Shmit v. Day

Opinion by Mr. Justice Moore. 1. A copy of all the evidence offered or introduced at the trial is set out in and made a part of the bill of exceptions, from which it appears that the page of the payroll offered in evidence was signed at the request of Frank Shmit by his brother at the time the money was received. We cannot think the plaintiff was precluded by any of the recitals contained in the payroll. The cause of action accrued to him for the loss of his son’s service, and he should not be prejudiced because another son, at Frank’s request, received and receipted for the amount due him. 2. And even if the recitals were binding upon the plaintiff, the words “Payroll of the J. G. & I. N. Day Contracting Company,” do not necessarily refer to a corporation. The evidence offered tending to prove the existence of the corporation was a self-serving memorandum, not necessarily admitting the fact in controversy, and not signed by the plaintiff, and hence not admissible. 3. The answer admitted that the defendants were the original contractors with the government for the improvement of the Columbia River, but they claimed to have sublet the contract to a corporation of which they were agents, and J. G. Day the general manager. The contract between the government and the defendants having been proven to have once existed, it will be presumed to continue until the work of opening, building, and con [115] structing the canal and locks are completed by them, (Subdivision 33, § 776, Hill’s Code,) and having alleged the assignment of the contract in their answer, and that fact being more particularly within their knowledge, the burden of proof was upon them to establish it: Peabody v. Oregon Railway and Navigation Company, 21 Or. 121 (12 L. R. A. 823, 26 Pac. 1053); Ferguson v. Wisconsin Central Railway Company, 63 Wis. 145 (23 N. W. 123); Weber v. Rothchild, 15 Or. 385 (3 Am. St. Rep. 162, 15 Pac. 650). The defendants, in addition to the oral testimony upon the subject, offered in evidence certified copies of the certificate of organization of the J. G. and I. N. Day Contracting Company, and sections of the statute of California showing its powers. In Peabody v. Oregon Railway and Navigation Company, just cited, Lord, J., in commenting upon the weight of evidence, says: “This seems to indicate, as was contended, that when a presumption arises in any case, the jury is not bound to believe the declaration of a witness, or a number of them, contradicting the presumption, but that the credibility of such witness or witnesses then becomes a question for them, and if they are not satisfied of the truthfulness of the evidence of such witnesses, they are not bound to believe it, but may find in accordance with the presumption. ” The burden of proof relating to the assignment of the contract was clearly upon the defendants, and hence the instruction complained of correctly stated the law, and the jury having found for the plaintiff upon the presumption, its verdict will not be disturbed upon that account 4. The legislative assembly, by an act approved October fifteenth, eighteen hundred and seventy-eight, ceded jurisdiction to the United States over certain lands at the cascade locks, but reserved the right to execute civil and criminal process issued under the authority of the state against any person or persons charged with crimes [116] committed, or for any cause of action accruing without the bounds of said tract: Session Laws, 1878, page 8. Assuming that the accident occurred within the ceded territory, the transcript does not show that the summons was served therein. Actions for damages resulting from personal injuries are transitory, and the courts of any state have jurisdiction without regard to where the injury was received. If this were not so, then a sister state might become a “city of refuge,” to which the party guilty of negligence producing personal injury might flee, and find a safe asylum. Such is not the law, and the record failing to show that the process was served within the ceded territory, the court had jurisdiction of the cause of action. 5. It is contended that the evidence totally fails to show that the defendants were negligent in the performance of any duty they owed the plaintiff’s minor son, but that, on the contrary, it clearly shows that the boy was injured in consequence of his own negligence. No motion for a nonsuit, nor any request for an instruction to the jury to find for the defendants, having been made in the court below, the question is presented whether this court has authority to review the evidence. “Whether the plaintiff is entitled to recover any damages,” says Mr. Thompson in his work on Charging the Jury, § 22, “is a question for the court; because this question is a compound of two questions of law, namely: (1) Whether he has in his pleadings shown an actionable injury; (2) Whether he has adduced any evidence to support the claim thus made.” The right to recover any damages is therefore a question of law, but appellate courts will consider those law questions only which by the record appear to have been properly presented to and decided by the trial court; and the general rule is that objections not so presented will receive no attention on appeal, (Elliott’s Appellate Procedure, §§ 288, 470,1 except objections to the jurisdic [117] tion of the court, and that the complaint does not state a cause of action: Hill’s Code, § 71. An objection must be appropriately made in the trial court to the ruling or decision deemed to be erroneous, and when not so made the right toa object will be regarded as waived on appeal to this court, (Elliott’s Appellate Procedure, §§ 674, 675,) for it( is safe to say that the general rule, and one of very comprehensive scope, is that where there is no ruling, or no sufficient request to rule, there is no available error: Elliott’s Appellate Procedure, § 726. The defendants not having moved for a judgment of nonsuit, or asked the court to instruct the jury to find for them upon the assumed failure of the evidence to support the allegations of the complaint, the objections which they now urge were not presented to or decided by the trial court, and cannot be considered here; and, a general verdict having been rendered for the plaintiff, every material allegation of the complaint will be presumed to be found true, and the verdict as broad as the issues passed upon: Torrence v. Strong, 4 Or. 39; Woods v. Courtney, 16 Or. 121 (17 Pac. 745); Reed v. Gentry, 7 Or. 497. These views rendering the examination of the evidence unnecessary, the judgment will be affirmed, and it is so ordered. Affirmed.