Judson v. Bee Hive Auto Service Co.

• Decision Date: 16 December 1930
• Citation: 136 Or. 1,294 P. 588
• Parties: JUDSON v. BEE HIVE AUTO SERVICE CO.
• Court: Oregon Supreme Court

294 P. 588

136 Or. 1

JUDSON v. BEE HIVE AUTO SERVICE CO.

Supreme Court of Oregon

December 16, 1930

Department 2.

Appeal from Circuit Court, Multnomah County; James Alger Fee, Judge.

Action by Herbert Judson against the Bee Hive Auto Service Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

P.J. Gallagher and J. F. Conway, both of Portland, for appellant.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for respondent.

BELT J.

This is an action to recover damages for personal injuries sustained in an automobile collision alleged to have been caused by the negligence of the defendant. It is admitted that defendant was the owner of the automobile driven by C. M. Mills at the time of the accident and that Mills was driving it with the owner's knowledge and consent. There was evidence tending to show that the alleged negligence of the driver of the automobile owned by defendant was the proximate cause of plaintiff's injuries. Defendant, in its answer, denied the charge of negligence and alleged as affirmative defenses (1) Contributory negligence; and (2) that defendant had leased the automobile to Mills and that he was using the same for his own use and benefit.

Verdict and judgment were had for the plaintiff. Defendant appeals asserting that it was entitled to a directed verdict.

The sole question involved is whether or not proof of ownership of the automobile, together with the further fact that it was being driven with the knowledge and consent of the defendant, constitutes a prima facie case, or one that is sufficient to go to the jury. This court, in a long line of decisions, has answered such question in the affirmative. Kahn v. Home Telephone & Telegraph Company, 78 Or 308, 152 P. 240; Houston v. Keats Auto Co., 85 Or 125, 166 P. 531; t v. Kern,

88 Or. 247, 171 P. 413, 1050, L. R. A. 1918D, 920; Doherty v. Hazelwood Company, 90 Or. 475, 175 P. 849, 177 P. 432; Sather v. Giaconi, 110 Or. 433, 220 P. 740, 742. It is clear that from such facts a presumption arose that the automobile was driven by the agent of the defendant and that he was acting within the scope of his employment. Such presumption, under the statute, is evidence. Section 793, Or. L., provides that indirect evidence is of two kinds: (1) Inferences; and (2) presumptions. Section 797, Or. L., provides:

"A presumption * * * may be overcome by other evidence, direct or indirect; but unless so overcome, the jury are bound to find according to the presumption."

Whether this disputable presumption was overcome by evidence of the defendant was a question of fact for the jury to determine. It is not for this court to weigh conficting evidence. Particularly is this true in view of article 7, § 3c, of the Constitution of the State of Oregon, which provides:

"* * * No fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict."

It...