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,
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.
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
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.
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
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
The petition for rehearing will, therefore, be denied.