Kantola v. Lovell Auto Co.

• Citation: 72 P.2d 61,157 Or. 534
• Parties: KANTOLA v. LOVELL AUTO CO. [*]
• Decision Date: 19 October 1937
• Court: Supreme Court of Oregon

72 P.2d 61

157 Or. 534

KANTOLA v. LOVELL AUTO CO. ^[*]

Supreme Court of Oregon

October 19, 1937

Department 2.

Appeal from Circuit Court, Clatsop County; Howard K. Zimmerman Judge.

Action by Lillian Kantola against the Lovell Auto Company, a corporation. Judgment for the plaintiff, and defendant appeals.

Reversed.

A. C. Fulton, of Astoria (G. C. & A. C. Fulton, of Astoria, on the brief), for appellant.

F. M Franciscovich, of Astoria (Hesse & Franciscovich, of Astoria on the brief), for respondent.

RAND Justice.

The plaintiff brought this action to recover damages for injuries received in a collision between an automobile in which she was riding and one belonging to the defendant, which was then being driven by one John Kildall, a boy about 15 1/2 years of age. It is alleged in the complaint, and for the purposes of this case we shall assume, that the boy's negligence caused the accident. The case is here upon an appeal from a judgment in favor of the plaintiff.

The defendant is a corporation engaged in the business of buying and selling new and used cars in Astoria, and the car in question was a used car. It appears from the evidence, and it is undisputed, that just prior to the accident the defendant, with the consent of the boy's mother, delivered the car to the boy for the purpose of having him show it to his mother in order to induce her to purchase it for him so that he could use it in distributing a magazine, the agency of which he expected to secure. Once before the same car had been delivered to the boy for the same purpose, and at that time he had driven his mother to church.

The evidence further shows that one of defendant's salesmen had on several occasions called on the mother for the purpose of selling this particular car to her.

It is undisputed that the boy was not in the employ of the defendant company and that the car was delivered to him for the special purpose above stated.

The plaintiff contends that the transaction of delivering the car to the boy for that special purpose and the benefit which would have resulted to the defendant had the mother purchased the car were sufficient to constitute the boy as an agent of the defendant and to render the defendant liable for the boy's negligence.

We think that the transaction created a bailment and not an agency, and that, if the boy was the agent of any one, he was the agent of his mother for whom he was acting.

"Agency," as defined by the American Law Institute, Restatement of Agency, § 1, "is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act."

It appears from the evidence that on the day of the accident the boy applied to the manager of the defendant company for permission to take the car and stated to him that he wanted to take the car and show it to his mother and have her purchase it for him so that he could use the same for the purpose above stated, and was informed he could not take the car unless he first obtained the consent of his mother to his so doing; that the boy then went away and in a few moments returned and stated that his mother consented to his taking the car for that purpose; that the car was then delivered to the boy and that he drove it away, and, from that time on until after the accident, it was under the exclusive control of the boy, and nothing done by him in the operation of the car was done in the presence of any officer, agent, or employee of the defendant company.

It is clear that, after the boy had received delivery of the car and driven it away, the defendant company could exercise no control, either actual or potential, over its operation, and therefore was not responsible for the boy's negligence in the absence of the relationship of principal and agent or master and servant.

In an analogous case, Gulf Refining Co. v. Ray Motor Co., 129 Me. 499, 152 A. 226, one Whelden, who was considering the purchase of an automobile, went to defendant's place of business and was shown by a salesman of the defendant a secondhand car. Whelden and the salesman took the car out and drove it a short distance, when Whelden said it appeared to be all right but that he would like to have his wife see it and asked the salesman to drive it over and show it to his wife, but the salesman said he was unable to do so and told Whelden to take the car over himself. Whelden drove away with the car, got drunk, had a collision and, as the opinion recites, "ended his adventure in jail." It was contended there, as here, that the transaction made Whelden an agent of the company. In denying this contention, the court said: "To hold that he was acting as agent for the company in persuading his wife to buy the car, not only finds no support in the evidence but contemplates a relationship of the parties which even to the casual observer seems absurd."

A commonly accepted definition of bailment is a delivery of something of a personal nature by one party to another, to be held according to the purpose or object of the delivery, and to be returned or delivered over when that purpose is accomplished. 1 Bouv. Law Dict. Rawle's Third Revision, p. 313. According to this definition, the transaction involved here was a bailment.

As a general rule, a bailor not in control of the subject of the bailment is liable to a third person negligently injured thereby only in case he himself, or some one acting for him has been negligent in respect to some duty owed to such person or to the...