Wiebe v. Seely

• Decision Date: 11 February 1959
• Citation: 335 P.2d 379,215 Or. 331
• Parties: Ronald W. WIEBE, Respondent and Cross-Appellant, v. Chris SEELY, as Administrator of the Estate of Edward K. Piasecki, Deceased, Appellant and Cross-Respondent. Ronald W. WIEBE, Respondent, v. Kathryn A. PIASECKI, Appellant.
• Court: Oregon Supreme Court

Page 379

335 P.2d 379

215 Or. 331

Ronald W. WIEBE, Respondent and Cross-Appellant, v. Chris SEELY, as Administrator of the Estate of Edward K.

Piasecki, Deceased, Appellant and Cross-Respondent.

Ronald W. WIEBE, Respondent, v. Kathryn A. PIASECKI, Appellant.

Supreme Court of Oregon.

Argued and Submitted March 11, 1958.

Decided Feb. 11, 1959.

William H. Morrison, Portland, argued the cause for appellants and cross-respondent. On the briefs were Maguire, Shields, Morrison & Bailey and Howard K. Beebe, Portland, and Asa L. Lewelling, Salem.

Allan G. Carson and Thomas W. Churchill, Salem, argued the cause for respondent and cross-appellant. On the brief were Carson, Carson & Gunnar and Thomas W. Churchill, Salem.

Before PERRY, C. J., ^* and LUSK, BRAND ^**, WARNER, McALLISTER ^*** and SLOAN, JJ.

LUSK, Justice.

These are appeals by the defendants from judgments for the plaintiff in two actions to recover damages for personal injuries which, by agreement of the parties, were consolidated for trial in the circuit court, and are likewise consolidated here.

The defendant in one case is Chris Seely, Administrator of the Estate of Edward K. Piasecki, deceased, hereinafter referred to as the Administrator, and in the other Kathryn A. Piasecki, widow of the deceased. Edward K. Piasecki died about nine months after the accident, and these actions were commenced some ten months after his death.

The jury returned a verdict against both defendants for $60,000. The court, guided by the limitation on the amount of the recovery in effect at the time of the accident in an action for personal injuries against the personal representative of a deceased wrong-doer, Oregon Laws 1949, ch. 519, p. 815 ¹, entered judgment against the Administrator for $15,000 and against the defendant, Kathryn A. Piasecki, for $60,000.

The actions grew out of a collision between an automobile driven by the plaintiff and one driven by the deceased, which occurred about five o'clock on the morning of November 4, 1951, in the intersection of 12th and Mission Streets in the city of Salem. The plaintiff, a city policeman, was driving South on 12th Street on patrol duty. The deceased was driving East on Mission Street bound for his farm near Salem to hunt ducks. He was dressed for hunting, and his dog was in the back of the car, a Packard sedan. A dense fog severely limited visibility. The collision occurred in the Southeast quarter of the intersection and the plaintiff sustained serious injuries. There is no question as to the sufficiency of the evidence of negligence charged in the complaint to warrant submitting the case to the jury as against the Administrator. It is contended, however, by the defendant, Mrs. Piasecki, that there is no evidence to support a judgment against her. The question was raised by a motion for a directed verdict, the denial of which is assigned as error.

Mrs. Piasecki is sought to be held on the theory that she was the owner of the Packard automobile driven by her husband, and that the car was kept and used for family purposes. She contends that she did not own the car, that the evidence shows as a matter of law that it was owned by Mr. Piasecki, and that in any event the family purpose doctrine is not applicable as between husband and wife.

Ownership of the Packard Automobile

The evidence upon this subject is as follows:

A certificate of title to the Packard was issued by the Oregon Secretary of State on June 26, 1948, to Kathryn A. Piasecki. Mrs. Piasecki testified that she did not know that the title was in her name until after her husband's death, which occurred August 23, 1952, and that she did not sign any application of any kind in connection with the car. According to her testimony, the car was purchased by her husband in Portland. She identified a check dated June 18, 1948, in the amount of $4,540.19, payable to A. Piasecki and drawn by Edward K. Piasecki. She testified that the proceeds of the check were used to pay for the Packard, that A. Piasecki was Mr. Piasecki's sister, and that the check was made payable to her 'Because she was a resident of Portland and Mr. Piasecki was not, and he couldn't purchase the car in Portland so his sister paid for it and then she sold the car to him.' She was present when he gave the check to his sister.

Mrs. Piasecki owned a Cadillac, which she purchased with her own money inherited from her mother. She paid for it with a check for $4,186.83, drawn by her on her personal account on October 8, 1951, to the order of Douglas McKay Chevrolet Company. The check is in evidence. She and her husband had always had two cars. At the time that the Packard was purchased, she owned a small Oldsmobile. Mrs. Piasecki testified that she never drove the Packard, that it was equipped with a regular gearshift which required the use of a clutch pedal, and she had not driven that type of car since 1947 because of arthritis in her hip and knee, that the Cadillac had a hydromatic gear shift and no clutch pedal.

The Packard was used regularly by Mr. Piasecki in going to and from his office, and was parked near the office during the day. He had had the back seat taken out, and the back part of the car fixed up for his dog on his trips to his farm near Salem.

Mrs. Piasecki was called as an adverse witness by the plaintiff and examined about the ownership of the Packard. She was shown photostats of the face and back of the certificate of title issued for the Packard. On the face of the certificate the name of the owner, 'Kathryn A. Piasecki,' is typed and the date of issuance appears as June 25, 1948. On the back is a printed form of 'Assignment of Title by Registered and Legal Owner.' Mrs. Piasecki's name is written on the line immediately below this language, followed by the date '5-28-52.' Below this appears the admitted signature of Mr. Piasecki under the form for 'Application for Title by New Owner.' Mrs. Piasecki was asked by counsel for plaintiff whether these were the signatures of herself and Mr. Piasecki, and answered:

'A. This is my signature typed [evidently referring to her name on the face of the certificate] but I can't make out this lower one [referring to her name written on the back of the certificate].

'Q. It is not too clear, but do you recall signing that title?

'A. Well, I may have signed it, but I don't remember it.'

When examined later by her own attorney, she testified that her name as it appeared on the back of the certificate of title was in her late husband's handwriting, not hers, and that her handwriting did not appear on the certificate of title. She was again examined on this subject at length by counsel for the plaintiff. She testified that her husband often wrote her signature without objection on her part, and that she would sign papers which he would bring home without reading what she was signing. And she insisted that she never signed any application of any kind in connection with the Packard and knew nothing about the certificate of title, and her name appearing on it.

She was examined about the bank accounts of Mr. Piasecki and herself. She testified in substance that they each had separate bank accounts, but each had the right to draw on the other's account.

'Q. Did you and Mr. Piasecki have a joint checking account or separate checking accounts? A. Well, we--they were joint in a way and yet I had my separate checking account and he had his separate checking account.

'Q. Well, do you mean there were three accounts, or you could each draw separately on a joint account? A. Yes.

* * *

* * *

'Q. You mentioned this inheritance from your mother; was that put in a joint account? A. That was in my own personal account.

'Q. There were three accounts then, were there? A. Well----.

'Q. Or two, anyway? A. Well, Mr. Piasecki could have checked out of my account and I out of his, but we used the separate accounts.

'Q. I see. Each had a drawing--A. A drawing capacity on the other.'

The defendant, Chris Seely, Administrator of the Estate of the deceased, shared office space with the latter for 15 or 20 years and operated a credit bureau for which Mr. Piasecki, an attorney, did some work. Mr. Seely had seen Mr. Piasecki sign his name every day and was familiar with his handwriting. He testified that the name, Kathryn A. Piasecki, written on the back of the certificate of title, was in Mr. Piasecki's handwriting.

The plaintiff testified that on one occasion prior to the accident he saw Mrs. Piasecki come out of a market, get into the Packard car, and drive off, and Mrs. Wiebe gave similar testimony, although she was unable to fix the time when she had seen Mrs. Piasecki drive the car.

There was no evidence as to who paid the expense of operation and upkeep of the Packard.

ORS 481.115 provides that the certificate of title to an automobile 'shall be prima facie evidence of the ownership of such vehicle or of an interest therein.'

ORS 481.515 provides in part: 'In all actions, suits or criminal proceedings when the title to, or right of possession of, any motor vehicle, trailer or semitrailer is involved, the record of registration and license, as it appears in the files and records of the department, is prima facie evidence of ownership or right to possession of such vehicle.'

The effect of the certificate of title or of the registration certificate as evidence may, of course, be overcome; and the strength of the evidence on the other side may be such that the court is warranted in declaring that the statutory prima facie case has been rebutted. In the analogous situation where we have considered the inference that the operator of an automobile is the agent of the owner and engaged in the owner's business while driving his car, the doctrine of our cases is that inferences, like presumptions, are 'our of place when the facts are known or are admitted.' Kantola v. Lovell Auto Company, 157 Or. 534, 540, 72 P.2d 61, 63; Consor v. Andrew, 61 Or. 483, 485, 123...