Action by Samuel M. Bunnell, a pedestrian, against Kenneth W. Parelius, doing business under the assumed name and style of Parelius Motor Company, and another, for personal injuries sustained by being struck by an automobile driven by defendant Brown, an employee of defendant Parelius. From a judgment against Parelius, he appeals.
REVERSED.
The automobile involved herein was owned by the Ladd Estate Company. Defendant, Parelius, was operating a garage and service
station at Oswego, Oregon. Defendant Brown was employed by Parelius to operate the gasoline pump and sell gasoline and oil. The automobile, a Lincoln Zephyr, had been jammed by another car and the rear of the body smashed in. The testimony is that "there was quite a dent in it."
An employee of the Ladd Estate Company had delivered the Lincoln Zephyr to defendant, Parelius, to be repaired with the further instruction that, after it had been repaired, it could be displayed to prospective purchasers and if they, or any of them, became interested in a possible purchase, defendant Parelius should communicate with the manager of said Ladd Estate Company, who was in California, as to price and terms.
On March 6, 1937, before the car had been repaired, defendant Brown took the car and leaving Oswego sometime after 9 p.m. retained possession thereof during the remainder of that night. At about 12:15 a.m. of March 7, 1937, in crossing the intersection of Southwest 4th Avenue and Southwest Hall street, in Portland, the car driven by defendant Brown ran into and upon plaintiff while plaintiff as a pedestrian was crossing said intersection. This collision resulted in serious injury to plaintiff.
The only direct testimony on the subject is to the effect that defendant Parelius had expressly forbidden defendant Brown the use of the cars in the garage.
Defendant Brown was not served with summons, made no appearance, and did not testify herein.
Plaintiff seeks to invoke the inference that a person driving an automobile owned by another is the
agent of the owner and is acting within the scope of such agency.
In February, 1939, this case was before this court upon an appeal by plaintiff from an order of involuntary nonsuit. In an opinion then written by Mr. Justice BELT this court held that —
"The inference or presumption arising merely by reason of the status and relationship of the parties is overcome and disappears in the light of the affirmative showing that the car was not used in furtherance of the master's business." Bunnell v. Parelius,160 Or. 673, 87 P.2d 230.
It is true that when that opinion was written, facts were before this court which are not in the record now before us; and we are not now giving any consideration to those facts; but the principle of law announced is sound and logical.
Doubtless, in many cases of bailment, the inference above mentioned might be applied in such a way as to render a bailee liable for the negligence of another in operating the automobile which was the subject of such bailment. "It is the control and custody of the car rather than the title that is material."Bunnell v. Parelius, supra.
In the case at bar, however, the terms of the bailment were such that, at the time Brown was operating the car, Parelius had no other right or duty with respect to it than merely to repair it. It cannot be claimed that operating a car at midnight by an employee, whose duty was in nowise connected with making repairs, was in furtherance of his master's business, that business being merely to repair the car in question.
The issues presented here have been the subject of three prior trials. If the terms of the bailment of the car in suit were not as claimed by defendant, on the fourth trial plaintiff had had ample time to secure the testimony of the bailor in refutation thereof. If the condition of the car was not as defendant claims, with reference to whether it had been repaired by defendant when plaintiff was injured, ample opportunity had been afforded plaintiff to controvert defendant's testimony in that regard. The record is barren of refutation or denial of defendant's statement with respect to either the terms of the bailment or the fact that the car had not yet been repaired in accordance with those terms when plaintiff was injured.
We think, therefore, that the inference of agency arising from ownership is not applicable to the relationship of the parties defendant to each other and to the car in suit as disclosed by the undisputed testimony herein. The time had not arrived when, under the terms of the bailment, any demonstration or attempt to display or sell the automobile could be made.
The statute of this state defines an inference thus:
"An inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect." Sec. 2-402 O.C.L.A.
That the conclusion, to the effect that the operator of an automobile owned by another is the agent of the owner and acting within the scope of such agency is a deduction from the facts proved, cannot be questioned. That it is made by the reason of the jury
and that there is no law expressly directing such deduction to be made is equally apparent.
Under the statutory definition of presumption, the deduction just mentioned is merely an inference and is not a presumption.
The statute defines a presumption thus:
"A presumption is a deduction which the law expressly directs to be made from particular facts." Sec. 2-403 O.C.L.A.
A little over a quarter of a century ago, this court, speaking through the late Mr. Justice McBRIDE, said:
"It has been frequently held by the courts that where an automobile is operated by a person employed for that purpose, it will be presumed that he is acting within the scope of his authority and about his employer's business. If he is not so operating it, this is a fact peculiarly within the knowledge of the employer, and the burden is upon him to overthrow this presumption by evidence of which the law presumes he is in possession:" [citing authorities] "By the terms, `raises a presumption,' `will be presumed.' and other similar language used in the decisions above cited, it is evident it is not meant that the circumstances of the use or possession of an automobile by an employee of the owner raises any presumption of law that the person in charge of it is using it upon the business of the master, but rather that such facts are sufficient to justify a jury in inferring that such is the case." Kahn v. Home Telephone Telegraph Co., 78 Or. 308, 152 P. 240; West v. Kern, 88 Or. 247, 171 P. 413, 1050, L.R.A. 1918D, 920.
Bearing in mind that, by the terms of the statutory definition of an inference, it is the result of reason, that is, the reason of the jury, a result which is unreasonable therefore cannot be transformed into an inference such as our statute defines.
The writer is not unaware that many times the terms, "inference" and "presumption", are used interchangeably and as synonyms.
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Action by Samuel M. Bunnell, a pedestrian, against Kenneth W. Parelius, doing business under the assumed name and style of Parelius Motor Company, and another, for personal injuries sustained by being struck by an automobile driven by defendant Brown, an employee of defendant Parelius. From a judgment against Parelius, he appeals.
REVERSED.
The automobile involved herein was owned by the Ladd Estate Company. Defendant, Parelius, was operating a garage and service
station at Oswego, Oregon. Defendant Brown was employed by Parelius to operate the gasoline pump and sell gasoline and oil. The automobile, a Lincoln Zephyr, had been jammed by another car and the rear of the body smashed in. The testimony is that "there was quite a dent in it."
An employee of the Ladd Estate Company had delivered the Lincoln Zephyr to defendant, Parelius, to be repaired with the further instruction that, after it had been repaired, it could be displayed to prospective purchasers and if they, or any of them, became interested in a possible purchase, defendant Parelius should communicate with the manager of said Ladd Estate Company, who was in California, as to price and terms.
On March 6, 1937, before the car had been repaired, defendant Brown took the car and leaving Oswego sometime after 9 p.m. retained possession thereof during the remainder of that night. At about 12:15 a.m. of March 7, 1937, in crossing the intersection of Southwest 4th Avenue and Southwest Hall street, in Portland, the car driven by defendant Brown ran into and upon plaintiff while plaintiff as a pedestrian was crossing said intersection. This collision resulted in serious injury to plaintiff.
The only direct testimony on the subject is to the effect that defendant Parelius had expressly forbidden defendant Brown the use of the cars in the garage.
Defendant Brown was not served with summons, made no appearance, and did not testify herein.
Plaintiff seeks to invoke the inference that a person driving an automobile owned by another is the
agent of the owner and is acting within the scope of such agency.
In February, 1939, this case was before this court upon an appeal by plaintiff from an order of involuntary nonsuit. In an opinion then written by Mr. Justice BELT this court held that —
"The inference or presumption arising merely by reason of the status and relationship of the parties is overcome and disappears in the light of the affirmative showing that the car was not used in furtherance of the master's business." Bunnell v. Parelius,160 Or. 673, 87 P.2d 230.
It is true that when that opinion was written, facts were before this court which are not in the record now before us; and we are not now giving any consideration to those facts; but the principle of law announced is sound and logical.
Doubtless, in many cases of bailment, the inference above mentioned might be applied in such a way as to render a bailee liable for the negligence of another in operating the automobile which was the subject of such bailment. "It is the control and custody of the car rather than the title that is material."Bunnell v. Parelius, supra.
In the case at bar, however, the terms of the bailment were such that, at the time Brown was operating the car, Parelius had no other right or duty with respect to it than merely to repair it. It cannot be claimed that operating a car at midnight by an employee, whose duty was in nowise connected with making repairs, was in furtherance of his master's business, that business being merely to repair the car in question.
The issues presented here have been the subject of three prior trials. If the terms of the bailment of the car in suit were not as claimed by defendant, on the fourth trial plaintiff had had ample time to secure the testimony of the bailor in refutation thereof. If the condition of the car was not as defendant claims, with reference to whether it had been repaired by defendant when plaintiff was injured, ample opportunity had been afforded plaintiff to controvert defendant's testimony in that regard. The record is barren of refutation or denial of defendant's statement with respect to either the terms of the bailment or the fact that the car had not yet been repaired in accordance with those terms when plaintiff was injured.
We think, therefore, that the inference of agency arising from ownership is not applicable to the relationship of the parties defendant to each other and to the car in suit as disclosed by the undisputed testimony herein. The time had not arrived when, under the terms of the bailment, any demonstration or attempt to display or sell the automobile could be made.
The statute of this state defines an inference thus:
"An inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect." Sec. 2-402 O.C.L.A.
That the conclusion, to the effect that the operator of an automobile owned by another is the agent of the owner and acting within the scope of such agency is a deduction from the facts proved, cannot be questioned. That it is made by the reason of the jury
and that there is no law expressly directing such deduction to be made is equally apparent.
Under the statutory definition of presumption, the deduction just mentioned is merely an inference and is not a presumption.
The statute defines a presumption thus:
"A presumption is a deduction which the law expressly directs to be made from particular facts." Sec. 2-403 O.C.L.A.
A little over a quarter of a century ago, this court, speaking through the late Mr. Justice McBRIDE, said:
"It has been frequently held by the courts that where an automobile is operated by a person employed for that purpose, it will be presumed that he is acting within the scope of his authority and about his employer's business. If he is not so operating it, this is a fact peculiarly within the knowledge of the employer, and the burden is upon him to overthrow this presumption by evidence of which the law presumes he is in possession:" [citing authorities] "By the terms, `raises a presumption,' `will be presumed.' and other similar language used in the decisions above cited, it is evident it is not meant that the circumstances of the use or possession of an automobile by an employee of the owner raises any presumption of law that the person in charge of it is using it upon the business of the master, but rather that such facts are sufficient to justify a jury in inferring that such is the case." Kahn v. Home Telephone Telegraph Co., 78 Or. 308, 152 P. 240; West v. Kern, 88 Or. 247, 171 P. 413, 1050, L.R.A. 1918D, 920.
Bearing in mind that, by the terms of the statutory definition of an inference, it is the result of reason, that is, the reason of the jury, a result which is unreasonable therefore cannot be transformed into an inference such as our statute defines.
The writer is not unaware that many times the terms, "inference" and "presumption", are used interchangeably and as synonyms. Moreover, the distinction made by the Oregon statutes, above quoted, is not that of many eminent legal authorities; but, certainly, this court is bound by duly enacted statutory definitions, unless the same are obviously absurd.
In considering the principle that proof of ownership of an automobile operated by a third party creates an inference that in such operation the third party is acting as the agent of the owner within the scope of such agency, if we treat it as merely an inference such as our statute defines, it logically follows that if the reasonableness of such purported inference is absent, the inference itself is nonexistent.
This conclusion was announced in the case of Judson v. BeeHive Auto Service Company. There, the court, speaking through Mr. Justice BELT, said:
"Ordinarily, whether an inference or presumption has been overcome is a question for the jury, but if the evidence is of such a character that but one reasonable deduction can be made therefrom the court may so declare as a matter of law." Judsonv. Bee-Hive Auto Service Co., 136 Or. 1, 14, 294 P. 588,297 P. 1050, 74 A.L.R. 944.
There is testimony that defendant, Brown, while employed by Parelius, came in an automobile and secured a load of sawdust from a mill some distance from the Parelius garage.
There is testimony that when advised of the accident in suit, Parelius remarked, "I don't believe that I will let my employees drive my cars any more."
Use by defendant, Brown, of cars in close proximity to the garage of defendant, Parelius, is shown;
and testimony that Brown had no car of his own and that, for a time, he drove in an automobile to and from his place of lodging, a distance of about a mile from the garage, is in the record.
This testimony at best could support no stronger claim against Parelius than that, as to the operation of the cars so involved, Brown was acting in furtherance of the business of Parelius; but as to the Lincoln Zephyr, in suit, for the reasons stated no such claim can be made.
Seasonably, a motion was made by appearing defendant for a directed verdict in favor of such defendant. This motion was overruled. In considering such a motion the court gives to the plaintiff not only the benefit of his own evidence; but also the benefit of any evidence favorable to him though introduced by the defendant. So treating defendant's motion, we think that error was committed in overruling it.
Millar v. Semler, 137 Or. 610, 2 P.2d 233, 3 P.2d 987, cited by plaintiff, is a case where defendant, upon it being shown that he was the owner of the automobile and that it was driven by his son, did not go forward with his own testimony and show that the driver was not acting for him or under his authority.
In Davis v. Underdahl, 140 Or. 242, 13 P.2d 362, the record discloses testimony to the effect that the owner of the car stated in a conversation with one Haglund, a witness, that the driver of the car at the time of the accident was working part time for defendant, and was going to school part of the time and that said driver drove the car off and on for him. As to the car involved in the instant case, there is no such admission in the record by appearing and appealing defendant.
In Miller v. Service and Sales, Inc., 149 Or. 11,38 P.2d 995, 96 A.L.R. 628, also cited by plaintiff, the defendant claimed that the driver of the car had borrowed it to take his family to the coast. The car was a new seven-passenger twelve-cylinder Packard, and this court held that a reasonably minded person might consider it improbable that the sales company, which the testimony showed the defendant to be, would take such a car off of its sales-room floor and lend it to the driver for the purpose mentioned.
No reasonably minded person would think that before the ordered repair of the car in suit here had been made, the repair-man would permit Brown to drive the car from 9 p.m. of one day until 12:15 a.m. of the next day, or that in doing so Brown was acting in furtherance of the repair-man's business.
In Steele v. Hemmers, 149 Or. 381, 40 P.2d 1022, it was shown that the 26-year-old son of the owner of the car was driving at the time of the accident; that the car was customarily driven by one or the other of the boys when taking the smaller Hemmers' children to school at Gresham; and about three hours after the accident the deputy sheriff had a conversation with defendant at the scene of the accident wherein the father said: "He always talked to his boys and asked them to drive carefully and try to keep out of accidents." No reference was then made to any instructions not to take the car out on such occasions.
The judgment of the circuit court is reversed and the cause dismissed.