Guedon v. Rooney

• Decision Date: 15 February 1939
• Citation: 87 P.2d 209,160 Or. 621
• Parties: GUEDON <I>v.</I> ROONEY ET AL.
• Court: Oregon Supreme Court

160 Or. 621

87 P.2d 209

GUEDON

v. ROONEY ET AL.

Supreme Court of Oregon.

Argued December 7, 1938.

Reversed February 15, 1939.

Trial

1. Refusal of defendant's requested instructions on subjects fairly and properly covered by court's charge to jury so far as relevant to issues involved was not error.

Automobiles

2. Evidence in action for injuries sustained in automobile collision held sufficient to take to jury question of negligent operation of defendant's automobile by his employee while under influence of intoxicating liquor, with employer's actual or constructive knowledge of such employee's recklessness or incompetency as automobile driver and addiction to use of liquor.

Automobiles

3. The general rule that automobile owner, loaning it to another, is not liable for latter's negligence in operation thereof, is inapplicable, where lender knows that borrower is incompetent, reckless or careless driver and likely to cause injuries to others.

Evidence

4. A witness may not express opinion as to whether automobile was being driven recklessly or carelessly at time of accident resulting in injuries sued for, as it is jury's duty to draw inferences and reach conclusions from facts presented.

Evidence

5. A witness' conclusions as to manner of certain person's customary operation of automobile are inadmissible on questions of automobile owner's negligence in permitting such person to drive automobile with knowledge of his recklessness.

Evidence

6. A police officer's testimony in action for injuries to automobile passenger in collision with defendant's automobile, driven by his employee, that latter drove automobiles recklessly and while under influence of intoxicating liquor on previous occasions, was inadmissible as stating mere conclusions.

Evidence

7. A witness, satisfactorily shown to have had opportunity to observe and actually observed another's condition, may testify as to whether latter was intoxicated, extent of such intoxication, and whether he had been drinking or was just recovering from state of drunkenness, at certain time.

Evidence

8. A police officer was properly allowed to testify in action for injuries to automobile passenger in collision with defendant's automobile,

driven by his employee, that witness had observed such employee operating automobiles while under influence of liquor on previous occasions.

Automobiles

9. To hold automobile owner liable for injuries to another because of negligent operation of automobile by one to whom owner loaned it on theory of negligence in lending it to incompetent driver, latter's incompetence should be shown by evidence of specific acts of carelessness and recklessness by him.

Automobiles

10. An automobile owner's knowledge of incompetence of driver, to whom he loaned automobile, may be shown by evidence either that owner knew of specific acts of carelessness and recklessness previously committed by driver or that latter's incompetence was generally known in community.

Automobiles

11. To prove incompetency of automobile driver, as required to hold automobile owner lending it to such driver liable for injuries to third person as result of negligent operation thereof, it must be shown that driver's negligent acts were result of incompetence or of such character and so constantly committed as to constitute habit of negligence.

Appeal and error

12. Appellants are in no position to predicate error on trial court's ruling excluding evidence on appellants' objection thereto.

Trial

13. Admission of police officer's testimony that driver of automobile, which caused injuries sued for, drove automobiles recklessly and while under influence of intoxicating liquor on previous occasions, and questions on plaintiff's direct examination of defendant automobile owner as to such driver's reckless operation of automobiles at prior times, required declaration of mistrial, notwithstanding court's admonition to disregard such questions and answers and owner's negative answers.

Trial

14. The trial court has wide, but not absolute, discretion in deciding whether to declare mistrial.

                  Opinion evidence as to care exercised in driving, note, 66
                A.L.R. 1117. See, also, 5 Am. Jur. 859
                  42 C.J. Motor Vehicles, § 836
                

Department 2.

Appeal from Circuit Court, Coos County.

JAMES T. BRAND, Judge.

Action by Della I. Guedon against P.J. Rooney, doing business under the assumed name and style of P.J. Rooney Auto Company, and another, for injuries suffered in an automobile collision. Judgment for plaintiff, and defendants appeal.

REVERSED.

J.A. McKeown, of Marshfield (Liljeqvist, Swanton & McKeown, of Marshfield, on the brief), for appellant Rooney.

William E. Walsh, of Marshfield, on the brief, for appellant Wilson.

J.B. Bedingfield, of Marshfield (David J. Grant, Jr., of Marshfield, on the brief), for respondent.

BAILEY, J.

This action was brought by Della I. Guedon against P.J. Rooney, doing business under the assumed name and style of P.J. Rooney Auto Company, and Norman Wilson, for damages on account of injuries suffered by the plaintiff in an automobile collision. From a judgment in favor of the plaintiff against both of them, the defendants prosecute this appeal.

The accident out of which the injuries arose occurred on September 23, 1936, between the hours of three and four p.m., at the intersection of Sherman and Connecticut avenues in North Bend, Oregon. Sherman avenue runs in a north and south direction through the center of that city and is a main traveled thorough-fare, part of the Coast highway. It is eighty-two feet wide, paved fifty-two feet of its width, with a painted line in the middle of the pavement. Connecticut avenue runs in an east and west direction and intersects Sherman avenue at right angles.

At the time of the mishap, the car in which the plaintiff was riding was being driven by her husband and was proceeding in a southerly direction along Sherman avenue. Shortly before the Guedon car reached the intersection of Connecticut and Sherman avenues, the defendant Wilson started his car, which had been parked on the east side of Sherman avenue, fifty to one hundred feet south of the intersection, and drove it in a northerly direction to the intersection, where he turned sharply to the left on Connecticut avenue, across the center line of Sherman avenue and directly in front of the Guedon car, which had already entered the intersection. The front right side of the car in which the plaintiff was riding struck the right side of the car being driven by Wilson. The plaintiff suffered severe injuries to her right foot and heel.

According to the evidence of both Mr. and Mrs. Guedon, they had not observed the car which Wilson was driving until it appeared immediately in front of them some ten or twelve feet distant. There were no other automobiles being driven at that time on either of the intersecting streets in the immediate vicinity of the place of the accident.

The automobile driven by Wilson was owned by the defendant Rooney. The evidence is sufficient to support the allegations of the complaint that Wilson was at the time of the accident in the employ of Rooney and then acting within the scope of his employment. On the morning of September 23, 1936, the day of the mishap, Wilson drove his car from Marshfield, where Rooney's place of business was located, to North Bend, and left it parked on the east side of Sherman avenue south of the intersection of that street and Connecticut avenue. He then proceeded to Lakeside, some fifteen miles north on the Coast highway, in another automobile. During the morning he drank some beer and after reaching Lakeside he bought a bottle of gin and had one or more drinks from it. Upon his return to North Bend and immediately before the accident he had several additional drinks of intoxicating liquor. From the evidence in the record the jury could have found that immediately prior to and at the time of the collision Wilson was under the influence of liquor to such a degree that he was unable to walk steadily.

The complaint alleges that Wilson was (1) the agent and employe of the defendant Rooney at the time of the accident and was driving and operating Rooney's automobile within the scope of his employment; that (2) on the day of the accident "Wilson was a reckless, incompetent, careless and unsafe driver and in the operation of an automobile was likely to cause injuries to others in the use of said automobile, all of which said defendant Rooney knew or by the exercise of ordinary care and caution could have known", and that with such knowledge the defendant Rooney wrongfully, carelessly and negligently allowed and permitted Wilson to operate Rooney's automobile "and to wrongfully, unlawfully, carelessly and negligently inflict damage and injuries upon the plaintiff"; and that (3) on September 23, 1936, and for many months prior thereto Wilson "was addicted to the use of intoxicating liquors and did frequently become under the influence of intoxicating liquors and frequently while under the influence of intoxicating liquors did negligently, carelessly, unlawfully and recklessly drive motor vehicles on the highways of the state of Oregon so as to greatly endanger the lives and property of persons upon such highways, all of which the defendant P.J. Rooney knew or in the exercise of reasonable care should have known."

The complaint alleges with much detail the specific acts of negligence charged against the defendants, which, in view of the issues here involved, need not be set forth in this opinion.

1. The appellants' opening brief contains sixty-one assignments of error. Many of them relate to the refusal of the trial court to give certain instructions requested by the defendants, and others to exceptions to some three instructions which were given by the court. Sixty instructions, covering twenty-one pages of the transcript, were requested by the defendant Rooney. We are unable to understand...