Krebs Hop Co. v. Taylor

• Decision Date: 15 December 1908
• Citation: 52 Or. 627,98 P. 494
• Parties: KREBS HOP CO. v. TAYLOR et al.
• Court: Oregon Supreme Court

98 P. 494

52 Or. 627

KREBS HOP CO. v. TAYLOR et al.

Supreme Court of Oregon

December 15, 1908

On Rehearing. Former conclusion set aside, judgment reversed and cause remanded.

For former opinion, see 97 P. 44.

J.A. Carson, for appellant.

B.F Jones, for respondents.

MOORE J.

At a rehearing herein, granted upon a petition therefor, it appeared that the abstract of the record, which was employed in lieu of a transcript, did not affirmatively show that when the plaintiff's counsel announced to the court their election to proceed against Taylor and to dismiss the action as to Dickenson, the cause had not been submitted to the jury--a fact that was not observed at the prior trial. The authority to make such choice is not discussed in the former opinion, but the right to do so was tacity admitted and the decision placed on the ground that, if an error was committed in denying the exercise of the prerogative asserted, the action of the court in this respect was without prejudice because the testimony received was insufficient to entitle the plaintiff to a recovery.

The complaint in the case at bar alleged that the defendants wrongfully took and unlawfully detain the team, which averment is equivalent to an assertion that when the action was commenced the property in question was in the possession of Taylor and Dickenson. The answer alleged facts which were stated by way of justification for the seizure of the team by Taylor, who, it is averred, delivered the property to Dickenson, the keeper of a livery stable. This allegation is denied in the reply. The defendants' counsel, referring to Taylor and to what disposition of the property demanded he had made immediately after seizing it, asked M. Krebs, a witness for the plaintiff, the following question on cross-examination: "As a matter of fact, didn't he tell you where your team was?" To which Krebs replied: "He didn't tell me where the team was. He left that for somebody else to tell me." Frank Flukes, as plaintiff's witness, alluding to a conversation which occurred soon after the property was taken, testified as follows: "Mr. Mike Krebs asked Mr. Taylor if he would get his team. He asked him first if he put his team up. Mr. Taylor said, 'Yes.' He asked him if he would get it for him. He says, 'No, I won't get it.' " From this testimony it is fairly to be inferred that Taylor was not in the actual possession of the property.

The remedy of claim and delivery, as prescribed by our statute (B. & C. Comp. § 284 et seq.), is substantially the same as replevin, which is a mixed action, partly in rem and partly in personam, and can be brought only against the person having possession or control of the goods at the time the suit is begun. Wells.Rep. (2d Ed.) § 34. At section 50, Id., the author reasserting this legal principle, and, giving a reason therefor, says: "Another important distinction is that in order to sustain replevin the defendant must have the actual or constructive possession of the goods at the time suit is commenced; in other words, he must be in a condition to deliver the property when called on by the officer, in obedience to the command of the writ." If the plaintiff's counsel had been permitted to proceed as indicated, they might thereafter have introduced evidence tending to show that, although Taylor was not in the actual control of the property when this action was commenced, he had the constructive possession thereof, notwithstanding he had delivered the team to Dickenson, who was holding it subject to his order, which agency would render Taylor liable in replevin. Bradley v. Gamelle, 7 Minn. 331 (Gil. 260). Since this fact might possibly have been established in the manner indicated, the action of the court in denying an exercise of the election mentioned will be considered.

A text-writer, discussing the legal principle involved, says "If two defendants be sued jointly for a tort, and the evidence is not sufficient to hold one, there may be a discontinuance as to that one, and the trial may proceed as to the other. In such case, the joint action does not fail because the tort is not joint, if committed, but for the reason that the evidence fails to show any concert of action." Kinkead's Com. Torts, § 57. Judge Cooley, in his work on Torts (3d Ed. 227) commenting upon the same doctrine, observes: "And where two or more are sued one cannot complain because another has been dismissed out of court or been acquitted. Though two or more are sued, and a joint tort alleged, the general rule is that a recovery may be had against one only." In Smith v. Day, 39 Or. 531, 64 P. 812, 65 P. 1055, it was ruled that several joint tort-feasors might be sued jointly when they had united by design or act to produce the injury complained of; but without a common purpose or joint act there can be no joint liability, though the injury was a general result to which the acts of each contributed. The cases of Dahms v. Sears, 13 Or. 47, 11 P. 891, and Cooper v. Blair, 14 Or. 255, 12 P. 370, are cited, inter alia, in support of the rule thus announced. The first case noted appears to have been an action of trover for a conversion originating in acts constituting a trespass vi et armis, which are concurrent remedies. 1 Chit. Pl. *161. In deciding that case, Mr. Justice Thayer says: "The defendants in the action were charged with a joint tort, and the plaintiff, in order to maintain it, was compelled to prove a joint conversion." Further in the opinion, the writer thereof observes: "I think a jury has a right, in cases of tort, where there are several defendants, to find a verdict against a part of them and in favor of the others. *** This, however, does not allow a joint action against defendants for several trespasses. In an action of that character, the plaintiff must elect at the trial as to which of the defendants he will proceed against. If he fail to do that, and submit the case to the jury, he will be entitled to no verdict." The case of Cooper v. Blair, supra, was an action instituted against three parties defendant to recover the value of certain quantities of wheat alleged to have been converted. At the trial a judgment of nonsuit was given on the ground that a recovery could not be had because the tort complained of was not the joint act of the defendants. In affirming the judgment, Mr. Justice...