Abrams’s
We take the following undisрuted facts primarily from the Court of Appeals’ opinion. In May 1995, Klepper, the manager of Southern Pacific’s Brooklyn Yard in Portland, sold several semi-trailers to Abrams, a scrap metal dealer. Klepper falsely told Abrams that Southern Pacific owned the trailers and that Klepper was selling them on behalf of Southern Pacific. In fаct, Southern Pacific only leased the trailers. By the end of 1996, Klepper had sold Abrams more than 100 such trailers, and Abrams, in turn, had sold at least 79 of the trailers to Beall Transport Equipment Co. (Beall), a used trailer dealer, which in turn sold 55 of the trailers to third parties. Southern Pacific officials eventually learned that their leased trailers were missing and, with the help of the police, recovered many of the trailers from Abrams and Beall.
Those circumstances led to two lawsuits. In one, Beall filed a complaint against Southern Pacific
Before trial, the court granted Beall’s motion for partial summary judgment against Abrams on Beall’s breach of contract claim. The only issues for trial were the amount of damages that Abrams owed on Beall’s breach of contract claim, the merits of Beall’s fraud claim against Abrams, and Abrams’s and Southern Pacific’s claims agаinst each other.
During a recess at trial, the lawyers representing Abrams and Southern Pacific went into chambers with the judge to discuss a matter that concerned only those parties. During that time, the lawyer representing Beall spoke to two members of the jury. Thereafter, Abrams moved for a mistrial. A subsequent inquiry revealed that the ex parte communicatiоn consisted of the lawyer’s comment on one juror’s attire and a statement to another juror that the lawyer recognized the juror as an employee of a pub that the lawyer recently had visited. The trial court denied Abrams’s motion for a mistrial.
At the close of all the evidence, Abrams submitted section 222A of Restatement (Second) of Torts (1965)
The jury returned two special verdicts. In one verdict, the jury awarded Beall damages on its breach of contract claim against Abrams but found that Abrams did not commit fraud. In its second verdict, the jury found that Southern Pacific was entitled to damages from Abrams for conversion. Southern Pacific and Abrams then litigated the amount of those damages in a trial to the bench. After that trial, the trial court entered judgments on the jury’s verdicts and on its own damages award.
Abrams appealed, raising six assignments of error. As relevant to the issues on review, the Court of Appeals affirmed the trial court’s denial of Abrams’s motion for a mistrial. Beall Transport Equipment Co. v. Southern Pacific,
On review, Abrams first argues that the Court of Appeals erred in reviewing for abuse of discretiоn the trial court’s denial of his motion for a mistrial. Abrams contends that the abuse of discretion standard is appropriate only when an ex parte communication is between a party and a juror, or between a witness and a juror. According to Abrams, a communication between a lawyer and a juror is analogous to a communication betwеen a judge and a juror, and should be considered error as a matter of law. Huntley v. Reed,
However, Abrams asked the Court of Appeals to review fоr abuse of discretion the trial court’s denial of Abrams’s motion for a mistrial based on the lawyer-juror ex parte communication. Even assuming that some other
We turn to Abrams’s contention that the trial court erred in refusing to give Abrams’s requested jury instruction regarding conversion. As noted, the Court of Appeals held that Abrams had not preserved that error. Beall,
Abrams contends that the Court of Apрeals’ conclusion contradicts ORCP 59 H. Abrams argues that, under that rule, requesting an instruction “imports an exception,” so the party requesting the instruction is not required also to except to the trial court’s failure to give that instruction. Southern Pacific responds that this court should adopt the Court of Appeals’ analysis and holding.
“* * * [N]0 instruction given to a jury shall be subject to review upon appeal unless its error, if any, was pointed out to the judge who gave it and unless a notation of an exception is made immediately after the court instructs the jury. Any point of exсeption shall be particularly stated and taken down by the reporter or delivered in writing to the judge. It shall be unnecessary to note an exception in court to any other ruling made. All adverse rulings, including failure to give a requested instruction * * *, shall import an exception in favor of the party against whom the ruling was made.”
The first two sentences of ORCP 59 H describe what a party must do in the trial court to preserve an error in instructing the jury: The party must point out the error to the judge immediately after the judge has instructed the jury, and the party must “particularly state” the objection and either deliver the objection to the judge in writing or make sure that the court reporter takes down the objection. The next sentence makes clear that, under the rules of civil procedure, a party need not take those steps to preserve error regarding “any other ruling made.” The last sentence specifies that the trial court’s “failure to give a requested instruction” is among the rulings to which a party need not except:
“It shall be unnecessary to note an exception in court to any other ruling made. Ml adverse rulings, including failure to give a requested instruction * * *, shall import an exception in favor of the party against whom the ruling was made.”
(Emphasis added.)
By its terms, therefore, ORCP 59 H provides, first, that a party must object specifically to a jury instruction that
Nonetheless, Southern Pacific argues that this court’s cases compel a different result. Specifically, Southern Pacific argues that this court has created an “exception” to the rule stated in the last sentence of ORCP 59 H. Under that exception, Southern Pacific argues, a party must do more than merely rеquest a jury instruction to preserve for appeal its objection to the trial court’s failure to give that instruction. Rather, the party also must show that the instruction that it requested “clearly and directly’ alerted the trial court to the error in an instruction that the court gave.
As noted above, Southern Pacific bases its argument on this court’s decisions in Holland and Roberts. Before discussing those cases, we first must address this court’s decision in Crow v. Junior Bootshops,
In Crow, the defendant assigned error on appeal to the trial court’s failure to give the defendant’s requested instruction on contributory negligence.
The statute that governed the preservation of jury instruction error at the time of this court’s decision in Crow was former ORS 17.510 (1963), repealed by Or Laws 1979, ch 284, § 199, which provided:
*139 “[N]o instruction given to a jury in the circuit court shall be subject to review upon appeal unless its error, if any, was pointed out to the judge who gave it and unless a notation of an exception was made in the circuit court. It shall be unnecessary to note an exception in the circuit court to any other ruling made. All adverse rulings except those contained in instructions given shall import аn exception in favor of the party against whom the ruling was made.”
Unlike ORCP 59 H, former ORS 17.510 did not state explicitly that it was unnecessary to except to the trial court’s failure to give a requested jury instruction. Nevertheless, this court held that the defendant had preserved the error at issue. Relying on this court’s decision in Ira v. Columbia Food Co. et al,
Southern Pacific and Abrams agree that, in Crow, this court held that a party does not need to except to a trial court’s refusal to give that party’s requested instruction. However, Southern Pacific argues that this court’s decision in Holland modified Crow by holding that Crow’s “automatic exception” rule applies only to those requested instructions that “clearly and directly’ call the trial court’s attention to the error. As explained below, we disagree with Southern Pacific’s reading of Holland.
Holland was a medical malpractice case in which the plaintiff, in writing, had requested an instruction about the law of informed consent that described the physician’s duty to warn the patient of certain risks.
This court disagreed. Id. аt 141. It held that requesting a jury instruction does not preserve automatically the error in the instructions given, unless the requested instruction “clearly and directly” informed the trial court that it was error to give that instruction. Id.
The plaintiff in Holland thus was in a different position than the defendant in Crow. In Crow, as discussed above, the error asserted was error in failing to give the jury a requested instruction, and this court held that the defendant had preserved 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.
Finally, we turn to Roberts. In that case, the trial court refused to give the defendant’s requested instruction regarding bailment.
Although the court reached the correct result inRoberts, 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
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 partys 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,
The deсision 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.
Notes
In this opinion, “Abrams” refers to Stuart Abrams; Stuart Abrams, dba Abrams Metals, Inc.; and Abrams, Inc., dba Abrams Scrap Metals, Inc. As explained below, Abrams was the defendant in one of two consolidated aсtions and the plaintiff in the other.
Beall’s complaint listed Southern Pacific Transportation Company and Union Pacific Railroad Company as defendants. In this opinion, we refer only to defendant Southern Pacific. According to the railroads, Union Pacific has acquired Southern Pacific.
Abrams requested the following instruction:
“Conversion is an intentional exercise of dominion or control over personal property which so seriously interferes with the right of another to control it that the actor may be justly required to pay the full value of the personal property.
“In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
“(a) The extent and duration of the actor’s exercise of dominion or control;
“(b) The actor’s intent to assert a right in fact inconsistent with the other’s right of control;
“(c) The actor’s good faith;
“(d) The extent and duration of the resulting interference with the other’s right of control;
“(e) The harm done to the chattel; and
“(f) The inconvenience and expense caused to the other.”
Southern Pacific also contends that there is no evidence in the record that the trial court in fact refused to give Abrams’s requested instruction and, therefore, that this court should not address Abrams’s argument regarding preservation. Southern Pacific relies on Fain v. Hughes,
We acknowledge that, on first hearing the case in Holland, this court referred to the error at issue as the trial court’s failure to give the instruction that plaintiff had requested.