McNeff v. Heider

• Decision Date: 10 June 1959
• Citation: 340 P.2d 180,216 Or. 583
• Parties: Cecil A. McNEFF, Respondent, v. Otto W. HEIDER, Appellant.
• Court: Oregon Supreme Court

Page 180

340 P.2d 180

216 Or. 583

Cecil A. McNEFF, Respondent, v. Otto W. HEIDER, Appellant.

Supreme Court of Oregon.

June 10, 1959.

W. C. Winslow, Salem, for appellant.

Jack, Goodwin & Santos, Oregon City, Philip A. Levin, Portland, and Mitchell & Harris, Oregon City, for respondent.

Before PERRY, ^* C. J., and ROSSMAN, LUSK, WARNER, SLOAN, and O'CONNELL, JJ.

PERRY, Justice.

Both the plaintiff and the defendant have filed petitions for a rehearing of the issues in this Court.

The plaintiff's petition asks that, even though his first cause of action cannot be sustained and must be retried, his second cause, being free from reversible error, should be sustained and the judgment of the trial court, based upon the verdict of the jury, reinstated.

Plaintiff relies upon the general rule cited in 5B C.J.S. Appeal and Error, § 1916, p. 407:

'Where plaintiff in his pleading sets up several counts or several causes of action and error is committed as to only part of them, the judgment, if capable of separation, should be affirmed in part and reversed in part. On the other hand, where the issue or count infected by error cannot be segregated, the judgment will be reversed in toto.'

The difficulty with plaintiff's position is that the reversible error which infects plaintiff's first cause of action also infects the judgment rendered upon the second cause of action. The second cause of action is based upon the conversion of articles being transported by the plaintiff as a bailee and as to this cause of action the plaintiff sought damages, both general and punitive, which were recovered. If punitive damages are to be imposed, then the jury must find that the defendant, in taking possession of the truck containing the articles, acted maliciously and in utter disregard of the rights of the plaintiff. Since whether or not the defendant so acted is so interwoven with the question of the lawful or unlawful arrest, we were and now are of the opinion that the error which infected the first cause of action goes to the merits of the allowance of punitive damages under the second cause of action and it was necessary that the judgment be reversed in toto.

In our original opinion we disapproved of the use of the term 'moneylender' as used in the following instruction:

'In repossessing personal property, the mortgagee or money lender has no right to resort to self help or to take the law in his own hands where the borrower or mortgagor resists and places his...