Miller v. Service and SalesEn Banc, Inc.

• Decision Date: 18 December 1934
• Citation: 149 Or. 11,38 P.2d 995
• Parties: MILLER v. SERVICE AND SALES, Inc., et al.
• Court: Oregon Supreme Court

38 P.2d 995

149 Or. 11

MILLER v. SERVICE AND SALES, Inc., et al.

Supreme Court of Oregon, En Banc.

December 18, 1934

Appeal from Circuit Court, Marion County; L. H. McMahan, Judge.

Action by Walter L. Miller against Service and Sales, Incorporated and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

ROSSMAN J., dissenting.

E. L McDougal, of Portland, for appellant Service and Sales, Inc.

Allan G. Carson, of Salem (Carson & Carson, of Salem, on the brief), for appellant E. A. Erskine.

W. C Winslow, of Salem, for respondent.

BELT Justice.

This is an action to recover damages for personal injuries resulting from a collision between an automobile driven by plaintiff and an automobile owned by the defendant Service and Sales, Inc., and operated by the defendant Erskine. Verdict and judgment were had against both defendants.

The defendant company strongly urges that it was entitled to a directed verdict. It is admitted that the company, which was engaged in the automobile business in the city of Portland, was the owner of the car driven by Erskine. It follows from such admission of ownership that plaintiff established a prima facie case of agency and that, at the time of the accident, Erskine was using the car in furtherance of the defendant company's business. Counsel for appellants recognize this well-established rule of law, but assert that such inference of agency was not warranted after it had been shown by uncontradicted testimony that the automobile had been loaned to Erskine and that, at the time in question, it was being used for his own exclusive pleasure and benefit. Hence the question is presented as to whether such a prima facie case of agency can be said to have been overcome as a matter of law or whether, in the light of all the evidence, it still remained an issue of fact for the jury to determine.

If the only reasonable deduction to be drawn from the evidence is that the sales company loaned this seven-passenger, Twin Six Packard car to Erskine and that he was using the same for his own benefit, it would follow that the motion for a directed verdict ought to have been allowed. If, however, different reasonable inferences could be drawn from the evidence relative to the question of agency, then it would clearly be a matter for the determination of the jury.

The uncontradicted testimony is as follows: Erskine, the owner of a 1924 Packard car, who had been a private chauffeur for about twenty years, desired to borrow a small car from the defendant company to take his family to the coast as his old car was in the repair shop. The sales company did not have such car, but agreed Saturday afternoon to let him have a new Packard car "off the floor" with dealer's license plates on it, to be used to take his family to the beach, with the understanding that it was to be returned Monday morning. Erskine had never been in the employ of the company but had transacted some business with it-the extent of which is not shown-and was looked upon as a Packard "booster.". There is no contention by the company that Erskine was a prospective purchaser or that the car was turned over to him for any purpose other than as above stated.

Erskine drove the car to the coast and returned to Portland about 6 o'clock in the evening. He says that he had a telephone message from Mr. McKee, president of the Pacific Power & Light Company, to come to Eugene after him as his car had broken down. Erskine thereupon, without the knowledge or consent of the sales company, started Sunday evening from Portland to Eugene with the Packard and, while en route, had a collision with the automobile driven by the plaintiff. Was the jury bound to accept this uncontradicted evidence as the truth or could it, notwithstanding such evidence, draw the reasonable inference that Erskine, in making this trip, was acting for and on behalf of the defendant company?

In addition to the inference of agency arising from ownership of the Packard automobile, the plaintiff also relies upon the inference to be drawn from the fact that the car driven by Erskine carried the dealer's license plates of the defendant sales company.

The registration certificate issued to the defendant company under and by virtue of chapter 428, p. 739, Laws of Oregon 1933, authorized "the use and operation over and along the highways of the state of Oregon of all motor vehicles actually owned or controlled by such dealer and in actual use by him and the members of his firm and/or any salesman thereof who devotes all of his time to the sale of motor vehicles. ***" It is presumed that the defendant company, in the use and operation of its automobiles on the highways of this state, would obey the law. Hence it could reasonably be inferred that this car carrying the dealer's license plates was being driven by Erskine on the dealer's business. Haring v. Connell, 244 Pa. 439, 90 A. 910; Reed v. Bennett, 276 Pa. 107, 119 A. 827; Theil v. Wolfe, 77 Pa. Super.312; Buchholz v. Breitbach, 193 Wis. 224, 213 N.W. 329; Blashfield, Cyc. Automobile Law, Vol. 2, page 1657; Huddy, Cyc. Automobile Law, vol. 1-2, § 180. As stated by Justice Cardozo in Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406, 407, Ann. Cas. 1916D, 1161: "*** The license number of the car, coupled with evidence that the defendant held the license, was prima facie proof that the defendant was the owner. It was more than that; it was prima facie proof that the custodian of the car was then engaged in the owner's service."

In the light of this prima facie case of agency, based upon inferences arising from ownership and the dealer's license plates, can it be said, as a matter of law, that the evidence offered by defendants has rebutted such inferences-or, as some courts say, presumptions-of agency? Is the evidence relative to the alleged loaning of the car so certain, clear, and conclusive that every reasonable-minded person would believe it? If the evidence is of such character, there would be no issue of fact to submit and a directed verdict in favor of the defendant company should follow. However, if the evidence is not of such conclusive nature and reasonable-minded persons might draw different inferences therefrom, it is not within the province of the court to direct a verdict. No jury is bound to believe evidence, even though uncontradicted, if it is clouded with uncertainty and improbability. If there are facts and circumstances negativing the idea that this car was loaned to Erskine, the finding of the jury on the question of agency is conclusive.

The courts are quite divergent in opinion as to the degree and character of...