Martin v. Cambas

• Decision Date: 25 November 1930
• Citation: 134 Or. 257,293 P. 601
• Parties: MARTIN v. CAMBAS ET AL.
• Court: Oregon Supreme Court

293 P. 601

134 Or. 257

MARTIN v. CAMBAS ET AL.

Supreme Court of Oregon

November 25, 1930

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by E. C. Martin against F. M. Cambas, J. A. Jacques, and others. Nonsuit in favor of defendant last named, and, from a judgment for plaintiff against the other defendants, such defendants appeal.

Judgment corrected, and, as corrected, affirmed.

Plaintiff brought this action against defendants F. M. Cambas, John H Cart, William J. Blake, and William Brier for false arrest and imprisonment. The cause was tried before the court and a jury, resulting in the following verdict:

"We the jury, duly empaneled to try the above entitled cause find our verdict for the plaintiff and against the defendants as follows: against F. W. Cambas, John H. Cart Wm. Brier the sum of $250 apiece for punitive damages and assess plaintiff's general damages in the sum of $5000 against Wm. J. Blake and assess punitive damages in the sum of $9250 against Wm. J. Blake. All costs to be pro-rated against defendants."

The defendants are all police officers of the city of Portland. The plaintiff, besides his regular employment, was a leader of an orchestra which played for dances in Oregon and Washington. On the morning of October 14, 1928, between 3 and 4 o'clock, plaintiff, on returning from the Washington side of the river where the orchestra had been playing and after leaving his two assistants at their homes and putting his automobile in a garage, proceeded westerly on East Broadway street to his place of residence in the Paramount Apartments, less than two blocks away. He was carrying a robe, a hat of his companion, and a brief case containing sheets of music. The defendant William J. Blake at the time was detailed to duty at the police station on the second night relief. About 3:30 o'clock on that morning he drove an automobile from the police station across the Broadway bridge. At that time he was not in uniform. His star was pinned to his vest beneath his coat. As he drove east on East Broadway and approached the intersection of that street and Vancouver avenue, he saw a man, who afterwards appeared to be the plaintiff, walking on the north side of East Broadway carrying a brief case and what appeared to him to be a lady's black satin coat. Blake then turned his automobile across the street and called the plaintiff. Martin believed that he was being held up, and started to run for his place of residence a little more than a block away. Blake followed firing his revolver. Martin succeeded in reaching the Paramount Apartments, entering the building before being overtaken. Blake states that he informed plaintiff that he was an officer and that he was under arrest when he first accosted him at the apartments. Blake shot through the glass door, and the bullet grazed plaintiff's arm. Martin finally reached his room. Defendant Blake caused a call to be sent to the police station for reenforcements, and defendants Cambas, Cart, and Brier, and also J. A. Jacques went to Blake's assistance, and, with the aid of the landlord, plaintiff was found in his room and questioned. Martin explained fully who he was and where he had been and what he had been doing. Plaintiff's room was searched, and the officers took Martin to the police station, where he was confined in the city jail on the charge of roaming the streets after 12 o'clock at night without lawful business. Plaintiff was afterwards tried and acquitted on this charge. Upon the trial, a nonsuit was entered in favor of the defendant J. A. Jacques.

Frank S. Grant, City Atty., and R. A. Imlay, Deputy City Atty., both of Portland, for appellants.

Frank J. Lonergan, of Portland (Neal R. Crounse and Lonergan & Wagner, all of Portland, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

Defendants Cambas, Cart, Brier, and Jacques answered separately, claiming that no arrest was made by them. Defendants, upon this appeal, in an appropriate manner, raise the questions to which we will refer. The first is that the verdict apportioning the damages among joint tort-feasors is illegal.

It will be noted that the verdict assessing general damages in favor of plaintiff and against defendant William J. Blake in the sum of $5,000 is complete without that part of the verdict assessing punitive damages and attempting to apportion the same. The verdict is, in effect, in favor of all the defendants, except as to William J. Blake, as to general damages. It plainly shows that under the evidence in the case the jury believed that plaintiff was not entitled to anything in the way of general damages except as against defendant Blake, and they so found.

It is a well-settled rule of law that, in the absence of a statute authorizing a jury to sever or apportion damages against joint tortfeasors, an assessment of damages against those sued jointly for a wrong must be for one sum against those found liable. 2 Sutherland on Damages (4th Ed.) § 463; 17 C.J. 1084, § 393; 30 A. L. R. Annotation, page 790, citing numerous authorities; Chrudinsky v. Evans, 85 Or. 548, 167 P. 562. That part of the verdict finding punitive damages against defendants is illegal and does not support the judgment therefor.

There is a further and more potent reason why the verdict and judgment for punitive damages cannot be upheld. Exemplary punitive, or vindictive damages involves the blending of the interests of society in general with those of the aggrieved individual in particular. The generally accepted doctrine is that such damages are awarded by way of punishment to the offender and as a warning to others, or, according to some authorities, by way of example. 17 C.J. 968, § 268. The general rule is that, in order to recover exemplary damages, there must be actual damage shown, although the elements otherwise authorizing the assessment of exemplary damages may exist. Exemplary damages can never constitute the basis of a cause of action. 17 C.J. 974, § 270; 2 Sutherland on Damages (4th Ed.) § 406; ...