Gowin v. Heider

CourtSupreme Court of Oregon
Citation386 P.2d 1,237 Or. 266
PartiesPaul W. GOWIN, Respondent, v. Otto HEIDER and John Floyd Baird, Appellants.
Decision Date23 October 1963

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386 P.2d 1
237 Or. 266
Paul W. GOWIN, Respondent,
Otto HEIDER and John Floyd Baird, Appellants.
Supreme Court of Oregon, Department 1.
Argued and Submitted Feb. 8, 1963.
Decided Oct. 23, 1963.

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[237 Or. 270] Norman K. Winslow, Salem, argued the cause and filed briefs for appellants.

Ralph W. Bolliger and Carlton R. Reiter, Portland, argued the cause for respondent. With them on the brief were Reiter, Day & Anderson and Lewis B. Hampton, Portland.


LUSK, Justice.

This is an appeal by the defendants from an adverse judgment based on the verdict of a jury in a case involving three causes of action, one for malicious prosecution, the other two for conversion. The judgment was as follows: On the first cause of action, malicious prosecution, $36,000; on the second cause of action, conversion, $2,000; on the third cause of action, conversion, $7,000. Besides these sums, the jury included[237 Or. 271] in their verdict punitive damages on the first and third causes of action, but these items were removed by the court on defendants' motion for judgment n. o. v. Trial of the case commenced March 14, 1961, and was concluded on March 25, 1961. The transcript of testimony comprises 1,366 pages and there are nearly 100 exhibits. In appellants' opening brief, which is 262 pages in length, there are 30 assignments of error. A statement

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of the case may, nevertheless, we believe, be brought within reasonable compass.

The grievances of which the plaintiff complains all stem from the purchase by him from the defendant Baird, who operated the River Bend Garage at Sheridan, Oregon, of three log trucks and trailers on the twenty-eighth day of March, 1959. Gowin turned in a Ford pickup truck and other vehicles as a down payment, figured at $2,650, and executed a chattel mortgage on the vehicles purchased by him as security for the balance of the purchase price, stated in the mortgage to be $16,500. The balance was to be paid at the rate of $660 per month on the tenth day of each month thereafter, commencing May 10, 1959. As further security for the indebtedness Gowin and his wife assigned to Baird their interest in a contract of sale of farm property near Gaston Yamhill County, Oregon, which the Gowins were purchasing, and where they were living at the time.

Baird and his wife executed an assignment and guaranty of payment of the chattel mortgage to the defendant Heider for a consideration of $14,000, evidenced by Heider's check to Baird in that amount dated June 25, 1959.

Gowin made timely payments of the installments on the mortgage due in May and June, but made none [237 Or. 272] thereafter. He claimed in his testimony that the time of the July payment was, at his request, extended on July 25 to August 28 by both Baird and Heider. The basis for the request was that his trucks were 'not working steady' during the fire season.

At the same time, Gowin, according to his testimony, made another request, which likewise was acceded to by both defendants. On June twenty-eighth Gowin had bought a freight truck and trailer which he leased on July sixteenth to a man named Rouse. This was not a log truck and was not purchased from Baird and was not included in the mortgage. It is referred to by the parties as the Hesketh truck. This truck broke down at LaGrande, Oregon, while hauling a load of grain and the motor had to be completely overhauled. Gowin testified that on July twenty-fifth, at his request, Baird and Heider agreed that Gowin might transfer the motor--#78488--from a truck covered by the mortgage and known as the 'West Coaster,' described in the mortgage as a 1947 International log bunk truck--into the Hesketh truck. Accordingly, Gowin had the motor taken out of the West Coaster and installed in the Hesketh truck. He delivered the motor from the Hesketh truck to Cummins Motors in Portland to be repaired.

Early in August Gowin had decided to move to Idaho. He had repurchased from Baird the Ford pickup truck which he turned in on the purchase price of the mortgaged vehicles. Acting on his instructions, Mrs. Gowin, on August eighth, went to Sheridan and paid Baird the amount owing on the pickup. She told Baird that they had transferred the motor from the West Coaster into the Hesketh truck and that Gowin would replace it with another good motor. Baird said [237 Or. 273] 'o. k.' She also told him that they were thinking of moving to Idaho where it would be easier to obtain a number one P. U. C. permit for the freight truck (such a permit would enable the permittee to operate in all but two of the states). During this colloquy Baird telephoned Heider and told him that Mrs. Gowin was there paying off the pickup.

About August tenth Gowin drove the Hesketh truck, which was now equipped with the motor from the West Coaster, to Coeur d'Alene, Idaho. The mortgaged vehicles were left behind at the farm. His wife and children joined him a few days later and they were living in an apartment in Coeur d'Alene at the time of his arrest on the complaint of Baird out of which the action for malicious prosecution grows.

Early in August Baird received a telephone call from Paul M. Cody, who had been employed by Gowin as a truck driver and mechanic. Cody told Baird that Gowin had left for parts unknown and had abandoned the mortgaged vehicles which were

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at the farm. Baird went to the farm, and, according to his and other testimony on behalf of the defendants, discovered that, in addition to the motor having been removed from the West Coaster, a differential head was missing from another truck described as a '47 Diamond T, and the trucks and trailers had been stripped of their good tires, numerous wheels, stakes, chains and binders and accessories of various sorts and descriptions. In removing the motor the wires had been cut and the pipe lines sawed off.

Gowin had departed without leaving a forwarding address. Letters addressed to him were returned to the writers. Baird inquired among the neighbors as to Gowin's whereabouts but could learn nothing. He [237 Or. 274] then consulted the sheriff of Yamhill County, who told him to use his own judgment, but to protect his property and go and get it. On August 17 and 18, Baird caused the mortgaged vehicles to be repossessed and brought back to the River Bend Garage. Two of the trucks could not be driven and had to be towed and it was necessary to supply seven or eight tires mounted on wheels before some of the vehicles could be moved.

Baird continued his efforts to locate Gowin, but was unsuccessful. The State Police were also looking for him. Gowin's P. U. C. permit had been suspended for failure to have on file proper insurance and the police, who wanted to pick up his license plates, inquired of Baird at the River Bend Garage as to Gowin's whereabouts. Finally, Baird, at the suggestion of the sheriff, saw the district attorney and on August 20 signed a complaint charging Gowin with larceny by bailee of the following described property:

1 275 Cummins diesel motor #78488

1 150 gallon Pearce water tank

8 Kelly tractionrib tires

2 Kelly CHC tires

1 3012 differential head.

The complaint was filed in the District Court for Yamhill County.

About a week later Baird learned that Gowin was in Coeur d'Alene and the sheriff proceeded there with a warrant, apprehended Gowin on August 27 and returned him to McMinnville where he was confined in jail for a period of 19 days. On September 18, on motion of the district attorney, the criminal complaint was dismissed. Before Gowin was released from jail, [237 Or. 275] apparently about September sixteenth, Orville Aebi, acting for Baird, armed with a letter from Gowin to Mrs. Gowin, who was still in Coeur d'Alene, went to that city, delivered the letter to her, and received possession from her of the Hesketh truck and various accessories and articles of equipment, including those described in the criminal complaint, and brought them back to Oregon.

As previously stated, the first cause of action is for malicious prosecution. The second cause of action, for conversion, is based upon the repossession by the defendants of the mortgaged vehicles and the third cause of action, also in conversion, is based upon the defendants' taking possession of the Hesketh truck and trailer. The action was commenced on May 19, 1960. Among other allegations in the answer of the defendant Baird it was alleged that on June 9, 1960, the grand jury of Yamhill County, upon a full and complete disclosure of the facts and circumstances with reference to the taking of the property by the plaintiff, indicted the plaintiff for the crime of larceny by bailee, the property involved being the same property as that described in the criminal information which had been previously dismissed. Thereafter, on January 16, 1961, the plaintiff filed his 'amended supplemental complaint' in which he alleged, in substance, that the indictment had been procured by the defendants, who had intentionally failed to disclose all the facts concerning the transaction and related falsehoods to the district attorney and grand jury; and that the sole purpose of the defendants in procuring such indictment was to aid them in defending against the pending action for malicious prosecution.

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The amended supplemental complaint further alleged that on September 29, 1960, the plaintiff was acquitted of the charge in a jury trial.

[237 Or. 276] It is plaintiff's theory that Baird in all his alleged tortious activities was the agent of Heider.

We will consider the three causes of action in the order in which they appear in the complaint. The question of Baird's agency for Heider will be separately treated.


Favorable Termination.

The defendants raised by demurrer and motions for nonsuit and directed verdict the question whether a favorable termination of the criminal prosecution was...

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