Westerman v. Oregon Credit Corp.

• Decision Date: 25 February 1942
• Citation: 122 P.2d 435,168 Or. 216
• Parties: WESTERMAN <I>v.</I> OREGON AUTOMOBILE CREDIT CORPORATION ET AL.
• Court: Oregon Supreme Court

168 Or. 216

122 P.2d 435

WESTERMANv.

OREGON AUTOMOBILE CREDIT CORPORATION ET AL.

Supreme Court of Oregon.

Argued January 13, 1942.

Affirmed February 25, 1942.

Chattel mortgages — Foreclosure

1. Where condition of mortgage covering automobile had been broken, mortgagee was entitled to foreclose mortgage in manner provided by such instrument.

Chattel mortgages — Foreclosure — Right to possession

2. Where mortgage covering automobile provided that in event of default note should become immediately due and payable, and that mortgagee was authorized to foreclose by taking immediate possession of automobile, wherever found and without prior notice or demand, and sell automobile at private sale, under both mortgage and statute, mortgagee upon mortgagor's default had a qualified ownership of the automobile together with a right to immediate possession thereof.

Trespass

3. A plaintiff may sue for trespass to the person, for wrongful invasion of real property, or for trespass de bonis asportatis to chattels.

Trespass — Right to possession

4. In an action for simple trespass in the taking of a chattel, the immediate right to possession on the part of the taker is a complete defense.

Trespass — Right to possession

5. Where there is no invasion of plaintiff's rights relative to real property and no force is involved against the person, one having an immediate contractual right to possession of a chattel may take it notwithstanding absence of consent or the verbal refusal to consent by the mortgagor, and, in so taking chattel, the taker commits no "trespass".

Trespass — Breach of the peace

6. One having the immediate right to possession of a chattel must not commit a breach of the peace in taking it.

Assault and battery — False imprisonment

7. Where mortgagor had acquired rightful possession to mortgaged automobile, but by reason of default in payment of note mortgagee had right to immediate possession of such automobile, mortgagee was not entitled to employ "force" against the person of the mortgagor in order to secure possession of the automobile, or, in other words, commit an assault, battery, or false imprisonment.

Trespass — Chattel mortgages

8. A chattel mortgagee entitled to immediate possession, and having the contractual right to take the chattel wherever it may be found, has a right to enter the land of the mortgagor for the purpose of taking possession and removing the chattels, but he may do so only at reasonable times and in a reasonable manner.

Trespass — Chattel mortgages

9. The mere use of force upon a chattel, as in the lifting or removal thereof, or in the entry of a car, is not "tortious" when committed by a mortgagee having immediate right of possession, but mortgagee's duty is merely to deal with the chattel in such manner as not to damage it, thereby lessening its value as security.

Assault and battery — Trespass — Retaking property

10. Where buyer of personal property on conditional sale contract defaults and seller by terms of contract is authorized to retake the property, seller is entitled to repossess the property if he can do so peaceably, but, if buyer objects and obstructs the seller in doing so, it is seller's duty to proceed no further, but to resort to legal process to enforce his right of possession, and seller is not entitled to use force to retake possession, and, if he does so and in so doing touches the resisting person, he is guilty of "assault and battery".

Chattel mortgages — Retaking property

11. To permit one who agreed for a valuable consideration that, in the event of default, the mortgagee might take possession wherever the chattel might be found, to revoke that consent by mere words, would be permitting him to destroy the contract by his own wrong.

Trespass — Chattel mortgages

12. The rule, which prohibits the mortgagee from using force to repossess chattel to which he is by contract entitled to immediate possession, was not adopted for the purpose of protecting the mortgagor in the wrongful withholding of a chattel, but to prevent a breach of the peace by the mortgagee.

Trespass — Automobiles — Repossessing

13. Where mortgagee was by contract entitled to immediate possession of automobile on mortgagor's default, and upon default had taken possession of automobile in public street during mortgagor's absence, mortgagee was not required to presume that mortgagor would become so provoked at mortgagee's lawful action as to commit a breach of the peace by reason thereof.

Trespass — Automobiles — Repossession

14. Where it was undisputed that chattel mortgagor was in default and under terms of mortgage the mortgagee was entitled to immediate possession of mortgaged automobile, and possession of the automobile had been taken in public street during mortgagor's

absence, and undisputed proof established that mortgagor was himself the aggressor when he pushed himself into the automobile, the mortgagee was entitled to use force so far as was reasonably necessary to defend his possession.

Appeal and error — Automobiles — Repossession

15. Where, at all times subsequent to date of original demand for possession of automobile by chattel mortgagee, mortgagor was unlawfully retaining possession of automobile and thereafter brought action for trespass to automobile and contents, and court directed verdict for defendant mortgagee, mortgagor could not contend that case should be sent back for new trial on the issue of meat which was inside the automobile, when without notice to the mortgagee mortgagor had wrongfully locked the meat in the automobile which he was wrongfully withholding.

                  Liability for assault or trespass in forcibly retaking property
                sold conditionally, note, 9 A.L.R. 1180. See, also, 10 Am. Jur
                813
                  14 C.J.S., Chattel Mortgages, § 183
                

Before KELLY, Chief Justice, and BAILEY, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

ALFRED P. DOBSON, Judge.

Action by Henry Westerman against Oregon Automobile Credit Corporation, George H. Hoffmiller, doing business under the assumed name and style of Pacific Automobile Recovery Bureau, and John Doe, for alleged trespass to motor vehicle and contents. From a judgment for defendants, the plaintiff appeals.

AFFIRMED.

Paul R. Harris, of Portland (C.J. Stocklen and Andrew Hansen, both of Portland, on the brief), for appellant.

Marvin S.W. Swire, of Portland (Coan & Rosenberg, of Portland, on the brief), for respondents.

BRAND, J.

This is an action, as asserted by the plaintiff, "for trespass to a motor vehicle and its contents." From a judgment of involuntary nonsuit plaintiff has prosecuted this appeal. The complaint alleges in substance that on the 13th day of January, 1940, the plaintiff, being the owner of a Ford car, borrowed money from the defendant, Oregon Automobile Credit Corporation (hereafter called the company), and to secure the loan executed a chattel mortgage upon the car. The complaint alleges further:

"That on or about the 9th day of March, 1940, while the plaintiff was enjoying the use, ownership and possession of said automobile, the defendants unlawfully, wantonly and maliciously, and in disregard of plaintiff's rights in and to said property, and without plaintiff's consent, and with intent to deprive plaintiff of his rights in and to said property, and with intent to oppress plaintiff, endeavored to obtain possession of said automobile by seizing the same with force and violence, and over the protest and against the will of the plaintiff; and while so doing trespassed upon said property, all to plaintiff's general damage in the sum of $100.

"That while doing the acts heretofore alleged, defendants obtained the keys to the rear portion of the automobile in which was stored certain meat owned by the plaintiff, which subsequently spoiled; and defendants also broke a glass door in said automobile and damaged a tire; all to plaintiff's special damage in the sum of $15.00."

For a second cause of action the plaintiff makes similar allegations and charges that the defendant on the 17th day of April, 1940, took possession of the same automobile, maliciously and without plaintiff's consent, "and while so doing trespassed on said property, all to plaintiff's damage in the sum of $100." It is alleged that on this occasion also there was in the automobile certain meat owned by the plaintiff, which subsequently spoiled; all to plaintiff's special damage in the sum of $1.50. Punitive damages are sought on both causes. The only question upon this appeal relates to the propriety of the judgment of involuntary nonsuit.

The mortgage provides that in the event of default the note shall become immediately due and payable, and the mortgagee is authorized to foreclose, at its option, by taking immediate possession of the car wherever the same shall be found without prior notice or demand for performance, said notice being waived, and to sell the same at private sale. While the plaintiff was in default, defendant company, by its agent, the defendant Hoffmiller, went to the plaintiff's home to get the payment or get the car. Defendant Hoffmiller advised the plaintiff that he was going to take the car, whereupon the plaintiff said, "You can't take the car without law." Defendant Hoffmiller then left plaintiff's home, and the plaintiff, who is a meat peddler, drove his car from his home in South Portland to the corner of S.E. 8th and Rhine streets, where he stopped and parked the car in front of but across the street from the home of a Mr. Therrell. The plaintiff left the car with the keys in it and crossed the street and went up to the Therrell house to transact some business. The evidence fails to show whether he went to the front or rear door, whether he went into the house or remained outside, the distance from the car to the house, or whether the car was visible from the house. It also fails to show how long the plaintiff remained at the Therrell...