Sather v. Giaconi

• Decision Date: 11 December 1923
• Citation: 110 Or. 433,220 P. 740
• Parties: SATHER v. GIACONI.
• Court: Oregon Supreme Court

220 P. 740

110 Or. 433

SATHER v. GIACONI.

Supreme Court of Oregon

December 11, 1923

In Banc.

Appeal from Circuit Court, Clatsop County; J. U. Campbell, Judge.

Action by Albert J. Sather against Joseph V. Giaconi. Judgment for plaintiff, and defendant appeals. Affirmed.

G. C. & A. C. Fulton, of Astoria, for appellant.

Norblad & Hesse, of Astoria, for respondent.

BURNETT J.

The plaintiff, as owner of a gill net used for fishing in the Columbia river, brings this action to recover damages for the destruction of a part of his net by the negligent operation of a purse seine owned by the defendant. It is averred in the complaint and admitted by the answer that the defendant at all the times mentioned in the complaint was, and now is, the owner of a certain fishing vessel called President Lincoln III, together with the necessary fishing appliances and paraphernalia belonging to it, including what is generally known as a purse seine. The manner of operating both the gill net and the purse seine is averred in the complaint. In substance it is charged that the defendant's outfit consisting of the vessel and purse seine, was operated by his officers, agents, servants, employees, and crew on his behalf and for his benefit, and that they committed the wrongs of which the plaintiff complains while acting within the scope of their employment for and on behalf of the defendant. It is alleged that on July 22, 1918, the plaintiff had laid out his gill net in the Columbia river at right angles to the general course thereof, and was drifting up stream with the tide; that the defendant, by his said employees and crew, having full knowledge of the presence and location of the plaintiff's net, laid out the purse seine within about 30 feet in front of the gill net and between it and the ocean, well knowing that, on account of the short distance between the net and the seine, the latter was bound to be and would be carried by the operation of the tide into the net, on account of which, and the manner in which the seine was operated, the necessary result would be to entangle the plaintiff's net and destroy the same. The complaint then avers:

"That after defendant, through his duly authorized officers, agents, servants, employés, and crew, had so wrongfully, negligently, and carelessly laid out and was laying out his said purse seine in the manner and fashion as above set forth, the tide drifted defendant's said purse seine against and over and across plaintiff's said gill net; and while the same was so drifting, as aforesaid defendant, through his duly authorized agents, servants employés, and crew, wrongfully, willfully, carelessly and negligently, and with utter disregard to plaintiff's property, caused the same to be hauled, pulled or 'pursed' together, resulting in the tearing and damaging of plaintiff's said gill net to such an extent that plaintiff lost one-half thereof, which said one-half of said net was at that time of the reasonable value of $1,000."

The complaint also contains the following averment:

"That, on account of the shortage of twine necessary for the reconstruction of plaintiff's said gill net, and on account of the shortage of labor existing at that time, all of which was well known to defendant, plaintiff was unable to knit one-half of his said gill net so as to be of the same size as before it was so negligently and carelessly torn by defendant as aforesaid; neither was plaintiff able to purchase a net in extent and size equal to the amount lost by him through defendant's carelessness and negligence, or any other kind of gill net suitable for fishing at that time of the year, and was therefore obliged to fish from the 22d day of July to the 25th day of August, when the salmon fishing season with gill nets closed, with only one half of his net, resulting to plaintiff in the further damage of $1,500."

The prayer of the complaint is for judgment against the defendant for $1,000 for loss and damage to the plaintiff's net; for the further sum of $1,500 for loss of profits; and for the third sum of $500 for punitive damages and for costs and disbursements.

Affirmatively, the answer alleges, in substance, that the defendant at all the times set forth in the complaint was the owner of the vessel named, together with her tackle, apparel, furniture, machinery, and appliances, including one purse seine complete; that prior to all the times set forth in the complaint the defendant had chartered and leased the whole outfit mentioned, together with the navigation thereof, to certain individuals, to be used in fishing; that the navigation and control thereof was vested exclusively in those individuals, and at the time of the alleged injury to the plaintiff's property the defendant had no control over the vessel or the navigation thereof.

At the trial the plaintiff gave evidence in chief of the manner in which the injury was inflicted, to the effect that he had laid out his gill net across the channel of the Columbia river near the mouth thereof and was drifting up stream with the in-coming tide when the persons in charge of the vessel and the purse seine belonging thereto came and laid out the seine immediately below the net, so close thereto that the inevitable result was that the seine drifted against the net, and, being much heavier and stronger gear, entangled the net, and when the seine was drawn in or "pursed" it fouled and tore the net, so that about half thereof was utterly destroyed. Testimony was given concerning the value of the net. The plaintiff having rested his case, the defendant moved for a judgment of nonsuit, and likewise, at the close of the whole case, moved for a directed verdict for the defendant. Both these motions were denied.

On his behalf the defendant gave evidence to the effect that at the time of the accident and for a long time prior thereto he had leased the vessel and seine to some parties who were then in charge of same, and that he had no control over them or direction in their operation. On cross-examination, it was brought out that the fish caught by the President Lincoln III for that season were delivered to a packing company, and that the defendant drew from the company the money which paid for the fish thus delivered. On redirect examination he explained, in substance, that he drew the money at the request of his lessees for the purpose of dividing the same among them according to their several interests in the fishing venture of that season. In rebuttal, over the objection and exception of the defendant, the plaintiff called the bookkeeper of the packing company, who exhibited leaves from its loose-leaf ledger showing an account against the President Lincoln III during the season of 1918, including payments made by the company on account of fish delivered. He testified that the defendant had drawn the payments which were made to him, but that the witness did not know for whose account they were drawn, or what disposition had been made of the money. Copies of the ledger leaves were offered in evidence over the objection of the defendant.

Among other things, in charging the jury the court said:

"Now, counsel for both sides gave you a great many illustrations of what the law is. Some of them were right, and some of them were not right--they were right in that particular instance that they cited. (For instance, Mr. Fulton was laying great stress on the automobile, and the farmer's wagon, which was good law under a case such as he cited, but might not be the law in all cases.)"

At the close of the charge the defendant excepted to the portion of the excerpt just quoted, which is included in parentheses. When taking exception to the instruction, some colloquy between the court and the counsel occurred when the judge said to defendant's counsel in the presence of the jury:

"You will be allowed an exception, and hereafter you will not probably argue the law to the jury,"

--to which language the defendant by his counsel excepted.

The principal grievance the defendant has against the judgment is that the case ought not to have been submitted to the jury because there was no evidence to counteract the averment and the evidence of the defendant that his outfit was under lease at the time the injury occurred, and that he had no control over the same. This contention is futile under such precedents as Houston v. Keats Auto Co., 85 Or. 125 166 P. 531; West v. Kern, 88 Or. 247, 171 P. 413, 1050, L. R. A. 1918D, 920; Doherty v. Hazelwood Co., 90 Or. 475, 175 P. 849, 177 P. 432; Clark v. Jones, 91 Or. 455, 179 P. 272; Rook v. Schultz, 100 Or. 482, 198 P. 234. The principle is thoroughly established in this state that, if it is shown by any evidence that the instrumentality which caused injury was the property of the defendant, albeit some other person was operating it, the presumption is that such person was agent, servant, or employee of the defendant, and that a situation thus disclosed is sufficient to take the case to the jury on behalf of the plaintiff,...