Miller v. Lillard

• Decision Date: 06 September 1961
• Citation: 364 P.2d 766,228 Or. 202
• Parties: James F. MILLER, Respondent, v. Josef LILLARD, Appellant.
• Court: Oregon Supreme Court

Page 766

364 P.2d 766

228 Or. 202

James F. MILLER, Respondent, v. Josef LILLARD, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton May 1, 1961.

Decided Sept. 6, 1961.

S. J. Bischoff, Portland, argued the cause for appellant. With him on the briefs was Pat H. Donegan, Burns.

William D. Cramer, Burns, argued the cause for respondent. On the brief were Cramer & Gronso, Burns.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

WARNER, Justice.

This is an action to recover general and punitive damages for the alleged conversion of three cows and two calves, property of the plaintiff, Miller, by the defendant, Lillard. The jury returned a verdict in favor of plaintiff. From the judgment rendered, the defendant appeals, specifying six assignments of error.

The parties are cattlemen, operating ranches in and around Harney county for many years past. Their ranches join each other, separated by what is known as Robbins Lane. Each ran approximately 500 head of cattle, generally known as 'white face.'

Defendant's first assignment asserts the court erred in denying his motion for nonsuit.

By his motion defendant confined himself to two grounds: (1) failure of complaint to allege and prove that he made a demand for the return of the cows before filing his action; and (2) failure to allege that he was the owner of the cows and entitled to their possession at the time of the conversion.

It is well settled that the motion of an adverse party for a nonsuit must specify the grounds therefor and when such a motion is denied the grounds stated therein are conclusive on the moving party and he may not urge additional grounds for the first time on appeal. Carlson v. Steiner, 189 Or. 255, 261, 220 P.2d 100; Ingalls v. Isensee, 170 Or. 393, 398, 133 P.2d 614; Mollencop v. City of Salem, 139 Or. 137, 142, 8 P.2d 783, 83 A.L.R. 315.

We, therefore, limit our attention to the two grounds above mentioned, although Lillard supplements this assignment with other matters not included in his motion.

A demand for return is only necessary when the complaint has been grounded on a lawful taking, followed by an unlawful detention. Here, the complaint is based on an unlawful taking. This difference resolves the question whether a demand must precede action.

The complaint alleges that Lillard, at the time alleged 'wilfully and unlawfully converted said cows to his own use * * *, concealing the markings and identity of various of said cows by cutting off wattles, tearing out ear tag, putting on his own brand * * *.' It was not necessary to plead demand under the circumstances as a condition precedent to Miller's right of action. Jeffries v. Pankow, 112 Or. 439, 445-446, 223 P. 745, 229 P. 903; Montgomery v. United States National Bank, 220 Or. 553, 568, 349 P.2d 464; Cross v. Campbell, 173 Or. 477, 489, 146 P.2d 83; Genova v. Johnson, 213 Or. 47, 55, 321 P.2d 1050; 89 C.J.S. Trover & Conversion § 55, p. 557.

The second ground advanced in support of the motion for nonsuit was the failure of plaintiff to allege ownership and right to possession of the cattle at the time of the alleged conversion.

In the first two paragraphs of his complaint plaintiff alleges he was the owner and entitled to the immediate possession of the cattle on September 26, 1959.

In paragraph III he avers 'That at some date, or dates, prior to September 26, 1959, which date, or dates are unknown to the Plaintiff,' the defendant converted said cows to his own use. (Emphasis supplied.)

In Hunt v. First National Bank of Halfway, 102 Or. 398, 202 P. 564, cited to us by Lillard as controlling, the defendant bank successfully demurred to a complaint in conversion, wherein plaintiff alleged he was the owner of certain bonds on November 19, 1919, on which date Hunt delivered the same to the bank and the bank on December 16, 1920, converted the bonds to its own use. The essence of the ruling in Hunt is encompassed in the statement: 'It is not enough that the plaintiff at some time owned the property. To support his action he must allege some kind of property in himself at the time the act of conversion was performed.' 102 Or. at page 399, 202 P. 565.

In Hunt the plaintiff elected to stand on his complaint and declined to plead further. In this case defendant Lillard did not demur, but answered by a general denial, nor did Lillard choose to object to the introduction of plaintiff's considerable evidence offered in proof of his ownership of the cows in question for an interrupted period of time extending back as far as seven years prior to September, 1959. The defendant raised no question to the defect in the complaint until after the completion of plaintiff's case, which had already taken two days for presentation of the testimony of plaintiff's 12 witnesses and introduction of numerous exhibits. Then he challenged the complaint for the first time by his motion for nonsuit.

Cross v. Campbell, supra, 173 Or. 477, 146 P.2d 83, was an action in conversion. The defendant Campbell answered with a general denial. The defect respecting the allegations of Cross's ownership of the controverted property was raised in that case for the first time when Campbell, as does the defendant Lillard here, moved for nonsuit at the conclusion of plaintiff's case.

In Cross, supra, we said at page 487 of 173 Or., at page 87 of 146 P.2d:

'It is equally evident that in the case now before us the failure of the complaint to allege that at the moment of the conversion the plaintiff was owner, did not mislead the defendants and did not inconvenience the trial. The absence of the required precision was not mentioned during the course of the plaintiff's presentation of his evidence. And, as we have already indicated, the sufficiency of the complaint was challenged by neither motion nor demurrer. The defect, which the defendants now insist upon, was not mentioned until the close of the plaintiff's evidence when the defendants moved for a nonsuit * * *.'

And further at page 489 of 173 Or., at page 88 of 146 P.2d:

'* * * The rule of liberal construction gains a freer hand as the cause progresses along its way. An opponent who gives no voice to his doubts until, as in the present instance, further particulars can be of no use to him, encounters the rule of liberal construction in its most expanded form. * * *'

Although not artfully expressed, we are of the opinion the statement in paragraph III of the complaint: 'That at some date, or dates, prior to September 26, 1959, * * * defendant converted said cows * * *,' is a defective statement in a good cause of action, which, read with plaintiff's earlier allegation of ownership on that date, renders the pleading susceptible to the construction that plaintiff was the owner of the cows on the dates of their conversion. The capacity of a complaint to give notice of the line of attack is said to be the principal requirement that it must now possess. Donis v. Sawyer Service, Inc., 143 Or. 433, 435, 21 P.2d 776, citing Clark, Code Pleading, p. 74. During the course of the trial defendant at no time claimed surprise and apparently had no difficulty in understanding the nature of the claim upon which the plaintiff relied. Donis, supra.

Under the conditions presented by the record, the same rule of liberality applied in Cross is applicable here, especially when our review of the evidence presented by plaintiff indicates a prima facie case.

We find no merit in the appellant's first assignment.

For appellant's second assignment, he claims that the trial court erred in instructing the jury on the issue of punitive damages. The defendant took exception to this instruction, as well as others, in the following manner:

'The defendant takes exception to all of Plaintiff's Requested instructions which were offered and given. * * *.'

It will be noticed that the exception makes no mention of the error alleged in the instruction.

The general rule is that exceptions to the charge of the court must point out specifically and definitely indicate the alleged defects in an offending instruction. The trial court and opposing counsel are entitled to know the grounds upon which an attack is made upon an instruction so that the court may make its ruling understandingly and be given an opportunity to correct any error. ORS 17.510; LaBarge v. United Insurance Co., 221 Or. 480, 488, 349 P.2d 822; Galer v. Weyerhaeuser Timber Co., 218 Or. 152, 175, 344 P.2d 544, and cases there cited; Cook v. Retzlaff, 163 Or. 683, 686, 99 P.2d 22.

Because of the insufficiency of the exception taken in the trial court, we give no further heed to this assignment.

Under defendant's third assignment, he argues that it was error for the court on examination of the witness Francis Miller to overrule defendant's objection to the reception in evidence of plaintiff's Exhibit 6, a certificate of registration of plaintiff's cattle brand, issued pursuant to ORS 604.140. The specific objection to the introduction of this document was made by the defendant in the following terms:

'Defendant objects to the offer for the reason that it is not a duly certified copy of what purports to be the records of the Oregon State Department of Agriculture. It fails to contain any certification of comparison, that it is a true copy, or any of the statutory necessities to allow the offer to be entered in evidence. It is no more than a photo copy of a deed from the County Clerk which is uncertified.'

The objection clerly rests upon the sole ground that the tendered exhibit was faulty because of the lack of proper certification and identification and, therefore, not entitled to be received as evidence.

The defendant by his objection mistakes Exhibit 6 for a record of the recording of plaintiff's application to adopt a particular brand, as provided by ORS 604.150. But Exhibit 6 was not of that character. It is, as is apparent on its face, a ...