Crosby v. Braley & Graham

• Decision Date: 16 February 1943
• Citation: 134 P.2d 110,171 Or. 72
• Parties: CROSBY <I>v.</I> BRALEY & GRAHAM, INC., ET AL.
• Court: Oregon Supreme Court

171 Or. 72

134 P.2d 110

CROSBYv.

BRALEY & GRAHAM, INC., ET AL.

Supreme Court of Oregon.

Argued February 2, 1943.

Reversed February 16, 1943.

Rehearing denied April 20, 1943.

Evidence

1. A jury cannot base its findings upon conjecture, surmise, or imagination.

Automobiles

2. In determining used-car lot owner's liability for injuries to pedestrian struck by automobile of owner's salesman while returning from personal mission to lock up an automobile in the lot, when salesman left the lot on such mission "master and servant" relationship was terminated and remained suspended until his return to the lot.

Automobiles

3. A used-car lot owner was not liable for injuries to pedestrian struck by automobile of owner's salesman while returning from personal mission to lock up an automobile in the lot, on ground that under evidence salesman at time of accident was not acting within the "course" and "scope of employment", where salesman was paid only commission and was prohibited from using lot owner's automobiles for personal use.

                  See 5 Am. Jur. 687; 35 Am. Jur. 986
                  32 C.J.S., Evidence, § 1042
                

Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

MARTIN W. HAWKINS, Judge.

Action by Harry W. Crosby to recover damages for personal injuries sustained by plaintiff, a pedestrian, when struck by an automobile driven by defendant, George Handel, an employee of defendant Braley & Graham, Inc. From a judgment in favor of plaintiff against both defendants, defendant Braley & Graham, Inc., appeals.

REVERSED. REHEARING DENIED.

Arthur S. Vosburg, of Portland (Reynolds, Flegel & Smith, of Portland, on the brief), for appellant.

Robert T. Mautz, of Portland (Wilbur, Beckett, Howell & Oppenheimer and Wendell Gray, all of Portland, on the brief), for respondent.

KELLY, J.

As we view this record, the decisive question is whether the record discloses evidence tending to show that at the time of the accident, defendant, Handel, was acting within the course and scope of his employment as an employee of defendant Braley & Graham, Inc.

The accident occurred on the evening of December 17, 1940, in Portland, Oregon, at the intersection of Southeast Washington Street, and Southeast Union Avenue. Defendant, Handel, was the owner of the automobile which he was then driving.

The specific acts of negligence charged are failure to yield right of way, to keep a proper or any lookout, and to keep the automobile under proper or any control, operating said vehicle at a high, dangerous and reckless rate of speed under the circumstances, failure to sound horn or give any other signal or warning, failure to pass to the right of the center line of Southeast Union Avenue when making the left turn at said intersection, and, further, to pass to the right of the center line of Southeast Washington Street when entering said street from Southeast Union Avenue, and in operating said vehicle on the north half of Southeast Washington Street while proceeding in a general easterly or southeasterly direction. The negligence thus charged embraced only the allegedly negligent operation of his automobile by defendant Handel.

The only testimony dealing with the relationship between the defendant Braley & Graham, Inc., and defendant Handel was given by defendant Handel when called first as a witness for plaintiff and later as a witness for himself.

Handel testified that at the time plaintiff was injured on December 17, 1940, Braley & Graham, Inc., maintained premises devoted to the sale of second-hand automobiles, commonly referred to as a used-car lot, located on the southwest corner of Southeast Grand Avenue and Southeast Washington Street in the city of Portland, Oregon. This used-car lot had a frontage of 100 feet on both Southeast Grand Avenue and Southeast Washington Street with a drive-in entrance on each street. This used-car lot had an office building located thereon, was illuminated by floodlights at night, and the entrances to the lot were guarded by chains suspended between posts. The only cars sold from this lot were second-hand cars owned by Braley & Graham, Inc., which were also stored on the lot.

Three salesmen were employed by Braley & Graham, Inc., in connection with the sale of used cars from this lot, including Handel. Handel received no regular salary from Braley & Graham, Inc., for his services and his compensation was wholly dependent on commission that he might earn in selling used cars for Braley & Graham, Inc.

It was the practice of Braley & Graham, Inc., to have the salesmen connected with this used-car lot on duty at the lot at specified times. The lot was commonly kept open until 9 p.m. but occasionally it was kept open after this hour if there was a good prospect there. At closing time at night the salesman in charge of the lot was instructed by Braley & Graham, Inc., to lock all the cars on the lot, put the keys of these cars inside the office building, lock the office building, turn off the floodlights and stretch the chains across the two entrances.

A salesman when on duty took care of all prospects who came upon the lot, made necessary demonstrations of the cars to prospective customers, and drove cars kept for sale on the lot to make calls on prospective customers. Occasionally if there was a shortage of cars at a particular time the salesman might use his own personal car to call on a prospect.

When open for business, one of the salesmen was in charge of the lot and, during the time he was in charge, he was supposed to remain there.

When a salesman was not on duty, he could use his time in any way that he saw fit. He could use this time for recreation, or he might call on prospective customers.

At the time of this accident, Handel owned an automobile which was the automobile Handel was driving at the time plaintiff was injured. This automobile had been purchased by Handel at the request of Braley & Graham, Inc., in order that he would not drive any of the cars owned by Braley & Graham, Inc., and stored on the used-car lot, except to demonstrate them to prospective purchasers.

Handel used his personal car in going to and from work, in hunting up prospects while not on duty, for the convenience of his friends and generally in the manner in which any ordinary person would use his own personal automobile.

Braley & Graham, Inc., had no interest in how Handel got to or from the used-car lot so long as he did not use any of its automobiles kept for sale on the used-car lot, nor the method Handel used in calling on prospective customers. He could walk, ride on a bus, or use an automobile. Since Handel's remuneration was based entirely on commissions earned on the sale of used automobiles, he occasionally called on prospective customers outside his regular hours of duty at the used-car lot and in making these calls used his own automobile for his convenience, but this was not required by Braley & Graham, Inc.

Braley & Graham, Inc., had no control, either actual or potential, over Handel while he was driving his personal automobile, bore no part of the cost of upkeep of this automobile, did not furnish Handel with any gasoline or oil, and made no allowance for mileage when Handel used his car in looking up prospects.

The day this accident occurred, Handel came on duty at 8:30 in the morning, remained on duty until approximately 6 p.m. From 6 p.m. until the used-car lot was closed, Handel was the only salesman on duty and was in charge of this used-car lot.

During the evening while Handel was in charge of this lot a deaf and dumb boy, who was employed by Braley & Graham, Inc., during the daytime to clean automobiles, came to the used-car lot to see Handel. This visit had nothing to do with the operations on the used-car lot and was purely of a social nature.

At approximately 9 p.m. Handel, being in charge of the used-car lot, performed the usual duties incident to closing the used-car lot and then as a personal favor used his own automobile to drive this deaf and dumb friend to a club on the "West Side" of Portland where such unfortunate people congregate. Handel lived at 5116 Northeast Oregon Street, which is in a northeasterly direction from the used-car lot, and, on closing, Handel commonly would go north on Southeast Grand Avenue to East Burnside Street and then east on East Burnside Street towards his home. In order to take his friend to the West Side Handel went west on Southeast Washington Street to Southeast Union Avenue, thence north on Southeast Union Avenue to East Burnside Street, and then west across the Burnside bridge to the West Side.

After depositing his friend at his club, Handel started to recross the Burnside bridge intending to continue directly east on East Burnside Street towards his home. While crossing this bridge, Handel remembered that at the time he had closed the used-car lot he had forgotten to lock a Ford automobile which he had been demonstrating, so when he reached the intersection of East Burnside and Union Avenue he turned south on Southeast Union Avenue, proceeded south on Southeast Union Avenue to Southeast Washington Street, and thence turned east on Southeast Washington Street towards the used-car lot.

The foregoing outline of the facts is taken from Handel's testimony, which, as we view it, disclosed that at the time of the accident Handel was on a mission personal to himself and only in the event of his return to the used-car lot, where his duty to lock a car there could be performed, could it be said that he was engaged in the furtherance of his codefendant's business.

As Handel turned east on Southeast Washington Street the plaintiff was struck by Handel's automobile. The plaintiff contended that Handel's automobile struck him when he was crossing Washington Street from the north to the south of the regular pedestrian lane, while Handel contended that the plaintiff was struck...