“Under these circumstances, we do not believe that this is a proper case in which to change the substantive law of conversion.” (Emphasis added.)
How later courts described this case
- “Under these circumstances, we do not believe that this is a proper case in which to change the substantive law of conversion.” (Emphasis added.)
- “ ‘[G]ood faith’ is not a complete defense, but only one ‘factor’ to be considered.”
- grounds not stated in motion for directed verdict will not be considered by appellate court
Written by the judges who cited it.
The opinion
O’CONNELL, C. J.,
specially concurring.
In Mustola v. Toddy, 253 Or 658 , 456 P2d 1004 (1969), we accepted the definition of conversion found in Restatement (Second) of Torts § 222A (1965). In doing so we said, “[tjhere is a strong argument for abolishing the distinction between conversion and other types of interference, such as trespass.” ( 253 Or at 664, fn. 4 .) A careful analysis of Section 222A of the Restatement (Second) of Torts will, I think, reveal that in the process of changing the definition of conversion, the drafters so modified the common law concept of a forced sale that there is no longer any dis *317 tinetion between the remedies under trespass to chattels and conversion. Section 222A defines conversion as follows:
“(1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
“(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important :
“(a) the extent and duration of the actor’s exercise of dominion or control;
“(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
“(c) the actor’s good faith;
“(d) the extent and duration of the resulting interference with the other’s right of control ;
“(e) the harm done to the chattel;
“(f) the inconvenience and expense caused to the other.”
In subsection (1) of Section 222A, it will be noted that in purporting to provide a test by which to determine whether the interference is to be classified as a conversion or a trespass to chattels, the criterion is whether the defendant “may justly be required to pay the other the full value of the chattel.” This is tantamount to saying that when there is an interference with another person’s chattel, the measure of damages should be fair. This, in effect, removes from the concept of conversion the forced sale remedy as it was applied under the old definition of conversion. And as observed elsewhere, once the forced sale remedy is *318 removed, the distinction between trespass to chattels and conversion is unnecessary. ①
It appears, then, that by our previous adoption of Section 222A in Mustola v. Toddy, supra, we in effect abolished the tort of conversion. We should now expressly proclaim that fact and hereafter treat any actionable interference with a chattel as a trespass. This would make it unnecessary to discuss, as the majority opinion does, the significance of good faith in an action of conversion. Therefore, upon a retrial of the present case the jury should be instructed in accordance with the measure of damages applicable to the action of trespass to chattels.
“Perhaps the greatest clarification of the law regarding interference with the interest in possession of a chattel would result from the abandonment of the conversion measure of damages. It seems somewhat anachronistic to have to distinguish between two remedies for the same sort of wrong in a jurisdiction where the forms of action have been abolished, but this is really what the court is doing when it decides whether the defendant’s interference with the plaintiff’s chattel is a conversion or a trespass to chattel. Were it not for the forced-sale remedy, such a distinction would be unnecessary.” Faust, Distinction Between Conversion and Trespass to Chattels, 37 Or L Rev 256 at 270-71 (1958).