Knapp v. Standard Oil Co. of California

• Decision Date: 08 June 1937
• Citation: 156 Or. 564,68 P.2d 1052
• Parties: KNAPP v. STANDARD OIL CO. OF CALIFORNIA et al.
• Court: Oregon Supreme Court

68 P.2d 1052

156 Or. 564

KNAPP v. STANDARD OIL CO. OF CALIFORNIA et al.

Supreme Court of Oregon

June 8, 1937

Department No. 1.

Appeal from Circuit Court, Umatilla County; Calvin L. Sweek, Judge.

Action by Verlie Louise Knapp against the Standard Oil Company of California and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Charles Z. Randall, of Pendleton (Fee & Randall, of Pendleton, on the brief), for appellant Hampton.

John F Reilly, of Portland (Wilson & Reilly, of Portland, on the brief), for appellant Standard Oil Co.

John F Kilkenny, of Pendleton (Raley, Kilkenny & Raley, of Pendleton, on the brief), for respondent.

RAND Justice.

The plaintiff, while riding as a guest in an automobile driven by one B. F. Gill sustained personal injuries in a collision between that and another automobile owned and driven by A. L. Hampton, an employee of the Standard Oil Company of California. The collision occurred shortly after dark on the evening of June 29, 1936, on the Pendleton-John Day Highway about 20 miles south of Long Creek. Hampton at the time was returning from Pendleton where he had been on business for his employer. Plaintiff brought this action to recover damages from Hampton and the company and obtained a verdict and judgment against both defendants for the sum of $3,500 as special and general damages, and both defendants have appealed.

The defendant company relies solely upon the overruling of its motions for nonsuit and for a directed verdict, while Hampton assigns as error the admission in evidence of a photograph Plaintiff's Exhibit J, and the refusal of the court to give one of his requested instructions. These are the only questions presented for decision upon this appeal.

The plaintiff based her cause of action upon the alleged negligence of Hampton in driving on the wrong side of the road. The defendants in their joint answer denied any negligence upon Hampton's part and alleged that the accident was caused solely by the negligence of Gill in driving on the wrong side of the highway. The trial court submitted this issue to the jury under instructions to which no exception was taken and, by the verdict, the issue has been determined against the defendants.

In support of its contention that its motions were improperly overruled, the defendant company contends that the evidence wholly failed to show that at the time of the accident the defendant Hampton was acting in the course of his employment or performing any duty which he owed to the defendant company. Its argument is that since, at the time, he was driving his own automobile and had exclusive control over its operation, the defendant company is not responsible for his negligence if he was negligent in the operation thereof.

As a part of her case in chief, the plaintiff called the defendant Hampton as a witness in her behalf, and he testified that he had been employed by the defendant company for the last fifteen years and, for his services, was paid a monthly salary; that his duties were to promote the sales of Standard Oil products, call on customers, and instruct other employees of the defendant company who were selling its products on commission; that his territory consisted of parts of Grant and Harney counties and included the towns of Burns, Harney, Crane, Seneca, John Day, and Prairie City; that, in performing these duties, he had furnished his own automobile while traveling on company business up to April, 1936, and had received compensation therefor from the company; that, since said time, the company had furnished him with an automobile to be used when traveling on company business; that he was supposed to work eight hours each day, but was subject to call whenever the same was necessary; that he, shortly prior to the accident, had changed his residence to Burns and was residing there at the time of the accident; that on Saturday, June 27, 1936, two days before the accident, while in Burns, he was directed by Mr. Vivian, a district sales manager of the defendant company and one of his superior officers, to attend a meeting of its agents to be held on the following Monday in Pendleton, Or., for the purpose of promoting the sale of RPM motor oil, a new product that had been developed by the defendant company; that he left Burns on Sunday in his own automobile, taking his wife and two daughters, who were going to Walla Walla to visit; that he reached Pendleton on Sunday, attended the meeting on the following day, and, at the close of the meeting, about 5 o'clock in the afternoon, he started back, traveling alone and carrying with him certain pamphlets and literature that had been delivered to him by the company; that he intended to reach John Day that night and stop over there for the purpose of transacting some business for the company on the following day; that, while so returning and before reaching John Day, the collision occurred. He also testified that Pendleton is about 200 miles from Burns, and 128 miles from John Day; that there was railroad service between Burns and Pendleton, but that, after receiving the instructions to go to Pendleton, there was no train leaving Burns for Pendleton until the following Monday morning; and that, if he had taken it, he would have reached Pendleton too late for the meeting. His evidence also shows that the road he traveled in going to and from Pendleton was shorter than any other route he could have taken.

There was no other evidence offered in the case which in any way contradicted the evidence given by Hampton as to the relationship existing between him and the defendant company at the time of the accident or as to the purpose for which he was driving his own automobile and being at the place where he was at the time of the collision which caused plaintiff's injury. It is obvious from his testimony, however, that, upon the adjournment of the meeting in Pendleton, which he had been directed to attend, Hampton was under the same duty to return to the place of his employment and to resume the performance of his duties there as he was in the first instance to go to Pendleton, and it was for that purpose only, and not for any exclusive purpose of his own, that he was returning to John Day, where he intended to stop over for the night and transact business for the company on the following day. That being so, he was acting within the course of his employment and performing a duty which he owed to the defendant company when the collision occurred and, for this reason, the contention that the relationship of master and servant did not exist between him and the defendant company at the time of the accident cannot be maintained.

It is a rule of general application that negligence in the conduct of another will not be imputed to a party if he neither authorized such conduct or participated therein, nor had the right or power to control it.

It is true that the evidence to which we have referred fails to establish any express direction for Hampton to return to John Day, but under this evidence proof of an express direction was not essential. Authority to do an act may be either express or implied and, under the circumstances stated in Hampton's testimony, the authority for him to return and resume work must necessarily be implied. He was paid a monthly wage and he was required to work eight hours per day and the locus of his employment was the territory where his duties were to be performed and this required that he should return to his territory and resume work on the following day. Hence, the evidence was sufficient to warrant the jury in finding, as it did, that the relationship of master and servant did exist at the time of the accident and that Hampton, in so returning to the place of his employment, was acting in the performance of a duty then owing by him to the defendant company under its implied authority.

"It is clear," said Jessel, M. R., "that on principle a man is liable for another's tortious acts if he expressly directs him to do it, or if he employs that other person as his agent, and the act complained of is within the scope of the agent's authority." Smith v. Keal, 9 Q.B.Div. 351.

"The maxim, Qui facit per alium facit per se, then, is the statement of a rule of law, the scope of which is not limited by express authorisation, and extends to cases where authority to act is implied only; and establishes an irrebuttable presumption in the circumstances in which it becomes applicable." 1 Beven, Negligence in Law (3d Ed.) p. 573.

As said by Lord Chelmsford, C., in Bartonshill Coal Co. v McGuire, 3 Macq. (H.L.Sc.) 306: "Every act which is done by a servant in the course of his duty is regarded as done by his master's orders, and consequently is the same as if it were the master's own act, according to the maxim, Qui...