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 cannot 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.
The petition for a rehearing is denied.
Affirmed : Rehearing Denied.