Turner v. McCready

• Decision Date: 17 October 1950
• Citation: 222 P.2d 1010,190 Or. 28
• Parties: TURNER v. McCREADY et al.
• Court: Oregon Supreme Court

222 P.2d 1010

190 Or. 28

TURNER v. McCREADY et al.

Supreme Court of Oregon.

October 17, 1950

Argued Sept. 6, 1950.

Randall B. Kester, of Portland, argued the cause for appellant. With him on the brief were James J. Kennedy and Maguire, Shields, Morrison & Bailey, all of Portland.

Earl A Nott and Francis E. Marsh, of McMinnville, argued the cause and filed a brief for respondent.

Before LUSK, C. J and BRAND, BAILEY, HAY, LATOURETTE and WARNER, JJ.

BRAND, Justice.

This is an action for damages brought by Charles O. Turner as administrator of the estate of Charles Turner, deceased, against R. E Ellingsworth as administrator of the estate of Ralph Ellingsworth, deceased. Charles Turner was a guest in an automobile driven by Ralph Ellingsworth, and the action which is brought under O.C.L.A. § 115-1001, the guest statute, is based on alleged gross negligence of Ralph Ellingsworth, causing the death of Turner. There was a verdict and judgment of the plaintiff and the defendant appeals. We shall refer to Charles Turner, deceased as Turner, and to Ralph Ellingsworth, deceased, as Ellingsworth. If reference is made to the administrators, who bear the same names as the deceased, the word 'administrator' will be appended to the name.

The action was originally brought by Turner, administrator, against Ellingsworth, administrator, and also against the members of a partnership known as 'W. J. McCready Lumber Company' hereinafter called the 'Lumber Company', and against George B. Ortman, the agent of the Lumber Company. The verdict was in favor of the Lumber Company and Ortman, and they are not involved in this appeal.

The Lumber Company was the owner of a Ford flat bed truck, which, on May 15, 1946, at the hour of 1 P.M., was being operated by Ortman in a northerly direction on the Wapato Cut-off, a county road between Gaston and Newberg, and at that time Ellingsworth was operating a 1937 Pontiac coupe in a southerly direction along said road. Turner was riding as a guest of Ellingsworth. A collision ensued, resulting in the death of both Turner and Ellingsworth. In paragraph X of the complaint the plaintiff alleges the gross negligence of Ellingsworth and concurrent simple negligence by the other defendants. The allegations of this paragraph are denied by Ellingsworth. Paragraph XI of the complaint reads as follows:

'That at said time and place the said Ralph Ellingsworth operated and drove said Pontiac coupe automobile in a grossly careless and negligent manner and in reckless disregard of the rights of the plaintiff's decedent, Charles Turner, in the following particulars:

'1. In that he drove said automobile at a speed that was greater than would permit him to exercise proper control of said vehicle and to decrease the speed and stop the same as was necessary to avoid colliding with the 1939 Ford flat bed truck.

'2. In that he drove said Pontiac automobile upon said county road at a speed greater than was reasonable and prudent, having due regard for the surface and width of the highway and other conditions then existing.

'3. In that he failed to maintain and keep a proper lookout for other vehicles upon said highway and particularly for the Ford flat bed truck.

'4. In that he failed to keep and have said Pontiac automobile under proper control.

'5. In that he failed to drive said Pontiac coupe automobile as close as practicable to the right edge of said county road and upon the right half thereof.'

Apparently, by inadvertence, but by inadvertence which might produce disastrous results, the defendant expressly admits the allegations contained in paragraph XI, supra. Defendant also admits that a collision occurred between the truck and the automobile. The complaint, in paragraph XII, alleged the ordinary negligence of the Lumber Company and Ortman, with specifications similar to those which appear in paragraph XI concerning the conduct of Ellingsworth. The defendant Ellingsworth, as administrator, denies the allegations in paragraph XII of the complaint. Paragraph XIII of the complaint alleges: 'That the gross negligence of Ralph Ellingsworth, as hereinabove alleged, and the negligence of the defendants, George B. Ortman, W. J. McCready, M. C. McCready, J. R. McCready and W. W. McCready, as hereinabove alleged, were proximate and contributing causes of the collision occurring between the two vehicles * * *'. This allegation is denied by the defendant. On the face of the pleadings, the charges of negligence and gross negligence by Ellingsworth are expressly admitted. Babcock v. Gray, 165 Or. 398, 107 P.2d 846. It is elementary that an express admission is ordinarily conclusive as to the fact admitted. 41 Am.Jur., Pleading, § 201. It is also the recognized rule that when a defense contains both an admission and a denial respecting the same fact, the admission will prevail over the denial. Veasey v. Humphreys, 27 Or. 515, 41 P. 8; Baines v. Coos Bay Navigation Co., 41 Or. 135, 68 P. 397; Duncan Lumber Co. v. Willapa Lumber Co., 93 Or. 386 at 403, 182 P. 172, 183 P. 476; Sayles v. Daniels Sales Agency, 100 Or. 37, 196 P. 465; 49 C.J., Pleading § 352, par. (3), p. 287. Notwithstanding the state of the pleadings, the entire case was tried by both parties upon the theory that the alleged negligence and gross negligence of Ellingsworth was directly in issue. Evidence on those issues was received without objection, and the issues were submitted to the jury by the court without any objection based on the state of the pleadings. The case was argued before this court upon the theory that the alleged negligence and gross negligence of Ellingsworth was in issue.

It has been held that an admission may be waived and that there may be such a waiver where the entire case is thereafter tried as if the admitted fact was in issue. Caldwell v. Drummond, 127 Iowa 134, 102 N.W. 842; Conant v. Jones, 3 Idaho 606, 32 P. 250; Netcott v. Porter, 19 Kan. 131; Albion Milling Co. v. First National Bank of Weeping Water, 64 Neb. 116, 89 N.W. 638; Missouri Pacific Railway Co. v. Palmer, 55 Neb. 559, 76 N.W. 169; Williams v. Hayes et al., 20 N.Y. 58. This rule is especially applicable where, as here, the defendant has both denied and admitted the same fact in his answer, and where the admission was obviously the result of inadvertence. Under these circumstances, and in the interest of justice, we shall consider the case as if paragraph XI of the complaint had been denied.

By his first assignment, the defendant asserts that: 'The court erred in denying appellant's motions for involuntary nonsuit and directed verdict which were based upon the ground, among others, that there was no substantial evidence of gross negligence or reckless disregard of the rights of others so as to sustain a recovery under the Oregon guest statute'. We direct our attention to the issue thus presented. The evidence establishes that the collision occurred on a straight stretch of road, running in a northerly and southerly direction and between six hundred and eight hundred feet in length. This straight section ends at its northerly extremity in a gradual curve to the east. The Pontiac coupe, driven in a southerly direction by Ellingsworth, and the flat bed truck, driven in a northerly direction by Ortman, collided on said straight portion of the road and about two hundred feet south of the curve at the northerly end of the straight section of road. The road had a hard gravel base with a light covering of loose gravel. The graveled portion of the road was nineteen feet in width according to actual measurement by the police officer. Prior to, and at the time of the collision, there were three visible single tracks made by car wheels, and on which there was little or no loose gravel. The photographs in evidence demonstrate that these so-called track were by no means ruts, but were merely such smooth tracks as appear on gravel roads having some loose material above the hard rock, or, as a witness stated, 'just places where the rock has been kicked out by the passage of automobiles'. Defendant Ortman testified that the easterly track was within eighteen inches or two feet of the small ditch on the east side of the road. The second or middle track was, or course, parallel to the first, and westerly of it. The distance between the two would be the ordinary distance between the right and left wheels of an automobile. The easterly and middle tracks were those commonly used by north bound traffic. There is evidence that the third or westerly single track was at such distance from the middle one as would result from cars driving in a southerly direction and using the middle and westerly track. However, though the defendant Ortman testified that there were three tracks, he also testified, 'But there isn't any on the west side of the road to speak of; wasn't at that time.' There was no yellow line or visible mark to indicate the center of the road. Concerning the tracks, Ortman testified, 'If you would be in the two west ones you would be straddle of the center * * * it's practically hardly half a car width from the center of the road.'

Ellingsworth was driving the Pontiac coupe. With him in the front seat sat Mary King in the middle and Carl Herring on the right. Turner was sitting in the trunk or turtle back compartment on the left side immediately behind Ellingsworth. McMahon was lying in the middle of the trunk compartment and Hatfield was lying beside McMahon on the right. All of the occupants of the Pontiac coupe were students in the Gaston High School, and at the time of the collision were on their way to a baseball game at Sherwood. As a result of the collision between the coupe and the truck, which Ortman was operating, Ellingsworth, Mary King and Turner were...