¶1IN BANC. Action by Anna Johnson against Thornton Ladd. From the judgment, defendant appeals. On motion to remand bill of exceptions.
¶2MOTION DENIED. The respondent moves the court to remand the bill of exceptions on file to the circuit court "with directions to certify to this court whether Exception No. 4 and Exception No. 5 were taken by defendant and appellant at the time of the trial in the above-entitled cause, and to certify whether the record appearing upon pages 134-135 of the transcript of evidence attached to the bill of exceptions herein marked `Exhibit A' is the true and correct record of the exceptions taken by defendant and appellant in the trial court, or whether the record of exceptions purported to be shown by said Exceptions No. 4 and 5 is a true and correct record". The trial judge has already made a certificate pertaining to the matter.
¶3The motion is based upon the affidavit of attorney for respondent to the effect that the transcript of the official reporter is true and correct according to his *270 memory and knowledge of the cause; that subsequent to the trial of the cause the bill of exceptions and Exhibit A were served upon counsel for respondent and that at the time of service he was very busy with other trials and had no time to carefully check the bill of exceptions to see whether the same correctly reported the proceedings in said cause, and so informed counsel for appellant, and was advised by counsel that the bill of exceptions conformed to the record and no exceptions were included therein other than those taken at the trial; therefore, no objections were made or filed to the bill of exceptions and the trial judge was so informed by counsel for respondent.
¶4It is shown in the motion and in the transcript of testimony on page 135 that, at the close of the instructions given by the court, the court inquired of counsel: "Is there any matter the court has overlooked?" whereupon counsel for appellant stated: "We are satisfied with the instructions except the withdrawal from the jury of the first, second and third separate answers and defenses, and, of course, the refusal of the court to give any of our requested instructions."
¶5In the bill of exceptions there are contained two exceptions to the instructions of the court, Nos. 4 and 5. Therefore, there appears to be a conflict between the bill of exceptions as settled and allowed by the judge and the transcript of the official reporter.
¶6Objections to the form and structure of the bill of exceptions should be addressed to the trial judge, whose duty it is to settle the terms of the bill. Redsecker v. Wade, 69 Or. 153 (134 P. 5, 138 P. 485, Ann. Cas. 1916A, 269).
¶7A statement of the testimony as set forth in the bill of exceptions, certified to by the trial judge, is *271 binding on the Supreme Court as against a transcript of the same testimony by the official stenographer. Latourette v. Miller,67 Or. 141 (135 P. 327). See also Hoskins v. Scott, 52 Or. 271 (96 P. 1112); Weinstein v. Wheeler, 127 Or. 406 (257 P. 20,271 P. 733, 62 A.L.R. 574). The same rule must be applied to the statement of an exception contained in the bill of exceptions and certified by the trial judge, and we are bound thereby.
¶8The signing of a bill of exceptions by the trial judge is a certification that every material statement therein preceding the signature is true, except as otherwise stated. In York v. Nash,42 Or. 321, 325 (71 P. 59), former Mr. Justice BEAN records the following language: "When, therefore, the bill of exceptions in this case was signed by the trial judge, he in effect certified as correct every material statement thereof, excepting such as might be modified by his certificate, …."
¶9It is not enough to show that there is a discrepancy between the bill of exceptions and the transcript of the official reporter. As far as it appears it may be that, at a different stage of the trial or when the instructions excepted to were given, the counsel saved an exception and that this was overlooked in making the statement at the end of the trial.
¶10We are of the opinion that the proceedings for the correction of any error in the bill of exceptions should originate in the trial court.
¶11In Brewster v. Springer, 79 Or. 88, at page 90 (154 P. 418), we find the following: "Notwithstanding an appeal from a judgment may have been taken and perfected, jurisdiction of the cause is retained by the trial court sufficient to empower it, at any time before the appeal is heard and determined, to amend the bill of *272 exceptions so as to make it conform to the facts." Citing numerous Oregon cases. To the same effect see State ex rel. v.Ekwall, 135 Or. 439 (296 P. 57).
¶12We are not informed that the trial judge desires to make any correction of the bill of exceptions in the present case, and as the record now appears, giving proper effect to the bill of exceptions and also to the transcript of the official reporter, the motion to remand must be denied.
¶13It is so ordered.
¶15AFFIRMED. REHEARING DENIED. On April 8, 1927, plaintiff, being employed by defendant as a cook, and, in the absence of the nurse, being intrusted with the care of the three-year-old son of defendant, went for a ride in defendant's *273 car taking the child with her. The car was driven by a Mr. Anderson, who was in the employ of defendant as a gardener. The machine ran against a telephone pole injuring plaintiff.
¶16Plaintiff charged Anderson with negligence, imputable to defendant, in the operation of the automobile, in driving too fast, in failing to keep a proper lookout ahead, failing to notice a signal given by a motor truck which had signaled that it intended to turn to the left, and in attempting to pass said motor truck.
¶17This is the second appeal herein. On the former appeal, this court held that plaintiff and the driver of the automobile were not fellow servants so as to relieve the master of the negligence of the driver. Johnson v. Ladd, 138 Or. 371 (5 P.2d 1062).
¶18Seven purported errors are assigned.
¶19Mr. Joe Hammersly, a policeman, with nearly two years' experience as such officer, assigned to traffic work, who testified that he was familiar with the type of car in suit, namely, a Franklin of the year 1925, with two wheel brakes; that he had driven such cars, and that he was able to tell the distance within which such a car could be stopped when going at a speed of twenty-five miles an hour, was asked: "How far or what length would it take ?"
¶20To that question, objection was interposed thus: "Mr. Senn. I object to that as incompetent, irrelevant and immaterial".
¶21This objection was overruled and defendant's first assignment of error is based upon that ruling. A review of the authorities convinces us that no error was thereby committed. *274Crandall v. Krause, 165 Ill. App. 15; Johnson v. Quinn,130 Minn. 134 (153 N.W. 267); Withey v. Fowler Co., 164 Iowa 377 (145 N.W. 923); Hughey v. Lennox, 142 Ark. 593 (219 S.W. 323);Berkovitz v. American River Gravel Co., 191 Cal. 195 (215 P. 675); Friedler v. Hekeler, 96 Conn. 29 (112 A. 651); Youngv. Patrick, 323 Ill. 200 (153 N.E. 623); Tucker v. Carter (Mo.App.), 211 S.W. 138; Scholl v. Grayson, 147 Mo. App. 652 (127 S.W. 415); Blado v. Draper, 89 Neb. 787 (132 N.W. 410); Cheekv. Fox, 7 Tenn. Civ. App. 160; Miller v. Eversole, 184 Ill. App. 362; Meier v. Wagner, 27 Cal.App. 579 (150 P. 797);Foley v. Lord, 232 Mass. 368 (122 N.E. 393); Bishop v. Wight, 221 Fed. 392, 395; Morris v. Montgomery, 229 Mich. 509 (201 N.W. 496).
¶22Seasonably, a motion for nonsuit was interposed upon the ground that no negligence was shown on the part of defendant's driver, and that plaintiff and said driver were not fellow servants. Defendant's second assignment of error is based upon the court's action in overruling this motion.
¶23The record discloses testimony tending to prove that a signal of intention to turn was given by the driver of the motor truck ahead by extending a wooden bar in the shape of a hand and arm two feet long; that defendant's driver did not see it; that defendant's car was in good mechanical condition; that before the impact defendant's auto skidded fifty or sixty feet. In this state of the record, the question of whether defendant's driver was negligent in whole or in part as charged was properly submitted to the jury.
¶24The question whether plaintiff and said driver were fellow servants was decided upon the former appeal and that decision became and is the law of the case. Adskin v. O.W.R. N. Co.,134 Or. 574*275 (294 P. 605); Hansen v. Bedell Co., 132 Or. 332 (285 P. 823); Douglasv. Rumelin, 130 Or. 375 (280 P. 329); Farmer's Bank of Westonv. Ellis et al., 126 Or. 602 (268 P. 1009); Levine v. Levine,121 Or. 44 (252 P. 972); Booth-Kelly Lumber Co. v. Oregon, etc.,R.R. Co., 117 Or. 438 (243 P. 773); Hostetler v. Eccles,112 Or. 572 (230 P. 549); Reed v. Hollister, 106 Or. 407 (212 P. 367); William Hanley Co. v. Combs, 60 Or. 609 (119 P. 333);Stager v. Troy Laundry Co., 41 Or. 141 (68 P. 405); BritishIns. Co. v. Lambert, 32 Or. 496 (52 P. 180); Portland Trust Co.v. Coulter, 23 Or. 131 (31 P. 280); Kane v. Rippey, 22 Or. 299 (29 P. 1005); Murphy v. City of Albina, 22 Or. 106 (29 P. 353, 29 Am. St. Rep. 578); Applegate v. Dowell, 17 Or. 299 (20 P. 429); Thompson v. Hawley, 16 Or. 251 (19 P. 84); Powell v.Dayton, etc., R.R. Co., 14 Or. 22 (12 P. 83).
¶25Assignments three, four and five are based upon alleged error in giving certain instructions. No exception was saved to the giving of any instructions and hence the questions sought to be presented are not regularly before us. Moreover, the supplemental bill of exceptions discloses that the instructions as actually given by the learned trial judge are not erroneous.
¶26Assignment six urges that error was committed by the court's refusal to give a requested instruction to the effect that no recovery could be had for permanent injury. In her complaint, plaintiff alleged that "plaintiff's health and bodily vigor have been permanently injured".
¶27Dr. L.K. Poyntz, a medical expert, specializing in diagnosis, in answer to a question, based upon plaintiff's symptoms, as reflected in the record, as to whether plaintiff's condition is permanent or not, testified, "I think it is permanent". Taking the view, *276 which is most favorable to plaintiff, a deduction could be drawn from that answer and other testimony of this witness that the permanency mentioned applied to the disability resulting from the accident in suit and not from plaintiff's other maladies. The request to instruct to the contrary was properly refused.
¶28The seventh assignment of error is based upon the contention that excessive damages were awarded.
¶29The evidence discloses that plaintiff was confined to the hospital for two weeks at one time and again for a month and eight days; that she remained at the home of her sister for three weeks; that she lost her wages for four months; that except for these intervals, she has been able to perform her customary work; that her earning capacity is $90 per month and board and room. The case is not free from difficulty where, on the one hand we seek to distinguish between the result of the accident in suit, and, on the other, plaintiff's disability because of her chronic catarrh, the effect of thyroidectomy, prior impaired vision, appendectomy and a former aural abscess, for which no claim could be or is made that defendant is liable. Taking the view most favorable to plaintiff, we find that she suffered contusions on her face, chest and left forearm and a concussion of the brain resulting in headaches, nervousness and occasional lapses of memory; that the vision of the right eye and the hearing of the left ear are impaired, and that she suffers bodily pains thereby rendering her usual work more difficult of accomplishment. No skull or other fracture is shown. At the time of the accident, plaintiff was forty-five years of age. The attending physician's fee was $160.50, and the hospital fees were $254. *277
¶30Mr. Justice BELT, Mr. Justice ROSSMAN and the writer are of the opinion that the evidence does not support a judgment in the entire amount of $15,000, and that we have power to reduce it; but, three members of the court hold that the action of the jury in assessing the damages is conclusive, and that under the provisions of section 3 of article VII of the state constitution this court is without authority to change the judgment. In the written opinion of Mr. Justice BAILEY, rendered contemporaneously herewith, the view of those members of the court on that point is stated.
¶31Upon that phase of the case, the view of the writer is that by the terms of the constitution, error warranting reversal is not made a condition precedent to the exercise of the right by the supreme court to direct the entry of such judgment as should have been entered in the court below.
¶32This court is on record as having determined a definite specific amount in another case similar to the one at bar, beyond which there was no evidence to support a judgment, and in which case the amount of the judgment entered in the court below was reduced. Martin v. Oregon Stages. Inc., 129 Or. 435 (277 P. 291). The only distinction between that case and the instant case is that in the former, error, other than as to the amount of the award, appear, while in the case at bar, the record does not disclose any error except that the amount of damages assessed is too large.
¶33To the writer, it is inconceivable that error in the alleged indiscreet conduct of one juror affords any basis whatever for determining whether or not the award of damages is excessive. If this court is able to determine the point beyond which there is no evidence *278 to support a given judgment in a case where such error appears, it certainly is not any less able so to determine in a case where no such error occurs.
¶34If it be said that where no such error appears, the jury must be deemed to have tried the fact, and that a re-examination thereof is constitutionally inhibited, the answer at once is obvious that in cases where the court can affirmatively say there is no evidence to support the verdict, such constitutional inhibition does not apply.
¶35Because the right and the duty of the court to change the effect of a verdict is expressly restricted to those cases where there is no evidence to support such a verdict, the exercise of such right by the appellate court should be zealously restricted to those rare instances where reasonable minds are not at variance on the point that beyond a certain amount the judgment would be entirely unsupported by evidence.
¶36The judgment of the circuit court is affirmed.
¶37ROSSMAN, J., concurs.