West v. Kern

• Decision Date: 12 March 1918
• Citation: 88 Or. 247,171 P. 413
• Parties: WEST v. KERN.
• Court: Oregon Supreme Court

171 P. 413

88 Or. 247

WEST v. KERN.

Supreme Court of Oregon

March 12, 1918

Department 1.

Appeal from Circuit Court, Multnomah County; H. H. Belt, Judge.

Action by Clarence W. West against Daniel Kern. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed on rehearing, 171 P. 1050.

The defendant, Daniel Kern, has appealed from a judgment obtained against him by the plaintiff, Clarence W. West, for injuries resulting from a collision with an automobile in the city of Portland. Lawrence R. Kern is a nephew of Daniel Kern. Fidelo Lopez worked as gardener and "all-around man around the house" of Daniel Kern, who resided on the east side of the Willamette river. East Burnside street extends east and west. East Twenty-Second street runs north and south and intersects East Burnside street. The plaintiff was riding a motorcycle going west along the north side of East Burnside street, intending to proceed across and beyond East Twenty-Second street. Lawrence R. Kern and Fidelo Lopez, with Lopez at the wheel, were traveling east along the south side of East Burnside street in an automobile owned by Daniel Kern, intending to turn to the left and go north on East Twenty-Second street. Instead of passing around the center of the intersection of the two streets, the driver of the automobile "cut the corner" and struck and seriously injured the plaintiff, who was proceeding west on the motorcycle.

The complaint alleges that:

"Said automobile was with the consent and knowledge and direction of said defendant being operated by certain agents and employés of said defendant who were then and there driving said automobile in behalf of said defendant and within the scope of their employment and authority for said defendant."

R. W Wilbur, of Portland (Wilbur, Spencer & Becket and F. C. Howell, all of Portland, on the brief), for appellant. Dan J. Malarkey and A. M. Dibble, both of Portland (Malarkey, Seabrook & Dibble, of Portland, on the brief), for respondent.

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

The only error assigned by the defendant arises out of the refusal of the court to direct a verdict in favor of the defendant. This assignment of error is predicated upon the contention that there was no evidence to show that Lawrence R. Kern was an agent of Daniel Kern; that, although Lopez was employed as a gardener and "an all-around man around the house," he was acting beyond the scope of his employment when driving the automobile; and that therefore there was no evidence upon which the jury could find that the automobile was being driven by a servant or servants of the defendant while acting within the scope of their employment. The plaintiff argues that the motion for a directed verdict was properly denied for two reasons: First, because the admission by the defendant that he owned the automobile was prima facie evidence that the car was being driven for him and by his servant or servants; and, second, because, independent of the admission of ownership, there was evidence to support a finding that the automobile was being driven for the defendant by his servant or servants.

Daniel Kern admitted that he owned the automobile which struck the plaintiff; he denied that Lawrence R. Kern was his agent; and, while admitting that Lopez was his servant he denied that Lopez had any duties to perform in connection with the automobile. The defendant says in his brief that the court permitted the case to go to the jury upon the theory that a prima facie case had been made out by his admission that he owned the automobile, plus the fact that the driver was his employé. The defendant takes the position that:

"If a prima facie case is ever established in such an action as this, two facts must concur: (1) The ownership of the automobile by the defendant; (2) that it was operated by an employé whose duty it was to drive the car and care for it. In other words, he must be the regularly employed and acting chauffeur."

The rule contended for by the defendant is the doctrine of some jurisdictions. White Oak Coal Co. v. Rivoux, 88 Ohio St. 18, 102 N.E. 302, 46 L. R. A. (N. S.) 1091, Ann. Cas 1914C, 1082; Trombley v. Stevens-Duryea Co., 206 Mass. 516, 92 N.E. 764, 2 N.C. C. A. 806; Lotz v Hanlon, 217 Pa. 339, 66 A. 525, 10 L. R. A. (N. S.) 202, 118 Am. St. Rep. 922, 10 Ann. Cas. 731; Berry on Automobiles (2d Ed.) § 617, p. 700; Babbitt on Motor Vehicles, § 559; Huddy on Automobiles (3d Ed.) §§ 281, 283. Other jurisdictions have adopted a more liberal rule.

In Joyce v. Capel, 8 Car. & P. 370, the plaintiff averred that he was in possession of a lug-boat and that the barque of the defendants, navigated by their servant, was, by his negligence, run against the lug-boat. A witness, who was on board the lug-boat, stated that he saw the name of Capel on the barge, and the No. 1055; but that, when the men in the employ of the defendants were shown to him at their wharf, he could not identify the bargeman who steered the barge. It was proved that the No. 1055 was the number belonging to the barge of the defendants. For the defendants it was urged that it had not been shown that the barge was navigated by the defendants' servant at the time, and that the barge might have been taken by some one else, or that it might have been on hire. But it was ruled by Lord Denman that:

"If the barge was on hire that will be for the defendants to show. The barge being the barge of the defendants, there is prima facie evidence that the bargeman was their servant till they explain it."

In 1 Shearman & Redfield on Negligence (6th Ed.) § 158, the authors say that:

"When the plaintiff has suffered injury from the negligent management of a vehicle, such as a boat, car, or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant, to show that he was the owner of the thing, without proving affirmatively that the person in charge was the defendant's servant. It lies with the defendant to show that the person in charge was not his servant, leaving him to show, if he can, that the property was not under his control at the time, and that the accident was occasioned by the fault of a stranger, an independent contractor, or other person, for whose negligence the owner would not be answerable."

The excerpt taken from Shearman & Redfield on Negligence is quoted with approval in Houston v. Keats Auto Co., 85 Or. 125, 129, 166 P. 531.

In Vonderhorst Brewing Co. v. Amrhine, 98 Md. 406, 56 A. 833, there was evidence showing that the wagon which collided with the plaintiff was owned by the Vonderhorst Brewing Company, and there was also evidence that the wagon which ran into plaintiff's team had on it the name of the Vonderhorst Brewing Company. It was held that these facts were sufficient to justify the jury in concluding that the driver of the wagon was the agent of the owner of the wagon. The court there says:

"It is a reasonable presumption that a person driving the team of another is the agent or servant of the owner of the team, unless it be shown by the owner of the team that the contrary is the fact."

In Geiselman v. Schmidt, 106 Md. 580, 586, 68 A. 202, 205, the plaintiff offered evidence tending to prove that the horse and wagon driven against the plaintiff belonged to the defendant, and the court ruled that: "The jury might reasonably conclude that the driver was his agent."

In Norris v. Kohler, 41 N.Y. 42, it appeared that William H. Norris, who was killed while standing on the sidewalk peddling vegetables, was struck by the pole of a wagon to which a span of runaway horses were attached. The runaway team was proved to be owned by the defendant, and the name of the defendant was on the rear of the wagon. It was urged on appeal that it had not been shown that the person driving the team was in the service of the defendant. The court disposed of the objection thus:

"On the second point, whether the driver of the wagon was the servant of the defendant, the evidence consisted, first, of the fact of ownership. The property being proved to belong to the defendant, it is urged that a presumption arises that it was in use for his benefit, and on his own account. This argument, I think, is a sound one. The ownership of the personal property draws to it the possession. The owner is entitled to have and keep possession, and no other person can justly obtain possession until some act of authority from the owner is proved. Ownership implies possession, and possession is in subordination to title. No proof was given in the present case, separating the ownership from the

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