approved instruction in Oregon

1973In Carey v. Hays, 243 Or 73, 78 , 409 P2d 899 (1966), this court approved the rule announced by Pomeroy that * * * equity does not assume jurisdiction * * * to recover money held in trust where an action for money had and received will lie.’ 1 Pomeroy, supra at 250.” 261 Or at 508 .

1973In Carey v. Hays, 243 Or 73, 78 , 409 P2d 899 (1966), this court approved the rule announced by Pomeroy that * * * equity does not assume jurisdiction * * * to recover money held in trust where an action for money had and received will lie.’ 1 Pomeroy, supra at 250.” 261 Or at 508 .

2010PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11 , 859 P2d 1143 (1993).

2010PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11 , 859 P2d 1143 (1993).

2007In TXO Productions Corp. v. Alliance Resources Corp., 509 US 443, 460 , 113 S Ct 2711 , 125 L Ed 2d 366 (1993), the Court held, “It is appropriate to consider the magnitude of the potential harm that the defendant’s conduct would have caused to its intended victim if the wrongful plan had succeeded.” (Emphasis in original.) Again, in State Farm, 538 US at 418 , the Court directed the attention of reviewing courts to “the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award[.]” In Williams v. Philip Morris Inc., 340 Or 35 , 127 P3d 1165 , cert g

2007In TXO Productions Corp. v. Alliance Resources Corp., 509 US 443, 460 , 113 S Ct 2711 , 125 L Ed 2d 366 (1993), the Court held, “It is appropriate to consider the magnitude of the potential harm that the defendant’s conduct would have caused to its intended victim if the wrongful plan had succeeded.” (Emphasis in original.) Again, in State Farm, 538 US at 418 , the Court directed the attention of reviewing courts to “the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award[.]” In Williams v. Philip Morris Inc., 340 Or 35 , 127 P3d 1165 , cert g

2007In TXO Productions Corp. v. Alliance Resources Corp., 509 US 443, 460 , 113 S Ct 2711 , 125 L Ed 2d 366 (1993), the Court held, “It is appropriate to consider the magnitude of the potential harm that the defendant’s conduct would have caused to its intended victim if the wrongful plan had succeeded.” (Emphasis in original.) Again, in State Farm, 538 US at 418 , the Court directed the attention of reviewing courts to “the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award[.]” In Williams v. Philip Morris Inc., 340 Or 35 , 127 P3d 1165 , cert g

2007In TXO Productions Corp. v. Alliance Resources Corp., 509 US 443, 460 , 113 S Ct 2711 , 125 L Ed 2d 366 (1993), the Court held, “It is appropriate to consider the magnitude of the potential harm that the defendant’s conduct would have caused to its intended victim if the wrongful plan had succeeded.” (Emphasis in original.) Again, in State Farm, 538 US at 418 , the Court directed the attention of reviewing courts to “the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award[.]” In Williams v. Philip Morris Inc., 340 Or 35 , 127 P3d 1165 , cert g

2007In TXO Productions Corp. v. Alliance Resources Corp., 509 US 443, 460 , 113 S Ct 2711 , 125 L Ed 2d 366 (1993), the Court held, “It is appropriate to consider the magnitude of the potential harm that the defendant’s conduct would have caused to its intended victim if the wrongful plan had succeeded.” (Emphasis in original.) Again, in State Farm, 538 US at 418 , the Court directed the attention of reviewing courts to “the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award[.]” In Williams v. Philip Morris Inc., 340 Or 35 , 127 P3d 1165 , cert g

2007In TXO Productions Corp. v. Alliance Resources Corp., 509 US 443, 460 , 113 S Ct 2711 , 125 L Ed 2d 366 (1993), the Court held, “It is appropriate to consider the magnitude of the potential harm that the defendant’s conduct would have caused to its intended victim if the wrongful plan had succeeded.” (Emphasis in original.) Again, in State Farm, 538 US at 418 , the Court directed the attention of reviewing courts to “the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award[.]” In Williams v. Philip Morris Inc., 340 Or 35 , 127 P3d 1165 , cert g

1992In State v. Carlson, 311 Or 201 , 808 P2d 1002 (1991), the court held that the preponderance standard applies to preliminary questions under OEC 104(1).

1992In State v. Carlson, 311 Or 201 , 808 P2d 1002 (1991), the court held that the preponderance standard applies to preliminary questions under OEC 104(1).

1990In Caraher, the court approved the test applied in State v. Chinn, 231 Or. 259 , 373 P.2d 392 (1962), that a search incident to arrest must not only be close in time and space, but its intensity must be "commensurate both with the crime and what was known of the criminal[.]" 231 Or. at 273 , 373 P.2d 392 .

1990In Caraher, the court approved the test applied in State v. Chinn, 231 Or. 259 , 373 P.2d 392 (1962), that a search incident to arrest must not only be close in time and space, but its intensity must be "commensurate both with the crime and what was known of the criminal[.]" 231 Or. at 273 , 373 P.2d 392 .

1983This rule was cited approvingly in McCarty v. Hedges et al, 212 Or 497, 518-519 , 309 P2d 186 , 321 P2d 285 (1958), even though the doctrine was not at issue.

1983This rule was cited approvingly in McCarty v. Hedges et al, 212 Or 497, 518-519 , 309 P2d 186 , 321 P2d 285 (1958), even though the doctrine was not at issue.

1983The court approved the instruction, holding that “those persons engaged in work upon the public streets are not called upon to exercise the same diligence in avoiding accidents as pedestrians who use the street merely as a medium of locomotion.” 66 Or at 244 .

1973In Carey v. Hays, 243 Or 73, 78 , 409 P2d 899 (1966), this court approved the rule announced by Pomeroy that * * * equity does not assume jurisdiction * * * to recover money held in trust where an action for money had and received will lie.’ 1 Pomeroy, supra at 250.” 261 Or at 508 .

1973The court approved the instruction in the following language: “This instruction simply assumes that the jury has reached the point of determining that defendants were negligent as alleged in plaintiff’s complaint, and then proceeds to instruct on the duties of the plaintiff as a child in regard to contributory negligence which bars recovery.” 244 Or at 27 .

1973The court approved the instruction in the following language: "This instruction simply assumes that the jury has reached the point of determining that defendants were negligent as alleged in plaintiff's complaint, and then proceeds to instruct on the duties of the plaintiff as a child in regard to contributory negligence which bars recovery." 244 Or. at 27 , 415 P.2d at 510 .

1973For two cases containing language which could be construed contra, see Huebener et al. v. Chinn, 186 Or 508, 530 , 207 P2d 1136 (1949); Patterson v. Getz, 166 Or 245, 285-86 , 111 P2d 842 (1941).

1973For two cases containing language which could be construed contra, see Huebener et al. v. Chinn, 186 Or 508, 530 , 207 P2d 1136 (1949); Patterson v. Getz, 166 Or 245, 285-86 , 111 P2d 842 (1941).

1973For two cases containing language which could be construed contra, see Huebener et al. v. Chinn, 186 Or 508, 530 , 207 P2d 1136 (1949); Patterson v. Getz, 166 Or 245, 285-86 , 111 P2d 842 (1941).

1973For two cases containing language which could be construed contra, see Huebener et al. v. Chinn, 186 Or 508, 530 , 207 P2d 1136 (1949); Patterson v. Getz, 166 Or 245, 285-86 , 111 P2d 842 (1941).

1966In Bergsvik v. Bergsvik, 1955, 205 Or 670, 685 , 291 P2d 724 , this court approved the rule which says that the privilege does not apply to litigation after the death of the client between parties who claim under the client.

1966In Bergsvik v. Bergsvik, 1955, 205 Or 670, 685 , 291 P2d 724 , this court approved the rule which says that the privilege does not apply to litigation after the death of the client between parties who claim under the client.

1962In State v. Porter, 1897, 32 Or 135, 157 , 49 P 964 , the court approved an instruction which told the jury that the danger to the defendant “must be absolute, imminent and unavoidable, * * In State v. Holbrook, 1920, 98 Or 43 , ( 188 P 947 ; 192 P 640 ; 193 P 434 ) beginning at page 70, Justice Btjrnett gives an extensive review of some of the earlier cases on this subject including State v. Porter, supra and again sustained the use of similar language.

1962In State v. Porter, 1897, 32 Or 135, 157 , 49 P 964 , the court approved an instruction which told the jury that the danger to the defendant “must be absolute, imminent and unavoidable, * * In State v. Holbrook, 1920, 98 Or 43 , ( 188 P 947 ; 192 P 640 ; 193 P 434 ) beginning at page 70, Justice Btjrnett gives an extensive review of some of the earlier cases on this subject including State v. Porter, supra and again sustained the use of similar language.

1962In State v. Porter, 1897, 32 Or 135, 157 , 49 P 964 , the court approved an instruction which told the jury that the danger to the defendant “must be absolute, imminent and unavoidable, * * In State v. Holbrook, 1920, 98 Or 43 , ( 188 P 947 ; 192 P 640 ; 193 P 434 ) beginning at page 70, Justice Btjrnett gives an extensive review of some of the earlier cases on this subject including State v. Porter, supra and again sustained the use of similar language.

1962In State v. Porter, 1897, 32 Or 135, 157 , 49 P 964 , the court approved an instruction which told the jury that the danger to the defendant “must be absolute, imminent and unavoidable, * * In State v. Holbrook, 1920, 98 Or 43 , ( 188 P 947 ; 192 P 640 ; 193 P 434 ) beginning at page 70, Justice Btjrnett gives an extensive review of some of the earlier cases on this subject including State v. Porter, supra and again sustained the use of similar language.

1962The *591 Porter case was again approved in State v. Banks, 1934, 147 Or 157, 170 , 32 P2d 571 .

1962The *591 Porter case was again approved in State v. Banks, 1934, 147 Or 157, 170 , 32 P2d 571 .

1961Holmberg v. Jacobs, 77 Or 246 , 150 P 284 ; Filkins v. Post Lbr.

1961Holmberg v. Jacobs, 77 Or 246 , 150 P 284 ; Filkins v. Post Lbr.

1961The rule of law effecting liability of a master for *529 injuries suffered by an employee, spoken of as assumption of risk, is set forth by this court in an approved instruction in Hagermann v. Chapman Timber Co., 65 Or 588, 594 , 133 P 342 . "`If you find from the evidence that at the time plaintiff was hurt, he was just as well aware of the danger of doing said work under the conditions existing at said time as his employer was, and that such danger was open and obvious, and could have been discovered by the plaintiff by the use of ordinary care, then I instruct you that Hagermann assumed th

1961The rule of law effecting liability of a master for *529 injuries suffered by an employee, spoken of as assumption of risk, is set forth by this court in an approved instruction in Hagermann v. Chapman Timber Co., 65 Or 588, 594 , 133 P 342 . "`If you find from the evidence that at the time plaintiff was hurt, he was just as well aware of the danger of doing said work under the conditions existing at said time as his employer was, and that such danger was open and obvious, and could have been discovered by the plaintiff by the use of ordinary care, then I instruct you that Hagermann assumed th

1953In State v. Walters, 105 Or 662 , 209 P 349 , the trial judge, after instructing the jury as to the statutory presumption, continued as follows: “The deliberate use of a deadly weapon necessary to constitute a conclusive presumption of intent to murder is the use of such weapon without cause or provocation, real or imaginary; but this intent to murder arising from the deliberate use *694 of a deadly weapon, although conclusive and binding upon the jury, will not raise the crime above the grade of murder in the second degree.

1953In State v. Walters, 105 Or 662 , 209 P 349 , the trial judge, after instructing the jury as to the statutory presumption, continued as follows: “The deliberate use of a deadly weapon necessary to constitute a conclusive presumption of intent to murder is the use of such weapon without cause or provocation, real or imaginary; but this intent to murder arising from the deliberate use *694 of a deadly weapon, although conclusive and binding upon the jury, will not raise the crime above the grade of murder in the second degree.

1951We expressly recognized the previous ruling of this court, but declared that upon the facts disclosed upon the final hearing of that case plaintiff had not brought herself within them. * * *” Again, in Nicholas v. Title & Trust Co., supra, the Court, relying on Schooling v. Harrisburg, said: “The grantees of the dedicator may extinguish the right of the public in and to a street by an unlawful encroachment thereon for a term equal to the period of the statute of limitations, which purpresture raises an estoppel against the municipality on the ground of the negligence of its officers in failing

1951We expressly recognized the previous ruling of this court, but declared that upon the facts disclosed upon the final hearing of that case plaintiff had not brought herself within them. * * *” Again, in Nicholas v. Title & Trust Co., supra, the Court, relying on Schooling v. Harrisburg, said: “The grantees of the dedicator may extinguish the right of the public in and to a street by an unlawful encroachment thereon for a term equal to the period of the statute of limitations, which purpresture raises an estoppel against the municipality on the ground of the negligence of its officers in failing

1951We expressly recognized the previous ruling of this court, but declared that upon the facts disclosed upon the final hearing of that case plaintiff had not brought herself within them. * * *” Again, in Nicholas v. Title & Trust Co., supra, the Court, relying on Schooling v. Harrisburg, said: “The grantees of the dedicator may extinguish the right of the public in and to a street by an unlawful encroachment thereon for a term equal to the period of the statute of limitations, which purpresture raises an estoppel against the municipality on the ground of the negligence of its officers in failing

1951We expressly recognized the previous ruling of this court, but declared that upon the facts disclosed upon the final hearing of that case plaintiff had not brought herself within them. * * *” Again, in Nicholas v. Title & Trust Co., supra, the Court, relying on Schooling v. Harrisburg, said: “The grantees of the dedicator may extinguish the right of the public in and to a street by an unlawful encroachment thereon for a term equal to the period of the statute of limitations, which purpresture raises an estoppel against the municipality on the ground of the negligence of its officers in failing

1944That decision was followed in the later case of Coos Bay Railroad Co. v. Siglin, 34 Or. 80 , 53 P. 504 , in which the court had instructed the jury that, “There is some evidence in this case tending to show” certain facts; and in Smitson v. Southern Pacific Co., 37 Or. 74 , 60 P. 907 , in which this court upheld as proper the following instruction: “There is some evidence on behalf of the plaintiff to the effect that the train did come to a standstill . . . and there is evidence before us tending to show the accident occurred about nine o’clock.” In giving the instruction herein challenged, th

1944That decision was followed in the later case of Coos Bay Railroad Co. v. Siglin, 34 Or. 80 , 53 P. 504 , in which the court had instructed the jury that, “There is some evidence in this case tending to show” certain facts; and in Smitson v. Southern Pacific Co., 37 Or. 74 , 60 P. 907 , in which this court upheld as proper the following instruction: “There is some evidence on behalf of the plaintiff to the effect that the train did come to a standstill . . . and there is evidence before us tending to show the accident occurred about nine o’clock.” In giving the instruction herein challenged, th

1944That decision was followed in the later case of Coos Bay Railroad Co. v. Siglin, 34 Or. 80 , 53 P. 504 , in which the court had instructed the jury that, “There is some evidence in this case tending to show” certain facts; and in Smitson v. Southern Pacific Co., 37 Or. 74 , 60 P. 907 , in which this court upheld as proper the following instruction: “There is some evidence on behalf of the plaintiff to the effect that the train did come to a standstill . . . and there is evidence before us tending to show the accident occurred about nine o’clock.” In giving the instruction herein challenged, th

1944That decision was followed in the later case of Coos Bay Railroad Co. v. Siglin, 34 Or. 80 , 53 P. 504 , in which the court had instructed the jury that, “There is some evidence in this case tending to show” certain facts; and in Smitson v. Southern Pacific Co., 37 Or. 74 , 60 P. 907 , in which this court upheld as proper the following instruction: “There is some evidence on behalf of the plaintiff to the effect that the train did come to a standstill . . . and there is evidence before us tending to show the accident occurred about nine o’clock.” In giving the instruction herein challenged, th

1940Co. v. Lesher, 152 Or. 161 , 52 P. (2d) 1133 ; Oregon Code 1930, sections 9-103, 9-112, 9-2001.

1940Co. v. Lesher, 152 Or. 161 , 52 P. (2d) 1133 ; Oregon Code 1930, sections 9-103, 9-112, 9-2001.

1939Co., 26 Or. 174 , 37 P. 477 , 25 L.

1939Co., 26 Or. 174 , 37 P. 477 , 25 L.

1939The principle which was employed in all of those decisions was the determining factor in Maletis v. Portland Traction Co., 160 Or. 30 , 83 P. (2d) 141 , wherein this court approved an instruction which told the jury *162 that if an infant, two years of age, is exposed to danger “it is the duty of every person approaching him to use all care and caution that such person can command to avoid injury to such infant.” In stating that conclusion the decision quoted from Wallace v. City & Suburban R.

1939The principle which was employed in all of those decisions was the determining factor in Maletis v. Portland Traction Co., 160 Or. 30 , 83 P. (2d) 141 , wherein this court approved an instruction which told the jury *162 that if an infant, two years of age, is exposed to danger “it is the duty of every person approaching him to use all care and caution that such person can command to avoid injury to such infant.” In stating that conclusion the decision quoted from Wallace v. City & Suburban R.