Dalrymple v. Covey Motor Car Co.

• Decision Date: 23 September 1913
• Citation: 135 P. 91,66 Or. 533
• Parties: DALRYMPLE v. COVEY MOTOR CAR CO.
• Court: Oregon Supreme Court

135 P. 91

66 Or. 533

DALRYMPLE v. COVEY MOTOR CAR CO.

Supreme Court of Oregon

September 23, 1913

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by John Alexander Dalrymple, by Katherine E. Dalrymple, his guardian ad litem, against the Covey Motor Car Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This is an action for damages for personal injuries. The cause was tried before a jury and a verdict rendered in favor of plaintiff, assessing his damages at $5,000. From a resulting judgment, defendant appeals.

The complaint was in the usual form in such cases. Defendant denied any negligence on its part and pleaded contributory negligence on the part of plaintiff, and further pleaded that at the time of the accident "Harrington was a chauffeur employed by the defendant herein, but that on the said 16th day of May, 1911, the said Harrington was operating this Cadillac automobile under the direction and control of the owner thereof (Dunham)," and also pleaded that the occurrence was purely an accident.

It appears from the record that the defendant is a corporation engaged in the business of selling automobiles in the city of Portland, Or. A few days before the accident alleged in the complaint, one Dunham purchased an automobile of the defendant. In accordance with the arrangement, F.B Harrington, an employé of the company, two days prior to the accident gave Dunham instructions as to running the automobile. The car remained in the defendant's garage until the morning of the 16th of May, 1911, about 8 a.m when Dunham came to take it away. Mr. Barnes, the defendant's head salesman in the Cadillac department instructed Harrington to take the car through the populous part of the city to East Portland, as Dunham had had no experience as a driver, where it was intended that the latter should take charge of the same himself. On the way Harrington and Dunham stopped at different places and picked up some articles that Dunham had purchased the day before, consisting of automobile accoutrements, etc. About 9 a.m., while driving on Ninth street, the car collided with the plaintiff. This the jury found was owing to the negligence of the chauffeur Harrington, which is not questioned upon this appeal. After the accident Harrington took the injured boy to the hospital and then carried the boy's mother there, after which he took Mr. Dunham over to the East Side, where he left him and took the street car home. It appears that Harrington was employed by the Covey Motor Car Company in the capacity of a chauffeur and garage hand; that he generally unloaded cars when received and took them to the garage; that he drove them to and from the garage nights and mornings, and at different times took parties out. It also appears that he instructed purchasers with reference to the operation of cars and had the general handling of the latter as a rule. Harrington testified that he had served in different capacities in the auto business for about nine years; that his object in going with Dunham that morning was "simply to take the car through the city and to get him over on the East Side, out of town, where he could go from there by himself, because I refused to let him drive through town alone"; that Dunham was not an experienced driver; that the salesman of the Covey Motor Car Company also gave instructions as to operating the cars; that at the time of the accident the owner of the car was in the front seat with him and they were driving south on Ninth street at about the crossing; that there was a dirt wagon going north on Ninth street, and, when the front end of the machine was about even with the wagon the plaintiff, a schoolboy, came around the end of the wagon and was struck by the machine.

S.C Spencer and E.B. Watson, both of Portland (Wilbur, Spencer & Dibble, of Portland, on the brief), for appellant.

W.E. Farrell, of Portland (Davis & Farrell, of Portland, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

The defendant contends upon this appeal that the plaintiff cannot recover for two reasons: (1) That Harrington was not acting for the Covey Motor Car Company at the time of the accident but was acting for Dunham, the owner of the car; (2) that Harrington was acting outside the scope of his employment in driving Dunham around to pick up stuff which Dunham had purchased the day before. The facts conceded and which appear reasonably clear from the record are as follows: That at the time of the negligent act Harrington was employed by the Covey Motor Car Company and, among other things, instructed purchasers how to operate automobiles; that Harrington had given instructions to Dunham two days prior to the accident; that between the time of giving such instructions and the date of the accident the car remained in the possession of the Covey Motor Car Company, the legal title being in Dunham; that the Motor Car Company sent Harrington out with Dunham on the morning of the accident and paid Harrington for the services rendered; that all the head salesmen gave instructions to prospective purchasers; that at the time of the accident Dunham had had no experience in operating the car and was not competent to do so; that for this reason Harrington was sent to take him through the crowded part of the city. At the close of plaintiff's evidence counsel for defendant moved for a nonsuit, and at the proper time requested the court to direct a verdict in favor of defendant, and saved exceptions to the instructions of the court to the jury.

The main question for determination is: Whose servant was Harrington at the time of the injury; that is, was he working for the Covey Motor Car Company and within the scope of his employment, or was he for the time being the servant of Dunham, the owner of the car? Upon this question the court instructed the jury in substance that: "The question as to the ownership of the car is a circumstance to be considered by you, but the important point in the case is: Whose employé was Harrington? You determine whose work he was engaged in doing. Was he engaged in doing the work of the Covey Motor Car Company, or was he engaged in doing Mr. Dunham's work? The law says that I am responsible for the acts of my servant or my employé done whilst he is engaged in my work. It is a matter of social duty which makes me responsible for his acts when he is doing my work. Not such as who could direct the details, nor whether it is a fact that Dunham is directing, might pay the bill for the services of this man, but whose work was he engaged in, and who had the authoritative control over him? And who selected him? Who paid him? Who had the right to discharge him for incompetency or for any other reason? These questions are submitted to you. Of course the relation between the Covey Motor Car Company and this man Harrington would have to be suspended, not permanently, but during that time, and a new relation must have sprung up between him and Mr. Dunham. If you determine that that relation which existed between Harrington and the Covey Motor Car Company had been suspended and that a new relation had sprung up between the driver of that car and Mr. Dunham, then, of course, he was the servant of Mr. Dunham and not of the Covey Motor Car Company, and you cannot find against the Covey Motor Car Company but must find for the defendant."

The learned counsel for the parties have tersely and ably presented the question for determination by their oral arguments and briefs. They do not differ so much in regard to the law as in the application of the principles thereof wherein the difficulty arises. Counsel for defendant submit that there was no evidence showing that Harrington was engaged in the services of the defendant company at the time of the accident and within the scope of his employment, sufficient to be submitted to the jury. It was said in Ritz v. Wheeling, 45 W.Va. 262, 263, 31 S.E. 993, 994 (43 L.R.A. 148), by Mr. Justice Brannon, that: "Where the case turns on the weight and effect of the evidence in proving or not proving facts necessary to support the action, and the evidence appreciably goes to prove such facts, it ought to go to the jury; *** but where the case is not such, but one of undisputed or indisputable facts, leaving it only a matter of law whether the facts show a liability on the defendant, the court should take the case from the jury and direct a verdict, if the evidence shows no case for the plaintiff. ***" See, also, Durbin v. Oregon R. & Nav. Co., 17 Or. 5, 17 P. 5, 11 Am.St.Rep. 778; Coffin v. Hutchinson, 22 Or. 554, 30 P. 424; Wolf v. City Ry. Co., 45 Or. 446, 72 P. 329, 78 P. 668.

Upon the main question we note that in Berry's Automobile Law, at page 134, it is stated: "In determining whether a particular act was committed by a servant within the scope of his employment, the decisive question is: Was he at the time doing any act in furtherance of his master's business? If he was, the master is responsible. Where, in compliance with a contract of sale of an automobile, the defendant furnished the plaintiff a chauffeur to teach him to operate the automobile, and on account of the negligence of the chauffeur while so employed the plaintiff was injured, it was held that the chauffeur was the servant of the defendant at the time of the accident, and consequently the defendant was liable for his negligence." See Burnham v. Central Auto Exchange (R.I.) 67 A. 429; Shepard v. Jacobs, 204 Mass. 110, 90 N.E. 392, 26 L.R.A. (N.S.) 442, 134 Am.St.Rep. 648.

The Supreme Court of the United States in the case of Standard Oil Co. v. Anderson, 212 U.S. 215, at page 221, 29 Sup.Ct. 252, at page 254 (53 L.Ed. 480), makes the power of control...