Larkins v. Utah Copper Co.

• Decision Date: 07 July 1942
• Citation: Larkins v. Utah Copper Co., 169 Or. 499, 127 P.2d 354 (Or. 1942)
• Parties: LARKINS <I>v.</I> UTAH COPPER CO. ET AL.
• Court: Oregon Supreme Court

169 Or. 499

127 P.2d 354

LARKINS

v.UTAH COPPER CO. ET AL.

Supreme Court of Oregon.

Argued June 18, 1942.

Affirmed July 7, 1942.

Rehearing denied October 6, 1942.

Appeal and error — Nonsuit and directed verdict

1. Appellants' motion for nonsuit and directed verdict required a statement of facts most favorable to respondent.

Automobiles — Respondeat superior

2. That motorist striking pedestrian owned the automobile he was driving was not controlling upon question of his alleged employer's ultimate liability under the doctrine of "respondeat superior".

Automobiles — Ownership — Agency

3. If ownership is in the employee, no inference of agency arises from proof in itself of ownership and it is incumbent upon the plaintiff to show that the employee was driving the automobile at the time of the accident with the actual or implied consent of his employer and in the furtherance of the latter's business.

Automobiles — Negligence — Master and servant

4. An employer may be liable for the negligence of his employee in the course of his employment though the employee is using his own automobile, but to establish liability it must appear that the relation of "master and servant" existed in the sense that employer had the right to control the employee's conduct, and that the negligent act was committed within the course and scope of the employee's employment, and that use of the automobile was expressly or impliedly authorized by the employer.

Automobiles — Agency — Employee's automobile

5. In pedestrian's action for injuries sustained in an automobile accident, evidence justified imposing liability on motorist's employer on ground that use of motorist's automobile was impliedly authorized, and was reasonably necessary for efficient prosecution of employer's business, that motorist was acting within "scope of employment" at time of accident, and that motorist was not a free "agent" or an "independent contractor".

Evidence — Judicial notice

6. It is common knowledge that many sawmills are located in isolated sections of western Oregon and Washington.

Automobiles — Master and servant — Control

7. Alleged employer's right to exercise control over motorist in going to or from his work is a controlling factor in determining whether the relationship of "independent contractor" or "master and servant" exists.

Automobiles — Agency — Scope of employment

8. The decision whether an employee was driving his automobile with the express or implied authority of his employer and was acting within the scope of his employment, so as to render the employer liable for the employee's negligence in driving his automobile, depends upon the facts of each case.

Master and servant — Course of employment

9. An accident does not arise in the "course of employment" when it occurs while the employee is going to or from his place of work, and doctrine of "respondeat superior" does not apply unless at the time of the accident the employee was acting within the scope of his employment, or was engaged in the furtherance of his employer's business.

Automobiles — Agency — Undisputed evidence

10. In pedestrian's action against motorist and motorist's alleged employer for injuries sustained in an automobile accident, evidence authorized submission of issue of agency to jury, notwithstanding that evidence of agency was undisputed.

Trial — Undisputed evidence

11. If different reasonable inferences may be drawn from undisputed evidence, the question is for jury.

Automobiles — Agency — Mission of agent

12. Where automobile accident did not occur until after motorist had resumed the work of his employer, motorist's deviation in going on a mission of his own did not indicate an "abandonment" of his employer's work, but the relationship of master and servant was suspended and resumed when the motorist was on the direct route home, so as to render employer liable for injuries of pedestrian struck by motorist at that time; it being immaterial that employee would not have been in the place of the accident but for the deviation.

Appeal and error — Instructions

13. Where defendant-appellant's assignment of error improperly included an instruction to which no exception was taken, the instruction was not reviewable.

Appeal and error — Instructions — Degree of care

14. In pedestrian's action for injuries where there was no evidence of contributory negligence, instruction that the degree of care to be exercised by either motorist or pedestrian must be commensurate with the danger involved, and that an automobile when not properly handled is capable of doing great injury, was not prejudicial.

Automobiles — Instructions

15. In pedestrian's action for injuries sustained when struck by automobile in a pedestrian lane, instruction that motorist approaching a pedestrian lane has the duty to observe whether pedestrians are crossing and, if so, to give them an opportunity to pass in safety, was proper.

  Employer's liability for negligence of employee in driving his
                own car in employer's business, note, 57 A.L.R. 739; 60 A.L.R
                1163; 87 A.L.R. 787. See, also, 5 Am. Jur. 728
                  42 C.J., Motor Vehicles, § 90
                

Before KELLY, Chief Justice, and BELT, BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

CARL HENDRICKS, Judge.

Action by Clare M. Larkins against the Utah Copper Company and another for injuries sustained in an automobile accident.Plaintiff died after the trial, and Edward C. Larkins was appointed administrator of her estate and substituted as respondent.From an adverse judgment, defendants appeal.

AFFIRMED.REHEARING DENIED.

James Arthur Powers, of Portland, for Utah Copper Co., appellant.

Bardi G. Skulason, of Portland, for Florain Harlow, appellant.

John F. Reilly and Walden Stout, both of Portland (Reilly & Davidson and Walden Stout, all of Portland, on the brief), for respondent.

BELT, J.

Plaintiff commenced this action to recover damages for personal injuries sustained by her as a result of being struck by an automobile owned and driven by defendantFlorian Harlow, an employee of the defendantUtah Copper Company, a corporation.A verdict was had against both defendants for $15,000 general damages and $563 special damages.From the judgment entered thereon the defendants appeal.Plaintiff died since the trial in the circuit court and, by reason thereof, Edward C. Larkins was appointed administrator of her estate and substituted as respondent herein.

1.The motions by defendantUtah Copper Company for nonsuit and directed verdict require a statement of the facts most favorable to the plaintiff.The motions were based upon the proposition that there is no evidence showing that, at the time of the accident, Harlow was acting as agent of the company within the scope of his authority.The plaintiff sought to hold the defendant company liable on the theory of respondeat superior.It is not contended here that there is no evidence tending to show negligence on the part of the defendant Harlow.

The Utah Copper Company was engaged in the business of buying lumber from mills in western Oregon and Washington on a large scale — 500 to 700 cars each year.It maintained an office in the city of Portland, in charge of Mr. Chatterton, its purchasing agent.It was the duty of the defendant Harlow, as it was of six other employees working out of the city, to inspect lumber purchased by the company, as it was loaded on the cars for shipment.Harlow was subject to call at any time and, according to Mr. Chatterton, "could be sent any place we wanted to send him."Harlow and the other inspectors always used their own automobiles in going to and from the place of inspection.After the lumber was inspected and Harlow returned to his home it was his duty to contact the office — usually by telephone — and to make out a written report of inspection.In the year 1940, Harlow worked 212 days inspecting lumber and was paid therefor the sum of $8 per day.Such rate of payment was made by the defendant regardless of the number of hours per day required to inspect the lumber.In addition to such payment, Harlow was allowed his hotel expenses and railroad fare from Portland to place of inspection and return.This fare was, with the knowledge and consent of the defendant, applied by Harlow to the maintenance and upkeep of his automobile.

About 4 o'clock in the morning of February 9, 1940, Harlow, pursuant to order of the defendant company, left his home at Milwaukie, a few miles south of the city of Portland, to go to Bucoda, Washington — eight miles north of Centralia — for the purpose of inspecting lumber.Harlow completed his inspection before noon of the same day and then drove to Hoquiam, about 60 miles distant, on a mission of his own.After transacting his business at Hoquiam, he started back to Centralia at about 4 o'clock in the afternoon and, upon arriving there, turned south on the Pacific highway, the direct route home.Harlow arrived at Portland at 7:30 at night — although it was 160 miles from Hoquiam — and proceeded slowly, as he says, south on Union avenue.

Although an arc light was burning at the intersection, Harlow said he first saw plaintiff when he entered the intersection and she was 20 or 25 feet away.It was a dark and stormy night.Harlow thus describes on direct examination how the accident occurred:

"Well, when I got into the intersection of Halsey street I saw a woman on her hands and knees right square in front of me.I applied my brakes as quick as I possibly could and tried to swing the car, but the street was very wet and rainy and the car slid — the tires — the brakes locked the wheels and the car slid practically straight on to the woman.And I got the car swerved enough so I just struck her either on the hip or the behind, and quite a sharp little blow.I felt the impact very plainly.And as the car entered the lane it stopped.I opened the door on the right hand...