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245 Or. 513

423 P.2d 496

Madron v. Thomson

Oregon Supreme Court

Decided October 26, 1966

Oregon Supreme Court · decided 1966-10-26

Good law ✅— No negative treatment on recordhow we know

Decided 1966-10-26

How this case has been cited

Cited by 6 later decisions — most recently January 1997

6 state decisions

201966197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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*527McALLISTER, C. J.,

¶1concurring in part, and dissenting in part.

¶2I agree that Riley’s admission is admissible against him, and makes a jury question as to his liability. I do not agree that Riley’s admission is admissible against his employer. It has been the rule in Oregon and elsewhere that admissions or declarations, not part of the res gestae, made by one through whose negligence injury is caused to another, tending to prove such negligence, while admissible against the person so causing such injury, are not admissible as against one constructively liable for such person’s negligence in an action against both for the injuries so caused. The court should instruct the jury that such admissions or declarations so admitted in evidence should be considered only in determining the liability of the defendant actually causing the injuries, and not in determining the liability of the defendant constructively liable for the negligence of the other defendant. 75 ALR 1534 (1931); Hazard v. Salles, 222 Or 559, 562, 353 P2d 548(1960); Bullington v. Farmer’s Tractor & Implement Co., 230 Ark 783, 324 SW2d 517 (1959); Square Deal Cartage Co. v. Smith’s Adm’r, 307 Ky 135, 210 SW2d 340 (1948); Smith v. Jungkind (Tex Civ App) 252 SW2d 596 (1952).

¶3I think the prevailing rule should be applied in this case.

Perry, J., concurs in this opinion.

¶4ON PETITION FOR REHEARING

*528Stanley C. Jones, Medford, and J. Anthony Giacomini, Klamath Falls, filed a brief in support of the petition.H. F. Smith, Klamath Falls, John S. Martel and Elke, Farella, Braun & Martel, San Francisco, California, contra.Before Perry, Chief Justice, and McAllister, Sloan, O’Connell, Goodwin, Denecke and Holman,* Justices.DENECKE, J.

¶5The petition for rehearing is denied.

¶6The following statement is made in the initial opinion:

“* … Thomson’s motion was premature as Riley had not rested at the time of Thomson’s first motion. A motion for a directed verdict is properly made after all the evidence is introduced and *529all the evidence introduced by any party is considered in determining the ruling upon such motion.…"

¶7We believe it advisable to clarify this statement as follows:

¶8A motion for a directed verdict by one defendant should not be considered until such time as all the evidence is in if there is any probability that any evidence to be offered might make out a case against the moving defendant. Bates v. Miller, 133 F2d 645, 648 (2d Cir 1943); Sadler v. Draper, 46 Tenn App 1, 16, 326 SW2d 148, 155 (1959); Annotation, 48 ALR2d 535 (1956).

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