Kahn v. Home Telephone & Telegraph Co. of Portland

• Decision Date: 19 October 1915
• Citation: 78 Or. 308,152 P. 240
• Parties: KAHN v. HOME TELEPHONE & TELEGRAPH CO., OF PORTLAND.
• Court: Oregon Supreme Court

152 P. 240

78 Or. 308

KAHN v. HOME TELEPHONE & TELEGRAPH CO., OF PORTLAND.

Supreme Court of Oregon

October 19, 1915

Department 1.

Appeal from Circuit Court, Multnomah County; D. R. Parker, Judge.

Action by J. C. Kahn against the Home Telephone & Telegraph Company of Portland, Or. Judgment for plaintiff, and defendant appeals. Affirmed.

This was an action for personal injuries. The testimony on behalf of plaintiff tended to show that, while attempting to board a street car at the corner of First and Morrison streets, in Portland, he was run against and injured by an auto truck owned by defendant and driven by defendant's chauffeur that there were two other employés of defendant in the truck at the time, and that it also contained a quantity of wire and other material owned by defendant and used by it in the construction and operation of its lines. The testimony for defendant was elicited principally from Brown, the chauffeur who was in charge of the truck, and Raser and Morgan, two employés, who had been engaged that day in repairing defendant's telephone lines. Brown testified, in substance, that they had been at work at East Thirty-Ninth and Belmont streets, on the east side of the Willamette river, and a considerable distance from the place of the accident, which was on the west side; that he kept the truck at his home on the east side, and had no work or errand for the company on the west side; that upon the evening of the accident after the work was done he had an errand of his own namely, to get a phonograph that he had left at a music store on the west side, and instead of going home came across the river to perform this errand; that he had no permission to use the truck on his own business, but that he guessed drivers generally did so if there was nothing said; that he was not in the habit of taking the truck out at any time he wished, and never took it off the premises on his own business after he had once taken it home, but that he sometimes took the workmen to dinner in it if it was handy to do so, and usually took them to the place where they could take the street car for their homes if it was not too far out of the way; that Morgan was foreman of the work, and on the evening in question he asked witness if he was going over on the west side, and when witness said yes, Morgan got in and rode over with him; that Raser also asked permission to go and witness took him over. Morgan and Raser both lived on the east side, and usually took the car for their homes on that side, although Morgan sometimes took the trolley on the west side. Morgan testified that he was foreman of the work and had been in charge about a week; that the crew quit work at Thirty-Ninth street at about a quarter of 6 o'clock; that he asked Mr. Brown if he was going to town, and he said yes, and witness then asked him if he could ride with him, and Brown said all right; that Raser was inside the wagon, and also came along; that witness had some shopping to do at the butcher shop and grocery store on the west side; that he had no company business on the west side, and that the proper way for him to have gone home from his work was to have taken a car at Hawthorne avenue and Thirty-Ninth street, about five blocks from the place where the crew were when they ceased work for the day; that he did not come over on the west side to catch a car home; that he reported the accident to his company next morning because it was his duty to do so; that Mr. Brown had reported it, and they asked witness how it was, and he told them. Raser testified that he went over to look at a pair of shoes on the west side; that he lived at St. Johns on the east side. Upon the close of the testimony defendant moved for a directed verdict, but the motion was denied. Upon the argument counsel for plaintiff severely attacked several of defendant's witnesses, and his alleged intemperate language was objected to and is alleged here as one of the reasons why this cause should be reversed. The plaintiff had a verdict and judgment, and defendant appeals.

R. W. Montague, of Portland (Wood, Montague & Hunt, and M. M. Matthiessen, all of Portland, on the brief), for appellant. W. E. Farrell, of Portland (Davis & Farrell, of Portland, on the brief), for respondent.

McBRIDE, J. (after stating the facts as above).

Only two questions are presented on this appeal; the first being as to the sufficiency of the testimony to justify a verdict for plaintiff, and the second, the strictures of plaintiff's counsel during the argument.

It is clearly shown that the defendant was the owner of the automobile; that the driver was a person regularly employed by it to drive it, and that the accident happened through his negligence. These facts being shown, the plaintiff contended in the court below, and contends here, that a presumption arose that the driver was using the automobile in the company's business, which authorized the jury to find for the plaintiff under the rule of respondeat superior notwithstanding the testimony of the defendant's witnesses that the machine was being used by them upon their private business without permission of the company. It has been frequently held by the courts that where an automobile is operated by a person employed for that purpose, it will be presumed that he is acting within the scope of his authority and about his employer's business. If he is not so operating it, this is a fact peculiarly within the knowledge of the employer, and the burden is upon him to overthrow this presumption by evidence of which the law presumes he is in possession. Huddy on Automobiles (3d Ed.) § 281; Long v. Nute, 123 Mo.App. 204, 100 S.W. 511; Moon v. Matthews, 227 Pa. 488, 76 A. 219, 29 L. R. A. (N. S.) 856, 136 Am. St. Rep. 902; Ludberg v. Barghoorn, 73 Wash. 476, 131 P. 1165; Purdy v. Sherman, 74 Wash. 309, 133 P. 440; Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59; Langworthy v. Owens, 116 Minn. 342, 133 N.W. 867. By the terms, "raises a presumption," "will be presumed," and other similar language used in the decisions above cited, it is evident it is not meant that the circumstances of the use or possession of an automobile by an employé of the owner raises any presumption of law that the person in charge of it is using it upon the business of the master, but rather that such facts are sufficient to justify a jury in inferring that such is the case; in other words, 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 employé is using the machine upon the employer's business. This being the case, the owner is called upon to rebut the evidence of these circumstances by showing, by testimony satisfactory to the jury, that the real fact is otherwise; that notwithstanding the testimony introduced by plaintiff presents those circumstances which usually justify the inference that the machine is being used for his business and by his authority, the actual fact is that the employé is not so using the machine, but is taking it in connection with his own business and in performance of errands not connected with his employment. The inference to be drawn from the facts shown by the testimony adduced on behalf of plaintiff is similar in principle and effect to that arising from evidence of the recent possession of stolen property, which it is said presents an evidential fact to be considered by the jury with other facts shown in the case in determining the guilt or innocence of the accused. State v. Pomeroy, 30 Or. 16, 46 P. 797.

We are of the opinion...