Mustola v. Toddy

Decision Date16 July 1969
Citation88 Or.Adv.Sh. 707,253 Or. 658,456 P.2d 1004
PartiesEugene MUSTOLA, Respondent, v. James E. TODDY, Appellant.
CourtOregon Supreme Court

Louis E. Bonney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

No appearance for respondent.


O'CONNELL, Justice.

This is an action brought against a State Police officer for the conversion of plaintiff's automobile alleged to have occurred after plaintiff was arrested for intoxication on a public highway. The jury returned a verdict against defendant in the amount of $700 representing the value of the automobile and $250 punitive damages. Defendant appeals from the judgment entered on the verdict.

Plaintiff decided to drive to San Francisco to look for work. He met Don Falk, who wanted to ride to San Francisco, and eventually the two set out for California with Falk driving plaintiff's car. Later they picked up three more passengers in Portland, Al Lugo, and Joe and Lucille whose last names are not disclosed in the record. Al, Joe and Lucille were described by plaintiff as 'Indians'. As they proceeded on their journey they made several stops for beer. Approximately eight hours after starting their journey they were stopped by defendant, a State Police officer, about six miles north of the Coburg interchange on Interstate Highway 5. Defendant arrested Falk for driving while under the influence of intoxicating liquor and arrested plaintiff and Al Lugo for being drunk on a public highway. The events that followed were described by plaintiff as follows:

'Q * * * What did the officer say to you that you recall in regard to your car?

'A Well, he had asked me what I wanted done with it and I told him 'nothin'.'

'* * *

'Q * * * (T)o the best of your recollection, do you recall what was said about your car at that time by the officer? * * * Apart from what you just said about it?

'A Well, he asked me if--he did ask me if that man was a friend of mine and I said, 'not necessarily.'

'Q What man was that?

'A This Joe.

'Q Was this after the officer had declared him to be the soberest one of the bunch?

'A Yes. However, I had no intention of what this man had in mind. And another thing I may add, if the man was a friend of mine I would just outright told him he was a friend of mine.

'* * *

'Q What did the officer do then?

'A Well, somewhat along that point there anyway he told this, this Joe, told him to take off with my car. And this Indian woman went around on the passenger side, and this Joe run up to the driver's side and he jumped in my car. I was at the back of the car when this happened, right by Toddy there, and I told him, I said, 'Well don't let them people have my car.' And he never said anything.

'Q What did you do then?

'A Well, I run up to the car, up to the driver's side, and I told this Indian fellow, I said, 'Get out,' and he wouldn't get out. About that time he started it up and he took off. There went my car down the highway, period.

'* * *

'Q What happened after the car took off? What did you do then?

'A After I left?

'Q Yes?

'A Well, I went back--well I run back right away to where Mr. Toddy was back there, and he was, I don't know he was talkin'. * * * I was tryin' to get his attention. I told him, I said, 'Don't let him take my car.' I said, 'I don't even know them people,' and he just wasn't payin' no attention. * * *

'* * *

'Q Have you seen your car since then?

'A Never.'

On cross-examination plaintiff testified as follows:

'Q * * * Well, while you were all standing there, did Officer Toddy tell Joe that he could take the car?

'A He didn't tell him he could take the car. He told him to take the car.

'Q He told him to take the car?

'A Yes, and take off.

'Q Well, what was the words that he used?

'A He told him, he says, 'You are the soberest one of the bunch, take off.' And he just motioned in that manner.

'Q But he didn't say take the car?

'A On that I couldn't say he did or didn't. The words, you know, take the car. He told him, 'You are the soberest one of the bunch,' and 'take off.' The direction he pointed was right at my car, and at that point Joe run up to the passenger side and this woman around the other side of the car.'

The trial court concluded that the foregoing evidence was sufficient to permit the jury to find that defendant's conduct constituted a conversion of plaintiff's automobile. We hold otherwise.

When the facts are undisputed it is the court's function to determine as a preliminary matter whether such facts are sufficient to permit the jury to conclude that the defendant's conduct constitutes a conversion. Accepting plaintiff's testimony as indisputedly establishing the facts, it is our opinion that the defendant's conduct did not amount to a conversion, and therefore the case should not have been submitted to the jury.

We have previously defined conversion as 'any distinct act of dominion wrongfully exerted over one's property in denial of his right, or inconsistent with it.' 1 The difficulty with this and other similar definitions commonly found in the cases is that there is no clear referrent for the concept of 'act of dominion wrongfully exerted over one's property.' 2 As Prosser has pointed out, '(a)ll of the definitions have been either so general and so vague in their terms as to be meaningless, or so broad as to include conduct which is clearly not a conversion, or so narrow as to exclude conduct which clearly is.' 3

The first Restatement of Torts was guilty of the same semantic fault. Realizing this the drafters of the Restatement (Second) of Torts formulated the definition of conversion in terms of the factors which are important in determining whether the defendant should have imposed upon him a forced judicial purchase of the chattel with which he has interfered, or to pay only a lesser amount of damages. Section 222A of Restatement (Second) of Torts, p. 431 (1965) reads as follows:

' § 222A. What Constitutes Conversion

'(1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.

'(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:

'(a) The extent and duration of the actor's exercise of dominion or control;

'(b) the actor's intent to assert a right in fact inconsistent with the other's right of control;

'(c) the actor's good faith;

'(d) the extent and duration of the resulting interference with the other's right of control;

'(e) the harm done to the chattel;

'(f) the inconvenience and expense caused to the other.'

We accept this new definition of conversion. 4 Applying the definition to the facts of the present case, we are of the opinion that defendant did not exercise such control over plaintiff's automobile as to justify the imposition of a forced sale upon defendant. We shall assume that when defendant commanded Joe and Lucille to 'take off,' he intended that they should drive off in plaintiff's automobile. When defendant gave that command he did not know what relationship existed between plaintiff and Joe and Lucille. Under the circumstances of this case defendant had the right to assume at the time he gave the command that the people in plaintiff's car were not unfriendly to plaintiff and that the possession of the car could be safely entrusted to any one of them. The car was being driven by Don Falk, one of the guests. Defendant could assume that if plaintiff would entrust the driving of his car to one of his guests he would entrust it to the others. There was nothing in the circumstances suggesting to defendand that Don Falk stood in any different relationship to plaintiff than the other guests in the car. The fact that some, if not all, of the occupants of the car had been drinking would further suggest to defendant that the group was bound together in some kind of camaraderie. When a police officer stops a car on the highway he should be entitled to assume, in the absence of a clear indication to the contrary, that those riding in the car together are on friendly terms and that the owner's car can be safely entrusted to any of his guests if the emergency confronting the officer makes it advisable that he do so. In the present case the officer sought to determine whether the plaintiff's guest, Joe, was his friend. Plaintiff's response 'not necessarily' was ambiguous. It was plaintiff's not the officer's obligation to resolve this ambiguity and to clarify the status of the guest. It is our conclusion, therefore, that the direction given to Joe and Lucille to 'take off' did not in itself constitute such an exercise of dominion over the car as to constitute a conversion.

However, defendant later learned that plaintiff did not want Joe and Lucille to have possession of the car. According to plaintiff's version of the event, when Joe and Lucille had gotten into the car plaintiff said to defendant, 'Well, don't let them people have my car,' and defendant 'never said anything.' At this point, however, plaintiff himself exercised dominion over his car. He testified that he 'run up to the car on the driver's side and I said, 'get out' and he wouldn't get out.' To hold that defendant was liable for conversion after this effort on the part of plaintiff to regain control over his car it would be necessary for us to treat defendant's direction that Joe and Lucille 'take off' not only as a direction to take plaintiff's car but as a command that the car be taken even though plaintiff wished to have the car remain where it was. We do not think that defendant's statement can reasonably be given this interpretation.

Even if it could be said...

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