Judson v. Bee Hive Auto Service Co.
| Citation | 297 P. 1050,136 Or. 1 |
| Parties | JUDSON v. BEE HIVE AUTO SERVICE CO. |
| Decision Date | 14 April 1931 |
| Court | Supreme Court of Oregon |
In Bank.
Appeal from Circuit Court, Multnomah County; James Alger Fee, Judge.
On rehearing.
Judgment reversed, and action dismissed.
For original opinion, see 294 P. 588.
P.J. Gallagher, of Portland (Gallagher & Conway, of Portland, on the brief), for appellant.
Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for respondent.
This is an action to recover damages for personal injuries sustained in an automobile collision. On original hearing, this court affirmed a judgment in favor of plaintiff for $10,000. 294 P 588. Defendant urges that error was committed in holding that there was evidence to support the verdict. Believing that pride of opinion should not preclude correction of error, we will again give careful consideration to this case, thus following the admonition of an ancient lawgiver: "If today thou seest fit to judge differently from yesterday, do not hesitate to follow the truth as thou seest it; for truth is eternal, and it is better to return to the true than to persist in the false."
It is admitted that the automobile driven by Charles N. Mills was owned by the defendant and that it was used with his knowledge and consent. It is the theory of the plaintiff that, at the time of the accident, Mills was operating the automobile as agent or servant of the defendant and for its benefit. Defendant denied that Mills was its agent or servant and alleged affirmatively that the automobile was being driven under contract of lease and for Mills' own use and benefit. The sole question involved on appeal is whether the court was warranted in submitting to the jury the issue of agency. It was, of course, incumbent upon plaintiff to establish by the greater weight of the evidence that Mills in driving the automobile, was an agent of the defendant and was acting for the latter's benefit. If, in fact, Mills had rented the car, as alleged by the defendant, it is conceded there could be no recovery in this action. Plaintiff says, in effect, that whether Mills was an agent or a bailee was a matter for the determination of the jury. Defendant contends that, in the light of the record, it was for the court to declare, as a matter of law, that Mills was a bailee.
While the authorities are conflicting elsewhere, this court is committed to the rule that, in such cases, proof of ownership alone constitutes a prima facie case of agency. True, in Kahn v. Home Telephone & Telegraph Co., 78 Or. 308, 152 P. 240, 241, it was held that a prima facie case of agency must be based upon something in addition to proof of ownership. In that case, Justice McBride, speaking for the court, said:
"* * * the fact that a person is in possession of the automobile of another, and the additional fact that he is shown to have been employed by the owner to drive and care for it, taken together, form a chain of circumstantial evidence from which a jury is authorized to infer the further fact that the employee is using the machine upon the employer's business."
However in Houston v. Keats Auto Co., 85 Or. 125, 166 P 531, 532, it was held:
"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." Citing to the same effect Shearman & Redfield on Negligence (6 Ed.) § 158.
In West v. Kern, 88 Or. 247, 171 P. 413, 415, 1050, L. R. A. 1918D, 920, Justice Harris, after an exhaustive review of the authorities, concluded:
"We adhere to the doctrine towards which the opinion in Kahn v. Home Tel. & Tel. Co. [78 Or. 308, 152 P. 240] supra, inclines and for which the opinion in Houston v. Keats Auto Co. [85 Or. 125, 166 P. 531] supra, pronounces, and we hold that proof of ownership makes a prima facie case against the owner."
The above statement of the law was quoted with approval in Doherty v. Hazelwood Co., 90 Or. 475, 175 P. 849, 177 P. 432. Also see Sather v. Giaconi, 110 Or. 433, 220 P. 740. That the rule thus announced is in keeping with the weight of authority, see exhaustive note in 42 A. L. R. 900, wherein numerous cases are collated under title, "Prima facie case from proof of ownership alone." Also see authorities listed in A. L. R. Blue Book of Supplemental Decisions (1929) p. 529.
It is argued that, if proof of ownership alone be considered sufficient to make out a prima facie case, one must presume (1) that the operator was the agent of the owner, and (2) that the agent was acting within the scope of his employment. It is insisted that such cannot be done for the reason that an inference cannot be based upon an inference. This contention, in our opinion, is untenable, although there is authority to support it, because it involves the splitting of one inference into two. Ownership implies the right of possession and control. It is a statutory presumption (section 9-807, subdivision 12, Oregon Code 1930) "that a person is the owner of property from exercising acts of ownership over it. * * *" We think, therefore, that when a person is found in possession of a car and is operating it, it is not an unreasonable deduction that he is the agent of the owner and is using the automobile for the latter's benefit. Experience teaches that when automobiles are involved in accidents they are ordinarily being operated by the owner or by some one for whose negligence he will be responsible.
This doctrine of respondeat superior is just and wholesome. An automobile is potentially a dangerous instrument as evidenced by the appalling number of accidents in recent years. In these days of "hit and run" drivers the party injured does well to prove the ownership of the automobile, aside from any question of establishing the fact that the driver was acting within the scope of his agency. Ordinarily plaintiff is not in a position to prove those things which are peculiarly within the knowledge of the owner. Most courts consider it just and reasonable to require that defendant go forward with the evidence and rebut the inference of agency by showing that, in truth and in fact, he is in no manner responsible for the acts of the driver. This does not mean that the burden of proof relative to the question of agency is to be shifted from the plaintiff to the defendant. The burden of proof never shifts from the party who has the affirmative of an issue, but the burden of proceeding with the evidence sometimes does. The law, in effect, says to the owner, "If you do nothing to explain your relationship to the driver of the automobile, the jury may infer that he was acting in your behalf."
In the light of the authorities, plaintiff established a prima facie case of agency. The trial court was right in denying the motion for nonsuit. At this stage of the trial a reasonable inference could be drawn from the fact of ownership that Mills was the agent of defendant and was using the car for his benefit. The defendant, to rebut the charge of agency, introduced evidence to show that for several years it had been engaged in the business of renting "drive yourself" cars in the city of Portland; that Mills had never been in its employ; and that, at the time of the accident, the automobile was rented to him. A written contract showing the rental of the car by defendant to Mills was received in evidence. Mills admitted its execution. There was no contradiction of this evidence concerning the rental of the automobile; hence it follows that the inference arising from mere ownership no longer obtained.
Plaintiff asserts that an "inference" or "presumption" is evidence under the statute of this state and that its weight as against that of the defendant is a matter exclusively within the province of the jury to determine. In other words, plaintiff, in effect, says:
Section 9-801, Oregon Code 1930, provides that:
In the following section of the statute an "inference" is defined as "a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect." In the next section, a "presumption" is thus defined: "A presumption is a deduction which the law expressly directs to be made from particular facts." Under the statute there are conclusive presumptions and disputable presumptions. Section 9-805 of the Code provides that:
"A presumption, unless declared by law to be conclusive, may be overcome by other evidence, direct or indirect; but unless so overcome, the jury are bound to find according to the presumption."
In this court, as in many other jurisdictions, the terms "inference" and "presumption" have been improperly used interchangeably although there is a clear distinction between them. It was recognized by Justice McBride in Kahn v. Home Tel. & Tel. Co., supra. When the terms have been used interchangeably, most courts have had in mind presumptions of fact and not of law. Presumptions of fact may more properly be termed inferences. An inference is a deduction from facts which reason dictates, but a presumption, in its true sense, is an arbitary conclusion which the law directs to be made from certain facts. If you look through the window and see some one carrying a raised umbrella, you might reasonably infer that it is raining, but there would be no presumption that it is raining.
Among the disputable...
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