Appeal from Circuit Court, Multnomah County. John C. Beatty, Jr., Judge.
Michael J. Esler, Portland, argued the cause for appellant. On the brief were Keane, Haessler, Harper, Pearlman and Copeland; David W. Harper and Alan L. Schneider; and Gary L. Wolfstone, Portland.
Howard R. Hedrick, Portland, argued the cause for respondent. With him on the brief was Gerald R. Pullen, Portland.
Tongue, Justice. O'Connell, Chief Justice, and McAllister, Denecke, Holman and Howell, Justices.
This is an action for damages for wrongful attachment of plaintiff's wages. Defendant appeals from a judgment on a verdict for plaintiff for $352.40 in special damages, $10,000 in general damages and $7,500 in punitive damages.
This is the second trial and appeal in this case, following a previous decision by this court reversing
the granting of a judgment for defendant notwithstanding a previous verdict for plaintiff and remanding the case for a new trial. 259 Or 348, 485 P2d 1208 (1971). Although in some respects the evidence offered on the second trial was not the same as that offered on the first trial, it would serve no useful purpose to again summarize the evidence, as was done in our previous opinion, except as necessary in discussing defendant's various assignments of error.
Defendant first assigns as error an instruction to the jury that:
"* * * [y]ou may, but you are not required to, infer malice from the fact if you find it to be a fact, that the defendant did not have probable cause to have the Writ of Attachment issued. * * *"
Defendant's exception to this instruction was that "* * * inferring malice from want of probable cause in this case is not proper, true in a criminal case, but not in a civil case."
In our original opinion, after discussing our previous decisions on this point, we said (at 362):
"It does not follow, however, that the lack of probable cause was of itself sufficient evidence from which the jury could properly infer that defendant acted with malice in the attachment of plaintiff's wages. Alvarez v. Retail Credit Association, ...