Sheehan v. Apling

• Decision Date: 12 July 1961
• Citation: 363 P.2d 575,227 Or. 594
• Parties: Lloyd SHEEHAN, Appellant, v. Steven E. APLING and Dock S. Dorrel, Respondents.
• Court: Oregon Supreme Court

Page 575

363 P.2d 575

227 Or. 594

Lloyd SHEEHAN, Appellant, v. Steven E. APLING and Dock S. Dorrel, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 7, 1961.

Decided July 12, 1961.

H. William Barlow, Salem, argued the cause and submitted briefs for appellant.

C. S. Emmons, Albany, argued the cause for respondents. On the briefs were Willis, Kyle & Emmons, Albany.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.

GOODWIN, Justice.

This is an action for damages for injuries sustained in a highway collision. The plaintiff, who was a passenger in his own truck, appeals from a judgment entered for the defendant-driver following a directed verdict.

Did the trial court err in taking the case from the jury? The plaintiff, Sheehan, contends that if there was evidence of negligence on his part, which he denies, there was a jury question. The defendant, Apling, contends that contributory negligence was proven as a matter of law and that the directed verdict was properly entered.

Apling, who was moving his household goods from Toledo, Washington, to Coos Bay, Oregon, asked his friend Sheehan for the use of Sheehan's 1942 Ford truck. Sheehan obliged by loaning Apling the truck and then agreed to accompany Apling on the trip to help unload the furniture. Sheehan drove to Coos Bay. He also drove the first part of the return trip. At the time of the accident, Apling was driving. The collision occurred about 6:30 a. m., September 1, 1957. The parties had been on the road about 22 hours. Sheehan was awake, alert, and watching the road. He complains that Apling was not. Visibility was good; the pavement was dry. There was some evidence that neither party had enough sleep prior to the accident. After unloading in Coos Bay, they had turned around and started north again. The parties had stopped long enough for one meal.

The truck in which the parties were riding collided with a passenger automobile proceeding south on old Highway 99 near Tangent, Oregon. The record offers little to show what caused the accident. There is enough circumstantial evidence to justify an inference that Apling went to sleep at the wheel, swerved over the center line and into the path of the southbound car. Sheehan swore he remembered the truck swerving over the center line. He could not swear that Apling went to sleep, but could give no other explanation for Apling's behavior. Apling denied going to sleep and said he thought the southbound car crossed over the center line. All the other evidence in the record placed the northbound truck in the wrong lane. Sheehan sued both drivers, but has not appealed from the directed verdict in favor of the southbound driver.

On the facts set forth above, the jury should have been given the opportunity to consider Apling's negligence and Sheehan's contributory negligence in riding with Apling under the circumstances. There was also a question for the jury whether Sheehan negligently exercised whatever control he might have had at the time of the collision and whether such negligence, if any, was a causal factor thereof. See Johnson v. Los Angeles-Seattle Motor Exp., Inc., 222 Or. 377, 388, 352 P.2d 1091, where we distinguished between actual contributory negligence on the part of an owner-passenger and imputed negligence arising out of an agency relationship. A note, 27 Brooklyn L.Rev. 167, comments on similar cases in other states.

Apling contends that the right of control as understood in the law of agency is decisive in his favor. Apling reasons thus; Sheehan as owner had the right to control the vehicle, and therefore to control the driver. Right to control created an agency relationship. Since a principal is responsible for the negligence of his agent, Sheehan is responsible for the accident. Since Sheehan is responsible (on principles of respondeat superior), he can not recover from his negligent agent. The non sequitur is obvious.

Whatever the rule may be if a third person sues Sheehan on these facts, respondeat superior does not affect Sheehan's rights against Apling. Prauss v. Adamski...