a defendant may be held liable for compensatory damages resulting from false imprisonment regardless of whether motive is good or evil
How later courts described this case
- a defendant may be held liable for compensatory damages resulting from false imprisonment regardless of whether motive is good or evil
Written by the judges who cited it.
The opinion
*594 ON PETITION FOR REHEARING
*595 W. C. Winslow, Salem, for the petition for appellant.
Jack, Goodwin & Santos, Oregon City, Philip A. Levin, Portland, and Mitchell & Harris, Oregon City, for the petition for respondent.
Before Perry, * Chief Justice, and Rossman, Lusk, Warner, Sloan and O’Connell, Justices.
PERRY, J.
Both the plaintiff and the defendant have filed petitions for a rehearing of the issues in this Court.
The plaintiff’s petition asks that, even though his first cause of action cannot be sustained and must be retried, his second cause, being free from reversible error, should be sustained and the judgment of the trial court, based upon the verdict of the jury, reinstated.
Plaintiff relies upon the general rule cited in 5B CJS 407, Appeal' & Error, § 1916:
“Where plaintiff in his pleading sets up several counts or several causes of action and error is committed as to only part of them, the judgment, if capable of separation, should be affirmed in part *596 and reversed in part. On the other hand, where the issue or count infected by error cannot be segregated, the judgment will be reversed in toto.”
The difficulty with plaintiff’s position is that the reversible error which infects plaintiff’s first cause of action also infects the judgment rendered upon the second cause of action. The second cause of action is based upon the conversion of articles being transported by the plaintiff as a bailee and as to this cause of action the plaintiff sought damages, both' general and punitive, which were recovered. If punitive damages are to be imposed, then the jury must find that the defendant, in taking possession of the truck containing the articles, acted maliciously and in utter disregard of the rights of the plaintiff. Since whether or not the defendant so acted is so interwoven with the question of the lawful or unlawful arrest, we were and now are of the opinion that the error which infected the first cause of action goes to the merits of the allowance of punitive damages under the second cause of action and it was necessary that the judgment be reversed in toto.
In our original opinion we disapproved of the use of the term “moneylender” as used in the following instruction:
“In repossessing personal property, the mortgagee or money lender has no right to resort to self help or to take the law in his own hands where the borrower or mortgagor resists and places his person in a position which obstructs the mortgagee or money lender so that in order to repossess the chattel he would of necessity apply force in such case, it is the duty of the mortgagee or money lender to desist from such effort to physically repossess, and he must resort to the aid of legal process which in such ease would mean the com *597 mencement of a civil suit for the foreclosure of his mortgage or for possession of the mortgaged property. In such cases, if the mortgagee or money lender proceeds in defiance of the objections and resistance of the mortgagor or the borrower, the lender becomes the aggressor and would render himself liable for damages occasioned thereby.”
The defendant in his petition for rehearing again calls our attention to the fact that the last sentence of this instruction is not applicable under the issues presented in this case. We agree that the issue of liability for damages for breach of the peace or conversion of the truck is not present and that portion of the instruction could be misleading and prejudicial and should be eliminated from the instruction.
We find no merit in the defendant’s other assignments seeking a rehearing.
Both petitions are denied.