Lehl v. Hull

• Decision Date: 11 February 1936
• Parties: LEHL v. HULL et al.
• Court: Oregon Supreme Court

54 P.2d 290

152 Or. 470

LEHL v. HULL et al.

Supreme Court of Oregon

February 11, 1936

Department 1.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

On petition for rehearing.

Petition denied.

For prior opinion, see 53 P.2d 48.

Ronald Reilly and W. H. Morrison, both of Portland (Maguire, Shields & Morrison and Delmas R. Richmond, all of Portland, on the brief), for appellants.

Elton Watkins, of Portland, for respondent.

KELLY, Justice.

In a petition by plaintiff for rehearing, six grounds are assigned for challenging the following statements in the original opinion:

(1) "The testimony in behalf of defendants is the only testimony in the case on the subject of the alleged relationship of principal and agent between Stephen A. and Joseph A. Hull."

(2) "There is nothing in the record from which it reasonably can be inferred that Stephen A. Hull had any interest in the mission or enterprise of his son, or had any knowledge of it."

Those six grounds of challenge are:

(1) Conduct and demeanor of witnesses not portrayed on printed page.

(2) Use of the car on the day of the collision by defendant Joseph A Hull.

(3) Appearance in court at the trial by both defendants in person.

(4) Failure of Stephen A. Hull to testify.

(5) Absence of testimony that Stephen A. Hull had given instructions against use of the car by his son.

(6) Use of the car by the son on other occasions.

As to the first of the above grounds, it is conceded that the record before us does not reflect the conduct and demeanor of witnesses. That fact, however, does not relieve us from the necessity of being guided by the record.

As to the second ground, the doctrine of the case of Judson v Bee Hive Auto Service Co., 136 Or. 1, 5, 294 P. 588, 297 P. 1050, 74 A.L.R. 944, is that the use of the car by one other than its owner creates an inference of agency on the part of the user for the owner; but when the actual relationship is disclosed by uncontradicted testimony and from the entire record no reasonable deduction of agency can be made, the inference of agency is without effect.

When it is remembered that the mission of the son was to take a young man and two young ladies to the golf links for an evening's entertainment and that the son's effort to contact his father in order to secure the father's permission to so use the car was fruitless, the conclusion is inescapable that the father had no interest whatever in the son's enterprise upon that evening.

The third and fourth grounds of challenge must be considered together, namely, that defendant Stephen A. Hull was personally present at the trial and did not testify; hence his silence is deemed to be an admission against him. There was no testimony tending to show agency on the part of this son. The only testimony on the subject was to the contrary. His silence could not be construed to be an admission of testimony not given.

The case of Bly v. Travellers' Insurance Co., 142 Or. 523, 20 P.2d 1089, cited by plaintiff, comments upon the failure of defendant to introduce any testimony on a given point, not the failure of any individual defendant to testify when other testimony on that point has been introduced and has not been contradicted.

The case of Wimer v. Smith, 22 Or. 469, 30 P. 416, is one wherein the testimony, with reference to an alleged conversation, was conflicting and the failure to produce the testimony of a person, who was said to have been present at such conversation, is given consideration. In the case at bar, the testimony is not conflicting on the question of the son's alleged agency.

In Schreyer v. Turner Flouring Mills Co., 29 Or. 1, 43 P. 719, 722, cited by plaintiff, the defendant failed to produce certain original documents. We quote from the opinion: "The defendant's failure or refusal to produce the documents called for by the notice cannot be considered as evidence of the truth of what plaintiff claims he would be able to prove by them," etc.

In Williams v. Commercial National Bank, 49 Or. 492, 90 P. 1012, 91 P. 443, 11 L.R.A. (N.S.) 857, it was held that where the pleadings and proof question the good faith of a party and such party withholds proof exclusively within its control or fails to produce it on demand, the law puts an interpretation upon such conduct most unfavorable to such party. In the case at bar, there was no proof challenging the testimony introduced by defendants on the point under consideration. The plaintiff could have called Stephen A. Hull to the witness stand; hence his testimony was not exclusively within said defendant's control.

We still think that in the case at bar, as in the case of Caldwell v. Hoskins, 94 Or. 567, 186 P. 50, cited by plaintiff, there was no willful suppression of testimony by defendant Stephen A. Hull.

The fifth ground seems to distinguish between the case of an adult son living apart from his parents, and any other adult person. It certainly cannot be said that one sought to be charged as principal for another must introduce testimony of an express refusal to enter into such a relation. It would be a strange principle to say that because the owner of a car had not refused to employ another person as his agent, such other person could incur liability binding upon the owner by the use of the owner's automobile on a mission foreign to the interests of the owner and without his knowledge or consent. The relationship of father and son when, as in this case, the son is an adult and not a member of the father's household, does not create agency on the part of the son for the father.

The sixth ground implies that the use of the car by the son on former occasions constitutes a basis for inferring either that the mission of the son on the evening of the accident was not as he said it was, or that some interest of the father was conserved in carrying out such an enterprise. Not even conjecture or speculation could divine any purpose or errand beneficial to or in the interest of the father in respect to such an enterprise; and there is not a suggestion in the records that the son went anywhere or did anything with the automobile on that occasion other than as he testified.

It is also urged that the doctrine heretofore announced by this court is not in harmony with the holding that the relationship of father and son does not ipso facto establish agency of the son for the father. No authorities, however, are cited thereon.

Davis v. Underdahl, 140 Or. 242, 13 P.2d 362, 364, is cited as being out of harmony with the doctrine of the case at bar. There, testimony was introduced tending to show that the driver of the car was working part time for the owner thereof. As stated in the opinion: "Instead of the...