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Beall Transport Equipment Co. v. Southern Pacific Transporation Co.12/27/2002
eserved that error automatically by requesting the instruction. In Holland, by contrast, the error at issue regarded error in the instruction given to the jury, and the plaintiff argued that she had preserved that error by having requested an instruction on the same topic. Holland, therefore, did not undermine the holding of Crow that the refusal to give a requested instruction automatically preserves the error of failing to give that instruction.
Finally, we turn to Roberts. In that case, the trial court refused to give the defendant's requested instruction regarding bailment. 289 Or at 123-24. On appeal, the defendant assigned error to the trial court's failure to give the defendant's requested instruction. Id. at 121. The plaintiff argued that the defendant had failed to preserve its claim of error regarding the trial court's failure to give the instruction that the defendant had requested, because the defendant had not objected to the instructions that the court had given. Id. at 127-28. This court rejected that argument, relying on Crow for the proposition that exceptions are not required when trial courts refuse to give requested instructions. Id. at 128.
Although the court reached the correct result in Roberts, we acknowledge and now disavow the suggestion in Roberts that a requested instruction must "clearly and directly" call to the trial court's attention its error in failing to give that instruction. See id. at 131 ("Because defendant preserved * * * error by requesting an instruction that 'clearly and directly' called to the attention of the trial court its error in failing to instruct the jury on the question of negligence, * * * the defendant * * * was entitled to appeal from the failure to give that instruction."). Any misinterpretation of Holland in Roberts did not affect the outcome in that case, nor has it affected this court's reasoning in more recent cases. See, e.g., Bennett v. Farmers Ins. Co., 332 Or 138, 153, 26 P3d 785 (2001) (correctly stating preservation rule regarding appeal from trial court's failure to give proffered jury instruction).
In sum, neither Holland nor the text of ORCP 59 H requires a party to except to the trial court's refusal to give that party's requested jury instruction to preserve for appeal the argument that the court erred in failing to give that instruction. In this case, Abrams requested a jury instruction containing the complete text of section 222A of the Restatement. By requesting that instruction, Abrams preserved for appeal the question whether the trial court erred in failing to give that instruction to the jury. On remand, the Court of Appeals must address the merits of Abrams's assignment of error. See State ex rel Carlile v. Frost, 326 Or 607, 617, 956 P2d 202 (1998) ("When this court concludes that the Court of Appeals has erred in not deciding an issue on the merits, it usually remands the case to that court to consider the issue in the first instance.").
The decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the Court of Appeals for further proceedings.
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