Smith v. Burns

• Decision Date: 09 June 1914
• Citation: 142 P. 352,71 Or. 133
• Parties: SMITH v. BURNS ET AL.
• Court: Oregon Supreme Court

142 P. 352

71 Or. 133

SMITH v. BURNS ET AL.

Supreme Court of Oregon

June 9, 1914

In Banc.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Action by George Smith against D. C. Burns and another. From a judgment for plaintiff, defendant Burns appeals. Reversed and action dismissed as to appellant.

See also, 135 P. 200.

This is an action for damages for personal injuries suffered when plaintiff was struck by defendant's automobile. The defendant D. C. Burns, at the time of the acts complained of was owner of the automobile by which the injury was caused. Arthur Gossman, his stepson, was operating the machine at the time of the accident. He was married and lived at 503 Mill street, an apartment house, in which defendant Burns also occupied an apartment. Before his marriage he lived with Burns. He was in the employ of the Oregon Hardware Company. Burns owned and maintained the auto as a pleasure car for his family, and Gossman drove the car for Burns and his family at times, but did not have authority to get or use the car without permission from Burns or his wife. He had used it by express permission on a few occasions. On the day of the accident neither Burns nor his wife was at home, and Gossman took the car to go after his wife, who was on the east side of the river. On his return the car collided with plaintiff causing the injury of which he complains; and he brought this action against Burns and Gossman for damages. Burns answered separately disclaiming liability. Upon trial a verdict was returned against the defendants jointly, and from a judgment thereon, defendant Burns appeals.

Paul M. Long and Q. L. Matthews, both of Portland (Christopherson & Matthews, of Portland, on the brief), for appellant. I. N. Smith, of Portland (Shirley D. Parker, of Portland, on the brief), for respondent.

EAKIN J. (after stating the facts as above).

As our view of the case necessitates a reversal of the judgment, we need discuss only point 3 made in the brief, namely, error by the court in refusing, at the close of the trial, to direct a verdict in favor of the defendant Burns. The contention of plaintiff is that Burns was the owner of the machine kept for the pleasure of his family, and, as Gossman used it sometimes for the family and for himself, Burns was responsible for the carelessness of its operation by Gossman. Gossman at the time of the accident was not on an errand or any business for Burns, but took the auto for an errand of his own. Neither he nor his wife was a member of Burns' family. He was not connected with, in the employment of, or in any way acting for or on behalf of Burns. The case is very similar to that of Maher v. Benedict, 123 A.D. 579, 108 N.Y.S. 228, where it is held:

"Liability cannot be cast upon the defendant because he owned the car, or because he permitted his son to drive the car whenever he wished to do so. * * * Liability arises from the relationship of master and servant, and it must be determined by the inquiry whether the driving at the time was within the authority of the master, in the execution of his orders, or in the doing of his work"--quoting from Cavanaugh v. Dinsmore, 12 Hun, 468: "It is well settled that the master is not liable for injuries sustained by the negligence of his servant while engaged in an unauthorized act, beyond the scope and duty of his employment * * * although the servant is using the implements or property of the master."

The case of Bursch v. Greenough Bros. Co. (Wash.) 139 P 870, is directly...