Johnson v. Steele

• Decision Date: 07 July 1936
• Citation: 154 Or. 137,59 P.2d 237
• Parties: JOHNSON v. STEELE et al.
• Court: Oregon Supreme Court

59 P.2d 237

154 Or. 137

JOHNSON v. STEELE et al.

Supreme Court of Oregon

July 7, 1936

Department 1.

Appeal from Circuit Court, Multnomah County, Hall S. Lusk, Judge.

Action by E. A. Johnson against E. T. Steele and another, and the Texas Company. Judgment for plaintiff, and defendant Texas Company appeals.

Affirmed.

This is an appeal by the Texas Company, a California corporation from a judgment of the circuit court entered in an action instituted against this appellant and two other defendants (E. T. Steele and Phil Bewley) by the plaintiff for the purpose of recovering damages for a personal injury sustained by him June 10, 1934, when an automobile in which he was riding was struck by a truck operated by Steele and Bewley whom the plaintiff contends were employees of the appellant. The judgment was against the three defendants, but only the Texas Company has appealed.

Wendell K. Phillips, of Portland (Sheppard & Phillips and Willis Potter, all of Portland, on the brief), for appellant.

Lon Bass, of Portland (James H. McMenamin, of Portland, on the brief), for respondent.

ROSSMAN Justice.

The appellant (one of the three defendants) does not question the sufficiency of the evidence to establish negligence proximate cause, and the awarded damages, but contends that the record contains no substantial evidence indicating that the defendants Steele and Bewley, mentioned in the preceding statement of facts, and who were the sole occupants of the truck which collided with the car in which the plaintiff was riding, were appellant's agents. It further contends that if a conclusion is warranted that these two individuals were the agents of the appellant, the record contains no substantial evidence indicating that on June 10, 1934, when the truck collided with the car, the two men were acting within the scope of their authority and in furtherance of the business of their principal.

November 22, 1933, the appellant and the defendant E. T. Steele signed an instrument entitled "Commission Agency Agreement" which, after referring to the appellant as a California corporation, and to Steele as being "of St Helens, Oregon (hereinafter called the 'Agent')," provides:

"The Company hereby appoints the Agent, and the Agent hereby accepts the appointed, as Agent for the Company at St. Helens, Oregon. The Agent's surety bond will be Two thousand and no/100 Dollars ($2,000.00).

"The Agent's duties are hereby fixed by this agreement, the rules and practices of the Company, and by instructions issued by the Company from time to time.

"The Agent shall:

"(1) Strictly observe and obey the Company's instructions and faithfully perform all duties connected with his agency.

"(2) Promptly, correctly and in strict accordance with Company's instructions, account for all Company moneys, goods, products, equipment, etc., in his possession, or coming into his custody, and pay the Company for any shortages which may develop at any time.

"(3) Sell the products of the Company for cash, or on credit properly authorized, and not exchange or agree to exchange the Company's products for property or merchandise for private use or account; personally pay the Company on demand (a) the sum due on any account opened by him without authority, and (b) any portion of any credit account which has been sold in excess of the credit limit placed thereon by the Company. The Company shall not be under any obligation to make any attempt to collect such accounts nor to assign any part of such accounts to Agent until the Company shall have received full settlement thereof.

"(4) Neither (a) sell the Company's products, directly or indirectly, at less than Company's authorized prices, nor (b) enter into any secret agreements, contracts or understandings with any customer or competitor for the purpose of reducing the price of the product or controlling business.

"(5) Not use the Company's goods or funds in any way for private purposes and not cash out of the Company's funds personal checks for customers or other persons.

"(6) Not retain the amount of compensation due him from the Company from or as a charge against funds or any other property of the Company for which he is accountable.

"(7) Bear all expenses, except those mentioned in section '(3)' of clause 'Fourth' incident to the proper operation of the station covered by this agreement, including, without limiting the foregoing, (a) cost of painting, lettering and general maintenance of the bulk station facilities, service station facilities, trucks, miscellaneous equipment, when owned by the Agent; and (b) cost of handling and installing gasoline and lubricating oil pump and tank equipment, whether or not said equipment be owned by the Company, which installation and handling by the Agent, if the Company owns the equipment, shall in no manner affect the Company's title. Title to all facilities and material used in installing the Company's equipment shall pass to the Company upon completion of installation, the Agent's compensation therefor being taken into account when establishing rates of commission hereunder.

"(8) At his expense, furnish trucks and other equipment, when not supplied by the Company, in strict accordance with the Company's standards for such equipment.

"(9) At his expense, furnish all assistants and employees he may require for the proper and diligent operation of said station, and assume full direction and control over and responsibility for all such assistants and employees, and indemnify and save the Company harmless from loss arising out of or by virtue of all damage to property and/or injury to persons (whether or not such injury result in death) occasioned by the acts of the Agent, his assistants and/or employees.

"(10) Strictly abide by the provisions of the Code of Fair Competition for the Petroleum Industry promulgated by the President of the United States pursuant to the provisions of the National Industrial Recovery Act.

"(11) Not permit any assistant or employee or other person who is not of mature age and judgment to fill, handle, ship or deliver any refined oil or gasoline at or from the Agent's plant, store rooms or vehicles.

"(12) Not assign this agreement without the prior written consent of the Company.

"(13) Pay any indebtedness accruing to the Company at Seattle, Washington.

"The Company shall:

"(1) Have the right at its option to withhold any commissions, moneys or anything of value in its possession belonging to or due Agent, for the purpose of reimbursing himself for any amounts due hereunder from Agent at any time.

"(2) In the event of the termination of this agreement, have the right, for a period of not to exceed three (3) months following the date of such termination, to use, as it sees fit, all of agent's storage facilities for petroleum products located at agent's bulk plant premises at St. Helens, Oregon, and to replenish its stock of merchandise in such facilities, and sell and deliver its products from said premises, and remove all of its products and other properties therefrom during the said period, and shall pay a rental at the rate of $___per month for the period said facilities are so used.

"(3) Pay (a) freight on products shipped, (b) license fees assessed for operation of main station and (c) taxes on Company's merchandise, stock and equipment.

"(4) Pay the Agent the following commissions, ***

"In event of termination of this agreement by either party, the Agent shall not engage directly or indirectly in the business of selling or distributing petroleum products within a radius of fifty miles from the city of St. Helens, Oregon, for a period of one year from the date of such termination.

"The right of either party to require strict performance by the other hereunder shall not be affected by any previous waiver, forbearance or course of dealing.

"(1) This agreement shall continue in full force and effect until terminated by either party. (2) Any and all agreements heretofore existing in reference to Agent's employment or compensation are hereby superseded and cancelled, and no modification of this agreement shall be binding unless signed by the parties hereto. ***"

The complaint alleges that on June 10, 1934, the three defendants in conducting their business "did have possession of maintain and operate a certain International automobile truck, motor No. 3637, bearing license No. 56-003, issued by the State of Oregon for the year 1934, which said truck said defendants were on said date operating in a common and joint enterprise and were using and operating and engaged in transporting to the patrons and customers of said defendants certain oil drums of and belonging to the said business of said defendants; plaintiff further alleges that said oil drums and truck were then and there part of defendants' equipment for the carrying on and maintaining their said business and said truck was painted with the signs, trade name and trademark of the said Texas Company." It was on June 10, 1934, that the accident happened. It occurred on the Columbia River Highway near Delena. The complaint, in making the allegation just quoted, states that the truck was being operated on the Columbia River Highway near Delena. The answer, after denying all averments of the complaint "save and except such allegations as may be specifically admitted in these defendants' further and separate answers," avers that on the 22d day of November, 1933, the appellant and Steele executed the contract aforementioned, and then alleges: "During all the times mentioned in the plaintiff's complaint and prior thereto the said E. T. Steele is and was an independent contractor. *** Nor did they (the appellant) have any right to control the operation...