Payless Drug Stores Northwest, Inc. v. Brown
Decision Date | 03 April 1985 |
Citation | 698 P.2d 45,73 Or.App. 90 |
Parties | PAYLESS DRUG STORES NORTHWEST, INC., a foreign corporation, Respondent, v. Robert BROWN and Maxine Brown, Appellants. v. David B. FROHNMAYER, Attorney General for the State of Oregon, Third-Party Defendant. 83-1-1014; CA A30985. |
Court | Oregon Court of Appeals |
Peter Fels, Oregon Legal Services Corp., Pendleton, argued the cause for appellants. With him on the brief was Steven N. Thomas, Pendleton.
Leslie Swanson, Eugene, argued the cause for respondent. With him on the brief were Sharon A. Rudnick and Harrang, Swanson, Long & Watkinson, P.C., Eugene.
Norman J. Wiener, Mark C. McClanahan and Miller, Nash, Wiener, Hager & Carlsen, Portland, filed a brief amicus curiae for Oregon Retail Council.
Dave Frohnmayer, Atty. Gen., Salem and Philip Schradle, Asst. Atty. Gen., James E. Mountain, Jr., Sol. Gen., filed a brief amicus curiae for State of Or.
Anna M. Moran, Portland, filed a brief amicus curiae for American Civil Liberties Union of Oregon.
Before JOSEPH, C.J., and WARDEN and NEWMAN, JJ.
Defendants appeal a judgment against them for penalties of $117.74 plus costs. ORS 30.875(2). 1 Plaintiff's security guard arrested Bobbi Brown, defendants' 15-year-old unemancipated daughter, outside plaintiff's Pendleton store for "shoplifting" five items with a total retail value of $17.74. ORS 164.045. Plaintiff demanded that defendants pay the $100 statutory minimum "civil penalty" plus $17.74, the retail value of the merchandise that Bobbi took from the store. Defendants alleged affirmatively the unconstitutionality of ORS 30.875(2) and counterclaimed for damages under the Unlawful Debt Collection Act. See ORS 646.639. Defendants moved for summary judgment on plaintiff's claim and on their counterclaim and later moved for a directed verdict on plaintiff's claim. The court denied those motions. The court granted plaintiff's motion for a directed verdict on defendants' counterclaim. The jury then returned a verdict for plaintiff on its claim. We affirm.
Defendants assert that the court erred in denying their motion for summary judgment. They argue that ORS 30.875(2), which imposes vicarious liability on the custodial parents of an unemancipated child, is unconstitutional. We will not, however, review the denial of a motion for summary judgment in an appeal from a judgment entered after trial. Mt. Fir Lumber Company v. Temple Dist. Co., 70 Or.App. 192, 198, 688 P.2d 1378 (1984).
Defendants also assign as error that the court denied their motion for a directed verdict. In support of the motion, defendants' counsel simply stated:
"Your Honor, we move for a directed verdict in defendants' favor on plaintiff's case * * *."
Defendants did not assert any grounds, constitutional or otherwise, to support the motion, see ORCP 60, and cannot do so now. Remington v. Landolt, 273 Or. 297, 302, 541 P.2d 472 (1975). Defendants did not otherwise present the constitutional issue to the court.
Whether or not Bobbi shoplifted, there was no evidence from which the jury could find that there was a "consumer transaction" between her and plaintiff. The evidence was undisputed that Bobbi unilaterally took the merchandise from the store. The trial court did not err.
As their fourth assignment of error, defendants claim that the trial judge erred when he told the jury before voir dire:
Defendants assert that the response of Mrs. Zielke, the first juror that defendants' questioned on voir dire, shows that the court's comments were prejudicial:
Plaintiff's counsel, however, questioned Mrs. Zielke further:
Defendants' counsel then inquired:
The juror's answers do not show that she had already decided that Bobbi had shoplifted. The court's comments were harmless.
Defendants' fifth, sixth and seventh assignments of error relate to the admission, over defendants' objection on hearsay grounds, of testimony of plaintiff's security guard, Houts, about statements that Bobbi made to him immediately after the incident to the effect that she had been in the store and that she had taken items of merchandise without paying or intending to pay for them. Houts read from a report in which he had recorded those statements. The report, also over defendants' objection, was admitted in evidence. We agree with defendants that the court erred when it admitted that testimony and the report.
We will not, however, reverse for evidentiary error unless a substantial right of a party has been affected. OEC 103. Without objection, Houts testified on direct examination:
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