Clifford W. Brown v. Bonesteele

• Decision Date: 14 October 1959
• Citation: 218 Or. 312,344 P.2d 928
• Parties: CLIFFORD W. BROWN, a corporation, Appellant, v. Wallace H. BONESTEELE, Jr., dba Cascade Transfer & Storage, Respondent.
• Court: Oregon Supreme Court

Page 928

344 P.2d 928

218 Or. 312

CLIFFORD W. BROWN, a corporation, Appellant, v. Wallace H. BONESTEELE, Jr., dba Cascade Transfer & Storage Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Sept. 17, 1959.

Decided Oct. 14, 1959.

Asa L. Lewelling, Salem, argued the cause for appellant. On the brief were Lewelling & Gies, Salem.

Otto R. Skopil, Jr., Salem, argued the cause for respondent. On the brief were Williams & Skopil, Salem.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and KING, JJ.

O'CONNELL, Justice.

This is an action for damages brought by a shipper against a carrier to recover for the loss by fire of a truck load of twine while being transported in defendant's truck. The origin of the fire was not established although it is probable that it resulted from placing the twine too close to the exhaust pipe which was exposed in the interior of the truck. Werner Brown holds all but two shares of the stock of plaintiff corporation. We shall refer to him as the plaintiff.

The complaint is drawn on the theory that the defendant had possession of the goods as a common carrier and was, therefore, absolutely liable for their loss. The defendant denies that he was acting as a common carrier in this instance, although the truck which was used was under a common carrier permit issued by the Public Utilities Commissioner of Oregon. He further contends that the loading of the truck was done under the direction and control of plaintiff's servants and that the loss was due to their negligence. As a separate defense it is alleged that the truck was rented to the plaintiff and that it was under the plaintiff's control in the course of loading and hauling the goods in question.

The case was submitted to the jury which found for the defendant. Several assignments of error are relied upon, the principal one being that the trial court should have directed a verdict for the plaintiff on the ground that the evidence clearly established the status of the defendant as a common carrier and there were no other questions of fact requiring the jury's deliberations.

The defendant's principal business is the storage of goods. However, he is also engaged in the business of transporting goods for others, which he does under a permit from the Public Utilities Commissioner authorizing him to haul goods as a common carrier within the city of Salem and not to exceed 25 miles outside of Salem. He filed two tariff schedules with the commissioner, one establishing an hourly rate of $6 for cartage within the city of Salem, and a hundredweight rate for hauls outside the city.

The principal question before us is whether there is any substantial evidence to submit to a jury showing that defendant had changed his statuts in this particular instance from that of common carrier to that of a lessor of a truck or as a carrier contracting to haul goods under a special contract of carriage. As a common carrier defendant would be liable as an insurer for the loss of plaintiff's goods. Lacey v. Oregon R. & N. Co., 1913, 63 Or. 596, 128 P. 999; Brown, Personal Property (2d Ed. 1955), p. 416. As a contract carrier or lessor he would be liable only if the loss resulted from his fault. A common carrier is defined in ORS 767.005(5) as follows:

"Common carrier' means any person who transports for hire or who holds himself out to the public as willing to transport for hire, compensation or consideration by motor vehicle, persons or property, or both, for those who may choose to employ him.'

A contract carrier is defined in ORS 767.010(1):

"Contract carrier' means any person engaged in the transportation by motor vehicle of persons or property, or both, for compensation, under special and individual agreements, leases or other arrangements, and not included in the term 'common carrier."

As a part of his business plaintiff sells twine to various canneries in the Salem area. The canneries distribute the twine to farmers engaged in the production of string beans. The twine, packed in cartons, is shipped to Salem by railroad. The plaintiff then distributes the twine to his customers by truck.

On March 18, 1955, plaintiff, upon learning that a carload of twine was on its way to Salem, got in touch with defendant to make arrangements for the hauling of the twine to various canneries. There is a conflict of testimony as to what was said in this conversation. Plaintiff testified as follows:

'Well, as the jury probably knows by now, Mr. Bonesteele hauled twine for me the year previous to United Growers and Stayton Cannery, and hauled twine for Shuford Brothers to Cal Pack, and that day he sent out one truck. I don't know if it was one driver and an assistant, but he took a long time to get it unloaded at Cal Pack and we had a crew at Paulus Brothers, and I said, 'Wally, what can we do? We have the same situation coming up, a car load of twine.' I think I give him the exact day or approximate date, and he said, 'I think I can let you have two trucks.' He said, 'I will give you the'--I can't think of the name of the small truck we had before--it isn't a panel, but he said, 'It will be adequate for delivering the twine to United and Blue Lake and you can assemble the rest and Paulus Brothers take theirs--assemble the rest for Stayton.' And I said, 'Fine.' Finally he said, 'I charged you for a truck and a man at an hourly rate.' He said, 'I think it will be to your advantage to duplicate that, in town always on that rate and out of town on a mileage basis.' I said, 'Well, that is satisfactory with me.' And I also intimated I didn't have to pay the freight, so whatever was right was fine with me, so we left it on that high note, or that low note.'

Plaintiff testified that he informed defendant of the weight and destination of the twine.

'He [defendant] said how much does it involve and so forth, and I said, 'We have 21,000 pounds going to Stayton; we have 5,000 pounds to Blue Lake; and roughly 4,800 pounds to United Growers,' which helped him in making the arrangements. He said, 'The small truck can haul this here in town and the big truck will haul the other.''

With respect to the arrangements for payment, plaintiff testified as follows:

'* * * I told Mr. Bonesteele--I said, 'Last year you invoiced me for this hauling.' And I said, 'That is all right, I pay you and the people I pay for the twine give me credit.' And I said, 'This year I want you to bill them.' I said, 'Bill Shermerhorn Brothers.' And he said, 'What is their address?' And I didn't know the address but I told him to call Maria, my secretary, and she will give you their address. He said, 'Fine.'

'Q. To your knowledge, have you or any other person received any invoice on this load? A. No, sir.'

The defendant's testimony relating to the agreement to transport the twine was as follows:

'Mr. Brown came to the warehouse to make arrangements for this and I asked him--he mentioned the material was coming by rail car, and I asked him if he wouldn't rather put the car down by the warehouse and give us the documents and since we had the equipment and everything we would handle the transaction in proper fashion, and he said, no, he would not, that he wanted the car docked at Paulus Brothers. I, in turn, asked him, 'Would you like me on the job to supervise the loading of the material?' and he said, 'No, I will take care of the supervising of the loading.'

* * *

* * *

'I was advised that Mr. Brown wanted to have the same he had before; he was going to make the same type of movements of the merchandise he had made the previous year, which was almost exactly a year before, at which time some twine had been moved to Stayton. I was not notified how much was to go to Stayton, or I wasn't advised what the quantity of twine involved would be.

* * *

* * *

'There was nothing absolutely discussed in concrete evidence about where the twine was to go and nothing concrete in terms of charges other than the fact he called and asked me if we would handle some twine--give him a truck and equipment to handle twine as we had done previously one year.

* * *

* * *

'Actually in the second conversation was when the particulars were discussed.

* * *

* * *

'I believe at the time, the second time Mr. Brown talked to me he told me that on such a day--I believe it was Friday--we were to have two trucks and two men at Paulus Brothers cannery at 8 o'clock in the morning.'

The bill for the 1954 hauling job was submitted after the job had been completed, the invoice indicating that the charge was for three men and a truck for eight hours. The defendant testified that the 1954 charge was based upon an hourly rate of $5 and that the charge for the 1955 job was $6, although no bill was sent for the latter job. No bill of lading was issued for either the 1954 or the 1955 hauls.

The defendant contends that the plaintiff's conduct in supervising and controlling the loading operation is further proof that the defendant never assumed the status of a common carrier. The railroad car containing the twine was spotted at the siding serving the Paulus warehouse rather than at the defendant's siding. During the course of the unloading plaintiff was inside of the box car checking off the serial number of each carton as it was removed from the car. The loading of the defendant's truck was done under the immediate direction of the defendant's regularly employed truck driver. He decided where the cartons were to be placed in the truck as they were brought to the truck bed by others. When the entire cargo was loaded, he leveled the load off and tied it down. Plaintiff was not present at the truck during the loading operations. When he had finished checking the cartons in the box car, he left. The truck had not been completely loaded at that time. At one point in the loading operation the truck driver went into the box car and discussed something with Brown. Claude Martin, the foreman in charge of the...