Ramp v. Osborne

• Decision Date: 08 September 1925
• Parties: RAMP v. OSBORNE ET AL. (THREE CASES.
• Court: Oregon Supreme Court

239 P. 112

115 Or. 672

RAMP v. OSBORNE ET AL. (THREE CASES.

Supreme Court of Oregon

September 8, 1925

Department 1.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Separate actions by M. S. Ramp. by Robert Malcom Ramp, by M. S. Ramp his guardian ad litem, and by Nellie Ramp against E. G Osborne, Homer Ross, and the Oregon Rubber Company. From a judgment for the plaintiffs in each case, the two last-named defendants appeal. Judgment of nonsuit rendered against all plaintiffs in favor of the Oregon Rubber Company, and against plaintiff M. S. Ramp in favor of all defendants, and reversed as to the other plaintiffs.

Arthur M. Dibble, of Portland, and R. L. Conner, of McMinnville (Malarkey, Seabrook & Dibble, of Portland, and McNary, McNary & Keyes, of Salem, on the brief), for appellant Homer Ross.

Joseph Haney & Littlefield, of Portland, for appellant Oregon Rubber Co.

W. C. Winslow, of Salem, and Roy F. Shields, of Portland, for respondents.

BURNETT J.

On July 2, 1921, M. S. Ramp, accompanied by his wife, Nellie Ramp, and their minor son, Robert Malcom Ramp, was driving a Ford automobile in which they were riding eastward along a road leading from Brooks in Marion county approximately at right angles across the Pacific Highway, leading northerly from Salem toward Portland. At the intersection of the two roads a collision ensued between the automobile so driven by M. S. Ramp and a Pierce-Arrow car driven north on the highway by the defendant E. G. Osborne. As a result of the collision, Ramp and his wife and child were all injured. Each of the three brought a separate action against the defendant Osborne, joining with him the defendants Ross and the Oregon Rubber Company, averring, in substance, that the defendants negligently operated the Pierce-Arrow car at a careless and reckless rate of speed in excess of 50 miles per hour, carelessly and negligently failed to keep a proper lookout or any lookout for the safety of the traveling public, and carelessly and negligently failed to watch where they were driving said car, and, while thus carelessly and negligently operating said car, ran into plaintiff's automobile, demolishing the same, threw out the plaintiff, to his injury in each case. In each case, the negligence is charged in practically the same language. The resulting injuries are of course different in each instance. The corporate character of the defendant Oregon Rubber Company is admitted in each answer. Otherwise all the complaints are traversed. The defendant Osborne added to his denials a plea imputing to the plaintiff M. S. Ramp contributory negligence, retorting in that respect in practically the same terms employed in the complaint. Likewise Osborne averred a counterclaim against M. S. Ramp for damages accruing to the former by virtue of the collision. By agreement at the trial the defense of contributory negligence as against M. S. Ramp was adopted by Ross and the Rubber Company as their own, was considered applicable to them as well as to Osborne, and was deemed traversed by the reply. No further notice need be taken of the answers of Osborne, as affecting him, because he has not appealed from the adverse judgments. On stipulation of the parties all three actions were tried together before the same jury in the circuit court, with the result that each plaintiff obtained a verdict for damages against all the defendants. From the ensuing three judgments, the defendants Homer Ross and Oregon Rubber Company have appealed.

The assignments of error in a large part are identical as to each appellant. In substance, the theory of the plaintiffs in all the cases was that the defendant Osborne was driving the Pierce-Arrow car, and was guilty of negligence in so doing, to the damage of the plaintiffs, and, further, that at the time Osborne was the servant of both the other defendants, rendering them responsible for his tort under the familiar doctrine of respondeat superior.

One of the assignments of error is the action of the court in permitting a witness to testify for the plaintiff over the objection of the defendants that at a point 4 or 5 miles south of the place of the accident a car, which the witness identified as the Pierce-Arrow involved in the collision, was seen going at a speed of 45 miles an hour. In Wade v. City Railway Co., 36 Or. 311, 59 P. 875, such evidence was held inadmissible. The question is the negligence of the offending party at the time and place of the accident. It does not necessarily follow that a defendant is negligent at the critical time and place because he was negligent at some other place and at a different time. As well might the defendant put in testimony that at all other times and places he was extremely careful in the operation of the car. In Flynn v. Lewis, 231 Mass. 550, 121 N.E. 493, 2 A. L. R. 896, the court held that it was not permissible to show that, on the forenoon of the day in the afternoon of which the accident happened, the chauffeur drove fast. See, also, Cooney v. Commonwealth Ave. Street R. Co., 196 Mass. 11, 81 N.E. 905. As said by Mr. Justice Bigelow in Robinson v. Fitchburg, etc., R. R. Co., 7 Gray (Mass.) 92, 95:

"Evidence of specific acts of negligence and carelessness on the part of the engineer, in running the train on other occasions than the one in question, was clearly incompetent. It would not only lead to collateral inquiries, and so distract and mislead the jury from the true issue before them, but it had no legal or logical tendency to prove the point in issue. Because a man was careless or negligent of his duty in one or two specified instances, it does not follow that he was so at another time and under different circumstances."

See, also, City of Salem v. Webster, 192 Ill. 369, 61 N.E. 323; Dalton v. Chicago Ry. Co., 114 Iowa, 257, 86 N.W. 272; Christenson v. Union Trunk Line, 6 Wash. 75, 32 P. 1018; ahoma Ry. Co. v. Thomas,

63 Okl. 219, 164 P. 120, L. R. A. 1917E, 405.

For the purpose of imputing ownership of the car in question to the defendant Ross, plaintiffs offered a certified copy of an application of Ross for a dealer's license plate and another application made by Osborne for a duplicate set of such plates, the others having been lost. It was not shown that Osborne had any authority from Ross to make such an application; neither was it shown that either the original dealer's license plates or the duplicates were attached to the car driven by Osborne at the time of the accident. The statute does not make a dealer's license plate evidence of property in any car. No particular car is described in an application for such plates, and they are attached indiscriminately to any car the dealer owns when he is demonstrating it for the purpose of sale. The court, it is true, restricted their operation to the purpose of identifying the number of the dealer's license plates issued to Ross. This, however, was not material testimony upon the issue of whether Ross owned the car involved in the accident or not. The effect and purpose of dealers' license plates are prescribed in section 4 of chapter 371 of the Laws of 1921, that being the statute in force at the time of the accident.

As developed in the testimony, the theory of the plaintiffs as against the defendant Ross was that he had employed the defendant Osborne to take the car which Osborne was driving and sell it for the account of Ross and that he was engaged in that undertaking at the time of the accident. On the other hand, the theory of Ross was that, while it is true that about a month before the accident he had intrusted the car to Osborne to be sold by him, yet he was limited in his driving to take it only to Eugene, Or., and there sell it; that having failed to sell the car at that place, Osborne asked permission of Ross to drive the car to Portland for the purpose of taking out the family of Osborne for a holiday trip on the 4th of July; that Ross refused permission for that purpose, whereupon Osborne said to him, in a telephone conversation, that, unless he sold it in Salem, he would take the car himself on the terms under which Ross had intrusted the car to Osborne, and to this Ross assented, with the understanding that the car should be paid for later. In that connection Ross requested the following instruction to the jury:

"If you find from the evidence that defendant Ross had sold the automobile driven by defendant Osborne to defendant prior to the accident, then your verdict should be for the defendant Ross. In this connection I instruct you that, if defendants Ross and Osborne had an understanding that the title to said automobile passed from defendant Ross prior to the accident, for which defendant Osborne was to pay defendant Ross at a later date, this would constitute a sale, even though the purchase price was not paid."

Instead of giving all this instruction, the court only gave the first sentence thereof. The car being in the possession of Osborne at the time, the case did not fall within the statute of frauds requiring a memorandum in writing, unless the delivery of the property involved, or some part thereof, was made. It was quite competent for Ross to sell the car under such circumstances to Osborne on credit, and if that was the real intention of the parties in good faith, and the intent was thereby to pass the title to Osborne, it would exonerate Ross from the consequences of any subsequent collision. Ross was not bound by the terms of the offer which he had instructed Osborne to make to other parties of half cash and the balance to be secured by a conditional sales note. It was the privilege of Ross to give more favorable or different terms to Osborne and to sell it to him on credit. The question should have been left to the jury on...