Graf v. Don Rasmussen Co.

592 P.2d 250, 39 Or. App. 311, 1979 Ore. App. LEXIS 2574

• Court: Court of Appeals of Oregon
• Decided: March 19, 1979
• Docket: 424-151, CA 9935
• Status: Published

Opinions

RICHARDSON, J.

This appeal involves an action for damages resulting from the theft of and subsequent injury to plaintiffs automobile while it was in storage in defendant’s garage. Alleging that defendant was negligent in its supervision of her vehicle, plaintiff sought to recover the cost of repair, compensation for loss of use of the vehicle, and damages for the intentional infliction of emotional distress. The trial court struck the latter claim for damages and refused to submit the claim for loss of use. The jury returned a verdict for the full amount of plaintiff’s prayer for cost of repair. Plaintiff appeals the striking of her cause for emotional distress, the refusal to submit to the jury the issue of compensation for loss of use and the denial of her motion to examine certain of defendant’s sales records. Defendant moved for dismissal of the appeal.

On June 17, 1975, plaintiff delivered her 1972 Mercedes Benz 280 SE automobile to defendant for minor repair and storage while she was in Europe. The vehicle was stolen from defendant’s storage area and was later found wrecked. Defendant wrote to plaintiff, explained what had happened, and informed her that the repairs would probably be completed prior to her return. Plaintiff instructed defendant not to repair the car until she returned. In January, 1977, about 16 months after her return to Portland, plaintiff selected an automobile shop to repair her vehicle. The repairs were completed July 11, 1977, at a cost of $8,364.68.

Plaintiff filed notice of appeal on January 3, 1978. Defendant did not cross-appeal. On March 8, 1978, plaintiff demanded and received payment of the judgment for cost of repair. Plaintiff filed a partial satisfaction of judgment excepting those issues which were on appeal. Defendant then moved to dismiss the appeal on the basis that plaintiff waived her right to appeal by accepting payment of her judgment. The motion was denied with leave to renew in defendant’s brief.

On the Motion to Dismiss.

It is the general rule that a party may waive the right to appeal by acquiescing in the order below or claiming the benefits of the judgment. Pac. Gen. Contrs. v. State Const. Co., 196 Or 608, 611, 251 P2d 454 (1952); West et al. v. Broadwell et al., 124 Or 652, 653, 265 P 783 (1928); State of Oregon v. Wells, Fargo & Co., 64 Or 421, 425, 126 P 611, 130 P 983 (1913). However, an appeal may be maintained when it is not inconsistent with acceptance of the judgment. Schlecht v. Bliss, 271 Or 304, 309, 532 P2d 1 (1975). If the provisions of the judgment are divisible and the appeal does not place those portions of the judgment accepted by appellant in jeopardy, the appeal may continue. Schlecht, supra; Vaughan et ux v. Wilson et al, 203 Or 243, 246, 273 P2d 991, 279 P2d 521 (1955).

The test for divisibility was set out in Pac. Gen. Contrs. v. State Const. Co., supra:

"* * * 'When the provisions of a judgment are so closely connected and mutually dependent, that a reversal as to one would render necessary the reversal of the others, then a party cannot take the benefit of some of such provisions and still retain the right to appeal.’ * * *” 196 Or at 612.

In examining the relief sought it is clear that a reversal of the trial judge’s order striking the cause of action for mental distress, or of withdrawing the loss of use portion of her first cause of action from the jury, would not necessitate a reversal of the award for repair costs. In this instance plaintiff claimed to have suffered two types of injuries from the damage to her vehicle and a third type arising from defendant’s subsequent acts. The first was for damage to the chattel itself, and for this plaintiff was awarded her costs of repair. A second claimed injury was to her personal right to the use of the motor vehicle and the inconvenience suffered when it was out of commission. The third claim of injury was emotional distress resulting from actions of the defendant during settlement negotiations. Subject to proof, plaintiff is entitled to compensation from the negligent party for injuries to the chattel and for loss of its use. See Goff v. Elde, 132 Or 689, 693, 288 P 212 (1930); Annot., 18 ALR3d 497 (1968); 15 Blashfield, Automobile Law and Practice 29-35, § 480.7 (3rd ed 1969); D. Dobbs, Remedies 383-90, § 5.11 (1973); Restatement of Torts § 928(b) (1939). Defendant did not cross-appeal thus we are not in a position to render plaintiff a less favorable judgment than has been granted. See Gas-Ice Corporation v. Newbern, 263 Or 227, 234-35, 501 P2d 1288, 56 ALR3d 1078 (1972); Schlecht, supra. There is also no risk of a less favorable judgment to plaintiff if we were to grant a new trial on the issue of mental distress or lost use, for plaintiffs right to the cost of repairs is now incontrovertible, as is the issue of defendant’s negligence. The right to satisfy the money judgment for the cost of repair is entirely consistent with an appeal from an order dismissing the compensation for mental distress and from the order withdrawing from the jury’s consideration the issue of compensation for lost use. Defendant’s motion is therefore denied.