Marchant v. Clark

Decision Date21 December 1960
Citation357 P.2d 541,225 Or. 273
PartiesMary Lou MARCHANT, Respondent, v. Frank Ray CLARK, Appellant.
CourtOregon Supreme Court

James Arthur Powers, Portland, argued the cause for appellant. With him on the briefs were Martin Howard and Earle P. Skow, Portland.

James B. Griswold, Portland, argued the cause for respondent. On the brief were Green, Richardson, Green & Griswold, Portland.


HOWELL, Justice pro tem.

Plaintiff brought this action for personal injuries arising out of an accident occurring in Columbia county. The jury returned a verdict for defendant and the trial court, on motion of plaintiff, set aside the judgment and granted a new trial. Defendant appeals.

Plaintiff was a passenger in an automobile that collided with a gravel truck owned by Columbia county. Plaintiff named as defendants the driver of the truck and Columbia county but moved for and received a voluntary nonsuit against the latter.

The plaintiff's motion for a new trial was based upon several grounds. Although the order of the trial court granting a new trial did not rule on all of the grounds set forth in the motion 'if that order ought to be supported on any of the grounds specified in the motion therefor, it should be sustained regardless of the reason, or absence of reason, given by the trial court in the order. Johnson v. Updegrave, 186 Or. 196, 206 P.2d 91; Zeek v. Bicknell, 159 Or. 167, 78 P.2d 620. In considering whether the court erred in granting a new trial, all intendments are in favor of the order of the trial judge.' Robertson v. Coca Cola Bottling Co., 195 Or. 668, 671, 247 P.2d 217, 219.

One of the reasons assigned by plaintiff in her motion for a new trial was that the court erred in giving the following instruction to the jury:

'Now the defendant in his defense by way of justification of his being on the left side of the road which is stated to you, that he was operating his truck at that time in accordance with the instructions of his employer, Columbia County, through its road foreman. I instruct you in that regard the defendant Clark, was an employee of Columbia County, and as such was not in charge of the road improvement then and there being performed by him, and therefore if you find from the evidence in this case that the defendant was instructed by his employer to operate a truck in the manner he was then and there so operating the same at the time of this accident, then such manner of operation would not be the negligence of the defendant Clark, if you should find such manner of operation was negligent. It would be the negligence of his employer, Columbia County, and the supervisor or foreman who was in control of the operation. Therefore, your verdict would have to be for the defendant Clark and against the plaintiff.'

Giving this instruction constituted prejudicial error. The court in effect advised the jury that if the defendant was operating his truck under instructions of his employer, even though negligently, the defendant would not be liable.

Neither a state nor an individual can confer upon an agent authority to commit a tort. Gearin v. Marion County, 110 Or. 390, 223 P. 929. A servant is not relieved from liability because he was acting under the direction of his...

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7 cases
  • Krieger v. Just
    • United States
    • Oregon Court of Appeals
    • April 20, 1993
    ... ... Ogle v. Billick, 253 Or. 92, 95, 453 P.2d 677 (1969); Marchant" v. Clark, ... Page 476 ... 225 Or. 273, 275, 357 P.2d 541 (1960); see also Anderson v. Maloney, 111 Or. 84, 225 P. 318 (1924) ...      \xC2" ... ...
  • Stewart v. Brennan
    • United States
    • Hawaii Court of Appeals
    • January 15, 1988
    ...the ruling if it is supported by any of the grounds asserted in Defendants' alternative motion for new trial. See Marchant v. Clark, 225 Or. 273, 274, 357 P.2d 541, 542 (1960). Based on our review of Defendants' motion and the record, however, we hold that the trial court abused its discret......
  • Russell v. Congregation Neveh Zedeck
    • United States
    • Oregon Supreme Court
    • January 15, 1964
    ...any ground: Hudson v. Goldberg, 123 Or. 339, 262 P. 223; Oregon Mutual Fire Ins. Co. v. Mathis, 215 Or. 218, 334 P.2d 186; Marchant v. Clark, 225 Or. 273, 357 P.2d 541; Short v. D. R. B. Logging Co., 192 Or. 383, 232 P.2d 70, 235 P.2d 340; Shultz v. Monterey, 232 Or. 421, 375 P.2d 829; 5 C.......
  • Bird v. Norpac Foods, Inc.
    • United States
    • Oregon Supreme Court
    • March 20, 1997 employee such as Moreland is jointly and severally liable for torts resulting from his or her own negligence. Marchant v. Clark, 225 Or. 273, 357 P.2d 541 (1960). Moreland was Norpac's codefendant. Thus, under ORS 19.130(1), the Court of Appeals lacked jurisdiction to award Moreland dire......
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