not designated for permanent publication
How later courts described this case
- not designated for permanent publication
Written by the judges who cited it.
Later courts went against this
Overruled in part by Fischer v. Howard, 201 Or. 426 (1954)
77 P.2d 1103, 1104 (Or. 1938), overruled by Fischer v. Howard, 271 P.2d 1059, 1069-70
The opinion
*33
BAILEY, J.
(specially concurring). Were the present question raised here for the first time, I should be inclined to the opinion that the court could say from the verdict that it was the intention of the jury to find that the plaintiff had suffered no damages and that the court in the first instance did not err in entering judgment for the defendant for costs, but that it did err in later setting aside that judgment and ordering a new trial.
The decision of this court in
McLean v. Sanders,
139 Or. 144 ( 7 P. (2d) 981 ), is determinative of the question raised on this appeal, unless the majority of the court is willing to overrule that case. I should even be willing to accede to the overruling of precedent, if my doing so would result in making that action the decision of the majority. Since, however, the majority of this court is in favor of following the law as laid down in
McLean v. Sanders,
supra, no good purpose would be served by my concurrence in the dissenting opinion in this case. For the reason herein' stated, I concur in the result reached by the majority opinion.