Opinion · Court of Appeals of Oregon

Stavros v. Department of Motor Vehicles

Stavros v. Dep’t of Motor Vehicles, 12 Or. App. 356 (Or. Ct. App. 1973)

Type: Opinion
Court: Court of Appeals of Oregon
Jurisdiction: Oregon
Date: 1973-03-05
Topic: general

THORNTON, J., dissenting. The majority opinion sets out the plaintiff’s testimony on both direct and cross-examination. Certainly this testimony, on its face, appears contradictory. However, the testimony given by the plaintiff on cross-examination may be somewhat ambiguous in that plaintiff throughout this exchange with the assistant attorney general may have been referring only to “* * * [t]he first line,” and not the entire rights document. It is possible he may not have followed and understood the line of questioning.

Citator

UpLaw has not yet analyzed Stavros v. Department of Motor Vehicles. The absence of a flag is not a finding that it is good law.

THORNTON, J.,

dissenting.

The majority opinion sets out the plaintiff’s testimony on both direct and cross-examination. Certainly this testimony, on its face, appears contradictory. However, the testimony given by the plaintiff on cross-examination may be somewhat ambiguous in that plaintiff throughout this exchange with the assistant attorney general may have been referring only to “* * * [t]he first line,” and not the entire rights document. It is possible he may not have followed and understood the line of questioning.

The majority, reading the record, does not agree with this textual analysis. However, significantly, the *364 trial judge having heard the testimony and observed the plaintiff and other witnesses, found the evidence sufficient to submit to the jury. The jury, also having the benefit of direct observation, then found for the plaintiff, resolving contradictions and ambiguities in his favor.

Amended Art VII, § 3, Oregon Constitution, provides:

“* * * [N]o fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict * *

The resolution of evidentiary conflict is a jury function. State v. Glasburn, 116 Or 451, 241 P 846 (1925). I am unable to see how we can, consistent with the above constitutional limitation, focus on one portion of contradictory testimony, such as plaintiff’s statements on cross-examination, and hold that the testimony must be controlling, and that the jury would have had to believe it.

On appeal from a denial of judgment notwithstanding the verdict we review the evidence in the light most favorable to the party awarded the judgment, here the plaintiff. “* * * A judgment n.o.v. ought not to be granted if there is any substantial evidence to support the verdict.” Austin v. Sisters of Charity, 256 Or 179, 183, 470 P2d 939 (1970); Durkoop v. Mishler et al, 233 Or 243, 378 P2d 267 (1963).

I feel that the majority on this appeal has not adhered to these standards of review. Therefore I respectfully dissent.