firmly established rule in Oregon

1980The court in Alvarez v. Retail Credit Assn., supra, at 261, quoting from Kuhnhausen v. Stadelman, 174 Or 290 , 148 P2d 239 , 149 P2d 168 (1944), stated: "[i]t is a firmly established rule in this state that in actions for malicious prosecution the question of probable cause is a question of law which the judge must decide upon established or conceded facts.

1980The court in Alvarez v. Retail Credit Assn., supra, at 261, quoting from Kuhnhausen v. Stadelman, 174 Or 290 , 148 P2d 239 , 149 P2d 168 (1944), stated: "[i]t is a firmly established rule in this state that in actions for malicious prosecution the question of probable cause is a question of law which the judge must decide upon established or conceded facts.

2024In so reasoning, we began by noting that “[i]t is a firmly established rule that contracts of indemnity will not be construed to cover losses to the indemnitee caused by his own negligence unless such intention is expressed in clear and unequivocal terms.” Id.

1989Thus, this court's statement that "[t]he implied license or invitation to enter a store or restaurant may be revoked at any time as to any individual," Penn v. Henderson, 174 Or. 1, 16 , 146 P.2d 760 (1944), is consistent with what appears to have been the settled rule at common law.

1989Thus, this court's statement that "[t]he implied license or invitation to enter a store or restaurant may be revoked at any time as to any individual," Penn v. Henderson, 174 Or. 1, 16 , 146 P.2d 760 (1944), is consistent with what appears to have been the settled rule at common law.

1985Co., 280 Or 525, 527 , 571 P2d 909 (1977). *770 “However, we do not wish to be understood as deviating in the slightest degree *771 from the firmly-established rule in this state that where the construction of an insurance policy containing ambiguous language is involved, the provisions should be liberally construed in favor of the insured.

1985Co., 280 Or 525, 527 , 571 P2d 909 (1977). *770 “However, we do not wish to be understood as deviating in the slightest degree *771 from the firmly-established rule in this state that where the construction of an insurance policy containing ambiguous language is involved, the provisions should be liberally construed in favor of the insured.

1980If none of the facts are in dispute, the court must decide the case without the intervention of a jury; but, if the case cannot be so decided, it must go to the jury with instructions from the court that certain facts, if found by them to exist, do or do not constitute probable cause; and it is not competent for the court to give to the jury a definition of probable cause and instruct them to find for or against the defendant according as they may determine that the facts are within or without the definition.” See also Kennedy v. Wackenhut, 41 Or App 275, 284 , 599 P2d 1126 (1979); Gustafson v

1980If none of the facts are in dispute, the court must decide the case without the intervention of a jury; but, if the case cannot be so decided, it must go to the jury with instructions from the court that certain facts, if found by them to exist, do or do not constitute probable cause; and it is not competent for the court to give to the jury a definition of probable cause and instruct them to find for or against the defendant according as they may determine that the facts are within or without the definition.” See also Kennedy v. Wackenhut, 41 Or App 275, 284 , 599 P2d 1126 (1979); Gustafson v

1980If none of the facts are in dispute, the court must decide the case without the intervention of a jury; but, if the case cannot be so decided, it must go to the jury with instructions from the court that certain facts, if found by them to exist, do or do not constitute probable cause; and it is not competent for the court to give to the jury a definition of probable cause and instruct them to find for or against the defendant according as they may determine that the facts are within or without the definition.” See also Kennedy v. Wackenhut, 41 Or App 275, 284 , 599 P2d 1126 (1979); Gustafson v

1980If none of the facts are in dispute, the court must decide the case without the intervention of a jury; but, if the case cannot be so decided, it must go to the jury with instructions from the court that certain facts, if found by them to exist, do or do not constitute probable cause; and it is not competent for the court to give to the jury a definition of probable cause and instruct them to find for or against the defendant according as they may determine that the facts are within or without the definition.” See also Kennedy v. Wackenhut, 41 Or App 275, 284 , 599 P2d 1126 (1979); Gustafson v

1966In the briefs, however, counsel for defendants has gone beyond the objections made below and has argued that Stiee’s Fifth and Sixth Amendment rights, as enunciated in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L ed 2d 977, and State v. Neely, 239 Or 487 , 395 P2d 557 , 398 P2d 482 , were violated. ① This case was tried in April, 1965, long after the decisions in the Escobedo and Neely cases, and, in accordance with the firmly established rule of appellate procedure, we decline to consider objections made for the first time in this court: State v. Evans, 241 Or 567 , 407 P2d 621 ; St

1966In the briefs, however, counsel for defendants has gone beyond the objections made below and has argued that Stiee’s Fifth and Sixth Amendment rights, as enunciated in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L ed 2d 977, and State v. Neely, 239 Or 487 , 395 P2d 557 , 398 P2d 482 , were violated. ① This case was tried in April, 1965, long after the decisions in the Escobedo and Neely cases, and, in accordance with the firmly established rule of appellate procedure, we decline to consider objections made for the first time in this court: State v. Evans, 241 Or 567 , 407 P2d 621 ; St

1966In the briefs, however, counsel for defendants has gone beyond the objections made below and has argued that Stiee’s Fifth and Sixth Amendment rights, as enunciated in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L ed 2d 977, and State v. Neely, 239 Or 487 , 395 P2d 557 , 398 P2d 482 , were violated. ① This case was tried in April, 1965, long after the decisions in the Escobedo and Neely cases, and, in accordance with the firmly established rule of appellate procedure, we decline to consider objections made for the first time in this court: State v. Evans, 241 Or 567 , 407 P2d 621 ; St

1966In the briefs, however, counsel for defendants has gone beyond the objections made below and has argued that Stiee’s Fifth and Sixth Amendment rights, as enunciated in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L ed 2d 977, and State v. Neely, 239 Or 487 , 395 P2d 557 , 398 P2d 482 , were violated. ① This case was tried in April, 1965, long after the decisions in the Escobedo and Neely cases, and, in accordance with the firmly established rule of appellate procedure, we decline to consider objections made for the first time in this court: State v. Evans, 241 Or 567 , 407 P2d 621 ; St

1966And *195 see Schmerber v. California, 384 US 757 , 86 S Ct 1826 , 16 L ed2d 908, Footnote 9.

1966And *195 see Schmerber v. California, 384 US 757 , 86 S Ct 1826 , 16 L ed2d 908, Footnote 9.

1966In the briefs, however, counsel for defendants has gone beyond the objections made below and has argued that Stiee’s Fifth and Sixth Amendment rights, as enunciated in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L ed 2d 977, and State v. Neely, 239 Or 487 , 395 P2d 557 , 398 P2d 482 , were violated. ① This case was tried in April, 1965, long after the decisions in the Escobedo and Neely cases, and, in accordance with the firmly established rule of appellate procedure, we decline to consider objections made for the first time in this court: State v. Evans, 241 Or 567 , 407 P2d 621 ; St

1966In the briefs, however, counsel for defendants has gone beyond the objections made below and has argued that Stiee’s Fifth and Sixth Amendment rights, as enunciated in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L ed 2d 977, and State v. Neely, 239 Or 487 , 395 P2d 557 , 398 P2d 482 , were violated. ① This case was tried in April, 1965, long after the decisions in the Escobedo and Neely cases, and, in accordance with the firmly established rule of appellate procedure, we decline to consider objections made for the first time in this court: State v. Evans, 241 Or 567 , 407 P2d 621 ; St

1966In the briefs, however, counsel for defendants has gone beyond the objections made below and has argued that Stiee’s Fifth and Sixth Amendment rights, as enunciated in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L ed 2d 977, and State v. Neely, 239 Or 487 , 395 P2d 557 , 398 P2d 482 , were violated. ① This case was tried in April, 1965, long after the decisions in the Escobedo and Neely cases, and, in accordance with the firmly established rule of appellate procedure, we decline to consider objections made for the first time in this court: State v. Evans, 241 Or 567 , 407 P2d 621 ; St

1966In the briefs, however, counsel for defendants has gone beyond the objections made below and has argued that Stiee’s Fifth and Sixth Amendment rights, as enunciated in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L ed 2d 977, and State v. Neely, 239 Or 487 , 395 P2d 557 , 398 P2d 482 , were violated. ① This case was tried in April, 1965, long after the decisions in the Escobedo and Neely cases, and, in accordance with the firmly established rule of appellate procedure, we decline to consider objections made for the first time in this court: State v. Evans, 241 Or 567 , 407 P2d 621 ; St

1962It appears to be a firmly established rule that the valuation placed upon property by the Assessor for the purpose of taxation is prima facie correct, and a party assailing such an assessment as excessive must make it clearly appear that the assessment does not represent the fair value of the property assessed: Steel v. Fell, 29 Or. 272 ( 45 Pac. 794 ); Oregon Coal etc. Co. v. Coos County, 30 Or. 308, 310 ( 47 Pac. 851 ); Southern Oregon Co. v. Coos Co., 39 Or. 185 ( 64 Pac. 646 ); Elmore Packing Co. v. Tillamook County, 55 Or. 218, 222 ( 105 Pac. 898 ); Northern Pac.

1962It appears to be a firmly established rule that the valuation placed upon property by the Assessor for the purpose of taxation is prima facie correct, and a party assailing such an assessment as excessive must make it clearly appear that the assessment does not represent the fair value of the property assessed: Steel v. Fell, 29 Or. 272 ( 45 Pac. 794 ); Oregon Coal etc. Co. v. Coos County, 30 Or. 308, 310 ( 47 Pac. 851 ); Southern Oregon Co. v. Coos Co., 39 Or. 185 ( 64 Pac. 646 ); Elmore Packing Co. v. Tillamook County, 55 Or. 218, 222 ( 105 Pac. 898 ); Northern Pac.

1962It appears to be a firmly established rule that the valuation placed upon property by the Assessor for the purpose of taxation is prima facie correct, and a party assailing such an assessment as excessive must make it clearly appear that the assessment does not represent the fair value of the property assessed: Steel v. Fell, 29 Or. 272 ( 45 Pac. 794 ); Oregon Coal etc. Co. v. Coos County, 30 Or. 308, 310 ( 47 Pac. 851 ); Southern Oregon Co. v. Coos Co., 39 Or. 185 ( 64 Pac. 646 ); Elmore Packing Co. v. Tillamook County, 55 Or. 218, 222 ( 105 Pac. 898 ); Northern Pac.

1962It appears to be a firmly established rule that the valuation placed upon property by the Assessor for the purpose of taxation is prima facie correct, and a party assailing such an assessment as excessive must make it clearly appear that the assessment does not represent the fair value of the property assessed: Steel v. Fell, 29 Or. 272 ( 45 Pac. 794 ); Oregon Coal etc. Co. v. Coos County, 30 Or. 308, 310 ( 47 Pac. 851 ); Southern Oregon Co. v. Coos Co., 39 Or. 185 ( 64 Pac. 646 ); Elmore Packing Co. v. Tillamook County, 55 Or. 218, 222 ( 105 Pac. 898 ); Northern Pac.

1953Nichols v. Ingram, 75 Or 439, 444 , 146 P 988 ; Bank of Colfax v. Richardson, 34 Or 518 , 54 P 359 , 75 Am St Rep 664; Fischer v. Gaither, 32 Or 161, 167 , 51 P 736 . *400 It is a firmly established principle of law in this state, as defendants maintain, that an election of. one of two inconsistent remedies is a bar to the prosecution of the other.

1953Stark v. State Ind. Acc. Comm., 103 Or 80 , 204 P 151 ; Dondeneau v. State Ind. Acc. Comm., 119 Or 357 , 249 P 820 ; Stacey v. State Ind. Acc. Comm., 145 Or 195 , 26 P2d 1092 ; Cain v. State Ind. Acc. Comm., 149 Or 29 , 37 P2d 353 . *408 The complaint alleges the deterioration of the plaintiff’s eye subsequent to 21 October 1949, the accompanying pain, and the necessity of an operation, but the only allegation in the complaint concerning disability is the following: “ * * * that plaintiff is now suffering a permanent partial disability as the direct and proximate result of said accident, equal

1953Nichols v. Ingram, 75 Or 439, 444 , 146 P 988 ; Bank of Colfax v. Richardson, 34 Or 518 , 54 P 359 , 75 Am St Rep 664; Fischer v. Gaither, 32 Or 161, 167 , 51 P 736 . *400 It is a firmly established principle of law in this state, as defendants maintain, that an election of. one of two inconsistent remedies is a bar to the prosecution of the other.

1953Nichols v. Ingram, 75 Or 439, 444 , 146 P 988 ; Bank of Colfax v. Richardson, 34 Or 518 , 54 P 359 , 75 Am St Rep 664; Fischer v. Gaither, 32 Or 161, 167 , 51 P 736 . *400 It is a firmly established principle of law in this state, as defendants maintain, that an election of. one of two inconsistent remedies is a bar to the prosecution of the other.

1953Stark v. State Ind. Acc. Comm., 103 Or 80 , 204 P 151 ; Dondeneau v. State Ind. Acc. Comm., 119 Or 357 , 249 P 820 ; Stacey v. State Ind. Acc. Comm., 145 Or 195 , 26 P2d 1092 ; Cain v. State Ind. Acc. Comm., 149 Or 29 , 37 P2d 353 . *408 The complaint alleges the deterioration of the plaintiff’s eye subsequent to 21 October 1949, the accompanying pain, and the necessity of an operation, but the only allegation in the complaint concerning disability is the following: “ * * * that plaintiff is now suffering a permanent partial disability as the direct and proximate result of said accident, equal

1953Stark v. State Ind. Acc. Comm., 103 Or 80 , 204 P 151 ; Dondeneau v. State Ind. Acc. Comm., 119 Or 357 , 249 P 820 ; Stacey v. State Ind. Acc. Comm., 145 Or 195 , 26 P2d 1092 ; Cain v. State Ind. Acc. Comm., 149 Or 29 , 37 P2d 353 . *408 The complaint alleges the deterioration of the plaintiff’s eye subsequent to 21 October 1949, the accompanying pain, and the necessity of an operation, but the only allegation in the complaint concerning disability is the following: “ * * * that plaintiff is now suffering a permanent partial disability as the direct and proximate result of said accident, equal

1953Nichols v. Ingram, 75 Or 439, 444 , 146 P 988 ; Bank of Colfax v. Richardson, 34 Or 518 , 54 P 359 , 75 Am St Rep 664; Fischer v. Gaither, 32 Or 161, 167 , 51 P 736 . *400 It is a firmly established principle of law in this state, as defendants maintain, that an election of. one of two inconsistent remedies is a bar to the prosecution of the other.

1953Nichols v. Ingram, 75 Or 439, 444 , 146 P 988 ; Bank of Colfax v. Richardson, 34 Or 518 , 54 P 359 , 75 Am St Rep 664; Fischer v. Gaither, 32 Or 161, 167 , 51 P 736 . *400 It is a firmly established principle of law in this state, as defendants maintain, that an election of. one of two inconsistent remedies is a bar to the prosecution of the other.

1953Stark v. State Ind. Acc. Comm., 103 Or 80 , 204 P 151 ; Dondeneau v. State Ind. Acc. Comm., 119 Or 357 , 249 P 820 ; Stacey v. State Ind. Acc. Comm., 145 Or 195 , 26 P2d 1092 ; Cain v. State Ind. Acc. Comm., 149 Or 29 , 37 P2d 353 . *408 The complaint alleges the deterioration of the plaintiff’s eye subsequent to 21 October 1949, the accompanying pain, and the necessity of an operation, but the only allegation in the complaint concerning disability is the following: “ * * * that plaintiff is now suffering a permanent partial disability as the direct and proximate result of said accident, equal

1953Stark v. State Ind. Acc. Comm., 103 Or 80 , 204 P 151 ; Dondeneau v. State Ind. Acc. Comm., 119 Or 357 , 249 P 820 ; Stacey v. State Ind. Acc. Comm., 145 Or 195 , 26 P2d 1092 ; Cain v. State Ind. Acc. Comm., 149 Or 29 , 37 P2d 353 . *408 The complaint alleges the deterioration of the plaintiff’s eye subsequent to 21 October 1949, the accompanying pain, and the necessity of an operation, but the only allegation in the complaint concerning disability is the following: “ * * * that plaintiff is now suffering a permanent partial disability as the direct and proximate result of said accident, equal

1953Stark v. State Ind. Acc. Comm., 103 Or 80 , 204 P 151 ; Dondeneau v. State Ind. Acc. Comm., 119 Or 357 , 249 P 820 ; Stacey v. State Ind. Acc. Comm., 145 Or 195 , 26 P2d 1092 ; Cain v. State Ind. Acc. Comm., 149 Or 29 , 37 P2d 353 . *408 The complaint alleges the deterioration of the plaintiff’s eye subsequent to 21 October 1949, the accompanying pain, and the necessity of an operation, but the only allegation in the complaint concerning disability is the following: “ * * * that plaintiff is now suffering a permanent partial disability as the direct and proximate result of said accident, equal

1953Stark v. State Ind. Acc. Comm., 103 Or 80 , 204 P 151 ; Dondeneau v. State Ind. Acc. Comm., 119 Or 357 , 249 P 820 ; Stacey v. State Ind. Acc. Comm., 145 Or 195 , 26 P2d 1092 ; Cain v. State Ind. Acc. Comm., 149 Or 29 , 37 P2d 353 . *408 The complaint alleges the deterioration of the plaintiff’s eye subsequent to 21 October 1949, the accompanying pain, and the necessity of an operation, but the only allegation in the complaint concerning disability is the following: “ * * * that plaintiff is now suffering a permanent partial disability as the direct and proximate result of said accident, equal

1953Stark v. State Ind. Acc. Comm., 103 Or 80 , 204 P 151 ; Dondeneau v. State Ind. Acc. Comm., 119 Or 357 , 249 P 820 ; Stacey v. State Ind. Acc. Comm., 145 Or 195 , 26 P2d 1092 ; Cain v. State Ind. Acc. Comm., 149 Or 29 , 37 P2d 353 . *408 The complaint alleges the deterioration of the plaintiff’s eye subsequent to 21 October 1949, the accompanying pain, and the necessity of an operation, but the only allegation in the complaint concerning disability is the following: “ * * * that plaintiff is now suffering a permanent partial disability as the direct and proximate result of said accident, equal

1943In Perry v. Payne, 217 Pa. 252, 262 , 66 Atl. 558 , 11 L.

1932J. under head of ‘Demand Note’ and note 85.” Again to quote from the learned trial judge: “It is a firmly established principle in this state that where reversible error is committed on the trial it is the duty of the court to grant a new trial, and this is true, even when prejudicial evidence is admitted without objection, or where the court has submitted *154 the cause to the jury on wrong legal principles, without exceptions thereto by either party, on the hypothesis that a correct judgment cannot be obtained upon improper evidence or incorrect principles of law; Archambeau v. Edmunson, 87

1932J. under head of ‘Demand Note’ and note 85.” Again to quote from the learned trial judge: “It is a firmly established principle in this state that where reversible error is committed on the trial it is the duty of the court to grant a new trial, and this is true, even when prejudicial evidence is admitted without objection, or where the court has submitted *154 the cause to the jury on wrong legal principles, without exceptions thereto by either party, on the hypothesis that a correct judgment cannot be obtained upon improper evidence or incorrect principles of law; Archambeau v. Edmunson, 87