Johnson v. Los Angeles-Seattle Motor Exp., Inc., ANGELES-SEATTLE

• Decision Date: 08 June 1960
• Docket Number: ANGELES-SEATTLE
• Citation: 352 P.2d 1091,222 Or. 377
• Parties: Ruth JOHNSON, Appellant, v. LOSMOTOR EXPRESS, INC., a corporation, and George Howard Alvord, Respondents.
• Court: Oregon Supreme Court

Page 1091

352 P.2d 1091

222 Or. 377

Ruth JOHNSON, Appellant, v. LOS ANGELES-SEATTLE MOTOR EXPRESS, INC., a corporation, and George Howard Alvord, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted April 7, 1960.

Decided June 8, 1960.

William A. Martin, Portland, argued the cause for appellant. On the briefs were Davis, Jensen, Martin & Robertson, Portland.

Duane Vergeer, Portland, argued the cause for respondents. On the brief were Vergeer & Samuels and Charles S. Crookham, Portland.

Before McALLISTER, C. J., and O'CONNELL, GOODWIN and HARRIS, JJ.

GOODWIN, Justice.

Plaintiff, Ruth Johnson, appeals from a verdict and judgment for defendants Los Angeles-Seattle Motor Express and George Howard Alvord entered in the Circuit Court for Washington County.

Johnson was a passenger in an auto which she owned, but which was being driven at the time of the collision by a Mrs. Campbell, who was not a member of her family. Alvord was driving a freight truck. Both vehicles were moving north on Highway 99 between Stafford Road and Nyberg Road overpasses. The highway for some distance on either side of the scene is a four-lane interstate freeway with two northbound lanes separated from two southbound lanes by a landscaped divider strip. The two northbound lanes are marked with a broken center line and solid border lines on the right and left. Johnson was asleep in the back seat of her automobile when it was struck from the rear by the freight truck. The manner in which the collision occurred is disputed. There is no dispute that it occurred and that Johnson received severe injuries.

There are seven assignments of error, but the principal question is whether the negligence of a driver is imputed to an owner-passenger to bar recovery. Oregon is committed to the rule of imputed negligence to impose liability in a variety of relationships. See the leading exposition of the reasons for vicarious liability in Judson v. Bee Hive Auto Service Co., 136 Or. 1, 294 P. 588, 297 P. 1050, 74 A.L.R. 944.

Having recognized imputed negligence in Oregon to make certain owners liable for harm caused by their cars when driven by others, the court is now called upon to extend the concept of vicarious fault to bar recovery when a faultless owner is injured while riding as a passenger in her own car. In order to deal with the legal question, it is useful to consider the facts.

The transcript reveals sufficient evidence to present a jury question whether the negligence of the driver Campbell or that of the truck-driver Alvord, or a combination thereof, was the proximate cause of the accident.

The only control Johnson exercised over the operation of the car was in concurring from time to time in trading driving duties with Campbell. There is no evidence of any formal understanding as to when one should drive and the other rest. The two women by mutual assent simply took turns driving. There is no evidence of any driving instructions being given or received by either woman.

The journey began when Johnson decided to go by bus from Everett, Washington, to Long Beach, California, to take possession of an automobile registered in her name and in that of her husband but used by her son who was in the military service. Campbell, who had relative in Las Vegas, Nevada, also lived in Everett, and had known Johnson for about two years. Johnson asked Campbell if she would like to go along. She said yes. Each woman paid for her own bus fare, meals, and incidental expenses. Johnson bought the gasoline for the return journey, except that Campbell bought extra fuel for a side trip to Las Vegas.

The women left Everett by bus on a Friday night and arrived in Long Beach about noon the following Sunday. Any sleep they had was on the bus. They stayed in Long Beach Sunday afternoon, took delivery of the car, and drove to Las Vegas, arriving about midnight Sunday. The travelers slept in Las Vegas until about noon on Monday. They started north by way of Sacramento at 5:00 p. m. Monday, taking turns driving. They arrived in Sacramento about 5:00 a. m. Tuesday, slept till noon, then proceeded north by way of Grants Pass, again taking turns driving.

Each woman testified that when she was not driving she was sleeping or at least resting in the back seat. The last change of drivers before the accident was at Albany, where Campbell took the wheel.

There is no direct evidence that Campbell was sleepy at the time of the collision. She denied that she was. The vehicles collided about 3:00 a. m. Wednesday. Since leaving Everett five days before, the travelers had spent parts of two nights in bed, once in Las Vegas and once in Sacremento. Both testified that they obtained adequate sleep while traveling. While there is no evidence that Campbell fell asleep, a jury could have inferred that the accident was in part the fault of a sleepy driver. Under the pleadings, it was up to the defense to prove, if it could, that Campbell failed to keep the car in a single lane of traffic while driving 35 miles an hour on a freeway posted at 70 for cars and 50 for trucks.

From the evidence summarized above, the trial judge concluded that Campbell was Johnson's agent as a matter of law and that the jury could terminate its work if it found that Campbell was negligent in any one or more of the several particulars charged by the defendants and that such negligence was a contributing cause of the accident.

The trial court said:

'You are instructed that under the evidence in this case, it has been proven that the driver of the car in which plaintiff was riding was acting in the operation of the car at all times for and on behalf of the plaintiff herself; and you are therefore instructed that any act of negligence, if any, on the part of said driver would be chargeable against plaintiff the same as if it were her own act. In other words, if you find the driver of the car in which the plaintiff was riding was negligent, then such negligence would be imputed to the plaintiff.'

Johnson challenges the instruction because it imputed contributory negligence as a matter of law.

The jury could have found that the truck driver was free from negligence and may have decided the case on that basis, but if the quoted instruction was error, the error would require a new trial, as the instruction deprived the jury of the right to consider the duties of the two occupants of the car.

It cannot be said as a matter of law that Campbell was Johnson's agent under these facts. In the Oregon cases in which vicarious liability has been imposed, there has been present a recognized need for such imposition. For example, in a recent opinion which re-examined the family-purpose doctrine, and described it as 'fictitious agency', Mr. Justice Lusk quoted Judge Cardozo:

'* * * 'Finally, when the social needs demand one settlement rather than another, there are times when we must bend symmetry, ignore history and sacrifice custom in pursuit of other and larger ends.' Consciously or unconsciously, this may have been what the courts were doing when they decided to fasten upon the owner of a family car reasonability for the negligence of a member of the family while operating the car, even though there is no real agency within the legal meaning of that word.' Wiebe v. Seely, Administrator, 215 Or. 331, 346, 335 P.2d 379, 386.

Thus, the duty to pay damages falls on parents, and upon husbands, whose wives or children are using the family car and vice versa. But, in the more recent cases, recovery is not thwarted merely because the injured passenger is married to a driver who may have been partly at fault. The rule was formerly otherwise. In White v. Keller et ux., 188 Or. 378, 385, 215 P.2d 986, 989, Belt, J., wrote: 'In this jurisdiction--although the authorities are in conflict elsewhere--it is well settled that proof of ownership of an automobile is sufficient to establish a prima facie case of agency * * * [citing cases].' Many of the cases cited were cases in which liability to a third person was imposed on an owner.

But in White v. Keller et ux., supra, negligence was imputed to the owner-passenger, not because she was the wife of the driver, but because, the court said, the driver was her 'agent', presumptively at least. She was the sole owner of the auto.

We believe the trial judge below felt bound by the language in White v. Keller et ux., supra, to instruct as he did. White v. Keller says at page 386 to 188 Or., at page 989 of 215 P.2d: 'It having been shown that plaintiff was riding in the car owned by her and driven by her husband on a trip for their mutual benefit and pleasure, we think the only reasonable deduction that can be made from such evidence is that plaintiff's husband was acting as her agent and in furtherance of her interests. [Citing cases.]' Such language is difficult to distinguish from the facts before us except for the fact that here the owner of the car is unrelated to the driver. We think the case can no longer be distinguished and must be abandoned.

Recent decisions in the husband-wife, co-ownership cases have called in question the quoted language of White v. Keller....