Opinion
No. 74-1656, SC 24378
Argued November 5, 1976.
Affirmed February 17, 1976. Petition for rehearing denied March 29, 1977.
Appeal from Circuit Court, Douglas County.
Don H. Sanders, Judge.
Affirmed.
Gary L. Hill, Roseburg, argued the cause for appellant. With him on the brief was Randolph Slocum of Slocum and Poole, Roseburg.
John L. Svoboda, Springfield, argued the cause for respondent. With him on the brief were Max S. Taggart, II, and Sanders, Lively Wiswall, Springfield.
Before Denecke, Chief Justice, and Tongue, Bryson, and Lent, Justices.
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 P.2d 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 P.2d 437 (1970); Clarizo v. Spada Distributing Co., Inc., 231 Or. 516, 520-521, 373 P.2d 689 (1962); Schafer v. Fraser, 206 Or. 446, 489-490, 290 P.2d 190, 294 P.2d 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 P.2d 1050 (1932) and Clubb v. Hanson, 272 Or. 236, 244, 536 P.2d 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.