Palmore v. Kirkman Laboratories, Inc.

• Decision Date: 24 October 1974
• Citation: 99 Or.Adv.Sh. 2180,527 P.2d 391,270 Or. 294
• Parties: , 82 A.L.R.3d 963 Rodrigues PALMORE, by and through his guardian ad litem, Christine Palmore, Respondent, v. KIRKMAN LABORATORIES, INC., and Richard Hansen Fowler, Appellants.
• Court: Oregon Supreme Court

Page 391

527 P.2d 391

270 Or. 294, 82 A.L.R.3d 963

Rodrigues PALMORE, by and through his guardian ad litem Christine Palmore, Respondent, v. KIRKMAN LABORATORIES, INC., and Richard Hansen Fowler, Appellants.

Supreme Court of Oregon.

Argued and Submitted Sept. 11, 1974.

Decided Oct. 24, 1974.

Ridgway K. Foley, Jr., Portland, argued the cause for appellant Kirkman Laboratories, Inc. With him on the briefs were Souther, Spaulding, Kinsey, Williamson & Schwabe and Gordon Moore, Portland.

Gerald R. Pullen, Portland, argued the cause and filed a brief for appellant Richard Hansen Fowler.

Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Pozzi, Wilson & Atchison and Donald N. Atchison, Portland.

Before O'CONNELL, C.J., and McALLISTER, HOLMAN, HOWELL and SLOPER, JJ.

SLOPER, Justice (Pro Tempore).

This case is an action at law for personal injuries sustained by the four-year-old plaintiff who was a passenger in an automobile being driven by his mother, his guardian ad litem, which collided at an intersection with a vehicle being driven by defendant Fowler, who at the time of the accident was allegedly an employee of and in the course of such employment of codefendant Kirkman Laboratories, Inc. Trial was had to a jury which returned a verdict in favor of plaintiff against both defendants. Both defendants appeal.

The assignments of error of the respective defendants are to a degree separate and distinct. The assignment of defendant Kirkman will be considered first.

Kirkman's assignment of error is that the trial court erroneously refused to hold Kirkman not liable as a matter of law. This general assignment is broken down into five subdivisions. The first two are that the court erred in (1) failing to grant an order of involuntary nonsuit at the close of plaintiff's case in chief, and (2) failing to grant a directed verdict in favor of Kirkman after Kirkman had rested without offering evidence. The remaining three subdivisions are the trial court's refusal to withdraw from the jury's consideration each of the three specifications of negligence alleged in plaintiff's complaint on the ground that there was no evidence to support any of them. These three allegations of negligence concern speed, lookout and control. These matters will be considered together. The basis for the alleged error is that plaintiff failed to prove that any act of negligence proximately caused the accident and plaintiff failed to establish that defendant Fowler was acting within the course and scope of his employment at the time of the accident. It was admitted that Fowler was employed by Kirkman.

The accident occurred at the uncontrolled intersection of NE Oregon and NE 25th Street in Portland. These are both narrow streets, one has parking on both sides and the other has parking on one side only. NE 25th Street is 30 feet wide and NE Oregon is 35 feet wide. The vehicle in which plaintiff was a passenger was proceeding in an easterly direction on NE Oregon Street and Fowler was proceeding in a northerly direction on NE 25th Street. Fowler had the directional right of way. It had been raining prior to the time of the accident and the pavement was wet. There was a large building on the southwest corner of the intersection. There was also a truck parked near the corner obstructing the drivers' vision of each other. Conditions were such that neither driver 50 feet from the intersection could see 200 feet down the intersecting street. Fowler's speed as he entered the intersection was some place between 15 and 25 miles per hour. He did not observe the vehicle in which plaintiff was riding until he was five feet or less from the intersection, and he did not appear to slow his speed as he approached the intersection. Becasue of the obstructed view at the intersection, the designated speed was 20 miles per hour. We conclude that, at least after all the evidence was in, there was sufficient evidence of the allegations of negligence, speed, lookout and control for their submission to the jury. In Hess v. Larson, 259 Or. 282, 486 P.2d 533 (1971), the court explained the interrelation of these three elements and stated:

'The elements of speed, lookout and control are interrelated and, in most cases, it is proper if not necessary for the jury to consider them together; independent evidence of each element is not necessary. * * *.' 259 Or. at 289, 486 P.2d 536.

The evidence concerning whether or not Fowler at the time of the accident was acting within the course and scope of his employment comes first in plaintiff's case in chief. That evidence consisted of the following:

'Q (By Mr. Atchison) Let me ask it another way. What were you doing at the time this accident happened? What was your mission or purpose?

A I was returning from a paint store which I had gone to to purchase a couple of gallons of paint for painting the inside of the laboratory where I was working.

Q So now you said this paint was to be used in the company business?

A Yes.'

Additional evidence on this subject was presented during the cross examination of defendant Fowler in his case.

'Q Now, you mentioned that you were on an errand. I gather that had to do with the paint, as you told me before?

A Yes.

Q What was it you were going to paint?

MR. MOORE: Your honor, I am going to object to this as beyond anything that comes up in my case, or in the other defendant's case.

MR. ATCHISON: Your honor, he has testified that he was on an errand on his direct examination. I am certainly entitled to inquire about that.

THE COURT: What did you ask in the direct examination on that score? I thought the only time that had come in was then you called him as a witness.

MR. ATCHISON: No, no. He testified in his direct examination that he was on an errand after lunch, I think was the words he used.

MR. MALONEY: I believe he did say that, your honor.

MR. MOORE: That was the extent of it, your honor.

THE COURT: Well, I think that opens the door to more. Go ahead.

Q (By Mr. Atchison) What were you going to paint?

MR. MOORE: May I have a continuing objection?

THE COURT: Yes.

MR. MOORE: That that is beyond the scope of my case or the plaintiff's case in chief.

THE COURT: You may.

A I wasn't going to paint anything. There were some young men painting walls in the laboratory.

Q That's at the company building?

A Yes.

Q And the paint was to be used for this purpose?

A Yes.

Q The paint was purchased in the company's name, I take it?

A Yes.

Q And what was your job in the company, incidentally?

A At that point, I was functioning as the Assistant to the Vice President who was in charge of the Quality Control Lab, and also I had the responsibility to Production in that I was handling the raw material inventory.'

We conclude that the foregoing evidence was sufficient to make a jury question on whether or not Fowler was acting within the course and scope of his employment with defendant Kirkman at the time of the accident.

Kirkman contends that the evidence of negligence and of defendant Fowler's acting in the course of and in the scope of his employment is not chargeable to Kirkman because of Kirkman's motions for involuntary nonsuit and directed verdict, Kirkman having rested without offering evidence. However, Kirkman concedes that Oregon law controls and that this court in Madron v. Thomson, 245 Or. 513, 529, 419 P.2d 611, 423 P.2d 496, 27 A.L.R.3d 963 (1973), adopted a rule of law that is opposed to his contention. In recognizing this obstacle, Kirkman urges that Madron v. Thomson, supra (245 Or. 513), should be reconsidered and overruled, and cites three cases from other jurisdictions as a basis for such reconsideration. The cases are Carson v. Weston Hotel Corp., 351 Ill.App. 523, 115 N.E.2d 800 (1953); Anderson v. Howard Hall Company, 272 Ala. 466, 131 So.2d 417 (1961); and Thompson v. Hayward Chemical Co. v. Childress, 277 Ala. 285, 169 So.2d 305 (1964). While these cases are supportive of Kirkman's position, they are each, to a degree, distinguishable from the facts in this case.

We said in Madron v. Thomson, supra (245 Or. at 529, 423 P.2d at 496):

'A motion for a directed verdict by one defendant should not be considered until such time as all the evidence is in if there is any probability that any evidence to be offered might make out a case against the moving defendant. Bates v. Miller, 133 F.2d 645, 648 (2d Cir. 1943); Sadler v. Draper, 46 Tenn.App. 1, 16, 326 S.W.2d 148, 155 (1959); Annotation, 48 A.L.R.2d 535 (1956).'

This rule of law was given careful consideration by the court and was articulated after a petition for rehearing was denied, and was a clarification of the same rule that had been adopted by the court in its first consideration of the matter, at which time the court said in Madron v. Thomson, supra (245 Or. at 526, 419 P.2d at 618):

'Thomson contends that we can only consider the evidence against Thomson which was introduced prior to the time Thomson rested, which was after plaintiffs' case in chief but before Rider's testimony of Riley's admission. Thomson's motion was premature as Riley had not rested at the time of Thomson's first motion. A motion for a directed verdict is properly made after all the evidence is introduced and all the evidence introduced by any party is considered in determining the ruling upon such motion. Mayor v. Dowsett, 240 Or. 196, 219--220, 400 P.2d 234 (1965). The essence of Thomson's contention in this regard is that the evidence of the admission was not proper rebuttal evidence against him. It was admissible against both defendants. As stated, any evidence of the employee's negligence is, by operation of the doctrine of respondeat superior, relevant to the issue of the employer's liability.'

Other jurisdictions have chosen the rule we have adopted. See Bates v. Miller, 133 F.2d 645, 648 (2d Cir. 1943); Sadler v. Draper, 46 Tenn.App. 1, 326 S.W.2d 148 (1959), cited in Madron v. Thomson, supra (245 Or....