Doherty v. Hazelwood Co.

• Decision Date: 19 November 1918
• Citation: 90 Or. 475,175 P. 849
• Parties: DOHERTY v. HAZELWOOD CO.
• Court: Oregon Supreme Court

175 P. 849

90 Or. 475

DOHERTY v. HAZELWOOD CO.

Supreme Court of Oregon

November 19, 1918

In Banc.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Mary Doherty, administratrix of the estate of Thomas Doherty, deceased, against the Hazelwood Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff, Mary Doherty, as the administratrix of the estate of her deceased husband, brought this action against the defendants, Hazelwood Company, a corporation, J. W. Shearer and E. J. Cashin, to recover damages for the death of her decedent, which she alleges was caused by the negligent operation of an automobile owned by the company and driven and used at the time by the individual defendants in the interest of the corporation, with its consent and in furtherance of its business. The Hazelwood Company contented itself with an answer denying all of the allegations of the complaint except that of its corporate existence. Each of the individual defendants answered separately in his own behalf making some denials and urging affirmatively the defense of contributory negligence. After trial there was a judgment in favor of the plaintiff and against the company and the defendant Shearer. The company alone appeals; hence no further notice need be taken of the answers of the individuals.

Harrison Allen, of Portland (Bert W. Henry and Griffith, Leiter &amp Allen, all of Portland, on the brief), for appellant.

R. Citron, of Portland (Henry E. McGinn, of Portland, on the brief), for respondent.

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

The only question presented in the brief of the company and argued in this court is the alleged error of the circuit court in refusing to instruct the jury to find a verdict in favor of the company. A résumé of the testimony therefore becomes necessary in order to determine whether upon the whole case as presented on the evidence the plaintiff was entitled to go to the jury.

The company was engaged in business in the city of Portland and was the owner of the automobile involved. Shearer was its employé whose daily hours of service began at 8 o'clock in the morning and ended at 6 o'clock in the evening, and whose duty it was to take the automobile during his working hours and visit tradesmen, to solicit business for the company. In addition to this, he was permitted by the company to use it in going to his home after working hours, to keep it there over night, and to use it in returning to his service the following morning. The decedent was a street sweeper in the employ of the city of Portland.

After his working hours the evening before the fatal accident Shearer took his wife and rode in the automobile to a dancing party, remaining there until shortly after midnight. The car was one with but a single seat, ordinarily sufficient for but two passengers. When the party broke up, in pursuance of an arrangement made between three married couples, the Shearers the Cashins, and the Dunnes, Cashin and his wife, who had no car, were taken separately in the two cars operated by the other couples; Cashin going into the car with the Shearers, taking Mrs. Shearer on his lap. The latter three proceeded homeward, Shearer driving the car, and at the Broadway bridge ran upon Doherty, where he was engaged in street cleaning, dragging him some distance up the approach of the bridge and injuring him so that he died soon after.

Reduced to its lowest terms, the question presented is whether the court should direct a verdict in favor of the defendant company when there is testimony that the car which inflicted the injury upon the decedent was the property of the company, operated by one who was in its general employ daily using the car in the business of the company and in addition thereto having it under his custody and control outside of working hours, although there was direct evidence that he was using it for his private purposes at the exact time of the accident. It is axiomatic that a motion for a directed verdict must be overruled, and the question at issue must in the first instance be submitted to the jury, if there is any evidence which the jury is entitled to consider as against the moving party. Questions analogous to the one here involved have been considered by this court in several cases, such as Dalrymple v. Covey Motor Car Co., 66 Or. 533, 135 P. 91, 48 L. R. A. (N. S.) 424; Smith v. Burns, 71 Or. 133, 135 P. 200, 142 P. 352, L. R. A. 1915A, 1130, Ann. Cas. 1916A, 666; Kahn v. Home Telephone & Telegraph Co., 78 Or. 308, 152 P. 240; Houston v. Keats Auto Co., 85 Or. 125, 166 P. 531; and, lastly, West v. Kern, 88 Or. 247, 171 P. 413, 1050. After a review of the authorities, Mr. Justice Harris sums up the matter in West v. Kern in these words: "We adhere to the doctrine towards which the opinion in Kahn v. Home Telephone & Telegraph Co., supra [78 Or. 308, 152 P. 240], inclines, and which the opinion in Houston v. Keats Auto Co., supra [85 Or. 125, 166 P. 531], pronounces, and we hold that proof of ownership makes a prima facie case against the owner."

He distinguished Smith v. Burns, supra, and laid it aside for the purposes of the there instant case, on the ground that the precise question of whether or not proof of the ownership of the automobile made a prima facie case was not discussed in the opinion.

The naked question is therefore presented here, whether ownership of the machine with which the injury was inflicted is sufficient to take the case to the jury as against the motion for a directed verdict. We remember that, if the ultimate fact is that the car was operated solely for the private purposes of the driver without the knowledge or permission of the owner, the latter would be exempt from liability. The ascertainment of that ultimate fact, however, is for the jury, and, if there is any evidence in favor of the plaintiff, the jury must receive the case in the first instance as against the motion for a directed verdict. This doctrine prevailed even before the adoption of the amended form of article 7 of the state Constitution, forbidding re-examination otherwise of any question of fact determined by the verdict of a jury unless the court can affirm that there is no evidence to support it. Serles v. Serles, 35 Or. 289, 57 P. 634.

Certain rules of evidence are codified in our statutes. There is a classification of direct and indirect evidence embodied in section 690, L. O. L. Again, indirect evidence is said to be of two kinds: (1) Inferences; and (2) presumptions. L. O. L 793. In the following section an "inference" is defined to be "a deduction which the reason of the jury makes from the facts proved, without...