Artman v. Ray
| Decision Date | 24 November 1972 |
| Citation | 501 P.2d 63,263 Or. 529 |
| Parties | John B. ARTMAN, Jr., Respondent, v. Ozzie RAY, whose true name is Earl M. Ray, et al., Appellants. |
| Court | Oregon Supreme Court |
Robert A. Lucas, Dist. Atty., St. Helens, argued the cause and filed briefs for appellants.
H. Kenneth Zenger, Hillsboro, argued the cause for respondent. With him on the brief were Huffman & Zenger, Hillsboro.
The plaintiff obtained a verdict and judgment against all the defendants for the conversion of his 1949 Ford pickup. The defendants appeal.
The defendant Ray, a deputy sheriff, observed the pickup on the side of the road for several weeks and had it towed by the defendant Davies into Davies' garage. Several weeks later plaintiff located his truck. Davies told plaintiff that before he could take his pickup he would have to pay a $12 towing charge and a $52 storage charge. Subsequently, plaintiff wrote to defendant Wilburn, the sheriff, demanding that the truck be returned to the place from which it was removed and that all towing and storage charges be satisfied. The pickup was not returned and the sheriff notified plaintiff he was selling it as an abandoned vehicle. The vehicle, however, still remains in the hands of the sheriff.
At the close of the evidence, the trial court ruled that the initial removal of the pickup did not constitute a conversion because it was an abandoned automobile and that Davies had a right to have a lien on the vehicle for reasonable charges for towage and storge. ORS 483.386. It was left to the jury to decide whether the defendants' failure to deliver the car upon demand was a conversion.
The trial court was in error in submitting the case to the jury on the theory that a conversion action could be maintained regardless of whether plaintiff tendered an amount equal to a reasonable charge for towage and storage. One must be entitled to immediate possession of a chattel before he can successfully contend that the actor's failure to yield possession constitutes conversion. Restatement (Second), Torts § 225 (1965). If the person refusing possession has a lien on the chattel, there is no right to immediate possession until the amount of the lien is tendered.
The plaintiff contends the charges for storage were unreasonable. This may be. The making of a claim, however, for excessive charges by the lienor does not dispense with the necessity of a tender in the amount of a reasonable charge by the one demanding possession. Simons v. Brashears Transfer and Storage, 344 P.2d 1107, 1112 (Okl.1959); Athans v. Jones, 277 S.W.2d 192, 194 (Tex.Civ.App. 1955). A tender is not necessary if it is found that the lienor would not release the chattel unless the excessive charges were paid in their entirety. There is no basis for such a finding in this case.
The plaintiff argued in his brief and orally that the trial court was wrong in ruling that the initial removal of the pickup and towage to Davies' garage did not amount to a conversion as a matter of law. Such argument, however, was made in support of the verdict and not as a ground for a new trial. The defendants correctly observed that such a contention is not material to the verdict which was based upon defendants' refusal to comply with plaintiff's demand and it is moot as plaintiff was not asking for a new trial because of the claimed erroneous ruling. For these reasons we hold that the plaintiff is foreclosed from contesting the trial court's ruling.
The problem facing a respondent in plaintiff's position is as follows: He has a favorable judgment which the appellant seeks to overturn. The respondent seeks to uphold the judgment. If the appellant succeeds in reversing the judgment, however, the respondent contends he is entitled to a new trial because of errors the trial court made, but which were harmless to the respondent as long as his judgment remained unreversed.
The legislature has provided a procedure for one instance of this kind. ORS 19.130(2) provides:
'Where in the trial court a motion for judgment notwithstanding the verdict and a motion for a new trial were made in the alternative, and an appeal is...
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Bakker v. Baza'r, Inc.
...it was not necessary, the defendant having received a favorable judgment, for defendant to have filed a cross appeal. See Artman v. Ray, 263 Or. 529, 501 P.2d 63, 502 P.2d 1376 (1972).3 'MR. ACKER: Your Honor, what I wanted to bring up is, I have a problem relating to some questions I inten......
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Emery v. State
...the lower courts then the trial court was in error in failing to award them a judgment under the common law bailment. In Artman v. Ray, 263 Or. 529, 533, 501 P.2d 63, 502 P.2d 1376 (1972), this court said:"When the respondent is seeking to sustain the judgment he should not be required to c......
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Wheeler v. Green
...in favor of all defendants except Green, notwithstanding the verdict, on two of plaintiff's causes of action. He cites Artman v. Ray, 263 Or. 529, 501 P.2d 63, 502 P.2d 1376 (1972) in support of his contention that we should consider this alleged error in spite of his failure to cross-appea......
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Joe Hand Promotions, Inc. v. Jacobson
...[or she] can successfully contend that the actor's failure to yield possession constitutes conversion.’ ”) (quoting Artman v. Ray, 263 Or. 529, 531, 501 P.2d 63, 64 (1972), in turn citing Restatement (Second), Torts § 225 (1965)). It thus appears there is no controlling precedent in the dec......