Wilson v. Steel Tank & Pipe Co. of Oregon

• Decision Date: 17 December 1935
• Citation: 52 P.2d 1120,152 Or. 386
• Parties: WILSON v. STEEL TANK & PIPE CO. OF OREGON et al. [*]
• Court: Oregon Supreme Court

52 P.2d 1120

152 Or. 386

WILSON v. STEEL TANK & PIPE CO. OF OREGON et al. ^[*]

Supreme Court of Oregon

December 17, 1935

In Banc.

Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.

Action by Predetta Wilson against the Steel Tank & Pipe Company of Oregon and another. From an adverse judgment, the named defendant appeals.

Affirmed.

RAND and ROSSMAN, JJ., dissenting.

This action was instituted against the Steel Tank & Pipe Company of Oregon, a corporation, and George C. Dierking. The cause was tried to the court and jury, and a verdict was rendered in favor of plaintiff against both defendants. The defendant Steel Tank & Pipe Company appealed.

Defendants filed separate answers. It is admitted in both that any injuries sustained by plaintiff were proximately due to the negligence of defendant George C. Dierking, and that he was liable to plaintiff for such sum as would reasonably compensate her for her injuries. The testimony in the case tended to show the following facts: T. L. Hanning was president and manager of the appellant, Steel Tank & Pipe Company, and defendant George C. Dierking was its vice president, shop superintendent, and estimator, and superintended the installation of sold equipment. His duties also included the selling of the company's products. He had no fixed hours for work or business of the company. The appellant, Steel Tank & Pipe Company, was carrying on the business of manufacturing, selling, and installing steel tanks and pipes.

In 1933, the Star Brewery Company of Vancouver, Wash., was engaged in constructing and equipping a brewery. During the summer of 1933, the Steel Tank & Pipe Company, largely through the instrumentality of defendant Dierking, on account of his friendship with the officers of the Star Brewery Company, obtained a contract for the installation of 17 fermenting tanks, the installation of which was finished about September. There was a second contract for 8 storage tanks to be manufactured and installed by the Steel Tank &amp Pipe Company for the Star Brewery Company. All of the installation was superintended by defendant Dierking. About October 17th the further work of installation was suspended until after the Star Brewery Company had commenced brewing on account of a desire to use the space where the tanks were to be installed for storage purposes. The Steel Tank & Pipe Company succeeded in obtaining contracts with the Star Brewery Company for the construction and equipment of its brewery for the furnishing of a total of 77 tanks. On October 24th these 8 storage tanks were in process of manufacture under the supervision of Mr. Dierking, and they resumed installation on November 4th. Two or three days prior to October 24th, Mr. Dierking went to the Star Brewery Company's office to find out when they were going to start operations and he was informed that they would start the week of October 24th. Dierking testified: "We had the installation of the smoke connection, smokestack, on the boilers," and did miscellaneous repair work on the plant. Mr. T. L. Hanning, president of the appellant corporation, was invited to attend the opening on October 24th, but, on account of press of other matters, was unable to attend, and Mr. Dierking, vice president, went in his stead. While the work of installing tanks was suspended at the brewery, Mr. Dierking states that he was in and out of the brewery all the time.

On October 24, 1933, Dierking left the office of the corporation in Portland about 4:45 p. m. and drove to the Star Brewery Company after the fermenting tanks and smokestack had been installed and the repairs on the plant had been made, to see the operation of the brewery and the men with whom he had been doing business, as an officer of the Steel Tank & Pipe Company. He expected to find the brewery in operation, but did not know the hour of closing. As he testified, he "went to see the plant in operation, but they had closed down." He went through the lower portion of the brewery plant. After being at the brewery about an hour, Dierking left in his automobile and proceeded on a direct route toward Portland in the direction of the plant of appellant and also in the direction of his home, which was beyond the plant. After leaving the interstate bridge, and before reaching the plant, he carelessly and negligently drove his car head-on into the automobile in which plaintiff was riding as a passenger, as a proximate result of which plaintiff received the injuries for which judgment in this case was obtained.

The appellant had three automobiles for the use of its officers and agents, any of which could be used by Dierking when they were available and necessary. A short time before Dierking left for Vancouver there were two cars at the company's office belonging to the company. Whether they were available for the use of Dierking or not is not very clear in the testimony. Hanning testified that he did not know whether there were any company cars available because he was not there when Dierking left the office. Mr. John L. Stevenson testified that he knew of only one company car being available, and that one was the car that he used in going to and from his home. When Dierking used his own car for the company, it paid him mileage.

In regard to the purpose for which Mr. Hanning, the president of the Steel Tank & Pipe Company, intended to go to the Star Brewery Company, and for which Mr. Dierking went in his place, the testimony of John F. Turner, a traffic officer shows as follows: "He explained to me that his company had installed the equipment there, and that the brewery was going to commence to operate on this date, and Mr. Dierking had gone over for the purpose of seeing the brewery commencing to operate."

Soon after the collision and injury to the plaintiff, Mr. Dierking went to the telephone and called T. L. Hanning, president of the Steel Tank & Pipe Company. After Mr. Hanning saw Mr. Dierking, he went to the scene of the accident and talked to the traffic officer about Mr. Dierking's car and then went to the hospital to inquire about the condition of the injured people.

On the morning of October 25th, about 9 o'clock, Mr. Hanning and Mr. Turner went together to St. Joseph's hospital in Vancouver, where the plaintiff and her daughter were confined. Mrs. Wilson told Mr. Hanning that she was worrying about her relatives in Coquille, seeing an account of the accident in the paper, and she wanted to communicate with them. Mr. Hanning agreed to wire her relatives at Coquille immediately on his return to the office, and told her not to worry, that everything would be taken care of. Mr. Turner further testified that "he told her that Mr. Dierking was the vice-president of the company of which he was president, and that he, Mr. Hanning, would take care of everything, as he was associated with Mr. Dierking."

John S. Coke, of Portland (Griffith, Peck & Coke, of Portland, on the brief), for appellant.

George Neuner, of Portland (Neuner & Kimmell, of Portland, on the brief), for respondent.

It is conceded that the defendant Dierking was an officer and agent of the appellant corporation. The question for determination is whether the testimony warranted the jury in finding that at the time of the accident he was acting for and on behalf of his employer, the Steel Tank & Pipe Company, in furtherance of its business and within the scope of his employment.

The testimony on behalf of appellant differs from that of plaintiff upon some materials points, but, where persons of reasonable minds might draw different inferences from conflicting evidence introduced to establish a fact in dispute, the question becomes one for the jury. The court is not to determine the weight of the evidence. The verdict of the jury, where the evidence is conflicting, will not be disturbed, if there is substantial evidence to support the verdict. Miller v. Service & Sales, Inc., 149 Or. 11, 38 P.2d 995, 997, 96 A.L.R. 628; Mansfield v. Southern Oregon Stages, 136 Or. 669, 1 P.2d 591; Pryor v. Strawn (C.C.A.) 73 F. (2d) 595.

At the close of the testimony appellant moved the court for an order directing the jury to return a verdict in its favor, and submitted written instructions to the jury directing a verdict in favor of defendant Steel Tank & Pipe Company, which motion and requested instructions were denied. The appellant assigns the rulings as error.

Appellant states in its brief: "An employee 'while acting as his own master for the time being, is not within the scope of his employment so as to render the master liable therefor.' If the act resulting in the injury is committed by the servant at a time when he is off duty, the master will not be held liable therefor." Citing Reardon v. Coleman Bros., Inc., 277 Mass. 319, 178 N.E. 638; Pyyny v. Loose-Wiles Biscuit Co., 253 Mass. 574, 149 N.E. 541; Khoury v. Edison Electric Illuminating Co., 265 Mass. 236, 164 N.E. 77, 60 A.L.R. 1159; Slater v. Advance Thresher Co., 97 Minn. 305, 107 N.W. 133, 5 L.R.A. (N.S.) 598; Archie v. Hudson-Essex Co., 45 R.I. 109, 120 A. 162.

We are in accord with this statement.

The jury were warranted in finding from the testimony in the case that defendant Dierking, vice president of the Steel Tank & Pipe Company, went to Vancouver, Wash on October 24, 1933, in the interest of his employer, the Steel Tank & Pipe Company. Prior to that date, the Steel Tank & Pipe Company had done considerable business with the Star Brewery Company of Vancouver, where Dierking went, and there was considerably more business in the offing. About 17 fermenting tanks had been installed under the inspection of Dierking and 8 storage tanks were contracted for by the Star Brewery Company from the appellant and were in preparation...