Baxter v. Baker , 454 P.2d 855 ( 1969 )

454 P.2d 855 (1969)

Peggy J. BAXTER, Formerly Peggy J. Riley, Respondent,
v.
Edwin M. BAKER and Patricia Baker, Appellants.

Supreme Court of Oregon, In Banc.

Petition for Rehearing Submitted April 15, 1969. Decided May 21, 1969.

Dwight L. Schwab, Frank H. Hilton, Jr., William C. McCarthy, and Hutchinson, Schwab & Burdick, Portland, for petition.

Richard Bryson and Windsor Calkins, Eugene, contra.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN DENECKE and HOLMAN, JJ.

On Respondent's Petition for Rehearing Submitted April 15, 1969.

PER CURIAM.

In a stipulation accompanying a petition for rehearing the plaintiff has asked this court to apply Oregon Constitution, Art. VII, § 3 (Amended), to enter a modified judgment eliminating all special damages instead of requiring a new trial. Since the only substantive error below involved the allowance of special damages, this is a proper case in which to modify the judgment. Our former opinion is modified to provide that upon receipt of the mandate the trial court should strike out special damages and enter judgment on the verdict for general damages only. It is so ordered. Petition for rehearing otherwise denied.