Russell v. Rich

BRYSON, J. Plaintiff brought this action for breach of contract to recover damages incurred as a result of defendant’s failure to obtain industrial accident insurance covering plaintiff’s employees. Judgment was entered in favor of plaintiff on the jury’s verdict. Defendant’s sole assignment of error is that "[t]he trial court erred in making its order denying defendant’s motion for a new trial.” Plaintiff contends that the appeal should be dismissed because defendant did not move for a nonsuit or a directed verdict during trial and all objections by defendant were determined in his favor and, therefore, "defendant does not have appealable error.” We agree. Defendant’s motion for a new trial contended there was no evidence to support the jury’s verdict. In Baumbach v. Poole, 266 Or 154, 156-57, 511 P2d 1219 (1973), we stated: "* * * This court has repeatedly held that the sufficiency of the evidence to support a verdict cannot be raised for the first time by a motion for judgment n.o.v. or for a new trial, but must be raised during the trial by a motion for a nonsuit or by a motion for a directed verdict. See Paul v. McCudden, 256 Or 143, 471 P2d 437 (1970); Clarizo v. Spada Distributing Co., Inc., 231 Or 516, 520-521, 373 P2d 689 (1962); Schafer v. Fraser, 206 Or 446, 489-490, 290 P2d 190, 294 P2d 609 (1955). * * *” None of the exceptions to this rule as set forth in ORS 17.610 (causes for granting new trial) and discussed in Benson v. Birch, 139 Or 459, 467, 10 P2d 1050 (1932) and Clubb v. Hanson, 272 Or 236, 244, 536 P2d 528 (1975), are present in the case at bar. Therefore, the assignment of error presents nothing for this court’s consideration. Defendant filed no reply brief to plaintiff’s contention. We have examined the testimony and find there is evidence to support the jury’s verdict. Affirmed.