Houston v. Keats

• Decision Date: 17 July 1917
• Citation: 166 P. 531,85 Or. 125
• Parties: HOUSTON v. KEATS ET AL.
• Court: Oregon Supreme Court

166 P. 531

85 Or. 125

HOUSTON v. KEATS ET AL.

Supreme Court of Oregon

July 17, 1917

Department 2.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by Mary M. Houston against H. L. Keats and another. Judgment for plaintiff, and defendants appeal. Affirmed.

This is an action for personal injuries brought by Mary M. Houston against H. L. Keats and W. N. Jones, partners as H. L. Keats Auto Company. It appears from the evidence that on August 1 1915, plaintiff got off a south-bound car at the intersection of Union avenue and Broadway in the city of Portland intending to transfer to a Broadway car. About the time that she reached the curb one of the defendants' automobiles ran her down, pushing her violently against a telegraph pole. It is conceded that the driver of the car was intoxicated that he was driving at an excessive speed, and that he violated a city ordinance in passing by the side of a car from which passengers were alighting. The evidence clearly proves the injuries sustained by plaintiff. The defendants contend that A. J. Chance, the driver of the auto, was not their servant, but an independent contractor for whose negligence they are not responsible. The jury found for plaintiff on this issue, and a judgment in her favor in the sum of $3,000 was entered on the verdict. Defendants appeal.

S. C. Spencer, of Portland, and T. H. Crawford, of La Grande (Wilbur, Spencer & Beckett, of Portland, and Crawford & Eakin, of La Grande, on the brief), for appellants. I. N. Smith, of Wallace, Idaho (Logan & Smith, of Portland, on the brief), for respondent.

McCAMANT J. (after stating the facts as above).

The assignments of error most insisted upon are based on the denial of defendants' motions for a nonsuit and for a directed verdict. It is contended that there is no evidence that Chance was in the employ of defendants, that they exercised any control over him, or that he was engaged in any undertaking in which the defendants were interested at the time when plaintiff was injured. The evidence is to the effect that defendants rent from the Wemme estate a two-story building on Broadway in the city of Portland extending from Burnside to Couch street. Chance applied to the defendants in July, 1915, to rent a portion of this building for the sale of used autos and for other purposes. The evidence is fairly clear that the defendants refused to rent him the space because he was without funds and unable to pay rent in advance. Chance had been in the automobile business at Vancouver, B. C. He had sold out this business and was expecting payment of the purchase price within a few days. A temporary arrangement was made under which some space in the building was turned over to Chance, and a number of the defendants' used cars were also intrusted to him for sale. The price of these cars was approximately 10 per cent. higher than that which would otherwise have been charged, the defendants expecting to secure in this way a sum equivalent to a reasonable rent. The arrangement was a temporary one, and the evidence of defendants is to the effect that they would have terminated the association if Chance had failed to sell cars or pay rent under an arrangement tentatively agreed upon. Chance was told to miss no sales on account of price provided the purchaser was willing to pay somewhere near the price quoted. In such case, he testifies, he was to report the facts to Mr. Harris, the defendants' sales manager, and to be guided by Harris' instructions. With the consent of defendants Chance put his own name on the window. He did some business in repairing autos, and also conducted a school for instruction in such repair.

It appears by the testimony of defendant Keats that he instructed Chance that the cars intrusted to him were not to be used for pleasure, but only for business purposes. This witness testifies that the business in view was the sale of the cars, and that a demonstration of the car is usually "a part of the sale." Mr. Keats testified on this subject as follows:

"Q. Suppose you had seen him out with your car on a pleasure trip alone, and you would have known that it had been a pleasure trip; you would have protested, wouldn't you? A. Yes. Q. And perhaps you would have canceled the alleged contract between you? A. I certainly would have called him on the carpet for it, and I would have a right to cancel it."

Chance testifies that on July 31st Mr. Harris, sales manager for the defendants, brought a prospective purchaser of an automobile to Chance; that Chance took him for a short ride for demonstration purposes on the evening of that day, and was engaged in a further demonstration of the car to this same prospective purchaser at the time of the accident. Mr. Harris takes issue with the above testimony.

It clearly appears that the sale of used or secondhand autos is a part of defendants' business. It is expressly conceded that the car which ran down plaintiff was the property of defendants.

Where plaintiff proves that the vehicle which caused the damage belonged to the defendant, the jury is entitled to infer that the driver was defendant's servant, and that the vehicle was being used for defendant's purposes. The principle is thus stated in 1 Shearman & Redfield on Negligence (6th Ed.) § 158:

"When the plaintiff has suffered injury from the negligent management of a vehicle, such as a boat, car, or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant to show that he was the owner of the thing, without proving affirmatively that the person in charge was the defendant's servant. It lies with the defendant to show that the person in charge was not his servant, leaving him to show, if he can, that the property was not under his control at the time, and that the accident was occasioned by the fault of a stranger, an independent contractor, or other person, for whose negligence the owner would not be answerable."

The rule is supported by the following cases: Norris v. Kohler, 41 N.Y. 42, 44, 45; Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406, 407, Ann. Cas. 1916D, 1161; Doherty v. Lord, 8 Misc. Rep. 227, 28 N.Y.S. 720, 723; Edgeworth v. Wood, 58 N. J. Law, 463, 33 A. 940, 942; O'Malley v. Heman Co., 255 Mo. 386, 164 S.W. 565, 566; Fleishman v. Polar Co., 148 Mo.App. 117, 127 S.W. 660, 662-665; Wiedeman v. St. Louis Taxicab Co., 182 Mo.App. 523, 165 S.W. 1106; Howell v. Mandelbaum, 160 Iowa, 119, 140 N.W. 397, 399, Ann. Cas. 1915D, 349; Langworthy v. Owens, 116 Minn. 342, 133 N.W. 866, 867; Knust v. Bullock, 59 Wash. 141, 143, 109 P. 329; Kneff v. Sanford, 63 Wash. 503, 505, 115 P. 1040; Burger v. Taxicab Co., 66 Wash. 676, 678, 120 P. 519; Purdy v. Sherman, 74 Wash. 309, 310, 133 P. 440.

These authorities proceed on the theory that the facts are peculiarly within the defendant's knowledge, and if the vehicle is not in use for the defendant's purposes he can readily furnish the necessary proof. The admission of ownership made by the defendants in the case at bar was therefore sufficient to make out a prima facie case on the controverted questions. It is squarely held in Kahn v Home Telephone & Telegraph Co., 78 Or. 308, 314, 152 P. 240, that in every case it is for the jury to say whether this prima facie showing has been met by the defendant's testimony. The correctness of this decision is vigorously attacked by counsel f...