*1 366
Argued February 8, part, part, affirmed reversed in October 1963, rehearing 4, opinion March modified and former decision April adhered to 1964
GOWIN v. HEIDER et al P. 2d
Ralph Portland, the cause for With them on the argued respondent. Reiter, Day brief were & Anderson and Lewis B. Hampton.
Before Chief Justice, McAllister, Rossman, Justices. Gtoodwin Sloan, Lusk, LUSK, J. an
This is the defendants from an appeal adverse based on the verdict of a judgment jury in a ease three causes of involving action, one for malicious the other two for conversion. prosecution, The judg- ment was as follows: theOn first cause of mali- action, cious on the second prosecution, $36,000; cause of on the action, conversion, $2,000; third cause of action, conversion, Besides $7,000. these sums, in- jury *5 damages punitive on the first in verdict eluded their re- these were but items action, and third causes judgment by motion for on defendants’ the court moved and 14,1961, commenced March n.o.v. Trial of the case transcript of The concluded on March 1961. nearly pages testimony comprises are and there 1,366 appellants’ opening which is 262 In brief, 100 exhibits. pages length, assignments A of error. there are 30 may, we be nevertheless, statement of case believe, brought compass. within reasonable grievances plaintiff complains all of which by purchase stem from the him from the defendant (Sheri- operated Garage who Bend at Baird, Biver Oregon, log dan, three trucks and trailers on the twenty-eighth day of 1959. in a Gowin turned March, pickup pay- Ford truck and other vehicles as down figured at ment, and executed a chattel $2,650, mort- gage purchased by security on the vehicles him as purchase price, the balance of the stated in the mort- gage paid to be $16,500. The balance was to at the per day rate of month on the tenth $660 of each month commencing May thereafter, 1959. As further security for the indebtedness Gowin and his wife as- signed to Baird their interest in a contract of sale of property farm 'County, near Oregon, Yamhill Gaston, purchasing, they which the Gowins were and where living were at the time. assignment
Baird and his wife executed an guaranty payment mortgage of the chattel defendant Heider for a consideration of $14,000, evi- denced Heider’s check to Baird in that amount dated June 1959. timely payments
Gowin made of the installments mortgage May on the due but June, made none testimony that the time He claimed in his
thereafter. July request, payment his extended on at was, 'by July August Baird Heider. The 25 to both request for the was that his trucks were “not basis working steady” during the fire season. according
At the same to his testi- time, Gowin, mony, request, made another which likewise was twenty-eighth acceded to both defendants. On June bought freight had truck which Gowin and trailer he *6 July on leased sixteenth to a man named Rouse. This purchased log not a truck was not from Baird mortgage. and was not in included is referred It by parties to as the truck Hesketh truck. This broke Oregon, hauling down at La while a Grande, load of grain completely and the motor had to be overhauled. July twenty-fifth, Gowin testified on at his re- quest, agreed might Baird and Heider that Gowin transfer 78488—from a truck covered motor — # mortgage and known as the “West Coaster,” mortgage log described in the as a 1947 International Accordingly, bunk truck —into the Hesketh truck. Gowin had the motor taken out of the West Coaster and installed in the Hesketh truck. He delivered the motor from the Hesketh to truck Cummins Motors in repaired. Portland
Early August in had Gowin decided to move to repurchased Idaho. He had from Baird the Ford pickup truck purchase price which he in turned on the mortgaged Acting of the vehicles. on his instructions, August eighth, Mrs. on Gowin, went to 'Sheridan and paid owing Baird pickup. the amount on the She told they Baird that had transferred the motor from the West Coaster into Hesketh truck Gowin replace good would it with another motor. Baird said thinking they told him that were “o.k.” She also a moving it would be easier to obtain to Idaho where (such freight permit number truck for the one P.U.C. permit permittee operate in all would enable states). During colloquy but this Baird tele- two phoned him there Heider and told that Mrs. Gowin was paying pickup. off the August tenth drove the
About Gowin Hesketh truck, equipped which was now the motor from the with West mortgaged Idaho. The Coaster, d’Alene, Coeur ve- hicles were left behind at the farm. His wife and chil- joined days they living dren him a few later and were apartment in an in Coeur at the d’Alene time of his complaint arrest on the of Baird out of which the action prosecution grows. for malicious
Early August telephone Baird received call Cody, employed from Paul M. had who been Gowin Cody as a truck driver and mechanic. told Baird that parts Gowin had left for unknown and had abandoned mortgaged vehicles which were at the farm. Baird according went to the farm, and, to his and other testi- mony behalf discovered defendants, that, having addition to the motor been removed from the *7 West a missing Coaster, differential head was from another truck described as a ’47 Diamond and T, trucks stripped and trailers had good been of their numerous tires, wheels, stakes, chains and binders accessories of various descriptions. sorts and In re- moving the motor the wires pipe had been cut and the lines sawed off. departed
Gowin had leaving without forwarding a address. Letters addressed to him were returned to inquired among writers. Baird neighbors to Gowin’s whereabouts but could nothing. learn He
274 'County, then who told consulted sheriff of Yamhill judgment, protect prop- him to use own but his his erty get go August it. 17 and Baird On mortgaged repossessed and caused the to be vehicles brought Garage. back River Bend Two of it trucks could not driven and had to be towed and necessary eight supply was seven or tires mounted on wheels before some of the could vehicles be moved.
Baird continued Ms to locate but efforts Gowin, looking was The were unsuccessful. 'State Police also permit suspended for him. Gowin’s P.U.C. had been proper for failure to have on file insurance and the police, pick up plates, who wanted to his in- license qMred Garage of Baird at the River Bend as to Gowin’s Finally, suggestion whereabouts. at the Baird, attorney August saw the district sheriff, and on 20 signed complaint charging larceny by a with Gowin following property: bailee of the described 1 275 Cummins diesel motor # gallon 1 150 Pearce water tank Kelly traction-rib tires Kelly CHC tires 1 3012 differential head. complaint was filed in the District Court for Yam- County.
Mil About a week later Baird learned that was Gowin proceeded Coeur d’Alene and the sheriff there with apprehended August warrant, Gowin on 27 and re- turned him to McMinnville where he confined jail period days. September of 19 On attorney, motion of the district complaint the criminal was dismissed. Before jail, Gowin was released from *8 September apparently Aebi, Orville sixteenth, about acting to with a letter from Gowin armed Baird, for went who in Coeur d’Alene, Mrs. was still Gowin, pos- city, and received delivered the letter her, truck various her Hesketh from of the session including equipment, those of accessories and articles complaint, brought them criminal described the Oregon. back previously
As the cause of action is first stated, prosecution. for malicious The second cause action, upon repossession by is conversion, 'based the the mortgaged the defendants of vehicles and the third upon cause of also in is action, based the conversion, taking possession defendants’ of the Hesketh truck and May trailer. action was commenced on 1960. Among allegations in other answer the defendant alleged grand Baird it was June jury County, upon complete of Yamhill a full and dis- closure of the facts and circumstances with reference taking property by plaintiff, indicted plaintiff larceny by for the crime of bailee, property being property involved the same as that described in the criminal information which had been previously January dismissed. Thereafter, on 16,1961, plaintiff supplemental filed his “amended com- plaint” alleged, in which he in substance, that the indict- procured ment had been who defendants, had intentionally failed to concerning disclose all the facts the transaction and related falsehoods to the district attorney grand jury; purpose and that the sole procuring the defendants in such indictment was to aid defending against them in pending action for mali- prosecution. cious supplemental The amended com- plaint alleged further September that on 29, 1960, the acquitted charge jury in a trial. alleged theory plaintiff’s in all his that Baird
It *9 agent of Heider. was the tortious activities in the causes of action the three will consider We ques- complaint. they appear The in the in which order separately agency Heider will be for tion of Baird’s treated. PROSECUTION
MALICIOUS Termination. Favorable by and motions raised demurrer defendants
The question whether verdict nonsuit and directed for prosecution the criminal termination of a favorable alleged proved. support argument is based of the demurrer The complaint: following allegation upon “That of the day September, and on or about the 18th thereafter complaint charge criminal the aforesaid 1959, against plaintiff upon of the were dismissed motion county;”. attorney Yamhill district attorney It is that a district cannot dis first, said, allegation agree, complaint. miss a criminal We but the attorney is not that the district dismissed the com plaint, upon but that it was dismissed his motion and by mean we read this to that it was dismissed only since the court could have taken such action. court, suggested complaint allege it that the fails to Next, prosecution, a favorable termination of the ais, fairly implied (cid:127)termination which established or lack of ground prosecution plaintiff. a reasonable for v. Heider, Gumm 220Or 348 P2d 23-24, 455. But the by fact of dismissal the court, without more, carries allegation with it such a conclusion and the bare complaint was dismissed is sufficient. Kuhnhausen P2d P2d 168. 239, 149 Stadelman, v. Or 290, 304, 148 § Prosecution Malicious 34 Am Jur also, See, Supp 124. 1963 Cum properly overruled.
The demurrer was that the evidence is insufficient It is contended prosecution, termination of the be- show a favorable compromise procured, “a cause the dismissal was by sought plaintiff.” consented to jail, record shows that while was in Gowin charge larceny addition to the two other bailee, charges pending against criminal were one initi- him, county county, ated in Yamhill and the other in Union money obtaining pretenses by false the issuance *10 of on in checks banks which the accused had unsuffi- attorney county
cient funds. The district of Yamhill county charge. had been informed of the Union An attorney representing agreement Gowin entered into an understanding attorney or with the district that the charge county bad cheek initiated Yamhill would be felony from reduced ato misdemeanor and Gowin permitted plea guilty charge to enter a of to such charge larceny by that the of bailee would be dismissed. part arrangement, As of this Gowin would make resti- of tution the amounts for which the checks were issued protested and this was done. Gowin that he. was inno- charge, cent of the bad check agreed but nevertheless plea to “deal” the guilty and entered a charge of to that September on put probation for years. period of day three On the same the district following court entered order of of dismissal charge larceny by bailee: “Upon motion Attorney of the District on the
grounds of insufficient evidence, and appéáring it
278. I made, has been that restitution
to Court complaint herein dismissed.” ORDER prose- pressed criminal he that Baird testified he get equipment and that back his in order to cution got jail To that end kept it back. until he Gowin jail and times at the two or three Baird visited Gowin indicated he and the sheriff evidence that both there is would duration of his confinement that the Gowin cooperation depend with Baird’s wishes. on his day September was dis- that Gowin On according jail, charged Baird, still in and while he was signature testimony, to the latter’s obtained Gowin’s securing attorney powers for Baird’s use in and three of the titles to the three trucks transfer by mortgage. Baird trailers covered testified get jail,” agreed with “to let him out of he Gowin, equity in truck would transfer his the Hesketh Gowin push if Baird and trailer “wouldn’t Burns Brothers” buying which the tires Gowin removed from mortgaged agreement “helped and that trucks this him get jail charges.” out of on the other September signed testified that on
Gowin he eight attorney, powers one them on the Hesketh represented that Baird to him that a truck; concern (which Peerless referred held the conditional truck) repossessed sales contract on the Hesketh had promised further testified that it. Gowin Baird to re- assign purchase to him the contract of of the farm if *11 sign powers attorney Gowin would the and that signed give after he them Baird refused to him assignment, saying that he never intended to do so. * * * according my top “I Then, Gowin, blowed ¡Sheriff cooperate and the told me I’d better in this deal long Ior would be in here a time.”
279
a cause of
elements of
One of
essential
prosecution
the criminal
is that
malicious
action for
proceeding
accused.
in favor
shall
terminated
have
supra,
Restate
at 21;
220 Or
Heider,
Gu
v.
mm
proceeding is termi
§
But where
3
658.
Torts,
ment,
compromise
of the
or settlement
nated as the result of
may
parties
availed
he
no
termination
“there is
such
purpose
v.
an
Halberstadt
of such
action.”
21 LRA
NY
NE 801,
194
86
Co.,
1,
New York
Ins.
Life
23).
supra,
(quoted
at
Heider,
See,
v.
NS 293
Gumm
21 P
Orr,
440;
Forster v.
The evidence above recited there is more to effect) clearly the same sufficient to warrant question jury. submission of the of duress to the jail. family Growinwas in His wife and were in Idaho Although attorney, without funds. he had an negotiations between him and Baird in if which, Growin tois aiding the sheriff believed, abetting attorney Baird, went on when was not present. attorney testify. The jury did not could have found that advantage Baird took of Growin’s position compel necessitous prop- restitution erty allegedly stolen, that the settlement was not voluntary Growin’sfree and agreement act, that the attorney of the district to move to dismiss the criminal *12 280 Baird’s securing conditioned upon
information was consent. nonsuit of the motions for
Other grounds will now considered. directed verdict be Probable Cause. of the action cause is probable gist
Want et al, v. Shoemaker Selnes malicious prosecution. has been P2d 87 ALR2d 170. It 220 349 573, 578, Or reason of by termination of the prosecution said that entered which the accused has voluntarily a compromise Orr, Forster v. into is an admission probable cause, “* * * Dean Prosser out: supra, though, points better reason seems to be the accused has con to a termination which leaves sented open question and so cannot take guilt conviction, of his possible it.” (Prosser (2d ed) Torts advantage 651.) has the of the theory latter approval Restatement, ibid, 400. In this treat opinion, therefore, we the question of want of cause under a probable separate heading from that of favorable as have the termination, parties in their briefs, as is generally done the text writers.
It is of the urged motions that support evi- dence establishes as a matter of law that the plaintiff crime of guilty bailee. If larceny by this be it so, conclusive evidence of probable cause for initiating the criminal and a proceeding de- complete to the charge fense of malicious prosecution, notwith- standing plaintiff’s acquittal by the jury. Shoe- maker al, v. Seines et supra, Or at 578, 584.
While the defendants in the brief present per- suasive argument upon weight and effect of the it can evidence, be scarcely said that it is all one way. property in the mentioned items of each of the As to complaint, conflict which conld there is a criminal jury. only by resolved only motor, refer to the as to the evidence
We need Taylor, in Reed v. Lord Mansfield as stated for, * “* * (CP Eng. Rep. if 4 Taunt. 516 1812): *13 containing charges, prefers indictment several man an for is not there others there is, whereof some prefer- probable “support a this will count for cause,” ring probable that indictment without cause.” See, Singleton Perry, v. 45 2d P2d also, 489, 794; Cal 289 Boogher Bryant, App 86 v. Mo 9 Mo 42, 49-50, 592; (2 Super) 2 Petit, Hall NY 815, Chandler v. 344; Birmingham Palmer Co., v. Times Law 18 Manuf. Rep. (KB 1902); 552 38 CJ Malicious 400, Prosecution § ed) (14th 2 § on 26; Greenleaf Evidence 449. charged plaintiff
The criminal information the with larceny by the crime known as which is de bailee, Specifically, nounced ORS 165.010.1 the defendant removing property was accused of described from county property of Yamhill where the was obtained without the written consent of Baird, owner thereof, neglect and that he keep did fail, and refuse to deliver, according and account for the same to the nature of his trust. It was conceded that at the time of the execution mortgage agreed of Baird that Gowin could use the equipment log hauls in several counties of western Oregon. making In the motions for nonsuit and directed * * * “(1) Any bailee, ORS including every 165.010 mort gagor gaged, personal property having of possession property of mort S; * * * * * county who removes from the where obtained, situated when without the written consent of bailor * * * fails, neglects deliver, or keep or for, refuses to or account * * * according any trust, to the nature of property his of * * * care, another delivered or intrusted to his control or use * * guilty larceny shall be deemed of they that stated for the defendants counsel verdict, consent of written that “the failure no claim made taking property person outside make the would Oregon guilty a matter of the offense as of State of but consent,” other form of if there were some law, considered on this was a circumstance to be added that question failed to account the accused had whether according property to the nature of his trust. for the agree pertinent that this is a fact and one We jury might question on the be considered charged, guilty the crime but it whether Gowin was guilt appear is clear to that such does not as a us matter of law so at as the motor is far, concerned, least, because the evidence for the is that Baird orally authorized to transfer the motor into the Gowin Hesketh truck remove it to Idaho. If this evidence is to it be believed would be sufficient to establish want probable for it shows that Baird knew cause, guilty larceny by not
Gowin was
bailee of the motor.
Hryciuk Robinson,
v.
Or
It is further insisted that the indictment returned against plaintiff probable the is evidence of cause by plaintiff. which was not overcome the This action May was commenced on 1960. It will 19, be recalled alleged that the defendant Baird in his answer that on 9, June the was indicted for the same crime stated in the criminal information which had previously been and that in dismissed, an amended supplemental complaint plaintiff alleged the that he acquitted charge jury was of the in a trial and that the procured by indictment had been testimony false of the defendants and their failure to make a full disclosure grand jury. before the The defendant Baird testified grand jury found indictment, the which the before though not. trial of this case the Heider did On the jury, charged court in that if the defend- substance, the grand jury ants made full and fair disclosure to the grand jury known them the facts then and the indicted G-owinon the basis of disclosure the in- probable would dictment be conclusive evidence of complete that if a full and cause, but disclosure was “probable conclusively not made thus cause is not proved.”
As the authorities cited and the views ex pressed Hryciuk supra, v. Robinson, this indicate, was instruction more favorable to the defendants than merely was their due. The indictment is some evidence probable supra, v. cause, Selnes, Shoemaker 220 Or (2d ed) at Prosser on Torts 581; 657; Restatement, (2); procured by § if ibid, 664 it was false testi mony prose of the defendant in an action for malicious tendency probable cution it has no whatever to establish According opinion cause. to the well-considered Lindsey presumption Couch, v. 22 Okla P probable arising of want of cause from a dismissal prosecution by presumption is counterbalanced probable arising subsequent cause from a indictment party leaving ques offense, the same thus probable by tion of cause be determined other evi think dence. view of law, Under this which we given the instruction as was error if correct, it be as jury could sumed, found, have that the dismissal charge of the criminal was on the merits and not brought compromise voluntarily about entered plaintiff. against into But error plaintiff. *15 go think that there
We was evidence sufficient to example, jury For on the of full disclosure. to the issue jury testify grand had that he the did not before Baird given permission the motor from remove Gowin fact it that course, and take to Idaho. Of West Coaster jury dispute, have found that such but the could willfully given permission and Baird had been that jury. grand the information from the withheld that on this branch of case We conclude probable of favorable want termination, evidence was sufficient to warrant submission malice, and cause, jury and that the motions of action to the of this cause properly denied directed verdict were for nonsuit defendant Baird. as Rulings Evidence. on
(1) Mills, and Donald an witness, adverse Baird, jury grand Gowin, which indicted member testimony that Baird’s before examined about were questions objections body. were made to the Numerous objections part for the most were them. The asked rulings assigned are as error. We and the overruled many questions incompetent of the were that think prejudicial. elicited the evidence upon subject examining witnesses this these In proceeded upon seem have for the counsel any theory in an facts admissible evidence prosecution malicious should have been dis action for jury grand Baird in order to fulfill closed obligation of full fair disclosure. We cannot supra, In Heider, idea. Gumm v. an to this assent prosecution instiga based on the for malicious action growing giving action out of criminal tion aof paid presentation, not which was postdated check (the private that failure defendant held we attorney prosecutor) to inform the district
285 jury postdated to find delib check authorized was regard. misrepresentation in that of the fact erate lawyer pointed But out that the defendant was we materiality of the fact that check “conscious of the postdated.” other in hand, On the Humbert v. et 224 354 P2d we al, 133, 142-143, Knutson Or failing said in to that there was no nondisclosure tell police animosity, feeling prior “the officers of bad difficulty plaintiff between A defendants.” similar Christy decision is v. 152 Rice, Mich NW by 200, cited the court in v. Humbert Knutson. The rulings testimony reason for these such is not question guilt relevant to the or innocence of person charged, although it would be relevant on question of malice in an action for malicious prosecution.
The record shows that Baird was instructed attorney the district when he commenced his testi mony grand jury story before the to tell his in his own though questions words and that he did so, a few were expected asked him. every He could not be to state fact might lawyer to having occur an astute some bearing guilt on Growin’s or innocence of the offense charged, reasonably and his failure to do so could not finding afford the of a basis that he had not made a grand jury. fair full disclosure to the See Restate (1) (b), § page comment f at ment, ibid, 420. Since point a new there must be we following out trial, inquired into matters counsel for the which have should been excluded: Whether Baird and Heider presenting grand had talked about the matter to the jury help pending them to civil action; whether mortgage owned the Heider when the motors were agent repos whether Baird was switched; Heider’s to requested whether Heider sess the had trucks; the dis- jury; attorney grand present to the trict the case juror any grand he was Baird whether whether asked whether the with Heider; connected the transaction for lack evi- criminal information was dismissed prior criminal whether Baird instituted dence; property; questions get all that were action back his questions all relative farm; asked relative to Growin’s prosecution action that malicious evidence in the Oregon Department applied State Growin registration of correction Motor Vehicles *17 in the motor switch. trucks involved objection ground of to the testi An additional permitted mony Mills that he was to is witness scope (1) testify of 132.220 outside the ORS to matter which reads: may jury by grand required of be
“A member any disclose: court to testimony “(1) of a witness examined before The ascertaining grand jury, purpose for the of by given with that the wit- it consistent whether is the court.” ness before testimony judge at first that Mills’ would ruled in the statute, manner stated but later in the limited impeach not to
permitted that was intended evidence by grand jury testimony showing before the Baird’s support rather claim but statements, inconsistent to make a fair and full disclosure of failure of Baird’s says for defendants this is Counsel the facts. prohibited But the statute the statute. has never Oregon v. Moran, construed. State 15 so Or been Mageske P In v. et al., 14 419. State 119 274, Or P P 249 where the earlier cases 312, 317, the court said: cited, are principle gleaned
“The from the books, justice promoting for the demand either in a when outweighs the necessities civil or criminal case, grand jury testimony keeping secret, before keeping testimony pri- or when the reasons for passed away, the court in its discretion vate have secrecy and admit such release the chain should public prevent the claims of order evidence justice being Bishop from unsatisfied: Crim. § § and note 5 Wharton, Crim. Proced., 859; Ev., 510, collating the authorities.” permit of the court to the discretion
It was within though only juror testify, grand within the limits of relevancy outlined. heretofore assigned overruling
(2) Error is to the court’s plaintiff’s objections offer evi the defendants’ plaintiff’s exhibits these, five exhibits. Two of dence of photostatic copies applications are 20 and 21, August Department dated to the State 3, 1959, Gowin registration of Motor for correction records Vehicles the “switch” of motors between the Hes so as to show keth truck and the West Coaster. Plaintiff’s exhibit 15 August Department a letter dated from the 20, 1959, (with copy of Motor Vehicles to Heider notation that a address) advising had been sent to Gowin at his Gaston application Heider that an had been received for cor *18 registration covering rection of records a 1947 Inter log showing national bunk truck that motor number ( had HB 44699 been installed in this vehicle the truck referred to is the West Coaster and the motor was evidently the one removed Gowin from the Hesketh although, truck, it was never fact, installed in the Coaster). The letter West continued that title to the described vehicle was issued on March 31, show 1959, ing registered legal Gowin owner and Heider as requested owner and Heider to forward the certificate department title to so that the correction could informed that Baird was made. There is evidence be Plaintiff’s of the contents of this letter. Heider Department of 16 is a letter from the exhibit number September Heider dated Motor Vehicles to 25, (after calling jail), from attention to release Gowin’s stating reply previous letter that no had been requesting received Heider’s immediate attention. copy The letter a similar notation that a had bears sent to been Gowin. Plaintiff’s exhibit number 17 is reply department by postcard to the Heider dated September reading: 28,1959,
“Dept, Vehicles; of Motor re-suspense nothing Number “On can C-9698, get straightened done on this matter until we it storage [sic]. out with Govin The truck is in going litigation. [sic] to involve some Govin is gone. abeyance. hold the matter in Just
“Respectfully yours, Heider,”. “Otto W. offering these exhibits counsel In they solely court that were introduced stated prosecution. support the cause of action for malicious objected for the defendants to each of the Counsel grounds, including grounds various that offers on irrelevant and was immaterial. the evidence following gives why reasons the evi- Plaintiff be considered relevant. First, should Exhibit dence to the West shows “the Coaster, refers true which of the transaction between Baird and nature Heider that a title it indicated was issued in the name because March which Heider contradicts of Otto mortgage] [the plaintiff’s Ex. 14 chattel and Heider’s mortgage testimony assigned him not May It also it is until 10,1960.” shows, said, “after *19 plaintiff approved of the motor switch” defendants statutory through” by complying with “followed citing requirements relating and motors, to vehicles (2). OES 481.430
Exhibit it is the information also shows said, they had defendants available when continued the prosecution against plaintiff receipt, and after its requested attorney present when Heider the district grand jury the case to the and when Baird testified grand jury. before the These same claims are made period for Exhibit 16 as to the after was dis- Gowin charged custody. from applications
Exhibits 20 and for correction registration again of it records, show that said, plaintiff through “followed on his stated intention and applied Oregon to the State of to have the motor registration vehicle certificates corrected.” It is fur- argued ther that the fact that the defendants did not make use of the information thus made available to they them shows that did not make a reasonable inves- tigation filing of all the facts before the criminal information. suggestion
The veiled that exhibits 15 and 16 show the “true nature” of the transaction between Baird and Heider leaves us in the dark as to what counsel for the contend its true nature was. We under- plaintiff’s theory stand that it is the repossess- that in ing mortgaged taking possession vehicles and initiating the Hesketh truck and prosecu- the criminal against tion acting Gowin, Baird was agent as the appear but it does Heider, not any that there is con- tention that there was not a log bona fide sale of trucks and trailers Baird to Gowin and a bona fide mort- gage back from Gowin to Baird, or that Baird did not assignment make a bona fide of mortgage to Heider payment guarantee the debt fide bona *20 by mortgage should in event that Gowin the the secured things in the in All are stated substance default. these and the the in the defendants’ brief case (cid:127)statement in availed himself has nowhere his brief duty privilege performed in the set forth Rule 25 or the “accepts that he of this court either to state of the rules appellant’s in brief” or of the case the the statement any alleged particularity “point omissions to out with therein.” or inaccuracies there is confusion in the evidence as the
While mortgage assigned was to Heider, date on which the we think that the record does not leave in doubt the assigned, paid fact that it was that Heider Baird assignment for the that after the mort- $14,000 gaged equipment repossessed good Baird made on guarantee his to Heider. only
In fact much this is not but conceded, plaintiff, arguing question the who, asserted agency, says in of Baird’s his brief: pressing “Baird admitted that he was criminal charges get equipment (Tr. 946). ‘our’ back How- against ever, Baird had no claim whatsoever assigned plaintiff because he had all of his interest (Ex. mortgage 14), in the to Heider and had been C).” assignment (Ex. paid by Heider for the May it is true that the date, while Moreover, assignment mortgage, appears on the of the which with the title record referred to in is inconsistent Department yet of Motor Vehicles, from letter entirely consistent with the fact that record is day after the execution of the March 31, mortgagor right mortgage, was the with Gowin mortgagee possession property and Heider the (3), (4), question. 481.105 481.040 ’See ORS may in fact letters were It be added these 481.110. hearsay only of the title to West as to the state proving provides a method of Coaster. statute 481.117), (ORS a letter it does not make that fact but Department of Motor Vehicles from the Director of the ownership of a motor vehicle or of evidence any interest in one.
Nor think that the evidence under considera- do we any light question whether tion throws on the Gowin permission had the of the defendants to remove mortgaged motor from the vehicle. and his wife Gowin testified that he both defendants and Mrs. Baird had; stoutly denied it. To hold evidence relevant on this question saying would like if that, the issue were *21 whether a man had stolen revolver and he claimed given prove that the owner had it to he could him, gift by showing applied that he had to the chief of carry police permission weapon. for to a concealed At the time that Heider received exhibit mortgaged equipment repossessed had been and the complaint criminal filed and the defendants knew that was the West Coaster minus motor. Exhibit 15was no subject. they given them on that If news to had Gowin permission to remove the motor from the West Coaster it Idaho this an and take would be end of the matter any question probable prosecute as far as cause larceny they the motor is Gowin concerned. If given permission they not Gowin such had then had probable prosecute cause under the circumstances to charge. him on that We have not been told counsel, conjecture, investiga- are able to nor we what sort of receipt suggest of the tion the letter would investigation nor what additional an defendants, facts might reasonably expected would uncover which be stay prosecutor. the hand of the permission
The issue had whether Gowin to remove the motor was a crucial one the case and it cannot incompetent that said the admission of this evi- prejudicial dence was not to the defendants. It not was only tendency but its natural was irrelevant, to lead jury agency to think that an somehow of the state had affirmed the rectitude of Gowin’sconduct.
(3) objection plain Over defendants, permitted plain tiff was to introduce evidence that the guilty charges. tiff was not of the bad check The court permitted theory this evidence to come on the opened up the defendants themselves had first subject may justification and there be some in the record for that view. However, on another trial such not evidence should be admitted. The defendants had nothing charges question to do with these and the plaintiff guilty whether the was or innocent of them entirely foreign was to the issues in the action for prosecution. say, malicious This is not to however, testimony protested Gowin’s he his innocence charges being of the check when the settlement negotiated was not admissible.
Agency Baird. filing contends that in the criminal acting
information Baird was for Heider. The evidence relating to this issue is as follows: *22 Garage
Heider owned River Bend and Baird operated principal it for him. The business of the garage repair heavy equipment. was the Heider paid salary Baird a a month in $400 return for which repairs, parts, Baird took care of the sold and occa- sionally brought equipment in repos- which Heider payment mortgages in or condi- sessed for default garage stopped at tional sales contracts. Heider every day pick up receipts to from the business deposited which he in his own bank account. Twice a kept month Mrs. he turned over to Who Baird, garage, money pay expenses. books for the sufficient to deposited money separate She in a bank account (in interest) which Heider had no under the name of Garage. paid River Bend Mrs. Baird the bills with right checks drawn on this account. Baird had the repair equipment garage, his own in the but was required pay any for the work as would other customer. years engaged
Por a number of Baird had in the trucking under a business Public Utilities Commis- permit sioner in the name of Sheridan Truck Service. Heider had no interest in this business or the vehicles used it. The trucks and trailers involved in this case were owned Baird and his wife and had been used trucking operation Baird in his before their sale to Gowin. practicing attorney then a
Heider was and was also engaged financing purchase equip- of automotive ment. Before the sale here involved was consummated Baird took Gowin Heider’s office to discuss financ- ing. Baird said to Gowin: “I’ll have to see Mr. Heider. calling mortgage prepared He is the shots.” The by Heider and the transaction closed in Heider’s office. confusing just The record is confused and as to when assignment mortgage signed was executed. A copy May in evidence indicates the date as 10, 1960. immediately Heider testified to this but date, corrected ledger it to 1959. A sheet from his books shows that opened he an account with Gowin based on this trans-
action on March the date of execution of 28, 1959, mortgage, previously paid he Baird and, stated, By assignment for the on June 1959. $14,000 25, June, major paid part Baird had Heider of the mortgage debt. August
On Heider told Baird that Growin country August had left the and on Heider 16, 1959, together plaintiff’s and Baird went farm, 30 mile inspect mortgaged property. drive, repossessed mortgaged Baird When vehicles he brought adjacent them back to a lot owned Heider garage. attorney
Before Baird went to the district to file charges against criminal Growinhe told Heider that going he was pretrial to do so. Heider testified in a deposition: Anyway, signing “Q: to boil it down, of the _ complaint your knowledge?
criminal was without right. strictly “A: That’s It was Mr. Baird’s— question you I can answer one on that if want me to. Mr. stop Baird asked me what he could do to stealing robbing Growinfrom and from and I him, you ‘Do said, ‘I’m ney.’ whatever like about it,’ he said, going to see the Sheriff and the District Attor- stop I didn’t him. going?
“Q: You knew he was “A: I didn’t know that he went. I knew that he intended to. You asked the date he went. I knew eventually.” go he did down Deputy Attorney District Baird saw Frum in the attorney’s office. He was district unable to tell Mr. legal security nature about the Frum instrument phone Heider. Frum called held Heider on the gave him the information. Heider He made it clear his office in his Baird was to Heider against complaint Gowin. purpose file a criminal complaint told filing Baird day after two A or had done so. he Heider that procuring was active that Heider conceded
It is may put to one this hut of Gowin, the indictment *24 side. necessarily proceeding, a new was
The indictment present the plaintiff not maintain the could so since prosecution showing had first that the action without Co., Text Book International White v. terminated. App 65. supra, it 224 Ill at v. Petr z, Iowa Reell 220; rightly the for taken counsel the view This was though governing plaintiff rule the the and, on trial, probable not the cause the effect of indictment prosecutions inapplicable, since both reason this logical not infer it is offense, were for the same proceeding a had hand in the earlier be Heider attorney asked the the cause he district to commence reasonably may later it would one, which, assumed, never had been but for instituted the fact that some five months after criminal the information was dis complaint present the missed filed in the prosecution. action for malicious proving partici The burden of that Heider pated proceedings against in institution of criminal upon plaintiff. The Gowin character of evi Meyer Nedry, required was in dence stated v. 159 Or Hryciuk P2d and reiterated in 339, v. Robin supra, at son, 213 Or as follows: liability of in an
“The test action for malicious actively prosecution is: was defendant instrumental n in putting ? action, in force To law sustain the affirmatively appear part as it must of the case party sought demanding damages party that the charged proximate to be was the and efficient cause maliciously putting pas- the law in motion. Mere knowledge acquiescence sive or or in the consent acts of is not another sufficient make one liable. liability impose To there be some affirmative must by way encouragement, action etc.” advice, Baird discloses that was Heider’s evidence agent garage operation in the and it rea- could sonably repossess- that he Heider in be found acted for ing mortgaged for this was a in- service vehicles, paid cluded in for which those Heider Baird $400 month.
Heider in not testified, substance, he was property'because guarantee had interested he jury rejected of Mr. Baird, and Mrs. but the could have contrary testimony this to normal human conduct. Ordinarily, willingly forego a creditor does his not security. owing Moreover, while to his contin- Baird, gent liability, strong recovery had interest *25 property, legal right the had no he or title to it and no right repossess it to on his own behalf.
In a of in number cases collected the Annotation, ordinarily 120 ALR it held 1325-1331, is that 1322, prosecution a commencement of criminal is not within scope authority agent, the of the of an whether he be partner knowledge or a servant, and that mere orof acquiescence proceeding in the not is sufficient to bind partner the other or the master. This would seem where, be the correct rule as in stated the Annotation particular in 402, 18 ALR2d “the duties of 406, the agent spe servant or involved are of a restricted and prosecution cific nature.” the If, however, was insti purpose tuted the servant for the protecting property or property master’s to recover back which may implied, authority 18 stolen had been margin.2 The in the cited the eases See ALR2d 407. v. in Nesben theory thus stated is this distinction quoting from 368, 229 271-272, NW ND Koos, 269, 59 18 RCL 65: causing person question or not the whether “The acting agent, within wrongful was an arrest
the
the
authority,
jury
scope
general
for the
of his
Ordinarily
or
the arrest
proper instructions.
under
prosecution
even where
offender,
of an
criminal
principal,
property
against
offense
agent’s employment.
scope
anof
within the
is not
response
agent
doing
to his
acts in
act the
In
such
public justice
duty
is done
to see
a citizen
does
by punishing
He
such an act
the offender.
supposed
punish
theory
law,
seek
in
not,
wronged
principal,
but
he has
theft because
wronged the state.”
he has
because
§
Malicious Prosecution
89.
758,
Am Jur
34
also,
See,
any
suggested
of the cases cited in
is not
It
precisely
point.
supra,
most
For the
are
2,
footnote
Montgomery
they
part
Co.,
Hornin v.
Ward &
are like
1941),
employee,
(3d
where
store
Cir.
120 F2d 500
manager, to whom has been entrusted
instance
this
employer’s property,
duty
protecting
com
his
prosecution.
Baird had no
Here,
the criminal
menced
authority
respect
general
of this nature with
except, perhaps,
property
property
used
Heider’s
(1935) 4
Atlantic & Pacific Tea Co.
Cal
2 Pierre v. Great
Jorgenson
(1925)
468,
909;
App2d
P2d
v. Bartlett Lumber Co.
40
Express
(1892)
169,
138;
205
Cameron v. Pacific
Co.
Mich
NW
232
Corp. (1934)
99;
App
Mo
Coffman v. Shell Petroleum
228
48 Mo
App
727,
97;
(1930)
269,
59 ND
229
Nesben v. Koos
NW
71 SW2d
Holliday (1911)
Chicago,
368;
I. & P. R. Co. v.
30 Okla
R.
Montgomery
205;
LRA NS
Hornin v.
& Co.
Ward
P
Staples
(1893)
Pa)
500;
(1941,
F2d
v. Schmid
18 RI
CA3d
*26
(1934)
824;
180,
Freezer v. Miller
163 Va
176 SE
LRA
A
19
op
CONVERSION MORTGAGED VEHICLES Motions for nonsuit and directed verdict were jointly separate made on behalf of both defendants and They motions behalf Heider. were denied rulings assigned are as error. support joint It is contended first, of the mortgaged that seizure of motions, vehicles—a remedy preserved mortgage case of default justified —was because of violation provision mortgage any attempt of the that if should injure dispose be made or mortgaged remove, property if safely or the same not properly should or
399 mortgagor by protected the the kept, and cared for prin- mortgagee might both whole sum of declare the cipal payable without notice due and and interest mortgagor proceed the mort- at once foreclose and part opinion, already, gage. of this have another We alleged respecting of forth some the evidence the set mortgaged the their abandonment of vehicles and con- repossessed. dition when There was conflict concern- ing question provi- and these matters whether the mortgage just of the sions referred to violated were jury. was for the mortgage
The contained covenant that the mortgagor would without the not, written consent of mortgagee, property remove said from the state of Oregon. provision mortgage Such ain chattel is mortgagee may held to be for the benefit of and by be waived him. Globe and M. Grain Co. v. DeTweede Hypotheekbank, (9th 1934); N. & P. F2d 418 Cir. Hardwick Bank & Trust Co. v. McFarland, F2d 807 (5th 1930). generally, Cir. See, 56 Am Jur 106,Waiver § 5. The evidence this case is such as to have author jury ized a by find a waiver the condition defendants. urged
It further justi are defendants plaintiff provision fied because the violated a of the mortgage required keep which property him to in sured. The evidence shows that the failed to liability required have insurance as OES 767.195. stipulation mortgage in does not cover that type only, of insurance but therein stated, insurance mortgaged property against “damage fire, transportation, wrongful and theft, and collision con #* and embezzlement version, Plaintiff’s failure liability to have insurance did not constitute a breach any mortgage. covenant agreement ex that the oral it is contended
Next payment due tending the installment the time of binding July there because not valid or mortgagee that the it, was no consideration right lawfully preserved in the mort exercise the could principal gage and interest the whole sum of to declare mortgagor payable notice to the without due mortgage by seizure and sale. We concur foreclose in the that there was no consideration since Gowin view making himself testified that he was not bound to defer payment expiration until of the extended time. See *28 (3d § ed) 1 on Contracts 122. Nevertheless, Williston we think that the court should not sanction a forfeiture agreement, for a default in the face of such an at least Reinkey in the absence of a demand the creditor. In Findley v. Electric Minn Co., 147 180 161, 163, NW the court said: 236, “There was no consideration for the extension. necessary. seeking
None was The defendant is payments énforce a forfeiture of the made and property absolute title to the sold. It cannot make nonpayment agreement which it induced an. though agreement time, extend sideration, the is without con- ground may of forfeiture. The doctrine upon ground estoppel rested the of or of waiver.” v. Trust, McCarron Com. Credit 167 Minn also, See, Register National Cash 15; 209 NW Co. v. Rich 322, Byrd, Mich 123 Laird v. ards, 587; 159 NW 128, 177 Albert v. 571; Ark 9 SW2d Grosvenor Investment 1114, (QB 1867); Lit v. Co., Smith, 3 Staunton 6 Pa 123, 127 (22 Del) A Paine v. Bank 193, 593; 65 Ceres, 59 Cal of App 2d 138 P2d 396; Guenette, Carmichael v. 242, 61 App Ga 6 SE2d v. 460, 365; Calhoun Universal Credit 106Utah P2d Co., 166, 178, 146 284; Estrich, Instalment greatly § Sales 311. The case is not 628, different from
301 Spady, 24 P2d P2d Or Kaller v. mortgagees in the conduct of the we held that in which inducing mortgagor mortgage not to make a chattel payments the mort tendered, when of installments money they gagees stating did not need that estopped mortgagees to the matter ride, to let provision the contract which themselves of the “avail permitted them the entire when due, to declare balance maldng an installment had been without first omitted, affording plaintiff a demand and a reasonable opportunity pay the two omitted installments.” 219. Or at
Finally, urged agree it is that the extension by misrepresentation by plain was ment obtained plain tiff his financial condition. Evidence receipts trucking during tiff’s from his business July upon, month of relied 1959 is but there is no evi expenses say as to dence his and we cannot that the alleged representation proven false as a matter of law.
Defendants contend failed to produce damages. sufficient evidence of Plaintiff tes mortgaged tified the value vehicles at the place time and of conversion was $22,000,less reason necessary amount able to be deducted for the cost of *29 repairs, leaving argument value net of The $18,770. weight for the defendants is directed to the rather than competency particular. of the in one evidence, save suggested It that under the recent decision of this Highway Assembly court Com. v. al, God et 230 of plaintiff qualified 167, 368 P2d Or 937, was not testify property. to as the value of the We said in that permitting ease that a rule testify an owner so to “simply ownership because of the fact of is of doubtful wisdom.” We propose also that said we did not
302 opinion it should were of the but rule,
disturb corpora ais the owner where to cases be extended not plaintiff an owner not was In case tion. this nothing knew had never seen property he which purchased bargained the mort for and hadHe about. hauling gaged equipment, it in the business used repaired, bought parts logs, had it for it, new may experience to have be assumed of his reason logging knowledge acquired trucks of the value testimony in without In his came addition, trailers. damages general jury plaintiff’s objection. fixed The which, at under cause of action $2,000, on the second represent the rea court, would the instructions of mortgaged equipment, market value of sonable jury, owing by plain amount less the found mortgage. 89 Trover and tiff under the 'See OJS Publishing § Co., v. 164; Crutcher Scott Conversion Goldberg List, 253 P2d v. 925; 2d 89, Wash ALR There 79 P2d 900. 389, 393, Cal2d jury. submitting question to the error in this no prop- joint motions under consideration were The erly denied. ground separate of the motions de
The no evidence of his Heider is that there is fendant repossession mortgaged participation in the in our consideration For the reasons stated vehicles. commencing agency Heider in the crimi of Baird’s against prosecution the court did not err in Growin, nal denying these motions. THE HESKETH OF
CONVERSION AND TRAILER TRUCK prac- of action is of this cause duress The basis jail. upon while he was ticed *30 place on took complaint alleged that the conversion obtaining alleged fraud September The 1959. motor, signatures vehicle to his from .the though attorney it is incor- powers forth, is also of set “prior rectly episode alleged occurred said that this wrongful taking,” that it evidence shows whereas the eighteenth previously September and that occurred on possession and the Hesketh truck had taken of Baird trailer. jointly judgment for a of
The moved defendants a directed Heider made like nonsuit and verdict. prove separately ground on the of motions failure agent. that Baird his As latter motions, question what we have of heretofore said on Baird’s agency disposes applied of this contention as to this cause action. assignments error in defendants’ brief joint
directed to the denial of the raise the motions following questions:
(1) September twenty- The evidence that on shows eight days jail, sixth, after Gowin was released from Halsey, Oregon, Baird saw him in where he was work- ing Halsey signa- Auto Wreckers obtained his powers attorney covering tures to the Hesketh truck obtaining and trailer. The reason for these instru- according ments, was that Baird, Peerless Trailer against and Truck Service, which had lien the Hes- required keth them in trailer, order to clear the title. disputed It signed is not that Gowin these docu- freely voluntarily upon ments request the mere Baird, the contention is that this evidence demon- strates Gowin’s written authorization to his wife to deliver these vehicles property and the other
question
agent
of fraud
to Baird’s
was not
result
freely given.
or
hut was
duress,
*31
“any
of conversion is
The classic definition
wrongfully
one’s
act
exerted over
distinct
of dominion
property
right,
it.”
of his
or inconsistent
in denial
with
Montgomery
al,
568,
Nat’l
et
220
553,
v. U. S.
Bank
Or
prop
(2) The defendants contend that there is no
proof
necessary
of a demand and that a demand is
type
this
grounds
action.' This was not one of the
specified
support
under consideration
of the motions
ignored.
properly
might
objection
therefore
question
it
Assuming,
us,
is before
that the
however,
actually
say
conversion has
that where a
is sufficient to
proving
necessity
alleging
is no
occurred there
Kleiser,
v.
refusal. Daniels
Foster &
a demand and
cited in
P
numerous eases
187 627. As
Or same rule, course, applies where chattels are obtained duress. See *32 § 1 Torts Restatement, comment 638, 252, d.
(3) damages It is contended that the evidence of is again, urge insufficient. Here, defendants testimony plaintiff incompetent. of the as to value is given For the reasons hereinbefore the contention can- not be sustained.
(4) argued It is that of fraud evidence satisfactory. not clear thinkWe that it was suffici jury. ent for submission to In connection with this contention defendants assert that it is not claimed that any pressure put upon plaintiff was to obtain the authority possession from him to secure of the Hesketh pressure truck and trailer. specifically Such was not alleged complaint, in the but it was testified to jury. an issue for the
The motions nonsuit and directed verdict were properly denied.
306 of error, the remaining assignments
Respecting Supreme what was said Chief Justice Gibson Pennsylvania may appropriately quoted: Court form a reticulated remaining “The exceptions and as cause; they web to catch the crumbs of or of particular import- contain no point principle without further remark.” are dismissed ance, they Am Dec 470. Walker, v. 6 Pa St 371, 375, Rogers in the in the admission of evidence For errors found the judgment for malicious prosecution cause of action and the cause remanded for in that action is reversed a new trial in with this such conformity opinion. Upon trial the court determine the of prob should question able cause in accordance with the stated principles Vollstedt’s, v. Inc. et al, 369 P2d Patapoff Or al, Shoemaker v. et Selnes 691; 580; 220 Or at supra, Heider, Gumm v. Kuhnhausen v. Or at supra, 19; Stadelman, at 174 Or 310-311. supra, in the second and third judgments causes of action for conversion are affirmed.
Affirmed reversed in part; part.
ON REHEARING *34 for Winslow, cause K. Norman Salem, argued appellants. cause for Beiter, Portland, B. argued
Carlton respondent.
- Justice, Chief Rossman, Before McAllister, Jus- Lusk, O’Connell, Goodwin Sloan, Perry, tices.
LUSK, J. rehearing Petitions have been filed both granted appellants’ (defendants’) peti- sides. We solely which is tion, directed to our affirmance of the judgment part on the third cause of and that action, respondent’s (plaintiff’s) petition which asserts appeal error in our allowance of costs on *35 to the defend- respondent’s petition ants. The remainder of is denied. APPELLANTS’ FOE REHEARING PETITION
The third cause of action is in a trover for conver- sion of the so-called Hesketh truck and trailer which testimony referred also to in the as the “Rause truck freighter”. and trailer” and “the On this cause of ac- jury plaintiff tion the returned a verdict for the in the general damages punitive amount of $7,000 and $15,000 damages. punitive damages The verdict for was subse- quently judgment set aside the trial court and plaintiff entered the sum of $7,000. in ground petition of defendants’ is that this judgment upon Court’s affirmance of the was based theory pleaded complaint. alleging a not in the After September plaintiff that on, to-wit, 1, 1959, was the possession owner and entitled to the immediate of question, in and that' vehicles their reasonable county market value in the of in Kootenai, Idaho, county, Oregon, complaint $14,000, Yamhill continued:
“IV. day September, “That to-wit: the 1st of on, wrongfully and each of them and un- defendants .the lawfully plaintiff took said vehicle from and con- without the own use verted the same to defendants’ consent, plaintiff; of . “V. taking wrongful prior the defend-
“That to said plaintiff give to defendants consent induced to ants possession truck and trailer to take of said for them following in manner: previously a in a delivered been “Defendants had plaintiff’s assignment interest written plaintiff and his wife land sale contract which February with one of 1959 into in had entered which Davis, and Lucille M. Davis James pertained land situated sale contract land Joseph part Land Brisbine Donation the Willamette R3W of T2S, No. 51 Claim assignment made has been that said Meridian; security collateral in additional to defendants chattel mort- a certain connection with and in day gage that on or about 18th transaction; represented September, defendants power execute he should that if attorney enable the defendants which would *36 title to the aforedeseribed transfer of obtain delivery power upon of said then vehicles upon by attorney plaintiff, and defend- to them obtaining possession de- vehicles, of said ants reassign plaintiff all of their would fendants right, in the aforementioned title and interest by as collateral; held them contract real estate representations plaintiff aaid believed that in the Yamhill incarcerated true and was by county jail time and was .assured at said given unless such consent were that defendants plaintiff jail from and not be released would preferred against charges him; would be other upon representa- plaintiff said in reliance reprisals in fact executed and in fear of tions and n power title transfer a motor vehicle delivered attorney-to which thus them defendants enabled possession vehicles thereafter to take of said said, and to cause the titles to vehicles to he registered in defendants’ that at said said name; reassign time defendants did not intend to plain- land sale contract to but deceived intentionally tiff and coerced him and acted and maliciously; that defendants thereafter refused reassign said land sale contract;
“VI. by premises plaintiff alleges “That reason of the purported given consent defendants to possession take of the afore-described vehicles was nullity fraudulently and was obtained;”. bearing upon shall now refer to We the evidence question. genesis purchase
The by case has its in the plaintiff Gowin from the defendant Baird of three log by trucks and trailers and the execution Gowin mortgage equipment of a chattel on this to secure the purchase price. security, As additional Gowin as- signed to Baird his interest in a contract of sale of mortgage assigned a farm. Baird to Heider for a valuable consideration. Later Gowin ac- quired the Hesketh truck and trailer, transferred mortgaged the motor from one of trucks to departed Hesketh leaving truck and for Idaho, behind mortgaged taldng but vehicles, with him stakes, equipment chains and binders and other which Baird property. claimed to be his Baird swore to a crirtí- charging larceny inal information Gowin with bailee of the motor above referred to and several other items property. apprehended Gowin was in Coeur d’Alene, brought Oregon, Idaho, back to McMinnville, lodged jail August 31pl951, there or about *37 charge September on
so remained until 18, 1959, During preferred charges. and other this Baird, Sep- jail on time Baird met with in the twice, Gowin September and tember 1 1959. On both occasions county, of Yamhill Wallace was Mekkers, sheriff present. left for Idaho
It is in evidence before Gowin mortgaged and from he removed tires wheels to a re- and sold them concern Portland vehicles as an to as Burns Brothers. Baird testified ferred plaintiff that told him adverse witness for the Gowin give equity his in the Diamond T that “he' would me [the truck] farm and trailer and and some Hesketh laying posts and rolls of wire still at fence barbed peat place, if I and some old buckets wouldn’t buying property. push Burns Brothers for this That agreement front was of the Sheriff.” our Baird a witness in his own behalf testified As buy- that Burns Brothers admitted that he told Gowin they already ing them and but that had sold tires, charges press “if I said that didn’t that Gowin give me the truck and trailer and that he’d Burns get away having up everything an- there to from else against charge brought him;” told Gowin other property gave “go get” bim and him (who behind in Mrs. remained Coeur letter to Gowin arrested) authorizing her after Gowin d’Alene Hesketh truck and trailer and him the turn over thereupon equipment. Baird sent articles various with the agent, letter, d’Alene Aebi, to Coeur his brought property to Aebi who delivered Mrs. Gowin Oregon. He left the trailer with Peerless it back to in Portland and drove the Truck Service Trailer *38 garage truck to Baird’s in Sheridan. Baird testified owing purchase price that some was $4,200 on the paid these vehicles and that he off. it place Gowin’s version of what at took the first meeting quite different from Baird’s. In answer question by to a his counsel to what conversation he had about the Hesketh truck and trailer, he an- : swered they “And wanted their motor back in the truck —’ says, and he chains and ‘Stakes, binders Mr. talking. they
Baird was He said wanted their and stakes, chains binders and I told also, them they could have chains and stakes, binders but already changed not the truck —the motor had been says, try get along and the Sheriff ‘You better to ” Try cooperate here. to in this matter.’ testimony Gowin’s continued: Why you going give
“Q were them the stakes, they yours? chains and binders when were Would you explain jury? that to the pressure “A I was under some Well, and there, get jail. I needed out of get “THE I WITNESS: needed to out of the jail. good pressure I was under a deal of and I figured I could sacrifice and some the rest, retain in the but, conversation —the exact then, words I subject wouldn’t recall—still on the same there though, chains and stakes, binders, and Mr. by memory Baird made out the lists. As I called off parts including my parts; my what fuel oil was— grease—and says, and so letter of he ‘I’ll need a forth — signature, I ‘No.’ and said, the Sheriff says, going picked up by mind, ‘Never it’s to be ” anyway.’ Avarrant they
Although that “I told them .Gowin testified but could have the hinders not stakes, chains contradiction it shown without truck,” nevertheless, sign authorizing wife to de- that he did the letter his to Baird. liver the Hesketh truck trailer point testimony, his with At reference another meeting, September “I testified: first Gowin back could have it, if he wanted the stuff he told him worry go get ‘Don’t about said, he’d it. He but have ” repossessed He I the truck in Idaho.’ have that, explained he the stakes, “the stuff” meant *39 chains binders. meeting
Begarding the Baird and between Gowin September eighteenth, the latter testified that Baird on said:
“ truck has have truck. The been back ‘We the in there —in the 4th—’ somewhere since around that that I'still possession neighborhood, and that he had impression had was the that it under up picked a due to re- warrant, and, the been lease of plates on promissory plates release the the of —a get putting was a little out—the Sheriff to pressure there.” here and that Baird in- testified on that occasion further' He sign by promise, a . fraudulent to blank duced him, mortgaged covering attorney powers vehicles of and trailer so that Baird would truck and the Hesketh to have the titles these vehicles transferred ablé to promise would was that if Gowin into his name. The attorney reassign sign powers Baird would of him farm. denied of Gowin’s Baird the contract sale freely testimony, for the defendants as counsel but, this jury. for of fraud was admits, the issue f On this evidence we held as ollows: opinion that the if there conversion,
“It is our
agent
posses-
when Baird’s
took
was
occurred
one,
sion
the Hesketh truck and trailer. As we have
part
opinion dealing
in the
indicated
of this
with
prosecution,
the cause of action
malicious
there
go
jury
was evidence sufficient to
on the
question
taldng
whether Gowin’s consent to Baird
property
product
in Idaho
of duress.
subsequent alleged
If
in
the defendants’
fraud
so,
obtaining
powers
attorney
from Gowin
September eighteenth
relatively
becomes
unim-
portant to the issues
involved
this cause of ac-
(cid:127)
* *”
tion.
While we are still of the that the evi support finding dence is sufficient that Baird authority pos secured the letter of from Gowin and the by session of the vehicles duress we are, nevertheless, reargument after convinced, and re-examination of the question, judgment cannot be sustained on wrongful alleged for that is basis, not the act complaint. complaint alleges a conversion that namely, occurred at a later date and other means, promise reassign the fraudulent the land sale con coupled charge tract to with Gowin, of duress, sign all power of which Gowin was induced to *40 attorney. importance We attach no to the date as generally speaking, such, as, the date is not so material may proved but that a conversion be to have been on alleged. Higgins, a different date than that Aldrich v. complaint 77 Conn A alleged 370, 498. Here, the September September two dates, and but the plaintiff chose to state the circumstances of the con by and the accomplished, version, means which it was September by proof on He 18. could not recover of a by entirely accomplished at an earlier
conversion date different means. complaint alleges “prior wrongful
The that to said taking” promise the induced the false was attorney power a to “execute of which would enable to the defendants to obtain a transfer of title” the promise and that the would be carried out vehicles, “upon delivery attorney” power of said of to defend- “upon obtaining possession ants and defendants plaintiff, relying upon said and that the the vehicles,” reprisals, promise and in fear executed motor ve- power attorney to defendants, hicle title transfer possession which enabled them thereafter to take “thus to said of said vehicles and cause titles to vehicles registered in name.” be defendants’ than weeks The is more two before evidence gotten possession of the not vehicles, Baird had this promise alleged through false and duress by securing signature complaint, to a but Gowin’s authority addressed Mrs. Gowin. The letter of possession of the truck this letter evidence that through it were obtained duress what and trailer opinion that it hold in our former was caused us to place. at the conversion took if all, at that time, plain- position counsel for to this As an answer argument rehearing urged on fol- oral tiff agent. agent lowing: a dual He was for was Aebi bring stakes, chains, back binders Baird to bring the truck. The conversion back Gowin steps, through accomplished a series of and con- complete until vehicle is not motor aof version wrongdoer of title so that certificate obtains through Department may the State transferred title step obtaining first was the Motor Vehicles. *41 custody by truck. At Aebi for Gowin keeping intention the truck and time Baird had no completed power was when the of attor- conversion ney fraudulently obtained. stated that was Counsel given voluntarily, “the but the truck was letter was given point.” not to the defendants at that argument complete part
The is a about-face on the plaintiff, of counsel for the who contended in his brief original on the the defendants “ex- submission torted” the letter from to Mrs. tell- Gowin Gowin ing stay jail they ‘got him “he in would until the stuff completed back’ and that the conversion was when ”, possession Aebi obtained of the vehicles Idaho brought Oregon. importantly, them back to More there doing is no room in the evidence claim for the that in agent question so Aebi acted as The sole Gowin. gave freely was whether Gowin the letter and volun- tarily asor the result of duress. If it was the latter, previously there was conversion. As this stated, pleaded by plaintiff. not the conversion Neither jury itwas the issue submitted to the in the court’s only instructions, which dealt with the defendants’ al- leged obtaining power fraud and duress attor- ney September eighteenth. justified we think that the evidence
Nevertheless, supports judgment. the instructions plaintiff alleged, that, There was no evidence attorney power obtained the defendants through pos- fraud them the asserted enabled to take registration or to of the vehicles secure of them session inquiry. but that not end names, own does in their question the conduct of the does al- is, defendants leged proven an constitute such exercise of do- ¡ plain- property, of' in exclusion
minion over the right, amount to a conversion. as to tiff’s *42 necessary a that there conversion
It is not by taking the defend the chattel a manual of should be applied it to be that he has or that it should shown ant, possession withholding under a a of claim his own use; of the owner is suf with the title of title inconsistent Cooley (4th ed) § 499-500, 331; 2 on Torts ficient, § Dean Conversion, 3. Trover 533-534, 89 CJS ownership, .says of that “a mere assertion Prosser any any possession, other of or without disturbance sufficiently right with the is not it, interference “[a] a but claim conversion,” to be classed as serious title, reasonably possession, by is in which one who of permitted implies, owner 'will not be to ob that the (2d enough.” goods, on Torts will be Prosser tain the ed) Supporting NH Beers, are Baker v. 64 77. text Oakley 11 v. Mizell, 106; Adams v. Ga A 35; 6 (1931). Lyster, In the last cited, BIB case possession prop taken of the had not even defendant erty, and tar which macadam,” as “hard core described deposited by belonged and had been purpose. bim for that he rented land which by purchased the defendant who never later land was possession. a letter written Nevertheless, into went plaintiff warning by solicitor to the the defendant’s attempted remove “the he stuff” if he that latter by trespasser was found the court to a become would of a conversion. evidence sufficient difficulty holding that in one who, no haveWe getting a purpose the title to motor vehicle obtains from the true registered name, his own in attorney power a which duress fraud or owner accomplish purpose, guilty him to enable would with, the true owner’s an interference unlawful property, wrong- where, here, dominion over the power possession property. That the of the doer is attorney proved to he insufficient for its intended purpose, evidence is not material. indicates, as the possession material of the de- Neither is it fendants was unlawful. See 89 CJS Trover and § it is said: where Conversion “Regardless possession came of whether he into lawfully unlawfully, property person or personal property possession of the of another is guilty of where he makes an unfounded conversion ownership assertion of or claim or title thereto, property or deals with the or treats as owner. the evidence was sufficient to Thus, distinct show wrongfully act of dominion exerted the defendants *43 plaintiff’s property September eighteenth, over on alleged complaint. as in the In conversion, the cir- cumstance's of this case, had his election original to make either the conversion or the later one of an action in the basis trover. particulars
In the hereinabove our indicated, opinion former is but the modified, decision affirm- judgment ing the on the third cause of action is ad- hered to.
RESPONDENT’S PETITION FOR REHEARING appeal judgment court this has reversed the
On respondent on one cause of for the action and affirmed judgments appellants other two. Both the respondent objections filed cost bills. and the On of party to the other’s cost we bill, each sustained the objections, granted appellants’ a-rehearing but have problem recurring because the involved is a one and regarding our decisions it not uniform. are Upon argument right neither side claimed the respondent to recover all its costs. Counsel for the suggested appellants that division of one-third to the respondent just and two thirds to the would be fair, though separate there had been three lawsuits. appellants thought Counsel for that there should be apportionment expense preparing an transcript testimony printing and of the briefs upon portions based an allocation of the testi- mony properly and the briefs referable to each cause of action. He admitted that this would abe difficult testimony task. In a case like this where much of the related to all three causes of we think it action, would be a Herculean one. justification
Both counsel not without assumed, our this court has decisions, discretion in the primary matter. it Whether has or we is, not think, question. relating passed
The first statute to costs was Deady’s Civil ch Title Code, V. Section 542 (General Oregon pages 287-288) Laws of 1845-1864, provided: party, when allowed to either
“Costs, are as fol- lows: supreme appeal, “1. In the court, on an to the
prevailing party, fifteen dollars; prevailing party, “2. In the circuit court, judgment given when without trial of an issue *44 upon appeal, of law or fact, or an five dollars; judgment given when law or is after trial of an issue of ten dollars; fact, county
“3. In the one-half the court, amount allowed in the circuit court.
321 supreme appeal or cir- to the on an “But when given a decision or ordered, cuit a new trial is court appealed modifying judgment the costs from, appeal in the discretion not, be allowed or on shall appellate court.” (now provided: 20.020) OES Section party necessary also be allowed to costs shall “A entitled including the fees disbursements, all necessary expenses of witnesses, of officers depositions taking expense or otherwise, commission publication or notices, of the summons of postage mail, where the same are served and the necessary compensation referees, any copying public expense book or docu record, used as evidence on the trial.”1 ment equity, costs were allowed to however, In suit party prevailing di- “unless the court otherwise Beady, rects.” section now OES 20.030. 544, regarding appeal in a law The statute costs on unchanged pro- until when the action remained 1907, “a trial ordered, vision that when new or decision modifying judgment appealed given the costs from, appeal allowed or shall be the discretion not, dropped, appellate General Latvs court”, § Oregon and ever 2; ch since then the 181, provided Supreme this state has in the law of prevailing party. to the shall be allowed Court costs (1). 20.070 See OES
Turning now to our decisions we find that in the
applied
after 1907 the court
the statute
earlier cases
costs
allowed
it Avas
were
written,
is,
Kinney,
party,
prevailing
v.
292, 296,
Gardner
60 Or
(1911);
Bord,
Lemler
v.
80 Or
P 1034 427, ; v. Co., William (1919). Kinney, P 397, Or 185 766 In v. 404, Gardner plaintiff judgment was ordered to remit a $285 for or suffer a and $1,171 reversal the defendant was saying, per awarded the court costs, J.: “As McBride, put expense defendant has been to the trouble and appeal, an he will recover his in. costs this court in any ruling There a event.” was similar in Lemler v. judgment plaintiff Bord, where there was a for judgment for on a first cause of action and a $270.60 judg- on for a second cause of action. The former $10 ment was the latter affirmed, set and it was aside, pre- that held defendant was entitled to costs as the vailing party. Propst Hanley in So, v. William also, judgment Co., when a for the $1,631 appeal on reduced to $148.33. § mention
The first of Article VII, Con- in stitution this connection was made in Lemler v. provides, part, Bord. That section in that “if, any respect, judgment appealed from should be changed, supreme opinion and the court shall be of judgment that can determine what should it have been judg- court shall entered in the it direct such below, ment to be entered in the same manner with like equity as decrees are now entered in effect cases on supreme appeal Respecting provi- to the court.” this said: sion the court
“It be remembered, must that it is however, judgment a a not decree which is to be entered
under that clause. incidents of the former question and the follow, will therefore must judgment distinguished the basis of settled on a decree.” at from 80 Or 231-232. pro- referred to section
The court then 565, L.O.L., supreme viding appeal court an costs prevailing party are allowed said wher- “they at ever costs are allowed follow as a matter law, way of course one or the other.”
In 1918 the court first announced that Article VII, upon § of the Constitution conferred it discretion- ary power question to determine a of costs. This was in the case of Melvin, Stabler v. 89 Or 173 P *46 (1918) pursuant in the which, to constitutional amend- judgment ament, for fraud was reduced from $1,411 party to and it was held neither was entitled $750 to costs. court The said: opinion power given this
“It is our that the to judgment upon under this court, enter a section, power the record carries with it the to award costs equitable principles, give deny on and to or to costs party appeal.” to either on 89 atOr 232. invoking power Other cases the asserted are: Olson (1918); v. Heisen, 90 P 176, Or 175 859 Miller Lum. (1919); Davis, Co. v. 94 Or P 507, 185 462, 1107 Levine (1920); v. Levine, 95 P 94,Or 187 609 Obermeier v. Mortgage Co. Holland-America, 123 Or P 469, 259 (1927); 260 P 262 P 1064, 1099, 261 Wood et al v. Sprague (1940). al, et 165 Or P2d 122, 106 287
McKinney Nayberger
al,
v.
et
138
203,
Or
220, 295
(1931),
2
P
P2d
6 P2d
229
474,
1111,
228,
Patterson
Horsefly Irrigation Dist.,
v.
157 Or
69 1,
P2d 282,
(1937);
Cummings,
P2d
and State v.
36
State § repudiates of the Con- to Article VII, the resort Referring to the earlier cases. stitution in some of court said that Melvin and cases, v. similar Stabler they
“* * *
adoption of
were decided before
Oregon
That
is now
eh
statute
Laws
322.
just
Accordingly, when the four cases
20.310.
ORS
of this state en-
no enactment
decided,
cited were
titled the
upon appeal
party,
prevailing
law ac-
costs and disbursements.
to an award of
tions,
right
ignore the demands of
no
have
“We
prevailing party
case the
this
20.310.
ORS
—in
appellant
disbursements.”
entitled to costs and
—is
at
205 Or
537.
by the court in that
referred to
The 1921 enactment
reads:
20.310,
now ORS
and which is
case,
prevailing party
are allowed to the
costs
“When
appearance
supreme
appeal
fees,
court
attorney
provided
law;
as
fees,
fees,
trial
transcript
necessary expenses
abstract,
or
printing required
require;
rules
law or
transcript
testimony
and the
court,
rule
or other
*47
necessarily orming part
proceedings,
f
when
appeal, shall be taxed in the su-
on
of the record
appeal.”
preme
costs of the
court as
provided
has
statute
seen, however,
have
weAs
party
prevailing
is entitled to costs
that the
1907
since
supreme
appeal
and the
enact
court,
1921
in the
creating
right
re
instead
therefore,
ment,
merely
the recoverable items,
enumerated
costs,
cover
including
testimony
transcript
expense
to be not taxable in
had been held
theretofore
which
only
supreme
court.
in
circuit
See
but
court,
Co.,
10,
Lumber
53 Or
18-19,
Box &
Allen v. Standard
(1908);
P 509
Sommer v.
P
98
555,
97
P 1109,
96
Compton,
(1909);
53 Or
100 P
341,
v.
McGee
Beckley,
(1909).
54 Or
102 P
250, 254,
We now hold that Article
of the Con
VII, 3,
purpose
stitution cannot he resorted to for the
awarding
appeal differently
costs on
from the com
mand of the statute. That section authorizes this court,
hy
jury
when the entire record in a
a
case tried
brought
opinion
before it
the court is of the
that
judgment
was such as should have been rendered,
judgment, notwithstanding any
to affirm the
error
during
pro
committed
the trial. The section further
previously
judgment
vides,
if
stated,
should
changed
opinion
and the court shall be of the
that it
judgment
can be determined what
should have been
may
entered
the court below this court
“direct such
judgment to be entered in the same manner and with
like
equity
effect as decrees are now entered in
cases on
appeal
supreme
power
court.” The
of this court
retry
by jury
the facts of a case tried
where error
appears,
Hoag
first
Washington-Oregon
asserted
v.
Corp.,
(1915)
75 Or
144 P
The constitutional was not intended modify repeal governing ap or the statute costs on peal. though properly Even it could be said when that, judgment the court affirms or renders a different one *48 pursuant § it as an authorized, to Article is VII, power, to the of that to determine exercise incident equitable on an there is the allowance of costs basis, construing provision justification as con- no for separate independent power ferring court a on the question a of costs in that fashion. This to deal with wholly regard to Article decided without VII, case was §3. statutory. purely law are At common
“Costs
they
were not
and were
recoverable,
unknown,
were
McKinney
judgment
adjudged
a
case.”
not
Nayberger, supra,
at 220. We take it to be
v.
138 Or
decisions
under our
now settled
our recent
as a mat
disbursements are allowed
statute costs'and
party
prevailing
on
to the
the affirmance
ter of course
judgment.
now
to be deter
a
It
remains
or reversal of
question
precise
before the court
and this is the
mined,
any
applies where
whether
different rule
case,
in this
regarded
judgment
what is to be
modified,
is
purposes
of the rule.
as a modification
it will be
amendment,
remembered,
The 1907
provision
origi
exceptions
to the
two
eliminated
allowing
appeal
prevailing
to the
costs
nal statute
namely,
party,
a new trial is ordered and when
when
judgment. In
such in
a modification
there is
formerly granted power allow
the court
stances
The effect of the amend
in its discretion.
or not
costs
and leave
that discretion
withdraw
was to
ment
excepted subject theretofore
of cases
classes
party
prevailing
shall recover costs.
mandate
Hist,
Irrigation
Horsefly
and State v.
v.
Patterson
In
supra,
Cummings,
we held after extensive review
both
that when new trial is ordered
prior decisions
of our
party
prevailing
and entitled to
appellant,
*49
judgment
prevailing party
a
when
costs. Who is.
question
answer to
think that the
is modified? We
necessarily depend
of the modifi-
on the extent
must
may
trifling
that the
or unsubstantial
It
be so
cation.
Far-
v.
an affirmance. See Steel
amounts to
decision
(1897),
a
where
decree
In
opposite
prevailing parties
sides
on
two
there cannot be
disallowing
decision
costs
Nor can a
of the same case.
supra: “It
justified.
Bord,
in Lemler v.
As we said
al
at law costs must be
that in actions
well settled
is
party
at 232. There
or the other”. 80 Or
lowed to one
(cf.
apportionment
provision
an
of costs
no
is
(1887))
Taylor,
Phipps
The rule'is 237 Minn Chicago, Co., Railroad & Island Rode Pacific quoting from ALR2d 840, 35 54 NW2d 386, 408, Hagen, Minn 38 NW2d 353, 360, v. Hildebrandt 820: that the modification of here settled “It is'well obtaining party the same judgment entitles appeal to costs and disbursements. This is true pro- though even the disbursements were made in viding upon a record and brief on the issues which party pre- 'Obtaining the modification did not * * *” vail. present appellants
In the case obtained substantial modification when this court reversed the judgment prosecution. They for malicious were the statutory prevailing parties and entitled to costs in necessary the sum of and their dis $15, 20.070, OKS Bearing pursuant bursements 20.310. in mind OKS wholly power that the court to allow costs statutory right and that the to recover disbursements *50 right (i.e., statutory depends on the to recover costs costs) doing we without to the stat cannot, violence appeals, treat this case as three ute, lawsuits three appellants prevailing par in are one of which the respondents, ties and in the other two the and allow appellants respondent and the one-third two-thirds statutory Nor can we costs disbursements. apportionment other formula of deemed resort some equitable. necessary to be absurd— Indeed, —and treating the case as three lawsuits would be result statutory respondent costs to the as the to award two prevailing party in of them. two original allowed this court a measure statute dealing problems in with such which un- of freedom fortunately since been denied it. As has been has be- always change prog- does not denote observed, fore change improvement. Another direction ress or appeal governing costs at Act actions of the 1862 legislative assembly may to be de- seem law sirable. allowing decision costs to to our adhere
We appellants.