Opinion
No. A8006-03482, CA A23444
Argued and submitted September 24, 1982.
Affirmed November 24, 1982.
Appeal from Circuit Court, Multnomah County, Richard L. Unis, Judge.
Ronald D. Thom, Portland, argued the cause for appellant. On the briefs was Diane C. Brock, Portland.
R. P. Joe Smith, Portland, argued the cause and filed the brief for respondent.
Before Richardson, Presiding Judge, Joseph, Chief Judge, and Van Hoomissen, Judge.
PER CURIAM
Judgment affirmed; plaintiff is awarded an additional sum equal to 10 percent of the judgment.
Defendant appeals a judgment for plaintiff for general, special and punitive damages in an action for battery. After the jury returned its verdict, defendant moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial on the ground that there was insufficient evidence to support the verdict for punitive damages. As plaintiff points out, defendant did not raise that issue in any fashion during the trial. The issue cannot be raised for the first time in a post-trial motion. ORCP 64B(6); Maulding v. Clackamas County, 278 Or. 359, 563 P.2d 731 (1977). The court did not err in denying defendant's motion. In any event, there was ample evidence to justify submitting the punitive damages issue to the jury and to support the jury's verdict.
Plaintiff requests that we award an additional 10 percent of the judgment pursuant to ORS 19.160. We conclude the requested award is justified. The law is quite clear that defendant could not prevail on the post-trial motion without having appropriately raised the issue during trial. It is also clear that there was evidence to support an award of punitive damages. There was not probable cause for taking the appeal, and it merely delayed payment of the judgment.
The judgment is affirmed, and plaintiff is awarded an additional sum equal to 10 percent of the total judgment.