Gowin v. Heider

CourtSupreme Court of Oregon
Citation237 Or. 266,391 P.2d 630
PartiesPaul W. GOWIN, Respondent, v. Otto HEIDER and John Floyd Baird, Appellants.
Decision Date22 April 1964

Norman K. Winslow, Salem, argued the cause for appellants.

Carlton R. Reiter, Portland, argued the cause for respondent.


LUSK, Justice.

Petitions for a rehearing have been filed by both sides. We granted the appellants' (defendants') petition, which is directed solely to our affirmance of the judgment on the third cause of action, and that part of the respondent's (plaintiff's) petition which asserts error in our allowance of costs on appeal to the defendants. The remainder of respondent's petition is denied.


The third cause of action is in trover for a conversion of the so-called Hesketh truck and trailer which is also referred to in the testimony as the 'Rause truck and trailer' and 'the freighter'. On this cause of action the jury returned a verdict for the plaintiff in the amount of $7,000 general damages and $15,000 punitive damages. The verdict for punitive damages was subsequently set aside by the trial court and judgment for the plaintiff entered in the sum of $7,000.

The ground of defendants' petition is that this Court's affirmance of the judgment was based upon a theory not pleaded in the complaint. After alleging that on, to-wit, September 1, 1959, plaintiff was the owner and entitled to the immediate possession of the vehicles in question, and that their reasonable market value in the county of Kootenai, Idaho, and in Yamhill county, Oregon, was $14,000, the complaint continued:


'That on, to-wit: the 1st day of September, 1959 the defendants and each of them wrongfully and unlawfully took said vehicle from plaintiff and converted the same to defendants' own use without the consent of plaintiff;


'That prior to said wrongful taking the defendants induced plaintiff to give consent to defendants for them to take possession of said truck and trailer in the following manner:

'Defendants had previously been delivered a written assignment of plaintiff's interest in a land sale contract which plaintiff and his wife had entered into in February of 1959 with one James M. Davis and Lucille Davis, and which land sale contract pertained to land situated in a part of the Joseph Brisbine Donation Land Claim No. 51 in T2S, R3W of the Willamette Meridian; that said assignment has been made to defendants as additional collateral in security and in connection with a certain chattel mortgage transaction; that on or about the 18th day of September, 1959, defendants represented to plaintiff that if he should execute a power of attorney which would enable the defendants to obtain a transfer of title to the aforedescribed vehicles then upon delivery of said power of attorney to them by plaintiff, and upon defendants obtaining possession of said vehicles, defendants would reassign plaintiff all of their right, title and interest in the aforementioned real estate contract held by them as collateral; that plaintiff believed said representations to be true and was incarcerated in the Yamhill county jail at said time and was assured by defendants that unless such consent were given plaintiff would not be released from jail and other charges would be preferred against him; that plaintiff in reliance upon said representations and in fear of reprisals in fact executed and delivered a motor vehicle title transfer power of attorney to defendants which thus enabled them thereafter to take possession of said vehicles and to cause the titles to said vehicles to be registered in defendants' name; that at said time defendants did not intend to reassign said land sale contract to plaintiff but deceived plaintiff and coerced him and acted intentionally and maliciously; that defendants thereafter refused to reassign said land sale contract;


'That by reason of the premises plaintiff alleges that the purported consent given defendants to take possession of the afore-described vehicles was a nullity and was fraudulently obtained;'.

We shall now refer to the evidence bearing upon the question.

The case has its genesis in the purchase by the plaintiff Gowin from the defendant Baird of three log trucks and trailers and the execution by Gowin of a chattel mortgage on this equipment to secure the purchase price. As additional security, Gowin assigned to Baird his interest in a contract of sale of a farm. The mortgage was assigned by Baird to Heider for a valuable consideration. Later Gowin acquired the Hesketh truck and trailer, and transferred the motor from one of the mortgaged trucks to the Hesketh truck and departed for Idaho, leaving behind the mortgaged vehicles, but taking with him stakes, chains and binders and other equipment which Baird claimed to be his property. Baird swore to a criminal information charging Gowin with larceny by bailee of the motor above referred to and several other items of property. Gowin was apprehended in Coeur d'Alene, Idaho, brought back to McMinnville, Oregon, and lodged in jail there on or about August 31, 1951, and so remained until September 18, 1959, on the charge preferred by Baird, and other charges. During this time Baird met with Gowin in the jail twice, on September 1 and September 18, 1959. On both occasions the sheriff of Yamhill county, Wallace Mekkers, was present.

It is in evidence that before Gowin left for Idaho he removed the tires and wheels from the mortgaged vehicles and sold them to a concern in Portland referred to as Burns Brothers. Baird testified as an adverse witness for the plaintiff that Gowin told him that 'he would give me his equity in the Diamond T [the Hesketh truck] and trailer and farm and some fence posts and rolls of barbed wire still laying at the place, and some old peat buckets if I wouldn't push Burns Brothers for buying this property. That was our agreement in front of the Sheriff.'

As a witness in his own behalf Baird testified that he told Gowin that Burns Brothers admitted buying the tires, but that they had already sold them and that Gowin said that 'if I didn't press the charges on Burns that he'd give me the truck and trailer and everything else up there to get away from having another charge brought against him;' that Gowin told him to 'go and get' the property and gave him a letter to Mrs. Gowin (who remained behind in Coeur d'Alene after Gowin was arrested) authorizing her to turn over to him the Hesketh truck and trailer and various articles of equipment. Baird thereupon sent his agent, Aebi, to Coeur d'Alene with the letter, and Mrs. Gowin delivered the property to Aebi who brought it back to Oregon. He left the trailer with Peerless Trailer and Truck Service in Portland and drove the truck to Baird's garage in Sheridan. Baird testified that some $4,200 was owing on the purchase price of these vehicles and that he paid it off.

Gowin's version of what took place at the first meeting was quite different from Baird's. In answer to a question by his counsel as to what conversation he had about the Hesketh truck and trailer, he answered:

'And they wanted their motor back in the truck and he says, 'Stakes, chains and binders--' Mr. Baird was talking. He said they wanted their stakes, chains and binders also, and I told them they could have the stakes, chains and binders but not the truck--the motor had already been changed and the Sheriff says, 'You better try to get along here. Try to cooperate in this matter.''

Gowin's testimony continued:

'Q Why were you going to give them the stakes, chains and binders when they were yours? Would you explain that to the jury?

'A Well, I was under some pressure there, and I needed to get out of jail.

* * *

* * *

'THE WITNESS: I needed to get out of the jail. I was under a good deal of pressure and I figured I could sacrifice some and retain the rest, but, then, in the conversation--the exact words I wouldn't recall--still on the same subject there though, of the stakes, chains and binders, and Mr. Baird made out the lists. As I called off by memory what parts was--including my parts; my fuel oil and so forth--grease--and he says, 'I'll need a letter of signature, and I said, 'No.' and the Sheriff says, 'Never mind, it's going to be picked up by warrant anyway.''

Although Gowin testified that 'I told them they could have the stakes, chains and binders but not the truck,' nevertheless, it is shown without contradiction that he did sign the letter authorizing his wife to deliver the Hesketh truck and trailer to Baird.

At another point in his testimony, with reference to the September first meeting, Gowin testified: 'I told him if he wanted the stuff back he could have it, but he'd have to go get it. He said 'Don't worry about that, I have the truck repossessed in Idaho.'' He explained that by 'the stuff' he meant the stakes, chains and binders.

Regarding the meeting between Baird and Gowin on September eighteenth, the latter testified that Baird said:

"We have the truck. The truck has been back since around the 4th--' somewhere in there--in that neighborhood, and that he had possession and that I still was under the impression that it had been picked up on a warrant, and, due to the release of the plates--a promissory release of the plates to get out--the Sheriff was putting a little pressure here and there.'

He further testified that on that occasion Baird induced him, by a fraudulent promise, to sign blank powers of attorney covering the mortgaged vehicles and the Hesketh truck and trailer so that Baird would be able to have the titles to these vehicles transferred into his name. The promise was that if Gowin would sign the powers of attorney Baird would reassign to him the contract of sale of Gowin's farm. Baird denied this testimony, but, as cou...

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