Eklof v. Waterston

• Decision Date: 25 February 1930
• Citation: 132 Or. 479,285 P. 201
• Parties: EKLOF v. WATERSTON ET AL. [*]
• Court: Oregon Supreme Court

285 P. 201

132 Or. 479

EKLOF v. WATERSTON ET AL. ^[*]

Supreme Court of Oregon

February 25, 1930

Department 1.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Action by Axel Eklof against Howard Waterston, Seymour Lee, and the Bee Hive Auto Service Company, Inc. Judgment for plaintiff and defendant last named appeals.

Reversed in part, and remanded, with directions.

P.J. Gallagher, of Portland (Gallagher & Conway, of Portland, on the brief), for appellant.

Nicholas Jaureguy, of Portland (Keith A. Caldwell and Ronald L Reilly, both of Portland, on the brief), for respondent.

RAND J.

On April 15, 1928, the defendant Bee Hive Auto Service Company let for hire to its codefendants, Howard Waterston and Seymour Lee, a sedan automobile and delivered the same to them. While said codefendants were in the possession thereof as bailees, they so negligently operated it that they drove it onto the parking at the corner of Eleventh and Clay streets in the city of Portland, and broke off a fire hydrant thereon, and ran over and severely injured plaintiff, a pedestrian, who was at the time on the sidewalk at said point. Plaintiff alleged by his amended complaint that, at the time he sustained the injuries complained of, defendants were engaged in a joint enterprise and subsequently he was permitted to amend his complaint by interlineation so as to allege that, at the time of the accident, the brakes on the automobile were out of adjustment and were in such a defective condition that the car could not be stopped by the application thereof. By its answer the corporation denied that the brakes were out of adjustment, or were defective and set up as a defense to the action the entering into of the contract of bailment, its delivery of the car thereunder, and that, at the time plaintiff sustained the injuries complained of, the automobile was being operated by said bailees for whose negligence the corporation was not responsible. These allegations were put in issue by the reply. Neither of said codefendants answered and default was entered against both of them. The cause was tried to a jury and resulted in a verdict and judgment for plaintiff, from which the defendant corporation has appealed.

During the progress of the trial, Waterston, one of the defendants in the action and one of the two persons to whom the automobile had been let, was called as a witness by plaintiff and he testified that after hiring the car from the defendant corporation he drove it east on Clay street to the place where the accident occurred; that running north and south on East Eleventh street there is a single street car track; that when he reached the intersection and was about ten or fifteen feet from the track, and while he was traveling about thirty miles an hour, which he admitted was in violation of the speed limits of the city, he observed a street car approaching from his left; that at the time he first observed it, it had reached the intersection of the two streets and was about fifteen feet from the point where he was about to cross the track and was traveling very fast; that he then applied the brakes, the car swerved to his left, and, seeing that he could not stop before reaching the track, he stepped on the gas and crossed the track ahead of the street car, and, not being able to control the car, ran it over the curb onto the parking against a fire hydrant which broke off and was thrown against plaintiff; that he was accustomed to driving automobiles but did not know whether this automobile was equipped with four-wheel brakes or not. There was no evidence that he or any other witness for plaintiff had ever examined the brakes, or had any knowledge of their condition. There was, therefore, no evidence in the case of any witness that the brakes were out of adjustment, or defective, except the mere fact that when Waterston applied them in the emergency referred to the car swerved.

At the close of plaintiff's case in chief, the defendant corporation moved for a nonsuit and, at the end of the trial, for a directed verdict. The learned trial court, however, ruled that there was some evidence tending to establish defective brakes sufficient to go to the jury and instructed the jury that it could find against the defendant corporation if it should find that the brakes were defective and that such defect contributed to the injuries complained of. There was no evidence which in any way tended to show that the relation of master and servant, or principal and agent, existed between the defendant corporation and its codefendants and, hence, the corporation would not be responsible under the doctrine of respondeat superior for their acts or omissions. On the contrary, the whole evidence showed that the only relation between them was that of bailor and bailee. No contention is made that any officer or agent of the corporation was present or had any supervision or control of the car.

In this state, as at common law, the letting of a chattel for hire constitutes a bailment. The distinguishing feature in all bailments is that possession of the thing bailed is severed from ownership. While the bailor retains the general ownership, the bailee has true possession as distinguished from mere custody. 2 Street, Foundations of Legal Liability, pp. 252, 308. And where a chattel is let for hire, the bailee acquires as against strangers at least a special property in the subject of the bailment. Obviously there can be no letting of a chattel for hire unless there is a contract, either express or implied. That there was such a contract is conceded in this case, although there is no proof of any specific contract other than the mere letting of the automobile for hire to the bailees. Under a contract to let an automobile for hire, it is the duty of the bailor, although he is not an insurer, to furnish an automobile which is reasonably fit and proper for the use intended and, if he negligently fails to perform that duty and the hirer, or one riding with him in the automobile, sustains damages because of such negligence, the letter is answerable in a tort action for the damages sustained by either. The letter is also liable to the hirer for such damages in an action for breach of contract. In such case, the hirer may elect whether to sue for the tort or for breach of contract. The principle is stated by Wharton in his Law of Negligence (2d Ed.) § 435, as follows:

"Where a contract creates a duty, the neglect to perform that duty, as well as the negligent...