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Kirkpatrick v. United States National Bank

November 10, 1972

KIRKPATRICK ET UX, RESPONDENTS,
v.
UNITED STATES NATIONAL BANK, APPELLANT



Appeal from Circuit Court, Klamath County. Donald A. W. Piper, Judge.

Glenn D. Ramirez, Klamath Falls, argued the cause for appellant. With him on the brief were Ramirez & Hoots, Klamath Falls.

Alan M. Lee, Klamath Falls, argued the cause for respondents. With him on the brief were Smith & Lee, Klamath Falls.

Tongue, Justice. O'Connell, Chief Justice, and Denecke, Holman, Howell and Bryson, Justices.

Tongue

This is an action against defendant, as guardian of the estate of Ernest Nolan Lotches, a minor, for property damage in the vandalizing of plaintiffs' home in Klamath county.

After a trial before a jury a verdict and judgment was entered against defendant for $2,056.72 as general damages and $5,000 as punitive damages. Defendant appeals.

1. Contention that evidence insufficient.

Defendant contends that the evidence that Ernest Lotches was responsible for the damage to plaintiffs'

house was insufficient. When Lotches was picked up by the police shortly after plaintiffs' house had been vandalized he was intoxicated and was covered with blood from cuts on his body. He said that he had been pushed through "a window." The bedroom window in plaintiffs' house was broken. His shoes were covered with a pink substance. Pink cake icing was found to be tracked into the bedroom of the house. His shoe tracks also matched tracks found outside the house.

In addition to the broken window, the front of a television set, a fireplace screen, and a bedroom mirror were broken and a sewing machine was damaged, among other things. There was cake and cake icing "all over" and the floors, walls and ceilings had to be cleaned.

Lotches was "advised of the charge," after being informed of his constitutional rights. He then "made no attempt to deny the charge" and admitted being in the house. He claimed, however, that he could not remember what he did in the house or who else (if anyone) was with him.

After examining the entire record, we hold that the evidence, including the circumstantial evidence and the inferences which the jury could reasonably have drawn from such evidence, was sufficient to sustain a finding by the jury in a civil action that Ernest Lotches either committed the acts of vandalism or was jointly responsible for the resulting damage.

2. Contention that punitive damages not payable from spendthrift trust.

Defendant contends that "[i]n the case of Kirk v. Kirk [254 Or 44, 456 P2d 1009 (1969)], it was held by this Court that the ...


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