Roshak v. Leathers

• Decision Date: 17 February 1977
• Citation: 277 Or. 207,560 P.2d 275
• Parties: , 98 A.L.R.3d 858 George D. ROSHAK, Respondent, v. Charles Carl LEATHERS and Charles Carl Leathers, Jr., Appellants.
• Court: Oregon Supreme Court

Page 275

560 P.2d 275

277 Or. 207, 98 A.L.R.3d 858

George D. ROSHAK, Respondent, v. Charles Carl LEATHERS and Charles Carl Leathers, Jr., Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted before Department 2 June 11, 1976.

Reargued and Submitted Sept. 8, 1976.

Decided Feb. 17, 1977.

Richard S. Mannis, Portland, argued the cause and filed briefs for appellants.

Wendell Gronso, Burns, argued the cause and filed briefs for respondent.

Before DENECKE, C.J., and O'CONNELL, ^* HOLMAN, TONGUE, HOWELL, BRYSON and LENT, JJ.

LENT, Justice.

Plaintiff brought an action for damages against defendants, a father and son, for personal injuries claimed to have been caused by an assault and battery committed by them. Defendants appeal from a judgment for plaintiff, based upon a jury verdict, of $11,250 general damages, $2,292.80 special damages, $11,500 punitive damages against the father, and $8,500 punitive damages against the son.

Plaintiff, a state policeman, stopped defendants as they were towing on the highway a fully loaded, disabled gasoline truck and trailer with another loaded truck. A physical conflict ensued in which plaintiff claims to have been severely beaten. Defendants were criminally charged with attempted murder and were convicted of the crime of assault in the third degree. See ORS 136.465 and ORS 163.165. Each was sentenced to pay a fine of $1,000 and to serve 60 days in the county jail; however, the court ordered that the jail term be served on weekends. Plaintiff then brought this action for damages.

Defendants first assign as error the trial court's failure to admit the following testimony of the senior Leathers which was the subject of an offer of proof:

'Q. How long were you in the jail?

'A. Umm, I was in there, I think, 30 minutes to an hour. I can't remember exactly. A few things happened.

'Q. Then what happened at that time?

'A. Well, I had a kind of heart seizure and couldn't breathe, and the ambulance came and got me and took me to the hospital.

'Q. Did you go to the hospital by ambulance?

'A. Yes.

'Q. How long were you in the hospital then?

'A. Two days.

'Q. And then from there where did you go?

'A. Back home. They came and got me and took me home.'

Defendants contend that because plaintiff introduced evidence that neither defendant had any sign of physical injuries after the fight, the evidence set forth above was admissible to show that the senior Leathers had received injury, thus rebutting the inference that the assault on plaintiff was unnecessary and maliciously motivated. They also contend that the evidence was admissible to rebut the inference that plaintiff was helpless against unencumbered and unrestrained assailants. Since the heart attack did not occur until after the incident and defendants were not shown to have had any prior knowledge of the senior Leathers' condition, its occurrence could not justify defendants' use of force against plaintiff. There was no basis for inferring that any disability existed at the time of the incident or that a man with a known heart condition would have restrained himself and would not have voluntarily engaged in an affray or that he needed any special protection by his son.

Defendants also contend the trial court erred in estopping them from litigating their affirmative defenses of (1) self-defense; (2) defense of property; and (3) the use of 'only that force necessary to protect the traveling public from injury and damage arising from an obstacle in the roadway which plaintiff was attempting to prevent them from removing.' Even assuming that (2) and (3) adequately state defenses, there was no evidence sufficient to justify their submission to the jury. As to (1), the defense of self-defense was shown to have been unsuccessfully litigated by defendants under adequate instructions in the criminal case, and defendants were therefore collaterally estopped from asserting it again. Casey v. N. W. Security Inc. Co., 260 Or. 485, 491 P.2d 208 (1971). Defendants argue that because the issue of malice, for which plaintiff seeks punitive damages, was unnecessary to the prior criminal case, defendants should be entitled to relitigate the issue of self-defense. The logic of this argument escapes us.

Defendants also contend that the issue of punitive damages should not have been submitted to the jury because of the criminal sanctions already imposed. We reject this contention:

(1) The grounds advanced both by the defendants and in the dissenting opinion are insufficient to convince us of the necessity or desirability of changing our present law in this respect.

(2) This is not a proper case in which to consider such a change in our law.

The reasons advanced for the change in our law are not convincing of the need for the change.

For many years it has been recognized in this state that '(t)he generally accepted doctrine (of punitive damages) is that such damages are awarded by way of punishment to the offender and as a warning to others, or, according to some authorities, by way of example.' Martin v. Cambas, 134 Or. 257, 261, 293 P. 601, 603 (1930). The rule was more fully recognized in Noe v. Kaiser Foundation Hosp., 248 Or. 420, 425, 435 P.2d 306, 308, 27 A.L.R.3d 1268 (1967):

'Punitive damages can only be justified on the theory of determent. See Hodel, The Doctrine of Exemplary Damages in Oregon, 44 Or.L.Rev. 175 (1965). It is only in those instances where the violation of societal interests is sufficiently great and of a kind that sanctions would tend to prevent, that the use of punitive damages is proper. * * *.'

This purpose is identical to one purpose of criminal sanctions. See ORS 161.025, which enumerates the purposes sought to be accomplished by Oregon's Criminal Code. ORS 161.025(1) provides as follows:

'(1) The general purposes of chapter 743, Oregon Laws 1971, are:

'(a) To ensure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the correction and rehabilitation of those convicted, and their confinement when required in the interests of public protection.

'(b) To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.

'(c) To give fair warning of the nature of the conduct declared to constitute an offense and of the sentences authorized upon conviction.

'(d) To define the act or omission and the accompanying mental state that constitute each offense and limit the condemnation of conduct as criminal when it is without fault.

'(e) To differentiate on reasoanble grounds between serious and minor offenses.

'(f) To prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.

'(g) To safeguard offenders against excessive, disproportionate or arbitrary punishment.'

It is urged upon us that the purpose of punitive damages is identical to that of paragraph (a), Supra, and that it is unreasonable to permit punishment for the same act in two successive court proceedings where, in each instance, the purpose of the punishment is determent of defendant and others from like action.

There is no doubt that in the vast majority of jurisdictions in the United States the

'(e) To differentiate on reasonable is not affected by previous criminal sanctions. Annotation, Punitive or Exemplary Damages for Assault, 16 A.L.R. 771, 798--801 (1922), supplemented in 123 A.L.R. 1115, 1122 (1939); McCormick, Damages § 82 (1935); Prosser, Torts § 2 (4th ed. 1971). In a few states punitive damages are never allowed, so the question does not arise. Of the states that do authorize the recovery of punitive damages, only a small minority, including Indiana and Nebraska, prohibit punitive damages where a tort is also a crime. See Aldridge, The Indiana Doctrine of Exemplary Damages and Double Jeopardy, 20 Ind.L.J. 123 (1945).

There are Oregon cases which follow the majority rule with little or no discussion of it. In Stark v. Epler, 59 Or. 262, 117 P. 276 (1911), this court upheld an award of punitive damages for an assault and battery for which the defendants had been criminally prosecuted. The result of that prosecution is not mentioned in the opinion and apparently was not considered in mitigation or preclusion of the award. A more recent case indicating that punitive damages may be awarded for assault and battery, but not discussing the relevance of possible criminal sanctions, is Linkhart v. Savely, 190 Or. 484, 227 P.2d 187 (1951). In Harrell v. Ames, 265 Or. 183, 189--90, 508 P.2d 211, 65 A.L.R.3d 649 (1973), it was contended that an award for punitive damages against a drunken driver was not proper when a criminal penalty was available. The court replied that this contention had already been rejected in Dorn v. Wilmarth, 254 Or. 236, 242--43, 458 P.2d 942 (1969), in which it held that punitive damages were proper to deter the crime of driving under the influence, although that case did not discuss the relationship between the criminal and civil sanctions.

We are told that it is 'unreasonable' to allow double punishment for an act which would subject a defendant to both criminal and civil sanctions. We see nothing unreasonable about it. While there may be some judicial antagonism toward the proliferation of requests for punitive damages in certain civil cases, we do not think it reasonable to eliminate punitive damages merely because of a prior criminal conviction.

We are unable to understand why the additional determent of punitive damages is considered unreasonable. Not only the criminal justice system but every law-abiding citizen is concerned with the increasing crime rate. If we are concerned with the types of acts which may subject a defendant to a criminal charge and civil liability such as violent crimes against the person, as in this case, we see nothing wrong...