Remington v. Landolt

• Citation: 273 Or. 297,75 Or.Adv.Sh. 3387,541 P.2d 472
• Parties: E. A. REMINGTON, Appellant, v. John LANDOLT et al., Respondents, Vincent Hurliman, Defendant. . *
• Decision Date: 16 October 1975
• Court: Oregon Supreme Court

Page 472

541 P.2d 472

273 Or. 297

E. A. REMINGTON, Appellant, v. John LANDOLT et al., Respondents Vincent Hurliman, Defendant.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted July 8, 1975.

Decided Oct. 16, 1975.

Douglas E. Kaufman, of McMinimee & Kaufman, Tillamook, argued the cause and filed the briefs for appellant.

Howard R. Lonergan, Portland, filed the brief for respondents.

TONGUE, Justice.

This is an action for conversion brought by a husband who had evicted his estranged wife from the family home near Tillamook when he learned that she had filed for a divorce. The wife claimed that plaintiff had previously beaten her, which he denied. With the assistance of the defendants, including her father and brother, plaintiff's wife took a moving van to the house and removed what she claimed to be furniture, furnishings and other items belonging to her. The case was tried before a jury, which returned a verdict in favor of the defendants. Plaintiff appeals from the resulting judgment.

1. Plaintiff's request for a peremptory instruction on liability.

Plaintiff first assigns as error the refusal of the trial court to give the following instruction:

'I instruct you to find your verdict against the defendants and in favor of the plaintiff in such amount of damages as you shall find plaintiff is entitled to receive in conformity with the evidence in this case and the law pertaining to the measure of damages which I shall hereafter give to you.'

In support of this assignment of error plaintiff contends, among other things, that such a requested instruction is 'tantamount to a directed verdict'; that defendants admit taking several of the items of personal property described in the complaint; that it was admitted that at least two of such items belonged solely to plaintiff (a sofa and a green swivel chair); and that defendants failed to return such property upon plaintiff's demand.

In response, defendants contend, among other things, that a wife has as much right as the husband to possession of the marital home, including its furnishings; that even as to items belonging to plaintiff it was a jury question whether defendants were guilty of conversion because good faith is a factor to be considered in determining whether there has been a conversion; that defendants acted in good faith in that plaintiff's wife had been advised by her attorney that she was entitled to take from the home items of furniture, furnishings and other items belonging to her; and that defendants took only the items which she said belonged to her.

The merits of most of these contentions are discussed under other assignments of error. But regardless of whether defendants are correct in these contentions, we hold that the trial court did not err in refusing to give this requested instruction.

We have held that a request for an instruction that the jury return a verdict for the defendant may be considered as a motion for a directed verdict. Becker v. Pearson, 241 Or. 215, 222, 405 P.2d 534 (1965), citing Eitel v. Times, Inc., 221 Or. 585, 588, 352 P.2d 485 (1960). More recently, however, in Lithia Lumber Co. v. Lamb, 250 Or. 444, 450--51, 443 P.2d 647, 650 (1968), we said:

'* * * A request for a peremptory instruction may, for certain purposes under ORS 18.140, be treated as a motion for a directed verdict. The practice is, however, disfavored, and should be limited to the situation in which it has been countenanced. See German v. Kienow's Food Stores, 246 Or. 334, 425 P.2d 523 (1967). In the case at bar, there is no reason to treat requested instructions as a motion for a directed verdict. A proper motion should have been made.'

In Becker and Eitel, and also in Inwall v. Transpacific Lumber Co., 165 Or. 560, 574, 108 P.2d 522 (1941), the request was that the jury be instructed to return a verdict in favor of the defendant. The same was true of the dictum of German v. Kienow's Food Stores, 246 Or. 334, 338, 425 P.2d 523 (1967). It may be that no valid distinction can be made between such a request by a defendant and a request by a plaintiff that the jury be instructed to return a verdict in favor of the plaintiff on the issue of liability, leaving only the question of damages for consideration by the jury.

Thus, in a personal injury case, it may be proper for the plaintiff to request an instruction to the jury that the evidence of liability was uncontradicted and that the jury should return a verdict in favor of plaintiff and against defendants and award plaintiff damages for his injury in such amount as if finds that he is entitled to recover under the evidence and in accordance with further instructions by the court. It may also be proper to consider such a requested instruction as 'tantamount' to a motion for a directed verdict on the issue of liability. In such a case, however, the grounds for such a requested instruction would be obvious and such an instruction would be sufficiently clear and complete so as not to be confusing to the jury.

We have established the rule that a motion for directed verdict must state the grounds on which it is based; that otherwise this court will not consider such a motion; and that grounds not stated at that time will not be considered by this court. Sellers v. Looper, 264 Or. 13, 15, 503 P.2d 692 (1972); Vancil v. Poulson, 236 Or. 314, 320, 388 P.2d 444 (1964); Edvalson v. Swick, 190 Or. 473, 478, 227 P.2d 183 (1951); Ingalls v. Isensee, 170 Or. 393, 398, 133 P.2d 614 (1943); and Bergholtz v. City of Oregon City, 116 Or. 18, 22, 240 P. 225 (1925).

In Vancil v. Poulson, supra, we said (236 Or. at 320, 388 P.2d at 448):

'The reason for the procedural rule that an appellate court will not consider a ground for a motion for a monsuit or a directed verdict that was not asserted at the time the motion was made is apparent. An appellate court is a court of review. It reviews decisions on legal issues made by the trial court. The trial court in turn decides legal questions presented to it by the parties. * * *'

The same rule has been applied when a defendant has both moved for a directed verdict and also requested a peremptory instruction to return a verdict in favor of defendant. Thus, in Woods v. Dixon, 193 Or. 681, 683, 240 P.2d 520, 521 (1952), we held in such a case that:

'* * * No grounds having been stated for either the motion or the requested instruction, we cannot consider these assignments of error. Ingalls v. Isensee, 170 Or. 393, 133 P.2d 614.'

In Eitel v. Times, Inc., supra, and Inwall v. Transpacific Lumber Co., supra, the requested instruction by these terms stated the supporting grounds and in Becker v. Pearson, supra, such grounds were obvious. In this case, however, the grounds for plaintiff's requested peremptory instructions were neither stated nor obvious --at least as applied to all of the various items which plaintiff's complaint alleged to have been converted by defendants.

It is also implicit that another reason for this rule is that the trial court should have an opportunity to consider and rule upon the grounds for a motion for a directed verdict before this court can properly be asked to do so. Thus, in Lithia Lumber Co. v. Lamb, supra, several defendants were involved, with the result that the requested peremptory instruction 'would have resulted in directed verdicts in favor of each of the defendants separately.' Under these circumstances, this court said (250 Or. at 450, 443 P.2d at 650):

'* * * A motion for a directed verdict * * * should have been made, as it would have forced the trial court to rule on the sufficiency of the evidence of joint liability. * * *'

In this case, plaintiff's complaint charged defendants with converting a large number of items of personal property which fell into at least four categories: (1) two items (a sofa and a swivel chair) which admittedly belonged to plaintiff and were taken by defendants; (2) several items (including a diamond ring and silver cuff links) which also admittedly belonged to plaintiff, but which defendants denied having taken; (3) other items which, according to plaintiff, belonged to plaintiff before the marriage and which were admittedly taken; and (4) items admittedly taken which were acquired during the marriage and in which plaintiff's wife claims joint ownership with plaintiff.

As to the two items included in (1), plaintiff would have been entitled to a directed verdict on the issue of liability, if clearly limited to those items, leaving only the issue of damages. As to the items included under (2) and (3), however, there was a conflict in the testimony and as to the items included under (4) there was not only a conflict in the testimony, but questions of law to be resolved.

Thus, defendants contended, among other things, that plaintiff's wife had an equal right to the possession of such items, a contention denied by plaintiff and that she also had a right of 'self-help.' Defendants also contend that the jury was entitled to consider their good faith in believing that plaintiff's wife was entitled to the possession of these items, a question never decided by this court, at least in the sense that good faith alone may provide a defense in such an action.

Nowhere in the record does it appear that plaintiff's attorney ever informed the trial court of the grounds on which plaintiff was entitled to a peremptory instruction on the issue of liability as to any of the categories of items of personal property which plaintiff claimed to have been converted.

The peremptory instruction, as requested by plaintiff, would also have been confusing to the jury, in our opinion. Upon a literal reading of its terms it appears that if given, the jury could well have understood that it was required to return a verdict in favor of plaintiff only if it was proper to do so upon following other instructions by the court. If understood in that sense it would not have been error to either give or deny such an...