Thomas v. Dad's Root Beer & Canada Dry Bottling Co‪.‬

HOWELL, Justice pro tem. In a petition for rehearing the defendant asserts that the original opinion incorrectly stated the facts when it was said, 'He [meaning the offending juror who conducted and reported the experiment] testified before the presiding judge of Multnomah county.' The defendant is correct. The juror did not appear before the presiding judge. His testimony was, however, taken at the Multnomah county courthouse before an official reporter. While the witness was not placed under oath, both counsel were present. The examination was conducted first by plaintiff's counsel, and then defendant's counsel cross-examined the witness. No objection was raised by counsel to the fact the witness was not sworn. This clearly constituted a waiver.