CON. FREIGHTWAYS v. WEST COAST FREIGHT

LUSK, C.J.

This is an appeal by the plaintiff from the judgment of the Circuit Court in an action tried to the court without jury.

The action arose out of a collision on a public highway in the state of Washington between trucks owned and operated by the respective parties. The plaintiff, charging negligence against the defendant, sought to recover for the damages to its truck; the defendant denied negligence on its part, and, in a counterclaim which alleged that the accident was caused by the negligence of the plaintiff, asked judgment for the damages to its truck. After a trial the court entered detailed findings of fact, the effect of which is that the accident was proximately caused by the negligence of the plaintiff and that the defendant was free from negligence. As a conclusion of law the court found that the defendant was entitled to recover a judgment in the sum of $1,332.82 and judgment was entered accordingly.

No objection to the findings or request for other different or additional findings was made by the plaintiff.

The plaintiff's brief contains two assignments of error, to the effect that the court erred in finding that the plaintiff was negligent and that such negligence, if any, was the proximate cause of the accident, both assignments being based on the claim that there is no substantial evidence to support the findings. Counsel for the defendant urge that these assignments present no question for the consideration of this court, for the reason that the plaintiff made no objections to the findings entered and failed to request other, additional or different findings.

1. The procedure to be followed in cases of this sort is outlined in § 5-502, O.C.L.A., which is printed in the margin.* As originally enacted in 1862 this statute, while requiring the court to make and file findings of fact and conclusions of law, contained no express provision for objections to, or requests for, findings. § 216, General Laws of Oregon 1845-1864 (Deady). Such provisions were added by amendments, first by Ch. 211, General Laws of Oregon 1925, and later by Ch. 165, General Laws of Oregon 1927. But whether under the statute in its original, or in its present form, it has uniformly been held that, in order to raise in the Supreme Court the question of the failure to make findings in accordance with a party's theory, the failure to find on an issue claimed to be material, or the sufficiency of the evidence to support a finding, the question must first be brought to the attention of the trial court by objections to proposed findings or requests for other, different or additional findings. The most recent decision is McPherson v. State Industrial Accident Commission, 169 Or. 190, 196, 127 P.2d 344 (1942). Among many others applying the rule are School Dist. No. 106 v. New Amsterdam Casualty Co., 132 Or. 673, 676, 288 P. 196; Maddox v. McHattan, 111 Or. 324, 326, 327, 224 P. 833, 226 P. 427; Stroberg v. Merrill, 67 Or. 409, 410, 135 P. 335; Taffe v. Smyth, 62 Or. 227, 229, 125 P. 308; Harris v. Harsch, 29 Or. 562, 568, 46 P. 141; Tatum v. Massie, 29 Or. 140, 147, 44 P. 494; Noland v. Bull, 24 Or. 479, 481, 33 P. 983; Umatilla Irrigation Co. v. Barnhart, 22 Or. 389, 390, 30 P. 37; In re Fenstermacher, 19 Or. 504, 507, 508, 25 P. 142; Hicklin v. McClear, 18 Or. 126, 138, 22 P. 1057.

2, 3. Three of our decisions are cited by the plaintiff to the proposition that "It is error to make a finding of fact with no satisfactory evidence to support it." Northwest Oil Co. v. Haslett Warehouse Co., 168 Or. 570, 123 P.2d 985; Pacific Wool Growers v. Draper & Co., 158 Or. 1, 73 P.2d 1391; Silver Falls Timber Co. v. Eastern & Western Lumber Co., 149 Or. 126, 184, 40 P.2d 703. With the substitution of the word "substantial" for "satisfactory", there can be no doubt of the correctness of the rule stated. But the question here, is how the error shall be made to appear, and, as has been frequently said, it is not error alone, but error legally excepted to, which constitutes ground for reversal. While formal exceptions are no longer required, except in the specific instances mentioned in Ch. 257, Oregon Laws 1941, it is still required that the appellant must first, in some fashion, have made his objection or request for a ruling to the trial court (Williams v. Ragan, 174 Or. 328, 337, 143 P.2d 209); in this instance in the manner already pointed out. As to the cases above cited, on which the plaintiff relies, it appears that in each of them the appellant made his record by objections to the findings and requests for findings.

The plaintiff also cites Burke Machinery Co. v. Copenhagen, 138 Or. 314, 6 P.2d 886, in which this court considered the question of the sufficiency of the evidence. It is true, as counsel for the plaintiff say, that the printed abstract does not show that objections to the findings were made in that case. The original record, however, which is on file here, discloses that the appellant filed with the trial court both objections to the challenged findings and a request for a finding that there was no evidence to support certain allegations of the complaint. The case is not authority for the plaintiff's position.

There is no contention that the findings do not support the judgment, and, as there is no other question properly before us, the judgment is affirmed.

PETITION FOR REHEARING

PETITION FOR REHEARING DENIED.

Schafer, Holbrook & Cronan, James P. Cronan, Jr., and James A. Nelson, of Portland, for the petition.

Collier & Bernard and Merwin Rankin, of Portland, contra.

Before LUSK, Chief Justice, and BRAND, ROSSMAN, BAILEY and HAY, Justices.

LUSK, C.J.

The argument of the appellant in support of the petition for rehearing is to the following effect: The statute in effect when many of the decisions cited in our former opinion were rendered, and which stand for the necessity of objections to, or requests for, findings, in order to raise in this court the question of the sufficiency of the evidence, did not mention such objections or requests. That statute (§ 216, General Laws of Oregon 1845-1864 (Deady)) read:

5. Specific provisions as to objections to, and requests for, findings did not come into the statute until its amendment by Ch. 165, General Laws of Oregon 1927, now § 5-502, O.C.L.A., which is set out in full in our former opinion. It is conceded that the decisions of this court, prior to 1927, support the view that the question of the sufficiency of the evidence cannot be raised on appeal unless it has first been raised in the trial court in the manner heretofore stated. It is argued, however, that the 1927 amendment changed all this because its provisions are purely permissive and do not require a party either to object to findings or to request findings. It is sought to fortify the argument by reference to the principle that, where the legislature has permitted to stand undisturbed over a period of years an interpretation of a statute by this court, an assumption of legislative approval of such interpretation may be indulged. Ryan v. State Industrial Accident Commission, 154 Or. 563, 567, 568, 61 P.2d 426. From these considerations the conclusion is drawn that the legislature, by the 1927 amendment, intended to provide a different practice on appeal than that which had formerly prevailed.

6. We think the conclusion is a non sequitur. Since the original statute said nothing of objections to findings or requests for findings, the decisions prior to 1927 were not an interpretation of that statute. They were simply the application to a particular situation, and against the background of the statute, of a settled general rule of practice in this state, to wit: that in actions at law, whether tried to a jury or by the court without a jury, error of law, such as is assigned here, will not be considered on appeal unless it is made to appear by a bill of exceptions. This is the basis of the decisions in Stroberg v. Merrill, 67 Or. 409, 135 P. 335; Taffe v. Smyth, 62 Or. 227, 229, 125 P. 308, and in the other cases cited in our former opinion.

7. Consequently, we think that there is no merit in the suggestion that the legislature intended by the 1927 enactment to deal in any way with appellate procedure. That amendment was an implementation of the prevailing practice. Its purpose was to prescribe rules for that practice: to fix the time within which requested findings, either special or general, must be served on the opposing party, the time for presenting objections to such requested findings, and to allow time for objections to findings prepared by the court. In one sense there has never been any requirement of statute, or otherwise, that the defeated party in the Circuit Court must follow the practice of objecting to findings or requesting findings. He could always do as he liked about it. But, in another sense, if he wished to appeal and invoke this court's consideration of certain types of error, including the error assigned on this appeal, the practice is today, and always has been, compulsory: the objection must be made or the finding requested, and the adverse ruling thereon brought to this court, with the evidence, in a bill of exceptions. The 1927 amendment discloses no intention to change that practice.

The petition for rehearing will, therefore, be denied.