Schnell v. Mullen

• Decision Date: 15 June 1960
• Citation: 222 Or. 454,353 P.2d 567
• Parties: Lila A. SCHNELL, Appellant, v. Nadine MULLEN, administratrix of the Estate of William John Lenz, Deceased, Respondent.
• Court: Oregon Supreme Court

Page 567

353 P.2d 567

222 Or. 454

Lila A. SCHNELL, Appellant, v. Nadine MULLEN, administratrix of the Estate of William John Lenz, Deceased, Respondent.

Supreme Court of Oregon.

Submitted June 2, 1960.

Decided June 15, 1960.

Hibbard, Jacobs & Caldwell, Oregon City, filed a brief for appellant.

Philip A. Levin, Portland, and Jack, Goodwin & Santos, Oregon City, filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN and O'CONNELL, JJ.

McALLISTER, Chief Justice.

This is an action to recover damages for personal injuries sustained by plaintiff, Lila A. Schnell, while riding as a guest in an automobile driven by William John Lenz. Lenz died while this action was pending in the trial court and the administratrix of his estate was substituted as defendant. The jury returned a verdict for plaintiff in the sum of $20,000, the maximum amount permitted by statute (ORS 30.080), and judgment was entered on the verdict. Defendant then moved for judgment in her favor notwithstanding the verdict for plaintiff. The motion was allowed, the judgment for plaintiff set aside and a judgment entered for defendant. Plaintiff appeals.

Plaintiff, a widow, had been staying with her brother at Brightwood on the Mt. Hood Loop Highway. She wished to visit a friend who lived on the highway east of Brightwood and arranged for a ride with Lenz. Plaintiff met Lenz during the evening at a tavern in Brightwood and rode with him to see her friend. After a short visit, plaintiff and Lenz started the return trip to Brightwood at about 9:30 o'clock p. m. Up to that time there had been nothing out of the ordinary or unusual in the manner in which Lenz operated the automobile. Before reaching Brightwood, however, Lenz permitted his car to veer gradually onto the left side of the highway where it collided head-on with a car traveling in the opposite direction. ¹

Except for the testimony of the plaintiff, the only evidence concerning the accident was given by the police officer who arrived on the scene after the accident had occurred. He testified that the Lenz car was standing on the wrong side of the highway and that the collision was 'as near a perfect head-on as you could find in an accident.' When the officer arrived he found Lenz behind the wheel of his automobile, conscious, 'almost laughing, actually laughing,' and seemingly 'very unconcerned.' The officer detected liquor on Lenz's breath. There was evidence that Lenz was seriously ill with cancer and had had 'several bad spells.'

This case normally would turn on whether plaintiff had proved a prima facie case of gross negligence under our guest statute, ORS 30.110. However, because of the death of Lenz before trial in the court below, this case turns on the construction of ORS 30.080, which reads as follows:

'Causes of action arising out of injury to or death of a person, caused by the wrongful act or negligence of another, shall not abate upon the death of the wrongdoer, and the injured person or the personal representatives of one meeting death, as above stated, shall have a cause of action against the personal representatives of the wrongdoer; however, the injured person shall not recover judgment except upon some competent satisfactory evidence other than the testimony of the injured person, and the damages recoverable under this section shall not exceed $20,000, which may include a recovery for all reasonable expenses paid or incurred for funeral, burial, doctor, hospital or nursing services for the deceased.' (Italics supplied.)

Plaintiff contends that the italicized portion of the above statute only required her to produce competent satisfactory evidence tending to corroborate the testimony of plaintiff. Defendant, on the...