“ ‘most of the acts are [not] qualified by the limitation that the injury must have been inflicted during regular working hours.’ ”
How later courts described this case
- “ ‘most of the acts are [not] qualified by the limitation that the injury must have been inflicted during regular working hours.’ ”
Written by the judges who cited it.
The opinion
Brown, J.
(dissenting). This cause is before us on rehearing. For a statement of the issues made by the pleadings and the evidence adduced in support thereof, see our former opinion, wherein we affirmed the decision of the court below but failed to consider the motion to direct a verdict for defendant.'
Briefly stated, this is a common-law action for the recovery of damages, filed and prosecuted by the plaintiff, a workman formerly employed by defendant as a logger. The defendant operated a sawmill at Silver-ton, and likewise employed workmen in logging camps in that vicinity. These camps were connected with defendant’s sawmill by a logging railroad, and were also connected with the outside world by a wagon road and mountain trail. The plaintiff had served the defendant as a logger for three seasons prior to the accident. The camp at which he was employed during the season of 1926 is situate in the wooded mountains, about 20 miles east of Silverton. The unmarried workmen bought their meals at a cook house maintained at camp, and paid for the privilege of sleeping in the bunk house. The workmen served their employer eight hours a day, and were paid by the hour. When in the performance of their labors at the logging camp, they were under the direction and control of their
*518
employer. At all other times, they were free from the employer’s control, and not subject to the supervision of any person.
On November 6, 1926, the plaintiff, having been granted a vacation or “lay-off,” left camp to go hunting. He traveled to Silverton on a “speeder.” During his stay at Silverton he lived at a hording house. On November 9, he decided to return to the logging camp, his working abode, with the intention of resuming employment. He went to the depot, and, by invitation of a representative of the defendant, with others boarded a truck on the logging train. After the train had started and developed a speed of 15 or 20 miles an hour, it came to a sudden stop with a jar, the force of which threw the plaintiff to the ground. As a result, the plaintiff received serious bodily injuries, including the loss of his left arm. Upon these accidental personal injuries sustained by him when thrown from the logging truck, he predicates his cause of action. The complaint is in the usual form for such documents in personal injury cases.
The answer of defendant consists of admissions, denials and affirmative defenses. It affirmatively avers that the circuit court was without jurisdiction of the cause for the reason that the employer and the workman were under the protective provisions of the Workmen’s Compensation Act. It denies negligence and affirmatively pleads plaintiff’s alleged contributory negligence.
The plaintiff in his reply denies all of the new matter pleaded by the defendant.
Upon the trial of the cause both parties adduced evidence in support of their respective issues. After
*519
each side had rested, the defendant moved for a directed verdict, on two grounds:
“(a) That the case was within the provisions of the Oregon Workmen’s Compensation Act and therefore the court had no jurisdiction, and
“(b) If the court did have jurisdiction, no negligence was proved.”
The court disallowed the motion, and the defendant reserved an exception to the court’s ruling.
In its charge to the jury, the court instructed that the affirmative defense made by defendant involving the protection of the Workmen’s Compensation Act should be disregarded. No objection was made, nor exception reserved to that holding, nor is there any assignment of error relating thereto. The defendant stands squarely and tenaciously upon its objection to the ruling of the court on its motion for a directed verdict, and bases said objection on the ground that jurisdiction of the controversy was within the Industrial Accident Commission, and not in the circuit court. The jury returned a verdict for plaintiff in the sum of $25,000.
In its motion for a directed verdict, the defendant herein specifies the grounds therefor, and in this discussion it is limited to the grounds therein set forth: 6 Ency. PI.
&
Pr., 699. By this motion, it challenges the jurisdiction of the circuit court, and claims that the court erred in refusing to grant the motion for directed verdict.
A verdict rendered by the direction of the court in a case where the court is without jurisdiction is a nullity. The question of jurisdiction has been before our court in a number of eases from the early Oregon history to the present time. See
State ex rel. Mahoney
*520
v. McKinnon,
8 Or. 487 ;
Kesler v. Nice,
54 Or. 585 ( 104 P. 2 );
State v.
Goodall, 82 Or. 329 ( 160 P. 595 ). In the more recent case of
Dippold v. Cathlamet Timber Co.,
98 Or. 183 ( 193 P. 909 ), the subject is exhaustively treated. In rendering our opinion therein we set out the following concise statement made by the Supreme Court of the United States in the case of
Defiance Water Co. v. Defiance,
191 U. S. 184 ( 48 L. Ed. 140 , 24 S. Ct. 63 ):
“The fundamental question of jurisdiction, first, of this court, and then of the court from which the record comes, presents itself on every writ of error and appeal, and must be answered by the court, whether propounded by counsel or not.”
In our discussion of the question in that case we also quoted from the early case of
Evans v. Christian,
4 Or. 375 , where Mr. Justice Bonham, speaking for the court, said:
“When a question of jurisdiction presents itself in any stage of a proceeding, and it is discovered that the court has no jurisdiction, either over the parties or the subject-matter of the cause, it is the duty of the court, on its own motion, to refuse to proceed further. Any attempt to exercise judicial functions otherwise than as authorized by law would be a nullity, and an idle waste of time.”
See, also, 17 Stand. Ency. of Proced., 657;
Clyde & R. Plank Road Co. v. Parker,
22 Barb. (N. Y.), 323.
In 7 R. C. L., §59, “Courts,” there appears the following declaration to which, for its perspicuity, we expressly direct attention:
“It is a universal principle as old as the law that the proceedings of a court without jurisdiction are a nullity and its judgment without effect either on the person or property.”
*521
And again, at section 75, the author states:
“Where judicial tribunals have no jurisdiction of the subject-matter on which they assume to act, their proceedings are absolutely void in the strictest sense of the term.”
However, the court did not deny the motion because of any lack of jurisdiction over the subject-matter or the person of the litigants. The circuit court possessed original jurisdiction of the common-law action, and was empowered to hear, try, determine and render judgment upon all the issues that arose in this cause: Brown on Jurisdiction (2d Ed.), §§ 1, 2.
We now address ourselves to a consideration of the motion for a directed verdict. A motion for a directed verdict presents for decision the same question as does a motion for judgment of nonsuit:
Ridley v. Portland Taxicab Co.,
90 Or. 529 ( 177 P. 429 ). It likewise presents the same question, in so far as it relates to the evidence, as does a demurrer to the evidence. This is true of a motion for nonsuit as well. In the case of
Carty v. McMenamin and Ward,
108 Or. 489, 500 ( 216 P. 228 ), our court thus gives expression to the governing principle with respect thereto:
“It is the law of this state that a nonsuit will not be granted whenever there is some competent evidence produced by the plaintiff in the trial of a cause supporting each material allegation of his complaint. ’ ’
In the recent case of
Johnson v. Hoffman,
132 Or. 46 ( 284 P. 567 ), this court, speaking through Mr. Acting Justice Hamilton, aptly stated:
“It must be premised that the law of the state of Oregon does not permit a nonsuit to be granted whenever there is some competent evidence produced by the plaintiff in the trial of a cause supporting each material allegation of his complaint. This court has frequently declared that a motion for nonsuit is in the
*522
nature of a demurrer to the evidence, and that such motion admits not only all that the evidence proves but all that it tends to prove:
Collins v. United Brokers Co.,
99 Or. 556 ( 194 P. 458 );
Carty v. McMenamin & Ward,
108 Or. 489 ( 216 P. 228 ). A motion for a directed verdict presents the same question for decision as does a motion for judgment of nonsuit. ”
See the early case of
Southwell v. Beezley,
5 Or. 458, 460 , where this court laid down the rule that ‘ ‘ a cause should be submitted to the jury, unless there is an entire lack of evidence to establish the issues on the part of the plaintiff.” See, also,
Grant v. Baker,
12 Or. 329 ( 7 P. 318 ), where it was held that, in order to take a case from the jury, “it would have to be a case where there was a total failure of proof of some material allegation of the complaint.” To like effect is
Morgan’s Estate,
46 Or. 233 ( 77 P. 608 , 78 P. 1029 ). In the case of
Salomon v. Cress,
22 Or. 177 ( 29 P. 439 ), our court, in commenting upon the treatment of a motion to take a case from the jury, said:
“In passing upon this question, we only examine the record far enough to ascertain whether or not there was some evidence on each material issue. We do not assume to weigh such evidence or to determine its sufficiency, but only that there was some evidence before the jury upon which they might find a verdict if they believed the witnesses.”
This court has held over and over again that, in determining a motion for nonsuit, the evidence adduced on the part of the plaintiff, together with every intendment or reasonable inference which can arise therefrom, is to be taken as the truth:
Watts v. Spokane P. & S. Ry. Co.,
88 Or. 192 ( 171 P. 901 ). See
Herrick v. Barzee,
96 Or. 357 ( 190 P. 141 ), where it is written:
“A motion for nonsuit is a demurrer to the evidence and admits the truth of the evidence and every
*523
reasonable inference of fact which the jury may infer from it, and, if different conclusions can be drawn from the facts, the case should be left with the jury.”
For a collection of the Oregon cases on this subject, we direct attention to
Farrin v. State Industrial Accident Commission,
104 Or. 452 ( 205 P. 984 ).
Throughout our discussion of this cause we have assumed that, in the reviewing of cases on appeal, this court is bound to the doctrine that only errors shown by the record to have been legally excepted to are reversible:
State v. Stone,
111 Or. 227 ( 226 P. 430 ). In the case of
State v. Ellsworth Kelley and James Willos,
118 Or. 397 ( 247 P. 146 ), a case where the defendants had been convicted of the crime of murder and were under sentence of death, it appeared, from a review by this court of the proceedings had in the circuit court, that no exception had been saved to certain of the court’s instructions, and, in the absence of such exceptions, this court refused to consider the alleged errors. In its decision therein the court cited a number of cases, including the early case of
Kearney v. Snodgrass,
12 Or. 311 ( 7 P. 309 ), where it was held that “it is not error, simply, but error legally excepted to, that constitutes a ground for reversal.”
We have carefully read all the testimony in this case more than once, and from an inspection of the record we find substantial evidence in support of each and every essential allegation contained in plaintiff’s complaint. The court had no right to grant a nonsuit or to direct a verdict in this cause. To remove it from the jury would have been to deny the plaintiff’s constitutional right to have his cause tried by a jury.
*524
Adhering, therefore, to the governing principles which underlie the cases hereinbefore discussed, it follows that the judgment appealed from should be affirmed.
Coshow, C. J., and Bean, J., concur in this dissent.