Prauss v. Adamski

• Decision Date: 14 May 1952
• Citation: 244 P.2d 598,195 Or. 1
• Parties: PRAUSS v. ADAMSKI.
• Court: Oregon Supreme Court

Page 598

244 P.2d 598

195 Or. 1

PRAUSS v. ADAMSKI.

Supreme Court of Oregon.

Argued and submitted April 22, 1952.

Decided May 14, 1952.

Sidney Lezak, of Portland, argued the cause for appellant. On the brief were Lenske, Spiegel, Spiegel, Martindale & Lezak, of Portland.

Walter J. Cosgrave, of Portland, argued the cause for respondent. With him on the brief were Maguire, Shields, Morrison & Bailey, of Portland.

Before BRAND, C. J., and ROSSMAN, LATOURETTE, WARNER and TOOZE, JJ.

TOOZE, Justice.

This is an action to recover damages for the death of Rose Kudrna, plaintiff's intestate, resulting from the alleged negligent operation of a motor vehicle by defendant Laudie Adamski. The case was tried to a jury, resulting in a verdict and judgment in favor of defendant. Plaintiff appeals.

Plaintiff's brief sets forth 18 assignments of error. Nine of the assignments are directed to the failure and refusal of the trial court to give certain instructions to the jury as requested by plaintiff; five relate to instructions given; three, to evidentiary matters; and the last, to the refusal of the court to grant plaintiff's motion for a new trial. However, most of the assignments of error are separated into groups, the assignments in each group involving substantially the same proposition of law.

The instant case involves the same automobile accident which was before this court in Kudrna v. Adamski, 188 Or. 396, 216 P.2d 262, 16 A.L.R.2d 1297. In the former case the plaintiff was Delores Kudrna, the four-year-old child of Rose Kudrna, now deceased, and Vincent Kudrna, her husband. She suffered personal injuries as the result of the accident. The sole legal question involved in and determined by that case was the status of said minor child as a passenger in the automobile. It was determined as a matter of law that Delores was not a guest in the car within the meaning of the Automobile Guest Statute of this state: § 115-1001, O.L.C.A., and that defendant Laudie Adamski was liable in damages for ordinary, as distinguished from gross, negligence on his part.

Prior to and at the time of the accident in question, Rose Kudrna was the wife of Vincent Kudrna, and the mother of two minor children. She was in excellent health and at the date of her death had a life expectancy of 35 years. The evidence discloses that she was a good wife and mother, fully performing her marital and maternal duties. The family at the time resided at Banks, in Washington county, but prior thereto had been residents of Lane County, where resided their family doctor.

Vincent Kudrna, the husband and father, was the owner of a 1946 Plymouth 4-door sedan, used for family purposes. Defendant Laudie Adamski is a brother of the decedent. On or about April 19, 1947, one of the minor children was in need of medical attention, and an appointment had been made with the family physician at Eugene, for April 19, at 10 a. m. Because of his employment, Vincent Kudrna was unable to make the trip to Eugene. Rose Kudrna, though holding a 'learner' permit', was unable to drive an automobile. The defendant was requested to drive the Plymouth car on the trip from Banks to Eugene, and agreed to do so. For that purpose he went to the Kudrna home on the evening of April 18, and remained there overnight.

On the morning of April 19 the defendant, as driver of the automobile, the decedent, and the two children left Banks for Eugene. Decedent rode in the front seat of the car, and the two children, in the back seat. Just before leaving Banks, the decedent, according to the testimony of defendant, made the following statement: 'Well, she said we didn't have too much time, that we would have to hurry along.'

Highway 99W, sometimes known as West Side Pacific highway, is a state highway running in a general northerly and southerly direction between the city of Portland, in Multnomah county, and Junction City, in Lane county. At the place of the accident the highway is paved with concrete, is 16 feet in width, and had the usual painted center stripe. There were gravel shoulders on each side of the paved portion of the highway. However, both north and south and at the place of the accident, the shoulders were not flush with the paved portion of the highway, and on the west side, in particular, there was a drop ranging from one to seven inches from the surface of the paved portion to the surface of the gravel shoulder.

Defendant was operating the automobile in a southerly direction along this highway immediately before and at the time of the accident. The accident occurred at a point on said highway approximately seven miles south of the city of Amity, and in Polk county.

The only testimony in the record respecting the manner in which the accident occurred was that of defendant, and his entire testimony in that regard is as follows:

'Q. Now will you tell us what happened at that time? A. Well, we were driving, going south, and my right rear wheel somehow went off the pavement, and in my attempt to regain control of the car it swung the car diagonally over to my left, and we hit the ditch on the other side; consequently, it rolled over.

'Q. Do you recall whether or not you applied your brakes? A. I don't recall. I might have, but I can't recall.

'Q. You don't recall applying your brakes? A. No.

'Q. And do you know how long it was that you drove along with this wheel off the road as you have described it? A. I have no idea.

'Q. Where you attempting to get the car back on the road; is that what you mean? A. Well----

'Q. Well, withdraw that. You turned the car to the right--rather to your left, to go back on the road? A. You mean after it went off the shoulder?

'Q. Yea, after it went off the road. A. I think I did.

'Q. You don't know? A. I am not positive about that either though.

'Q. Well, do you recall struggling with the wheel? A. Well, when I realized that the car was going to hit the other side of the road I tried to pull it over to my right.

'Q. You don't recall at any time during this applying your brakes? A. I don't recall.

'Q. Did you feel the car skid when it was crossing the road? A. Well, I could hear the tires squeal, if that's an indication of skidding.'

The accident occurred about 8:30 a. m. William H. Roach, state police officer stationed at McMinnville, reached the scene of the accident at 9:17 a. m. He testified that the pavement was dry, and that there was a slight rise in the highway at the point of the accident. He also testified that the surface of the gravel shoulder ranged from one to seven inches below the surface of the paved portion of the highway. Roach had 15-years' experience as a state police officer and had investigated many automobile accidents. As to the observations he made on the ground, Roach testified:

'Q. What did you find at the time? A. I found one automobile in a wrecked condition.

'Q. Will you state where it was located there? A. It was located on the east edge, left-hand side of the highway with wheels partially on the pavement and the front of the automobile north.

'Q. Did you examine the roadway for skidmarks or----? A. I did, yes, sir.

'Q. Can you tell us from what you saw what had occurred to this car? A. It would truly be an assumption as to what had occurred.

'Q. Well, from the tracks as you saw them. A. It appeared that the right rear wheel of the automobile had dropped off the short shoulder of the concrete highway, and in an effort for the operator to get it back on to the pavement he had lost control and which eventually led to the accident or the wreck of the car.

'Q. What marks did you observe, Sergeant? Was there a mark going along this shoulder that you speak of? A. In checking the tracks from the time the wheel dropped off the edge of the pavement he traveled off the pavement for approximately 100 to 110 feet, you couldn't tell exactly where it was, jerked back on the pavement and proceeded then in a sideways manner across to the south on to the left-hand side of the highway where it went over a shallow ditch and bumped the bank and then rolled over.

'Q. Could you tell where the marks indicated, were there marks on that indicating how many times it had rolled over? A. From what you could see there the marks indicated twice that the car top had hit the ground.'

As the result of the accident, Rose Kudrna suffered injuries from which she died at Dallas, in Polk county, on April 19, 1947. This action was commenced by plaintiff, as administratrix of the estate of Rose Kudrna, deceased, pursuant to the provisions of § 8-903, O.C.L.A., for the benefit of Vincent Kudrna, as surviving widower; Richard Kudrna, a son, aged 7 years; and Delores Kudrna, a daughter, aged 4 years, the sole surviving beneficiaries and dependents of decedent.

It is conceded that under the facts of this case, plaintiff's intestate did not occupy the status of a guest in the automobile within the meaning of § 115-1001, O.C.L.A. It seems to be agreed between the parties that the relationship then existing between plaintiff's intestate and the defendant was that of principal and agent. In such cases the law is well established that the agent owes his principal the duty of exercising due care, and, for the agent's negligence proximately resulting in injury to the principal, the agent is liable in damages. Alderman v. Noble, 296 Mass. 30, 4 N.E.2d 619, 620; Shaker v. Shaker, 129 Conn. 518, 29 A.2d 765, 766; 5 Blashfield, Cyc. of Automobile Law and Practice, 2, § 2881.

Under the doctrine of respondeat superior, a principal may be held liable for damages caused a third person by tortious acts committed by his agent while acting within the scope of his authority. 3 C.J.S., Agency, § 254, page 186. It also is a rule of law that, if a principal suffers injury by reason of the negligence of a third person, in which the negligence of his agent concurred as a proximate cause, the principal, though not personally negligent, cannot recover damages from...