Paur v. Rose City Dodge, Inc.

• Decision Date: 27 March 1968
• Citation: 249 Or. 385,438 P.2d 994
• Parties: Louis E. PAUR, Respondent, v. ROSE CITY DODGE, INC., an Oregon corporation, Anthony Moss, James DeVon, and Robert W. Green, Appellants.
• Court: Oregon Supreme Court

Page 994

438 P.2d 994

249 Or. 385

Louis E. PAUR, Respondent, v. ROSE CITY DODGE, INC., an Oregon corporation, Anthony Moss James DeVon, and Robert W. Green, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 8, 1967.

Decided March 27, 1968.

David W. Dardano, and Jack L. Hoffman, Portland, argued the cause for appellants Rose City Dodge, Inc. and Robert W. Green. With them on the briefs were Dardano & Mowry, Pendergrass, Spackman, Bullivant & Wright, Portland.

Francis F. Yunker, Portland, argued the cause and filed the brief for appellants Anthony Moss and James DeVon.

Don G. Swink, Portland, argued the cause for respondent. With him on the brief were Ronald B. Lansing, Bailey, Swink, Haas & Lansing, Portland.

Before McALLISTER, P.J., and SLOAN, O'CONNELL, GOODWIN, HOLMAN, LUSK and WOODRICH ^*, JJ.

HOLMAN, Justice.

Defendants in this action for damages for an alleged battery appeal from a judgment entered upon a jury verdict for plaintiff, assessing damages as $5,000 general, $499.50 special, and $15,000 punitive.

Plaintiff, Louis Paur, was employed as a salesman at defendant Rose City Dodge (Rose City), a car dealership. Defendant Anthony ('Tony') Moss was employed as a lot boy at Rose City. Defendant Robert Green was general manager, and defendant James DeVon was sales manager.

Plaintiff testified that as he was leaving the Rose City premises, he was attacked from behind, knocked down, and beaten by defendant Moss. Plaintiff claims that defendants Green and DeVon directed Moss to commit the alleged battery. Prior to the attack, Green and DeVon had been informed that plaintiff had interfered with a deal between Rose City and a Mrs. Betty Tuttle, a friend of plaintiff. Plaintiff told Mrs. Tuttle not to sign a contract for the sale of an automobile which was tendered her, and he marked changes on it which would have resulted in a substantial price reduction. As a result he had been discharged.

We first consider the assignments of error which challenge the denial of the motion of defendants Rose City, Green and DeVon for a directed verdict. The question presented is whether there was any substantial evidence to show that the individual defendants participated in the battery, and that defendant Rose City was liable vicariously.

There was testimony that Green, after learning of plaintiff's action, told plaintiff he was fired, and then told Moss in the presence of DeVon and plaintiff: 'If Mr. Paur comes back throw him out.' Later, according to plaintiff, Green told the plaintiff, who had come back to Rose City to return the keys of a car: 'Get out of here, if you ever come back I will have you thrown out.' According to plaintiff, he left the premises and then returned after noticing that Green had gone home. Plaintiff asked DeVon to assist plaintiff in collecting outstanding commissions. At the conclusion of their conversation, DeVon, according to plaintiff, made the following statements in the presence of Moss and plaintiff:

'* * * If you think I'm going to see that you get any of your commissions, you have coming after you screwed us out of a start of a deal you are crazy. * * *'

'* * * Get out of here. * * * I will have you thrown out. * * * Well, you can't lose an $800 deal for us and want me to still be your friend. * * * Tony, throw him out. * * *'

The battery immediately followed.

To be liable for battery, each defendant must have participated in, aided, or procured the battery. Tauscher v. Doernbecher Mfg. Co., 153 Or. 152, 160, 56 P.2d 318 (1936). The evidence that Green and DeVon told Moss to 'throw out' plaintiff was sufficient to raise a jury question whether Moss's battery upon plaintiff was pursuant to the directions of Green and DeVon.

Also, it was a jury question whether Green, as general manager, and DeVon, as sales manager, had authority to direct removal by force of unauthorized persons from Rose City's premises. If either of them did, and such one as had authority ordered plaintiff's removal pursuant to such authority, and excessive force was used in carrying out the order, the corporate principal is responsible for the resultant injury. 10 Fletcher, Corporations 463, § 4883.

'* * * where the use of force at times is part of the duty of the servant, the master is not excused from liability when the servant uses excessive, and even unjustifiable, force in the performance of his duty, and even though in so doing the servant disobeys positive instructions of the master. * * *' Barry v. Oregon Trunk Railway, 197 Or. 246, 261, 253 P.2d 260, 266, 267 (1953).

We next consider the assignments which challenge the trial court's refusal to withdraw the issue of punitive damages from the jury.

Defendants contend that there was no evidence of malice on the part of Green and DeVon, and therefore punitive damages should have been withdrawn as to all in accord with the rule in this state that plaintiff waives punitive damages if he joins as defendant one who is not liable therefor. Gill v. Selling et al., 125 Or. 587, 594--595, 267 P. 812 (1928).

Both Green and DeVon knew that plaintiff had interfered with a profitable deal Rose City had proposed to Mrs. Tuttle. The purported statements of both is evidence indicating that individually they resented plaintiff's interference. From these statements the jury could infer malice.

Since Green and DeVon were entrusted with executive management of Rose City, the corporation could be found liable vicariously for their malicious acts. Pelton v. Gen. Motors Accept. Corp., 139 Or. 198, 204--205, 7 P.2d 263, 9 P.2d 128 (1932); Barry v. Oregon Trunk Railway,supra, at 257; 10 Fletcher, Corporations 452, § 4882.

We next consider the assignments which seek reversal for admission of allegedly irrelevant and prejudicial matter. The evidence subjected to attack was introduced to prove malice on the part of defendants. Much of the evidence tended to indicate the amount of profit Rose City would have made on the sale of the automobile to Mrs. Tuttle prior to plaintiff's interference. We believe evidence of the amount of the profit was properly admissible to lend credence to plaintiff's claim...