Fogelsong v. Jarman

• Decision Date: 10 February 1942
• Citation: 168 Or. 177,121 P.2d 924
• Parties: FOGELSONG <I>v.</I> JARMAN ET AL.
• Court: Oregon Supreme Court

168 Or. 177

121 P.2d 924

FOGELSONGv.

JARMAN ET AL.

Supreme Court of Oregon.

Argued December 9, 1941.

Affirmed February 10, 1942.

Trial — Automobiles — Insurance

1. In action for injuries sustained in automobile collision, where a defendant in response to inquiry on cross-examination volunteered information that a certain man was a representative of a named insurance company, further cross-examination whether witness had gone to office of insurance company and given some one there a written statement did not disclose any wilful attempt to influence jury by showing that defendant was protected by indemnity insurance so as to warrant a mistrial.

Damages — Automobiles — Injuries

2. In action for injuries sustained in automobile collision, testimony that plaintiff suffered a sacroiliac injury and an injury to his spinal cord was admissible under allegations of complaint.

Master and servant — Course of employment

3. An employer is not liable for act of an employee unless it be shown that relationship of master and servant, or principal and agent, existed at time the damage was done and that employee was then acting within course of his employment.

Automobiles — Scope of employment

4. In action against automobile salesman and his employers for injuries sustained in collision between automobile in which plaintiff was riding and automobile driven by salesman, which belonged to employers but which he was permitted to drive to and from home and in his work, whether salesman, who at time of collision was en route from his home to a daily sales meeting, which salesmen were encouraged to attend, was acting in the "scope of employment" as an employee and agent so as to render employers liable for plaintiff's injuries, was for jury.

                  Liability of employer for injuries by automobile while being
                driven by salesman, notes, 17 A.L.R. 621; 29 A.L.R. 470; 54
                A.L.R. 627. See, also, 5 Am. Jur. 726
                  64 C.J., Trial, § 281
                

Before KELLY, Chief Justice, and BELT, BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Clackamas County.

EARL C. LATOURETTE, Judge.

Action by C.W. Fogelsong against E. Roy Jarman and Eva Jarman, doing business under the assumed business name of Jarman's, and Charles Homann, for personal injuries sustained by plaintiff in an automobile collision. From a judgment in favor of plaintiff, defendants appeal.

AFFIRMED.

Glenn R. Jack, of Oregon City (Butler & Jack, of Oregon City, on the brief), for appellants.

Duane Vergeer, of Portland (Vergeer & Samuels, of Portland, on the brief), for respondent.

KELLY, C.J.

At approximately 8:20 a.m. on the 5th day of March, 1940, plaintiff was riding in an automobile being driven in an easterly direction across Pacific Highway 99E at its intersection with Hull Avenue.

Pacific Highway 99E was then and still is a public highway extending in a general northerly and southerly direction.

Hull Avenue was and is also a public highway extending in a general easterly and westerly direction and intersecting Pacific Highway 99E at approximately right angles.

As the automobile in which plaintiff was riding so being operated across said intersection, defendant Charles Homann was operating a Chevrolet automobile in a general southerly direction across said intersection and a collision of the two cars occurred.

This action was instituted to recover damages for personal injuries sustained by plaintiff as a result of said collision.

The Chevrolet car driven by defendant Homann was used in the business of defendants E. Roy Jarman and Eva Jarman.

The case was tried to a jury and a verdict rendered in favor of plaintiff against defendants in the sum of $2,500 general damages and the further sum of $300 special damages.

In appealing from the resultant judgment, defendants assign three alleged errors on the part of the trial court: First, in denying the motion of appellants Jarman, for a directed verdict; second, in admitting testimony to the effect that plaintiff had suffered a sacroiliac injury and an injury to his spinal cord; and, third, in denying defendants' motion for a mistrial because on cross-examination of defendant Homann, plaintiff's attorney asked Mr. Homann if he remembered discussing the matter at issue with a man named Hudson Church to which Mr. Homann answered, "I don't know the gentleman," whereupon, Mr. Church was caused to arise, and plaintiff's counsel asked Mr. Homann: "Do you remember Mr. Church?" To which question Mr. Homann replied: "I don't remember him. He spoke to me out in the hall and said he was a representative of the State Home Mutual, and he had spoken to me in his office." The cross-examination then continued as follows:

"Q. Do you remember going to the office?

"A. I remember going to the State Home Mutual and I spoke to several gentlemen there, but I don't remember him.

"Q. Do you remember giving some one there a written statement?"

At this point, defendants moved for a mistrial, "on the ground and for the reason that the obvious purpose of the question is an effort to introduce into the case insurance; it is prejudicial."

As stated, the trial court denied the motion and defendants' third assignment of error is based thereupon.

Treating these assignments inversely to the order in which they are stated, we think that no error was committed by the trial judge in denying defendants' motion for mistrial.

Haltom v. Fellows, 157 Or. 514, 73 P.2d 680, cited by defendants, is a case where plaintiff's attorney referred to defendants as having money galore while plaintiff had none. The record was silent upon the question whether defendants themselves had invited such comment. In the case at bar, it was one of the defendants who mentioned the insurance company.

In Ross v. Willamette Valley Transfer Co., 119 Or. 395, 248 P. 1088, the objectionable testimony was elicited by plaintiff's attorney on cross-examination of the driver of defendants' truck. The question was presented upon the action of the trial court in denying defendants' motion to strike such testimony out.

Rosumny v. Marks, 118 Or. 248, 246 P. 723, holds that persistence by counsel in continuing improper argument, with regard to liability insurance, despite a ruling by the court that he should pursue the argument no further, was in itself such gross misconduct as to constitute reversible error. The portion of the record, upon which such improper argument was based, appeared upon a page of a written report; part of other portions of which were introduced by defendant, and still other parts by plaintiff.

In Vasquez v. Pettit, 74 Or. 496, 145 P. 1066, Ann. Cas. 1917A, 439, the attorney for plaintiff, in examining prospective jurors on their voir dire, was permitted, over objection and exception, to state that the damages which their client had suffered were to be paid by money furnished by an insurance company; and on cross-examination the defendant was compelled, over objection and exception, to state that such sum had been repaid him by an insurance company under a policy which protected his business against liability for accidents to employees. The record discloses that plaintiff was an employee of defendant. Moreover, the opinion states that "there appears to have been an intent at every convenient opportunity to establish the fact that the defendant was protected from liability to respond in damages for injuries to his employees by a policy of indemnity insurance."

1. In none of the above cases, was the defendant the one who first mentioned, or in any wise countenanced the mentioning of, insurance, insurance company, or insurance offices. In the case at bar, it was one of the defendants, who called attention to the name of an insurance company. That part of his testimony was not responsive to the question propounded to him; and the fact that defendant volunteered such statement does not disclose any wilful attempt by plaintiff to influence the jury by showing that the defendants were protected by indemnity insurance.

No error was committed in overruling defendants' motion for a mistrial.

Plaintiff's amended complaint contains the following allegation:

"That as the natural and proximate result of defendants' negligence and of the said collision, plaintiff was violently thrown about within the vehicle in which he was riding and his body came in violent contact with the interior of the said car, and he was generally wrenched, bruised and battered; and plaintiff suffered deep and painful bruises on his left side, and his sixth and seventh ribs were torn loose from plaintiff's spine; and plaintiff suffered injuries to his abdomen, bruising and injuring his left kidney and causing a constriction of plaintiff's bowel; and plaintiff suffered severe shock and damage to his nervous system; and the muscles tendons and ligaments of plaintiff's back were torn and wrenched."

The question embraced within defendants' second assignment of error is whether under the above quoted allegation testimony should have been admitted tending to prove a sacroiliac injury and an injury to plaintiff's spinal cord.

2. We think that the trial court did not err in receiving such testimony. Under similar allegations, the reception of such evidence has been approved in the following cases: Fink v....