Daily capital journal. (Salem, Oregon) 1903-1919, 1915-04-13
Three Justices Enter Vigorous
Dissenting Opinions Upon
Vastly Important Issue
DECLARE JURY'S ACTION
TO Be HELD INVIOLATE
Majority Holds Court Has
Right Of Re-TriaI Where
Error Shown


court, representing Justices Moore,
Bean, Eakin and Mcbride, and writ
ten by Justice Mcbride, the supreme
court this morning set aside the judg
ment of the circuit court for Multno-
nah county in the case Of William d.
Hoag, plaintiff and respondent, against
the Washington Oregon corporation, in
which the plaintiff was awarded YER
diet for damages in the sum Of $780,
600 for personal injuries against the
defendant corporation, and reduced the
amount Of judgment to $4,000 JUS
tices Benson, Burnett and Harris sub
mitted dissenting opinions.
The whole point rested upon the au-
thority of the supreme court, under the
provisions of section 3 Of article 7 Of
the constitution, to review and modify
the verdict of jury in personal dam,
age case, and the majority opinion, as
expressed by Justice Mcbride, is to
the effect that the appellate court has
the light to retry and finally dispose
of the case here, both as to the appel
liant and the respondent, "error in the
court below being shown" In sup
poet Of the findings of error in the
court below the majority opinion cites
the instructions of the court upon the
question of sympathy being permitted
to figure in the deliberations of the
jury, which might have aroused feelings
leading to an eXtravagant verdict.
cit seems to me to be perfectly ap
parent that the first and third sen
tences of section 3 of article 7 of the
constitution, as amended in 1910, are
in hopeless and irreconcilable conflict,
declares Justice Benson, in his dissent
ing opinion Especially is this true
if We undertake, under the powers ap
pareutly granted in the third sentence
to determine anew a question Of fact
such as the amonnt to be awarded to
a plaintiff in an action for personal in
iuries am opposed to the motion
that any court is justified by a process
Of Interpretation or by skillful re-
finement Of logic in reading into 0
written law anything which is not OBJ
viously there already
section is read as complete act or is
read with the rest of the section it still
means but one thing. If the third sen
tence imports what is contended for in
the prevailing opinion in this case, then
the FIRST sentence is thereby rendered
meaningless. The fault is not with the
courts but with the legislative power
which, in this instance, is the sovereign
citi2enry of the state. That there may
be instances wherein the third sentence
can be usefully and fairly applied with
out inconsistency, is undoubtedly true
but not in any case in which this court
presumes to question the finding Of q
jury is, in my opinion, Of far more i'm
portance as a safeguard against injus-
ticc than any benefits to be derived
from speedy disposition Of litigation
." In the case at bar, we should either
affirm the Judgment Of the lower court
or remand IL for new trial.
"'No fact once tried by u jury shall
again be tried by supreme court un.
less, and only unless, this court can
affirmatively say there Is no evidence
to support the verdict" says Justice
Harris in his dissenting opinion. of
the finding made by the jury Is to be
set aside then the ease should be re.
versed. If there is TO be a new trial
it should be by the jury aud not by this
court. "
at is true that the right Of appeal
is not guaranteed by the constitution,
but trial by jury is assured by that
instrument to every Citizen says Jus.
tice Burnett in his dissenting opinion.
"Since the foundation Of this state it
has been prescribed by the organic law
that 'in all civil eases the right Of
trial by jury shall remain inviolate. ,
I Upon the evidence disclosed by the rec
ord would have been wrong TO direct
a verdict either way in this ease. There
is material dispute which properly
should be settled by jury. The judg
men. should be reversed.
/ 90 There are cases TO which the right
Of trial by jury does not attach, but
this Is not one Of them" Justice Bur
nett continues In his dissenting opin
ion. "Thus will be preserved in its
vigor one Of the dearest institutions Of
free people, for in the language Of
Mr.. Justice Mcbride in his dissenting
opinion In Stevens vs.. Myers
the right Of trial by jury is one so
precious, SO vital to the preservation
Of our liberties, that we can well af