McNeff v. Heider
| Decision Date | 10 June 1959 |
| Citation | 216 Or. 583,337 P.2d 819 |
| Parties | Cecil A. McNEFF, Respondent, v. Otto W. HEIDER, Appellant. |
| Court | Oregon Supreme Court |
W. C. Winslow, Salem, for appellant. With him on the briefs was Norman K. Winslow, Salem.
Glenn R. Jack, Oregon City, and Philip A. Levin, Portland, for respondent. With them on the brief were James O. Goodwin and Mitchell & Harris, Oregon City.
Before PERRY *, C. J., and ROSSMAN, LUSK, WARNER, SLOAN and O'CONNELL, JJ.
This is an action brought by the plaintiff against the defendant to recover damages upon two causes of action, the first being for false arrest and imprisonment, and the second, for conversion of agricultural products, resulting in plaintiff's loss of his transportation lien.
The plaintiff sought and recovered both general damages and exemplary damages upon each cause of action. The defendant appeals, setting forth sixteen assignments of error.
In general, the facts are as follows: The defendant was the owner and holder of a chattel mortgage upon a truck and trailer owned and operated by the plaintiff. The plaintiff used this truck and trailer to transport property for hire in the states of Oregon, Washington and California. The chattel mortgage provided for payments to be made monthly by the plaintiff to the defendant; these payments had not been made in accordance with the mortgage contract and the defendant sought to repossess himself of the mortgaged security. For this purpose defendant sent his son to repossess the truck and trailer. The son located the plaintiff with the truck in Wasco County, Oregon, and demanded the immediate possession of the property. At that time the plaintiff was headed south with his load. The plaintiff refused to surrender possession of the property, and instead of continuing south drove the truck to a ferry and went back north into the state of Washington. The son notified his father (the defendant) of these facts. The defendant then drafted the following telegram to the sheriff of Klickitat County in the State of Washington, which telegram purported to come from the constable at Sheridan, Oregon, but in fact was sent by defendant with the permission of the constable:
Dated April 2, 1952
'Pick-up and hold a 1947 dual drive Kenworth truck, license T36720, Motor No. NHBS665019, with a three-axle pull trailer, 1947 Utility Van, with sleeping compartment, Serial No. 17543, License T36721, color truck red, color trailer aluminum, may be marked Exley on side. Truck and trailer stollen and driven by Cecil A. McNeff or alternate driver. Hold and writ me at my cost or phone 2522 Sheridan. Seven warrants out for his arrest in California. Driving with no insurance, P.U.C. or license. He is a bad egg. Now going South on 97 in next 24 hours.
'Lucius F. Miller
Constable
Sheridan, Oregon'
The plaintiff was stopped by the state police in the state of Washington, placed under arrest and confinement. The defendant then repossessed himself of the truck and trailer. The defendant did not cause a warrant for the arrest of the plaintiff to be issued in the state of Oregon or Washington, and the plaintiff was subsequently released by the Washington authorities.
We will not consider the defendant's assignments of error seriatim, but will first consider defendant's assignment of error No. 8, which we are of the opinion requires a reversal of this cause.
Defendant requested the following instruction:
'You are instructed that a bailee, with or without hire, including every mortgagor of personal property having possession of the property mortgaged and before it is fully paid for, who embezzles or wrongfully converts to his own use or secretes or conceals with intent to convert to his own use, or fails, neglects or refuses to deliver, keep or account for according to the nature of his trust, any money or property of another delivered or intrusted to his care, control or use, which is property within the meaning of ORS 164.310, shall be deemed guilty of larceny.
'You are instructed that the truck and trailer involved was property within the meaning of the section just above referred to and you are further instructed that if plaintiff violated the law as I have given it to you in this instruction, such violation constituted a felony.'
This requested instruction was refused by the trial court and no instruction defining the crime of larceny by bailee was given. Of this the defendant complains.
The plaintiff in his complaint alleged he was, at the instance of the defendant, 'seized and placed under arrest and accused of the crime of grand larceny and larceny by bailee'; that he was not guilty of this crime, but was wholly innocent.
By answer, the defendant denied he caused plaintiff's arrest upon these charges, and as a separate defense alleged in substance that the defendant was, in fact, guilty of the crime of larceny by bailee.
The issue thus raised by the defendant's request for this instruction is whether or not proof of the fact that the plaintiff was guilty of the crime of larceny by bailee presented an issue material to a proper determination of the case.
In an action for false imprisonment, neither actual malice nor want of probable cause is an essential element necessary to a recovery of general damages. Brown v. Meier & Frank Co., 160 Or. 608, 86 P.2d 79; Paget v. Cordes, 129 Or. 224, 227 P. 101; Joseph v. Meier & Frank Co., 120 Or. 117, 250 P. 739. For, if the imprisonment is wrongful, the injury suffered is as great whether the motive be good or evil and the party wronged should be awarded such damages as will vindicate the trespass upon his person.
In this case the defendant filed a plea of justification. Even though that plea is rejected because the arrest was wrongful, nevertheless, when a party seeks punitive damages, as does the plaintiff, motive which may or may not disclose actual malice becomes important, Christ v. McDonald, 152 Or. 494, 52 P.2d 655, Joseph v. Meier & Frank Co., supra, for the issue thus tendered is whether or not a defendant making or causing an arrest and imprisonment is actuated by proper or improper motives, since the recovery sought is not merely for compensation for injuries suffered, but also to punish and warn against the malicious violation of personal rights.
It must, therefore, follow that the defendant was privileged to show that his actions which led to the arrest and imprisonment of the plaintiff were not actuated by malice, but in an honest belief that the plaintiff was guilty of a felonious taking of property.
For the jury to evaluate whether or not there were facts from which the defendant, as a reasonable man, could conclude that the crime of larceny by bailee was being committed, it was necessary to inform them as to the nature of the crime itself.
The defendant moved for a directed verdict. This motion was denied and the denial thereof assigned as error. The defendant based his motion upon two propositions: First, that the evidence discloses the plaintiff was guilty of larceny by bailee and other crimes at the time of his arrest and therefore the arrest was justified; second, the defendant was not the cause of plaintiff's arrest and confinement.
Defendant's contention, that plaintiff was guilty of larceny by bailee, is based upon his belief that the evidence conclusively shows plaintiff violated ORS 165.010. 1
With this contention we cannot agree.
While it has been said a felonious intent to defraud is not an essential ingredient of the crime of larceny by bailee, State of Oregon v. Cahill, 208 Or. 538, 293 P.2d 169, 298 P.2d 214, 352 U.S. 895, 77 S.Ct. 132, 1 L.Ed.2d 87, State v. Chapin, 74 Or. 346, 144 P. 1187, an examination of these cases discloses that the property wrongfully used was moneys intrusted to the defendant for a certain purpose and was used in a manner contrary to the provisions of the trust. Thus, where the facts disclose a violation of the terms of a trust, then the only intent that must be proven is the intent to do the act prohibited by the terms of the trust agreement. In other words,...
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