Summerville v. Gillespie
| Decision Date | 29 April 1947 |
| Citation | 181 Or. 144,179 P.2d 719 |
| Parties | SUMMERVILLE <I>v.</I> GILLESPIE |
| Court | Oregon Supreme Court |
See 5 Am. Jur. 712, et seq. Automobile owner's liability, servant's
own purpose, notes, 22 A.L.R. 1397; 45 A.L.R. 477; 68
A.L.R. 1051; 80 A.L.R. 725; 122 A.L.R. 858. Ownership of automobile
as prima facie evidence of responsibility for negligence of
operator, notes, 42 A.L.R. 907; 74 A.L.R. 956; 96 A.L.R. 638
See also, 5 Am. Jur. 841; 42 C.J., Motor vehicles, § 867
Appeal from Circuit Court, Deschutes County.
CHAS. H. COMBS, Judge.
George H. Brewster, of Redmond (Cunning & Brewster, of Redmond, on the brief), for appellant.
H.H. DeArmond, of Bend (DeArmond, Goodrich & Foley, of Bend, on the brief), for respondent.
Before ROSSMAN, Chief Justice, and LUSK, BELT, BAILEY, HAY and WINSLOW, Justices.
REVERSED AND REMANDED.
WINSLOW, J. (Pro Tempore)
This is an action to recover damages for personal injuries resulting from a collision between an automobile in which respondent was riding and a truck operated by one A.A. Fausett and owned by Robert Gillespie, doing business as Central Oregon Fuel Co., the appellant herein. From a judgment in favor of respondent, appellant prosecutes this appeal.
There are several assignments of error, but, by virtue of the conclusion we have reached, it will be necessary to consider only one thereof — appellant's motion for a directed verdict. By this motion appellant raises the question as to whether there is any evidence in the record to sustain the verdict. This contention is based upon the proposition, as contended by appellant, that there is no evidence to show that Fausett was the agent of appellant in the operation of the truck at the time and place of the accident.
There is substantial evidence that appellant was the owner of the truck; that Fausett was in his employ; that appellant was engaged in the wood business at Redmond, Oregon, and at the time of the accident, December 8, 1944, was working on a war time basis; that the truck involved in the accident was used for the purpose of delivering slabwood; that the operator of the truck on the day shift would bring the truck to Fausett's residence in Redmond at about 6:00 o'clock in the evening where Fausett would take it, go to the mill and work from 6:00 o'clock until 3:00 in the morning; that his duties required him to haul wood from the bunker to the car or woodyard; that at the time of the accident Fausett lived at Sixth and A Streets in Redmond, Sixth Street being The Dalles-California Highway; that his route of travel from his residence to his work was "turn, drive around the block and go down A Street, and go east on A Street"; that Fausett had been engaged in this character of work for appellant for some time prior to the accident; that on the evening in question the truck was left at Fausett's home at about 5:40 o'clock; that Fausett took the truck and, instead of going to work, drove the same north on The Dalles-California Highway to what is known as the Hinton place, where he kept a cow; that he drove the truck off the highway into a lane on the east side of the highway, milked and fed his cow, backed the truck out onto and across the highway intending to return home; and that it was while he was backing out, or just before he started forward, and while his truck was partly on the west side of the highway and partly on the west shoulder of the highway that the same was struck by the car in which respondent was riding.
In view of our disposition of this case, it will not be necessary to set forth a detailed description of the accident. Suffice it to say that both respondent and the driver of the car in which he was riding had just concluded work on a second continuous shift, had been drinking and were tired and sleepy. Respondent himself was asleep at the time of the accident, and the probability is that the driver of the car in which he was riding likewise fell asleep. The driver does not remember.
The record establishes that appellant did not know of the use which Fausett made of the truck upon the evening in question. Fausett had not sought or obtained permission to so use it. The record does show that some time prior to this he had sought and obtained permission to use it a few Sundays for the purpose of hauling hay for himself.
Respondent, in order to make his case, called both Fausett and appellant as witnesses. Fausett testified that, when the truck was left at his house that night, it was partly loaded with wood, "about two-thirds of a cord." He drove the truck in the same condition down to the Hinton place to milk and feed his cow, intending to return to his home to leave the milk and then to go to work. He testified:
Appellant gave the following testimony:
Again:
We shall now give consideration to appellant's fifth assignment of error. This assignment is predicated upon the contention that there was no evidence to show that Fausett was an agent of appellant; that, although Fausett was in the employ of appellant generally, he was acting beyond the scope of his employment at the time and place of the accident; and that, therefore, there was no evidence upon which the jury could find that the truck was being driven by a servant of appellant while acting within the scope of his employment.
Respondent argues that the motion for directed verdict was properly denied for two reasons: (1) Because the admission by appellant that he owned the truck was prima facie evidence that the truck was being driven for him by his agent; and (2) because there was other evidence which aided and strengthened this prima facie case of agency growing out of such ownership.
This court has held many times, commencing with the cases of Houston v. Keats Auto Co., 85 Or. 125, 166 P. 531, and West v. Kern, 88 Or. 247, 171 P. 413, 1050, L.R.A. 1918D, 920, that proof of ownership makes a prima facie case against the owner. The court in West v. Kern said:
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