Smith v. Pacific Truck Express

• Decision Date: 19 March 1940
• Citation: 100 P.2d 474,164 Or. 318
• Parties: SMITH <I>v.</I> PACIFIC TRUCK EXPRESS
• Court: Oregon Supreme Court

164 Or. 318

100 P.2d 474

SMITH

v. PACIFIC TRUCK EXPRESS

Supreme Court of Oregon.

Argued February 1, 1940.

Affirmed March 19, 1940.

Rehearing denied April 23, 1940.

Appeal and error — Motion for new trial

1. On appeal from order granting motion for new trial, appellant must show that none of grounds of motion is well taken and should present argument in opening brief on all questions raised by motion, not merely alleged erroneous ruling on which trial judge based decision.

Automobiles — Guest and host

2. A person conferring substantial benefit on owner or operator of motor vehicle in riding therein is not "guest" within statute providing that no person transported by motor vehicle owner or operator as his guest without payment shall have cause of action against him for damages for injury in case of accident, unless it was intentional on his part or caused by his gross negligence, intoxication or reckless disregard of others' rights, though such person also promotes his own convenience and advantage thereby.

Automobiles — Guest and host

3. Whether express agency's representative, injured while riding on truck transporting express for such agency, was truck owner's "guest" within automobile guest statute, held for jury on conflicting evidence in injured person's action against such owner for damages.

Automobiles — Instructions

4. In action for injuries to express agency's representative while riding on defendant's truck transporting express for such agency, court erred in refusing instruction that plaintiff was not defendant's guest within automobile guest statute, if benefit accrued to defendant from transporting plaintiff, though plaintiff was also benefited, where there was evidence that transportation served both parties' purposes.

Automobiles — Instructions

5. In action by express agency's representative for injuries sustained while riding on defendant's truck transporting express for such agency, it was not necessary for plaintiff to allege in complaint that her transportation by defendant was for parties' mutual benefit to entitle her to instruction that she was not defendant's guest within automobile guest statute if benefit accrued to defendant from transporting her, though she was also benefited.

Trial — Evidence — Insurance

6. In personal injury action, defendant's protection against loss by insurance contract is generally irrelevant to issues of negligence and injury and, being prejudicial in character, may not be shown, unless issues making it proper to divulge such fact develop on trial.

Witnesses — Adverse interest

7. It is always permissible to show adverse witness' interest or bias.

Witnesses — Insurance agent — Examination

8. In personal injury action, wherein insurance agent testified for defense, his connection with company which insured defendant against liability to plaintiff and is conducting defense may be brought out on cross-examination to affect his credibility.

Trial — Insurance — Relevancy

9. In personal injury action, evidence will not be excluded because it discloses defendant's insurance against loss as essential part thereof, if otherwise relevant.

Witnesses — Explaining testimony

10. A witness may explain his prior statements inconsistent with his testimony, but evidence proffered under guise of explanation should be rejected, if it does not explain anything, particularly if likely to arouse jury's prejudices.

Courts — Opinions

11. Broad language of supreme court's opinion, relied on as authority, must be understood and applied in light of record then before court.

Witnesses — Insurance adjuster

12. It is not competent to show that insurance adjuster sought and obtained from witness statement impeaching his testimony, unless integrity or accuracy of document is challenged.

Witnesses — Insurance adjuster

13. Evidence that written impeaching statement was obtained from witness by insurance adjuster is inadmissible, where no misrepresentations or inducements are asserted or there is no substantial variance between writing and what witness told adjuster, but where statement is questioned, issue arises between witness and person who prepared writing and jury has right to be informed of such person's interest in case when weighing witness' testimony.

New trial — Witnesses — New trial

14. In action for injuries, where plaintiff as a witness on cross-examination admitted signing a statement impeaching her account of how the injury occurred, but which statement she contradicted in an important particular, though she claimed no fraud or improper

inducement in obtaining statement, excluding her testimony on re-direct examination that the statement was given at the request and prepared by an adjuster for an insurance company insuring defendant against liability on account of plaintiff's alleged injury, was error requiring a new trial.

Witnesses — Explaining testimony

15. It is practice to afford witness opportunity to admit, deny or explain statement introduced in evidence to impeach his testimony.

Witnesses — Right to testify

16. A litigant cannot be denied right to be re-examined concerning new matter on which he has been examined by adverse party and to deny or explain statement impeaching his testimony, but manner of examination is within trial judge's control, reasonably exercised.

Witnesses — Re-direct examination

17. In personal injury action, circuit court did not abuse discretion or violate plaintiff's substantial rights by refusing to permit her to answer question on redirect examination as to specific portion of written statement, obtained from her by insurance adjuster, where she was permitted to re-read statement and call attention to any discrepancies therein.

Automobiles — Assumption of risk

18. A woman riding in corporation's truck did not assume risk of injury to her back as result of being thrown against piece of two-by-four plank at rear of seat when driver suddenly started truck before she sat down.

Appeal and error — Instructions

19. In action for injuries to woman riding in corporate defendant's truck, instruction that plaintiff assumed risk, if injuries were caused solely by sitting down on two-by-four plank at rear of seat when driver suddenly started truck, was harmless to plaintiff as merely telling jury that she could not recover if manner in which seat was built was sole cause of injuries.

Trial — Evidence

20. In personal injury action, plaintiff's medical witness' reference to somebody with insurance company in certain city in connection with such witness' testimony that X-ray pictures received in evidence were marred in mail when returned to him from such city was improper, in absence of evidence that films were maliciously marred by any one.

                  Who is a guest within contemplation of statute regarding
                liability of owner or operator of motor vehicle for injury to
                guest, note, 95 A.L.R. 1180. See, also, 5 Am. Jur. 634
                  42 C.J., Motor Vehicles, § 804
                

In Banc.

Appeal from Circuit Court, Tillamook County.

R. FRANK PETERS, Judge.

Action by Mabel E. Smith against the Pacific Truck Express, a corporation, to recover damages for personal injuries. From an order setting aside a jury's verdict for defendant and granting plaintiff a new trial, defendant appeals.

AFFIRMED. REHEARING DENIED.

James Arthur Powers, of Portland, for appellant.

Walter L. Tooze, of Portland, for respondent.

LUSK, J.

The plaintiff, Mabel Smith, was injured while riding on a truck operated by the defendant, Pacific Truck Express. She sued to recover her damages, and the jury returned a verdict for the defendant. The circuit court, on motion of the plaintiff, set aside the verdict and granted a new trial on the ground of error prejudicial to the plaintiff in the exclusion of testimony, and the defendant has appealed. Other questions are raised by the motion for the determination of which a brief statement of the facts is necessary.

Mrs. Smith was the representative of the American Railway Express Agency at Bay City, Tillamook county, Oregon. Her office was located on a street which formed the approach to a dock on Tillamook bay. Along the dock were buildings where fish, crabs and clams were prepared for shipment, the farthermost one, that of the Tillamook Bay Fish Company, being at the bay or west end of the dock, a distance of approximately two-fifths of a mile from the Railway Express office.

The defendant operated trucks between Tillamook, seven miles south of Bay City, and Foss, to the north. It transported express handled by the Railway Express Agency, its own freight, and the mail, under a contract with the United States government. Customarily its truck, on the return trip from Foss to Tillamook in the afternoon, picked up Railway Express Agency shipments of fish, crabs and clams at the Bay City dock and, at times, other merchandise which was brought to the office of the Railway Express Agency.

In the discharge of her duties Mrs. Smith's routine was as follows: She would go to the shippers on the dock sometime before 3 o'clock in the afternoon, obtain the necessary information respecting the character of the day's shipments, names of shipper and consignee, destination, etc., and return to her office where she made up the waybills. She would wait there until the truck came by. Then, she would ride on the truck to the dock, attach shipping tags and copies of the waybills to the boxes, receipt for the shipments and list them in a book known as script, and, after the loading had been completed, return on the truck to her office. There, the driver signed the script, and this constituted her receipt from the defendant for Railway Express Agency shipments. The signing of the script was deferred until the return to the office because at times, while she was absent on the dock, parcels would be left for shipment at the office, which had to be listed on the script sheet along with the others, and also receipted for.

This course of conduct...