Peters v. Johnson

• Decision Date: 21 February 1928
• Citation: 264 P. 459,124 Or. 237
• Parties: PETERS v. JOHNSON ET AL. (TWO CASES.
• Court: Oregon Supreme Court

264 P. 459

124 Or. 237

PETERS v. JOHNSON ET AL. (TWO CASES.

Supreme Court of Oregon

February 21, 1928

Department 2.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Actions by J. M. Peters, individually and as guardian of the person and estate of Frank Peters, a minor, against C. E. Johnson and another, copartners doing business as Johnson & Morrison and Levy Huhta and others, copartners doing business under the firm name and style of Columbia Soda Works. The actions were consolidated, and from judgments for plaintiff each defendant separately appeals. Judgments affirmed.

Marvin K. Holland, of Portland (Carey & Kerr and Omar C. Spencer, all of Portland, on the briefs), for appellant Columbia Soda Works.

Frank C. Hesse, of Astoria ( Wilbur Beckett, Howell & Oppenheimer, of Portland, and Norblad & Hesse, of Astoria, on the briefs), for appellant Johnson & Morrison.

James L. Hope, of Astoria, for respondent.

BELT J.

These actions, by stipulation consolidated here and in the lower court, arose out of an automobile collision in which a boy about 13 years of age, named Frank Peters, was injured. The accident occurred on one of the main streets of the city of Astoria in the afternoon of August 13, 1924. The boy was standing on or near the tail gate of a Dodge truck operated by Johnson & Morrison, a copartnership engaged in the retail grocery business. He was not in the employ of these defendants, but there is evidence that he was on the truck with their knowledge and consent, and was permitted to assist in the delivery of goods to their customers. The truck, facing east, had stopped for the purpose of making a delivery on the south side of Commercial street, which runs east and west. After the delivery had been made, the driver started to back the truck diagonally across Commercial street, with the apparent intention of driving west thereon. When the vehicle reached approximately the center of the street, an east-bound Ford truck owned by the Columbia Soda Works collided with it, throwing the boy to the pavement, whereby he was seriously and permanently injured.

In one action, the father seeks to recover for hospital and medical expenses incurred as a result of this accident. The other action was commenced by the father as the guardian of his son to recover damages for personal injuries the boy is alleged to have sustained. Both actions involve the same specifications of negligence. It is the theory of the plaintiff that the damage sustained was the proximate result of the combined and concurring negligence of both truck drivers. The driver of the Dodge truck, an employee of Johnson & Morrison, was charged with negligence in backing the automobile (1) without giving any signal or sounding any warning; (2) without looking for on-coming traffic; and (3) at a dangerous and excessive speed. The defendants who constitute the copartnership of the Columbia Soda Works are charged by plaintiff with negligence, in that their employee drove the Ford truck (1) at a reckless and unlawful rate of speed, to wit, in excess of 20 miles per hour, and (2) without keeping a lookout for other vehicles using the street. The Columbia Soda Works answered, denying the negligence charged, and alleging affirmatively and in substance that the accident was due to the contributory negligence of the Peters boy, and to the negligence of the driver of the Dodge truck. In charging negligence against Johnson & Morrison, the complaint of the plaintiff is substantially adopted. Johnson & Morrison answered denying negligence, and, in averring that the negligence of the Columbia Soda Works was the proximate cause of the accident, likewise adopted the specifications of negligence as charged by plaintiff. They also asserted that the boy was guilty of contributory negligence.

Summarizing the issues under the pleadings, the plaintiff alleged that negligence of both defendants was the proximate cause of the accident; both defendants charged the boy with contributory negligence; and each defendant averred that the other, if anybody, was the one to be held responsible. A verdict in both actions was had for the plaintiff against both defendants, and from the judgments entered thereon each defendant has separately appealed.

In these actions the plaintiff occupied a strategic position. After establishing his prima facie case, it remained only for him to stand by and watch, with some degree of satisfaction, the contest waged between these defendants. The more numerous the charges of negligence hurled against each other, the stronger grew plaintiff's case. The verdict of the jury was a natural consequence.

We will first consider the appeal of Johnson & Morrison. It is contended that Frank Peters was a bare licensee while riding on the auto truck of these defendants, and therefore that they owed him only the duty not to willfully or wantonly injure him. We are of the opinion that he was an invitee. The evidence established without contradiction that the boy was on the auto truck with the knowledge and consent of the driver. For about two weeks prior to the accident the boy, at odd times, had worked about the grocery store helping the clerks to fill orders for customers, and, on several occasions, had gone on the truck to help make deliveries. In view of the legal status of the boy, defendants were obliged to exercise due care to avoid injuring him. The facts in this case are analogous to those in Rook v. Schultz, 100 Or. 482, 198 P. 234, wherein a boy of about the same age volunteered to assist in the delivery of milk, and was injured while riding on the running board of the auto truck. It was there held that the law applicable to an invitee was controlling.

There is no merit in the claim that the complaint in the cause of the guardian fails to state a cause of action. It is insisted that it should have been brought by the minor through his guardian, and not by the father as the guardian for the minor. This contention is answered adversely to appellants by section 34, Or. L., wherein it is provided that a guardian "may maintain an action as plaintiff * * * for the injury or death of his ward." We need not inquire as to what may be the authorities in other jurisdictions. Furthermore, if the guardian did not have the capacity to bring this action, such appeared on the face of the complaint, and, unless a demurrer was made thereto pointing out the specific objection, the point now urged is deemed to have been waived. A general demurrer will not suffice.

Relative to the complaint, it is also argued that it appears from the face thereof: (1) That the backing of the Dodge auto truck "merely created a condition for the accident to happen which would not have resulted in injuries to the Peters boy except for the subsequent negligence of appellants Columbia Soda Works"; (2) "that the Peters boy came to his injuries on account of appellants Columbia Soda Works driving their truck into our truck, while looking in an opposite direction from which they were driving"; and (3) "that our negligence, if any, had come to a complete end, and that appellants Columbia Soda Works had the last opportunity of avoiding injuries to the Peters boy." We are unable, as a matter of law, to agree with these conclusions. Such questions were for the determination of the jury. Both trucks were moving at time of collision. The flow of negligence, if plaintiff's testimony is to be...