Johnson v. Ladd
| Decision Date | 15 December 1931 |
| Citation | 138 Or. 371,5 P.2d 1062 |
| Parties | JOHNSON v. LADD. [*] |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Action by Anna Johnson against Thornton Ladd. Defendant's motion for an involuntary nonsuit was granted, and plaintiff appeals.
Reversed and remanded.
William P. Lord, of Portland (Lord & Moulton, of Portland, on the brief), for appellant.
Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for respondent.
Plaintiff was employed as a cook by the defendant. One day a week it was her duty to relieve the nursemaid. Defendant was on a journey to Europe, and was away from his home for some considerable time. Before leaving, he instructed plaintiff to take the children for an automobile ride in the automomile of defendant when suggested by Mr. Anderson, who was in the employ of the defendant as a gardener, and, to a certain extent, as a caretaker of the premises, in the absence of defendant. A certain Franklin car belonging to defendant was placed at the disposal of the gardener, with the instructions that, when he had occasion to use the car in connection with his duties, in getting supplies, etc., he was to take the plaintiff and the children along when it was convenient; that on April 8, 1927, the plaintiff, in obedience to the instructions so given by defendant, went for a ride, and took the youngest child along with her in the car owned by defendant and driven by Anderson; that, while returning from Portland to the home of defendant, plaintiff alleges that Anderson was negligent in the operation of the automobile; that he was driving too fast, and failed to keep a proper lookout ahead; that, in attempting to pass a motortruck which had signaled that it intended to turn to the left, he failed to notice said signal, and was forced off the highway, and ran the machine against a telephone pole injuring plaintiff; that by reason of the accident her eyesight was impaired and her hearing rendered defective that she was obliged to incur hospital and medical bills in the sum of $447.17; and that she was unable to perform any services for a long time. She alleges general damages in the sum of $20,000.
The defendant filed an answer, admitting in effect that the accident had taken place in the manner specified in the complaint. For a further and separate answer, defendant set up the defense that plaintiff and said Anderson, who was driving the car, were fellow servants engaged in a common employment, and, if there was any negligence it was on the part of her fellow servant, Anderson. For a second separate answer and defense, he alleged a state of facts amounting to assumption of the risk on the part of plaintiff. For a third separate answer and defense, he alleged that there was another action pending between the same parties and over the same subject-matter.
Plaintiff in her reply filed a general denial to the allegations in all of the separate answers.
On November 13, 1930, the case came on for trial before the court and jury. The plaintiff offered evidence tending to support the allegations of her complaint and tending to show that the chauffeur was an employee of defendant, but had nothing to do with the cooking or the care of the children; that the trip in question was made by the chauffeur to get glass for a greenhouse. Plaintiff rested. Defendant thereupon moved the court for an involuntary nonsuit, which was granted. Plaintiff appeals.
The question to be determined in this case is: Were the plaintiff and Anderson, the driver of the car, fellow servants, under legal definition of that term, so that the doctrine of the negligence of a fellow servant and the assumption of the risk of such negligence would release the employer from liability?
It is contended by the defendant that whatever injuries the plaintiff received were due to the negligence of a fellow servant. It is admitted that there is evidence tending to show that the driver of the automobile was negligent; that the accident occurred by reason thereof; and that this negligence was the proximate cause of the injury sustained by plaintiff.
It is impossible to reconcile the decisions of the courts of the different states on this question. Innumerable cases are collected in the notes to the article on Master and Servant, 18 R. C. L. 741 et seq.; 39 C.J. 544 et seq. Neither is it possible to reconcile the definition of the different courts of last resort as to who are "fellow servants" and what is "common employment." There is a superabundance of authority either way.
The case of Farwell v. Railroad Company, 4 Metc. [Mass.] 49 is usually regarded as the leading case in which the doctrine of fellow servants was first clearly annunciated and its principles engrafted into our law. "The rule, as there stated by the eminent judge who delivered the opinion, is to the effect that all...
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Cosar v. Bemo, 36187
...more properly came within the sphere of Cosar's regular employment. In some of these aspects of the case it is similar to Johnson v. Ladd, 138 Or. 371, 5 P.2d 1062, in which it was held that a gardener authorizedly driving his employer's automobile, and a nursemaid employee of the same empl......
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Norwood v. Eastern Oregon Land Co.
... ... Only upon such matters ... is the judgment conclusive in another action." ... In ... White v. Ladd, 41 Or. 324, 68 P. 739, 741, 93 Am ... St. Rep. 732, it is said: "The potency of a judgment as ... an estoppel concludes every fact ... ...
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Johnson v. Ladd
...against Thornton Ladd. From the judgment, defendant appeals. On motion to remand bill of exceptions. Motion denied. See, also, 138 Or. 371, 5 P.2d 1062. Lord & Moulton, of Portland, for the Senn & Recken, of Portland, opposed. BEAN, C.J. The respondent moves the court to remand the bill of ......