Lehl v. Hull

Citation152 Or. 470,53 P.2d 48
PartiesLEHL v. HULL et al. [*]
Decision Date14 January 1936
CourtSupreme Court of Oregon

Department 1.

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

Action by Carl Lehl against Stephen A. Hull and another to recover damages sustained in an automobile collision. Judgment for plaintiff, and defendants appeal.

Affirmed in part, reversed in part, and remanded, with directions.

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.

About 11:30 p. m., September 10, 1933, in the intersection of Williams avenue and East Mason street in the city of Portland, the automobile in which plaintiff was riding collided with an automobile owned by defendant, Stephen A Hull. The car in which plaintiff was riding, a Pontiac, was being driven in an easterly direction by Dewey Bauer and the automobile owned by defendant Stephen A. Hull, a Chrysler was being driven in a northerly direction on Williams avenue by the defendant Joseph A. Hull.

The first assignment predicates error upon the action of the trial court in denying the motion of defendant Stephen A Hull, for a directed verdict in favor of said defendant Stephen A. Hull.

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. This uncontradicted testimony discloses that defendant Joseph A. Hull is the son of the defendant, Stephen A. Hull. That on September 10, 1933, defendant, Joseph A. Hull, unsuccessfully attempted to reach his father by telephone to secure permission to use his father's automobile for the purpose of meeting an engagement for the evening. Without any express permission, said defendant, Joseph A. Hull, made use of and drove his father's car on the evening in question and was driving it when the collision occurred. At about 8 p. m. of the day in question, in company with Mr. George Heimrick and a young lady, defendant Joseph A. Hull drove to a residence, within three blocks from the place of collision, where another young lady was stopping temporarily with her aunt. With these two young ladies and Heimrich as the other occupants of the car, defendant, Joseph A. Hull drove to Nineteenth and Jefferson streets, where they played golf until shortly after 10 p. m., after which the party went for a ride and continued riding without stopping any place until the collision occurred. Defendant Joseph A. Hull and two of the other occupants of the car testified that, as they were approaching the place of the accident, they were looking for the residence at which the second young lady was temporarily stopping; and, for that reason, were driving slowly when the accident happened.

Defendant Joseph A. Hull testified that he had driven his father's car several times. That on some of the trips, his father did not accompany him; while on others, the trips were made by the father for the purposes of the father's business, the son acting as the driver at the request of the father.

We are unable to find anything in the record tending to show that, on the occasion in suit, Joseph A. Hull was acting as the agent of Stephen A. Hull, or within the scope of any such alleged agency. 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.

In a comparatively early automobile case, this court quoted from a New York case as follows: "'Liability cannot be cast upon the defendant because he owned the car, or because he permitted his son to drive the car whenever he wished to do so. *** Liability arises from the relationship of master and servant, and it must be determined by the inquiry whether the driving at the time was within the authority of the master, in the execution of his orders, or in the doing of his work'-quoting from Cavanagh v. Dinsmore, 12 Hun [(N.Y.) 465] 468: 'It is well settled that the master is not liable for injuries sustained by the negligence of his servant while engaged in an unauthorized act, beyond the scope and duty of his employment *** although the servant is using the implements or property of the master.'" Smith v. Burns, 71 Or. 133, 136, 135 P. 200, 142 P. 352, 353, L.R.A. 1915A, 1130, Ann.Cas.1916A, 666, quoting from Maher v. Benedict, 123 A.D. 579, 108 N.Y.S. 228.

If reasonable minds might differ as to the inference which could be drawn from the testimony, then the question of alleged agency should be submitted to the jury ( Judson v. Bee Hive Auto Service Co., 136 Or. 1, 294 P. 588, 297 P. 1050, 74 A.L.R. 944); but we think that no such difference of opinion could arise from the uncontradicted testimony in the case at bar.

The family purpose doctrine is not applicable here. There is nothing in the record tending to prove that Mr. Stephen A. Hull had or maintained any family. There is uncontradicted testimony that Joseph A. Hull did not live with his father.

The relationship of parent and son does not, of itself alone, establish the agency of the son for the parent so as to make the latter liable for the acts of the son while driving the parent's automobile. Erlich v. Heis, 193 Ala. 669, 69 So. 530; Gardiner v. Solomon, 200 Ala. 115, 75 So. 621, L.R.A.1917F, 380; Rowland v. Spalti, 196 Iowa, 208, 194 N.W. 90; Weiner v. Mairs, 234 Mass. 156, 125 N.E. 149; Woods v. Clements, 113 Miss. 720, 74 So. 422, L.R.A.1917E, 357; Lewis v. Steele, 52 Mont. 300, 157 P. 575; Clawson v. Schroeder, 63 Mont. 488, 208 P. 924; Zurn v. Whatley, 213 Wis. 365, 251 N.W. 435.

The motion of defendant Stephen A. Hull for a directed verdict in his favor should have been sustained.

Defendants also urge that error was committed by the trial court in requiring the jury to retire for further deliberation after it developed upon polling the jury that only eight jurors assented to the verdict which had been treated as a sealed verdict.

The parties had stipulated that a sealed verdict might be returned. On Friday evening the jury separated after a document in the form of a verdict for plaintiff had been signed by the foreman and handed to the bailiff. On the following Monday morning, when the jury appeared in court to make return of the verdict, a poll of the jury was had, and four jurors indicated that they had not agreed to the verdict thus returned.

The court thereupon ordered the jury to retire for further consideration. Later, the jury returned a verdict for the plaintiff against both defendants in the sum of $25,000. A poll was had and each juror declared his or her assent to that verdict. At the instance of defendants, each juror was asked whether, during the course of the trial, or since their dispersal from the jury room on Friday night, they had discussed the facts of this case with anybody, or permitted any one to discuss the facts with them. To this each juror answered in the negative. The verdict was then received by the court.

In one jurisdiction, it is held to constitute error for the court to direct the jury to retire for further deliberation where, after the jurors have separated following the delivery of a supposed sealed verdict to the officer in charge of the jury and when return thereof to the court is attempted, it develops upon polling the jury that an insufficient number of jurors assent to the verdict. Kramer v. Kister, 187 Pa. 227, 40 A. 1008, 44 L.R.A. 432.

In other jurisdictions, such a course has been approved. Coughlin v. Weeks, 75 Wash. 568, 135 P. 649, 651; State ex rel. v. Waltermath, 162 Wis. 602, 156 N.W. 946; Jessup v. Chicago & N.W. Ry Co., 82 Iowa, 243, 48 N.W. 77; Douglass v. Tousey, 2 Wend. (N.Y.) 352, 20 Am.Dec. 616; Bunn v. Hoyt, 3 Johns. (N.Y.) 255; Warner v. New York Cent. R. Co., 52 N.Y. (7 Sickels) 437, 438, 11 Am.Rep. 724; Lagrone v. Timmerman, 46 S.C. 372 24 S.E. 290; Devereux v. Champion Cotton Press Co., 14 S.C. 396; Johnson v. Oakes, 80 Ga. 722, 6 S.E. 274.

The similarity in the provisions, pertinent to this question, of the statutes of Washington to those of Oregon, when the opinion in the case of Coughlin v. Weeks, supra, was rendered, makes that opinion most persuasive. We quote therefrom:

"In the last case cited [ Pehlman v. State, 115 Ind 131, 17 N.E. 270], it is said: 'By permitting a jury to separate after they have agreed upon a verdict, and before it is returned into court, nothing is waived either as to the power or duty of the court to have the verdict amended if it shall prove to be a defective verdict, or as to the right of either party to object to the reception of an incomplete or an improper verdict. Where a jury reassemble after an authorized separation, whether before or after agreeing upon a verdict, they resume at the point at which they left off, and proceed with the business before them as if no separation had taken place. Consequently, when a jury have been allowed to separate, and return a sealed verdict and upon reassembling the verdict is found to be defective, the jury may be required to retire to their room and make the proper amendment or correction.' This general rule, however, does not appear to cover the facts in the present case. When the verdict was first presented to the court, the poll of the jury showed that it did not have the affirmance of the requisite number of jurors. It cannot then be said to be a verdict which was defective. It was in fact no verdict. By statute in this state, when it appears upon the poll of a jury that ten of the jurors do not answer in the affirmative, it is the duty of the court to cause them to return to the jury room for further...

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7 cases
  • French v. State Industrial Accident Commission
    • United States
    • Supreme Court of Oregon
    • 25 Mayo 1937
    ...... favorable presumption, and neither court nor jury are at. liberty to engage in one. Lehl v. Hull, 152 Or. 470,. 53 P.2d 48, 54 P.2d 290; Holland v. Hartwig, 145 Or. 6, 24 P.2d 1023; McDowell v. Hurner, 142 Or. 611, 13. ......
  • Tuttle v. Trent
    • United States
    • Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
    • 25 Marzo 1966
    ......Thompson, 15 Conn.Supp. 146, 148; Daniel v. Patrick, 333 S.W.2d 504, 508 (Ky.); Smith v. Simpson, 260 N.C. 601, 611, 612, 133 S.E.2d 474; Lehl v. Hull, 152 Or. 470, 474, 53 P.2d 48, 54 P.2d 290; Porter v. Hardee, 241 S.C. 474, 477, 129 S.E.2d 131; Foran v. Kallio, 56 Wash.2d 769, 771, 355 ......
  • Weatherhead v. Burau, 35827
    • United States
    • Supreme Court of Minnesota (US)
    • 5 Diciembre 1952
    ...exclusively upon errors of law occurring at the trial.3 See, Warner v. New York Cent. R. Co., 52 N.Y. 437, 11 Am.Rep. 724; Lehl v. Hull, 152 Or. 470, 53 P.2d 48, 54 P.2d 290; Kramer v. Kister, 187 Pa. 227, 40 A. 1008, 44 L.R.A. 432; Sanders v. Charleston Consol. Ry. & Lighting Co., 154 S.C.......
  • Clark v. Strain et al
    • United States
    • Supreme Court of Oregon
    • 8 Enero 1958
    ...the first kind is mandatory but when it is tendered a verdict of the second type the action of the court is discretionary. Lehl v. Hull, 152 Or 470, 478, 53 P2d 48, 54 P2d Unlike the verdict in Fischer v. Howard, 201 Or 426, 271 P2d 1059, the verdict in this matter does not present a questi......
  • Request a trial to view additional results

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