*1 Argued February 13; March reversed
BUNNELL v. PARELIUS et al.
(
land & Morrision, Shields of Portland, on brief), appellant. for Leroy (Nicholas of Jaureguy, Lomax, Portland brief), respondent. Portland, KELLY, C. J. automobile involved herein Company. the Ladd Estate was owned Defend- operating garage Parelius, was ant, and service Oswego, Oregon. Defendant Brown was at station pump operate gasoline employed Parelius gasoline and a Lincoln automobile, oil. The sell jammed by Zephyr, car and the another had been body in. The is that smashed rear quite a in it.” dent “there was Company employee of Ladd had Estate An Zephyr Parel- defendant, Lincoln delivered repaired that, further instruction to be with the ius, repaired, displayed it could it had been after they, any prospective purchasers them, and if purchase, possible in a defendant became interested manager communicate with the Parelius should Company, in California, Ladd Estate who was said price and terms. as to the car had been March before re-
On leaving paired, took the Brown car defendant *3 p. possession Oswego m. after 9 retained sometime night. during of that the remainder At about thereof crossing March in 12:15 a. m. of the inter- 4th Avenue and Southwest Hall section Southwest Portland, in the car driven defendant Brown street, upon plaintiff pedes- while ran into and crossing said intersection. This trian was collision injury plaintiff. in resulted serious subject only direct is expressly defendant Parelius had the effect that for- use of Brown the the cars in defendant bidden garage. not served
Defendant Brown was with summons, testify appearance, not no and did herein. made per to invoke inference Plaintiff seeks that a driving automobile owned another an son is the of the owner within the such agency. this case was February, 1939, before this court from an order appeal by plaintiff of invol- In an
untary nonsuit. then Mr. opinion written by Justice Belt this court held that—
“The inference or presumption arising merely by reason of the status and is overcome and of the relationship parties in light af
disappears firmative in car was not used fur showing . " therance of the master’s business Bunnell v. Parelius, 230. (2d)
It is true that when opinion written, facts were before this court which are not in the record now before us; we are not now con- giving any sideration to those facts; but of law principle announced is sound and logical.
Doubtless, cases of many bailment, the infer ence above mentioned might in such a applied way as to render bailee liable for of an negligence other operating automobile which was the sub of such ject bailment. “It is the control and custody car rather than the title that is material.” Bunnell v. Parelius, supra.
In the case at bar, however, the terms of the bail ment that, were such at the time Brown was operating the car, Parelius had no other right duty with respect to it than merely it. It repair cannot be claimed that a car operating at midnight by an em whose ployee, duty was in nowise connected with mating was in repairs, furtherance of his master’s *4 business, business being merely repair car in question. subject presented here have been the
The issues prior bailment trials. If the terms of the of three by defendant, not as claimed in suit were car ample plaintiff time to se had had trial fourth testimony thereof. in refutation the bailor cure the defendant car not as of the was If the condition re had been to whether it reference claims, with injured, ample plaintiff by paired defendant when was plaintiff opportunity to controvert had been afforded regard. The record in that defendant’s state or denial of defendant’s refutation barren of respect terms of the bailment to either the ment with yet repaired in the car had not been or the fact that in terms when accordance with those jured. agency that the inference of think, therefore,
We applicable ownership arising re- is not to the lationship parties defendant to each other of the by undisputed as disclosed testi- to the car suit mony had not arrived under when, The time herein. any demonstration or at- bailment, terms of the tempt display the automobile could be made. or sell defines an statute of this state inference thus: is a deduction “An reason inference proved, jury from the facts without an makes
of the express O. C. that effect.” 2-402 of law to Sec. direction
L. A. operator conclusion, to the effect that the That the another is the automobile owned agency of such within the the owner proved, ques- from the facts cannot be is a deduction jury made reason it is of the That tioned.
179 expressly directing and that is no law snch de- there equally apparent. duction to he made is statutory presumption, definition of Under just merely deduction mentioned is an inference and presumption. a is not presumption
The statute a defines thus: “A is a deduction which the ex- law pressly particular directs to he made from facts.” Sec. 2-403 L. A. O. C. quarter century ago,
A little a over of a court, speaking through Mr. the late Justice said: McBride, frequently by “It has been held the courts that operated by person where an automobile is em ployed is purpose, presumed for that it will be that he authority within the of his and about employer’s operating his business. If he is not so peculiarly knowledge it, this is a fact within the employer, upon the throw this presumes him the burden is to over by evidence of which the law possession:” [citing in authorities] he is “By presumption,’ pre the terms, ‘raises a ‘will be language sumed.’ and other similar used the de cisions cited, above it is evident it is not meant that possession circumstances the use or of an auto by employee any pre mobile an of the owner raises sumption person charge of law that of it is using the business master, but rather justify jury that such facts are sufficient to in in Telephone ferring that such is the case.” Kahn v. Home Telegraph Co., & 308, 152 P. 240; West v. Kern, 88 Or. L. R. A. 1918D, 920.
Bearing by in mind that, the terms of the stat utory inference, definition it is the result of jury, is, reason of the reason, a result which therefore cannot unreasonable transformed into such as our statute an inference defines. many times is not unaware
The writer “presumption”, used in are “inference” terms, synonyms. dis terchangeably Moreover, and as quoted, Oregon above statutes, made tinction many legal but, authorities; eminent that of is not by duly certainly, enacted statu is bound this court obviously absurd. tory are unless the same definitions, proof considering principle that of owner party operated third ship automobile of an operation the third that in such an inference creates *6 acting the of the owner within party the is merely agency, an in it as if treat of we such logically fol defines, it as our statute such ference purported of such if the reasonableness that lows itself nonexistent. inference is is the absent, inference in the case of announced Jud- was This conclusion Company. There, the Hive Auto Service v. Bee son through speaking said: Mr. Justice court, Belt, “Ordinarily, an inference whether jury, question for the but is a overcome has been a character that but one such if the evidence is.of the court can be made therefrom deduction reasonable v. Bee- may Judson matter of law.” as a declare so 297 294 P. 1, 14, 136 Or. Co., Hive Auto Service L. R. 944. A. 74 P. testimony that defendant, Brown,
There is by came in an employed Parelius, automobile and while from a mill some distance of sawdust a load secured garage. Parelius the from testimony that advised of when the ac- There “I remarked, don’t Parelius believe suit, in cident my employees any my drive cars more.” let I will prox- by Brown, of cars in defendant, close Use garage defendant, Parelius, of imity shown; the testimony and no car own Brown had of his that, for a he drove in an automobile to time, place lodging, his a mile from of a distance of about garage, the is in the record. testimony support stronger This at best could no against operation claim Parelius than as to that, acting of the cars so in further- involved, Brown was Lin- ance the business of but as Parelius; Zephyr, coln no suit, reasons stated such can claim be made.
Seasonably, by appearing a motion made de- was fendant for a directed verdict favor of such de- considering fendant. This motion was overruled. gives only such motion court not evidence; the benefit his own but also benefit any though evidence favorable himto introduced treating So defendant. defendant’s motion, we overruling think that error committed in it. was (2d) Semler, Millar v. P. 233, 3 (2d) by plaintiff, 987, cited is a case where defendant, being upon shown that he owner and that it son, automobile was driven Ms did not go Ms forward with own and show that authority. driver was not for him or under his *7 (2d) Underdahl, 140 Or. 242, 13 v. In Davis P. 362, testimony to the discloses record effect that the the stated in a of the car conversation with one owner Haglund, that the driver witness, car at the worldng part of the accident time for time defend going part to school of the and was time and ant, that the ear off and on for driver drove him. As to said case, the instant there involved in is no such ad car by appearing appealing record and mission defendant.
182 38 149 Sales, Inc., 11, Or. and v.
In Miller Service by plaintiff, the (2d) also cited 628, A. L. R. 995, P. had of the car bor the driver claimed defendant family coast. The car was to the take his it to rowed twelve-cylinder seven-passenger and this Packard, new might reasonably person con minded held that court company, improbable that the sales sider take such to would be, the defendant showed floor and lend it to driver of its sales-room a ear off purpose mentioned. reasonably person would think that be- minded No repair of the car in suit here had been the ordered fore permit repair-man to drive would Brown made, day p. until m. of one 12:15 a. m. of the from 9 the car doing day, that in so Brown was or next repair-man’s of the business. furtherance (2d) Hemmers, 1022, 40 P. 381, v. Steele 26-year-old son of the owner of that the shown it was driving at the time of the accident; ear was customarily driven one the other of the car was taking boys the smaller Hemmers’ when children and about three Gresham; hours school at after the deputy had a sheriff conversation with accident of the at the scene accident defendant' wherein the always boys “He talked to his father said: asked carefully try keep to drive them out acci- any was then No reference made to instruc- dents.” not to take the car out such tions occasions. judgment of the circuit court is reversed and the cause dismissed. (concurring).
LUSK,
Before
v.
J.
Judson Bee Hive
Co.,
136 Or.
Auto Service
In the Judson case, which was twice sitting briefs, court, elaborate unani- banc, held mously, by way putting I and, think, as at rest a question, agency vexatious that in this state fact of jury might in such circumstances was one that reasonably ownership; deduce the fact of and that imperative by not a was conclusion made the law. definitely any- In other words, the court decided, as thing dealing, could be that it decided, not with of law with but an inference of fact. question open
Were the think still an one, as I analysis specially not, it is concurring the able, opinion might persuasive. of Mr. Justice Rossman Certainly, authority there is position. much for his authority there position But is likewise much for go among To court. no further, the numerous by Wigmore decisions cited in his discussion of the subject, espousing theory, are decisions the inference in cluding, Wigmore indeed, the Judson case itself: IX (3d Ed.), pp. § on Evidence seq. 2510a, Note 400 et Again, this court held in the Judson case that in this only presumptions state the are those enumerated in concurring specially disputed in the This the statute. Wigmore’s of the California opinion construction *9 authority. su But the California is cited statute presumptions of preme there are no holds that court by statutes”, or except our code “declared those law would determine otherwise court to for the and that legislative Hearst, usurp Davis v. function”. the be “to authority high Surely, as is the P. 530. 143, 116 160 Cal. preferred Wigmore, to that not to be it is Professor construing highest a in its own court of state of the statute. argument it is advanced, now the
As I understand
of the
thought
abandon the rule
the court should
that
presumption
a
device
a
is mere
case because
Judson
necessity, to
expedient
in convenience or
founded
get past
plaintiff
nonsuit,
a
and which
to
the
enable
an inference
shown; while,
facts are
the
vanishes when
necessary,
species
being
it
in order
evidence,
is
weigh
evi-
announced,
here
the result
to reach
thereby
against
other,
on one side
dence
put
argument
I
fundamental law. have
to violate
bluntly
Mr.
than does
Justice
more
somewhat
Rossman,
accuracy.
substantial
I
with
but,
think,
position
difficulty I
find with that
is
though
presump
premise,
that a
assumed,
not stated
may
in other
Whatever
be the law
tion is not evidence.
jurisdictions,
evidence,
this state is
and in at least four
statute
decisions of
so declared
§§ 2-401,2-405,2-1001,
2,
subd. O. L. A.;
court:
C.
City
P.
Shea,
195, 205, 279
M.
539;
v.
130 Or.
T.
Clark
116
Co.,
Fire Ins.
Or.
P.
v. Franklin
239
Co.
110
P.
Giaconi,
433, 440,
v.
Or.
220
812;
740;
Sather
Doherty
Co.,
475; 484,
v. Hazelwood
Now, a presumption is evidence, the fault which the specially concurring opinion finds with the opinion the court would be no less present were we to abandon the doctrine of the Judson case. We would still be weighing evidence.
In my opinion, however, we do nothing of the sort in either case. For the inference of agency from the fact of is a ownership slender reed which to lean; species evidence so weak that in any intelligent system of law it must yield to facts established by which evidence an only arbitrary judgment would re- ject. Such is the character of evidence produced by
-186 of that instant case. In the face in the
the defendant opinion of the Chief Justice is, there evidence, contrary to the “the reason no deduction holds, jury” of the could draw.
Even where the doctrine of stare decisis is not judicial strictly applicable, stability of decision is in something gained by a end; itself a desirable deliberately adhering established, once court to a rule manifestly lacking support unsound, not which is not likely productive authorities, in the and not to be injustice. concurring). (specially
ROSSMAN, J. the result majority, finding I concur. But reached my reasoning is different from I somewhat theirs, prefer to mine. delineate say majority that A a car if owns which was injured B at the time it C, driven inference permissible Bthat was A’s at that time. To war- ownership posses- inference, rant such an A’s and B’s must be deemed circumstantial B’s sion evidence of agency. The results which from circumstantial come enough are inferences. evidence When circumstances tending proved a muted fact are evince so that after probabilities weighed, may all been have the fact say them, inferred we the conclusion is the an inference. result of Inferences are deductions. They nothing They are deductions and else. are not logic. Accordingly, the result of but of law, if A’s own- *11 ership possession and B’s authorize an inference that agent, just B is A’s then the evidence circumstantial still mentioned exists at close of the trial. There- if a motion for directed verdict fore, is made, some disposition circumstantial evi- must be made of the If either believed or disbelieved. dence—it must be happens behalf, as a in his own A, it so witness agent, B not his is direct swore that was his combating purpose for evidence submitted may good indirect or circumstantial evidence. have C distrusting veracity yet andA, reason have discrediting except no means of him so far as A’s repels demeanor the witness stand confidence. Ordinarily, the conflict between circumstantial di- jury’s rect evidence is issue for the determination. Accordingly, majority say when the that Parelius’ mo- for a tion directed verdict should have been sustained, they weighed must first have the evidence, both in- having direct and direct, found that the inferences (Parelius’ drawn from the indirect bailment and possession) outweighed Brown’s were mueh cogency they of the direct evidence, must have disre- garded unworthy the indirect as of credit. any
Let us see whether there are other means of dealing with the situation.
If A owns car which was driven B at the time injured any following possibilities C, of the three may present: (1) may The facts stated be deemed warranting circumstantial evidence an inference Bthat agent; (2) may A’s was or recourse be had to the well- established that when owner and driver presumed the same, are not the driver is to be the agent; (3) may owner’s the facts stated warrant not only an inference but also a that B agent. Wigmore (3d A’s See ed.), on Evidence sec. Department 2510a, and Water and Power v. Ander- (2d), p. son, 95 Fed. 577. *12 (of presumptions law) not the are
Inferences logic of reason; former are the result of same. The They of the are creations the latter are creations law. corporations. in much of the law the same sense are may being note misunderstood, it be well to To avoid presumptions same. of fact and inferences are the merely thing. They for are different names the same presumption legal employed A of law is device purpose temporarily relieving party of the the necessity proving stop-gap a fact. As a it fills get party safely past and enables the a non- void opponent upon It of his suit. exacts the first evidence subject. expedient employed presumption The is a disputed presumptions exists. that the fact Some find justification probabilities experi- in and human their upon supposition are based that the ence. Others adversary is better able to show the nonexistence of proponent if it does not than fact, exist, is the prove writings able to its For instance, existence. most truly presump- are dated; therefore, the law creates a writing dating tion that each bears its true as a means dispensing proof with in most cases—and —needless thereby expediting Upon the trial. hand, other agent that the driver was the owner’s recognizes injured party that most instances an relationship familiar less with between the driver than and the owner is the latter.
that the driver the owner’s is,'therefore, party expedient prove to exact of the best able to relationship concerning the first true evidence it. way injured gets past individual a defendant’s Presumptions, a nonsuit. motion for which are not experience, may human slight based have but tendency point yet they facts, are as service- party able to Ail favored them as the others. example presumptions concerning survivorship is the among persons who died a common disaster.
Let us note further the an in- difference between already presumption. ference and a The former, as suggested, voluntary is a conclusion; the is a latter compulsory mandatory conclusion. The law demands indulged that it be in. For in a criminal instance, case *13 presume all concerned with it must the innocence of the contrary defendant until the has been shown. This presumption indulged though must be in even some presence guilt. presumptions infer of Whenever and inferences, drawn from the same circumstances, prevail. presump- conflict, former Inferences and respect: tions are different in another an inference only will be discarded when shown be unsound. But presumption only expedient. a is an It, therefore, purpose. vanishes when it has served its It is a like chrysalis wings gone. which purpose takes and is Its adversary while it exists is to coerce the to submit proof. performed When it has its full coercive mission it has become functus and officio, then the existence or questioned the nonexistence of the fact is ascertained by ransacking through the evidence.
Let us see presumption whether there is a created by the law that agent, the driver is the owner’s presumption, if there is such a let us see whether there anything prohibits is in our laws which employ- us from ing it. In Judson v. Beehive Auto Service Co., 136 294 P. 588, 297 P. 1050, 74 A. L. R. 944, it is said: “Among disputable presumptions enumerated (sec. Oregon in the 1930), 9-807, statute Code we find person possession none that a of an automobile is presumed to be as an of the owner and that conclude therefore, We, benefit.
for the latter’s the not inference prima case is based facie presumption.” ed.), (3d to sec. in a footnote Wigmore on Evidence (C. P.C. statute describes California counterpart, 1963), law is above-cited of our sec. standard'presump number of of “a enumeration as an indicating is not the enumeration thus tions” by preceding the enumeration complete. statute, Our following kind”, of that are “The with the words only partial com is enumeration that the indicates easy presumptions. disputable It is pilation of the a num recognize from our statute the absence presumptions; instance, of well-established ber age years of presumption than seven a child less committing pre incapable mentally crimes; incapacity than sumption physical of a male less age years crimes; commit sexual fourteen by the individual that vehicle owned printed upon and the it; name is whose or natural causes from an accident that death resulted Accordingly, absence of than suicide. rather *14 investigation presumption from the list under the Oregon compiled which is 9-807, 1930, Code in sec. L. is not determinative. Section 2-407, O. A., now sec. C. (3d ed.), Wigmore that the states Evidence, 2510a, presumed to the of an automobile is driver many support in section cites decisions owner; the the presumption a Hence, such exists. of the statement. overruling reasoning Mr. in Justice Mc Cam ant, rehearing petition Kern, v. for a West the good 1918D, 920, 171 P. L. R. A. presumption. resorting portrayal of the Without to my analysis, I that the state belief law created in more plaintiff presumption that Brown was favor of the agent. Parelius’
' presumption 2-405, until A continues overcome: sec. presumption present in the case en- L. A. The C.O. per- plaintiff escape to thus nonsuit; the abled Next, one of its functions. it coerced Parelius formed taking delineating stand and the cir- into the witness concerning and the car cumstances Brown which plaintiff. collision Prom the latter drove into with appeared came forth it neither which thus that evidence right operate nor Brown had car Parelius to attempt accident. the time of the Parelius did at not disprove presump- the bases which had created the (Parelius’ possession), but, tion bailment Brown’s just indicating said, he established circumstances prohibited, the owner the car had its use and that Brown was not within the of his authority injured plaintiff. time at the he This testimony positive. affirmative was direct and After proof plaintiff this had been submitted, made no to refute it. Bather, effort he undertook to show that at had Brown other times endeavored to sell other cars proof, which Parelius —cars owned. That however, way affected the fact no the car which struck subject plaintiff not sale at the time Brown Therefore, it. concerning took Parelius’ Company the Ladd car, Estate owned, was questioned plaintiff. not Under these circum- stances, it seems me that had ex- longer It no hausted itself. could avail the anything. disappeared short, it had from the case.
It is sometimes said that a evidence, presumptions therefore, germane that, to a *15 192 they jury can be to tbe so be submitted must
case weighed justice with placed and be in the scales treats inferences proof. C. L. which 2-401, O. A., Section relied presumptions evidence,” “indirect is as may support Whatever be for that view. they presumptions, have of that treatment merits Parelius’. application If Brown was to this case. no agent, Bather, not be evidence. as such would his status agency, evidence, deduced from the of his the fact presumption, bet deduction, inference, or, abe would yet, Being a conclusion drawn ter a conclusion. it not evidence. It would be evidence, could be presump product I conclude, of the evidence. spent for a tion had itself before the defendant moved said, directed verdict. As has been the same facts presumption may which create sometimes warrant alike, an If and inference inference. are doubly fortunate. Under favorable may inference can be circumstances, be that an agent. that the driver is the owner’s Such drawn very might reasonable if inference the vehicle type. present car instance, of a commercial was not of a commercial character. The hour of its past midnight. operation was Brown had never sold principal duty operate gasoline a car. His was to pump, grease morning place cars each the used on the used-car lot. An cars inference must have sub upon speculation. it can not be based stance; supporting facts it must be substantial. The scintilla employed rule is not of evidence this state. Time sup time we have said that the verdict after must be ported substantial evidence. In Consolidated Edi v. Board, son Co. National Labor Relations S.U. L. 197, 83 ed. Mr. S. Ct. Justice Chief *16 Hughes said: companies Ap “The contend that the Court of
peals power findings misconceived its to review the searching they and, instead of the record to see if by merely were sustained ‘substantial’ evidence, con ‘wholly sidered whether the record was barren of evi support agree dence’ to them. We that the statute, providing findings in the that ‘the of the Board as to supported if facts, evidence, shall be conclu Washington, supported sive,’ means substantial evidence. . & M. v. Coach Co. National Labor Relations V Bd., 301 L. 142, 147, U. S. 81 ed. 965, 970, 57 S. Ct. 648. Substantial evidence is than a more mere scintilla. It means such relevant evidence aas reasonable mind might accept adequate support Ap to a conclusion. palachian Electric v. Power Co. National Labor Re (C. 4th) (2d) lations Bd. A. F. 985, C. 93 National 989; Thompson (C. Labor Bd. Relations v. A. Products C. 6th) (2d) Knitting 97 F. 13, 15; Ballston-Stillwater (C. 2d) Co. v. National Labor Relations Bd. A.C. 98 (2d) F. 758, 760.” In National Labor Relations v. Board Columbia Enameling Stamping & Co., 306 L. 292, U. S. 83 ed. 660, 59 S. Ct. Mr. 501, Justice Stone said:
“Substantial evidence is more than a scintilla, and
suspicion
must do
than
a
more
create
of the existence
of the fact to be
‘It
established.
means such relevant
might accept
evidence as a reasonable mind
as ade
quate
support
a conclusion.’ Consolidated Edison
Co.v. National Labor Relations
305
Bd.,
197,ante,
U. S.
supra,
enough
59
126,
206,
S.
and it
Ct.
must be
justify,
jury,
if
trial
to a
were
a refusal to direct
sought
a
verdict when
conclusion
to be drawn from
jury.
for the
is one of fact
See
R.
Baltimore & O.
Groeger,
v.
266
Co.
U. S.
69 L. ed.
521, 524,
Gunning Cooley,
45
L.
169;
S. Ct.
v.
281
90, 94,
U. S.
74
Appalachian
720, 724,
ed.
Power Co. v. 989).” (2d) 4th), (C. F. A. C. the inference can warrant Circumstances only requests there party drawn when to be two; logical connection between reasonable' prob- inference must be otherwise, stated or, the circumstances. result of and natural able ap- previous us on cause was before When (2d) 230), (Bunnell peal Parelius, v. that not warranted an inference was we held accident. time of the at the Parelius’ Brown slightly present different record are in the The facts at time. Some before us were those which agency tendency prove greater had them then *17 Possibly, by process of us. before those now than guesswork, could surmise that speculation one of the tortious at time Parelius’ was Brown guesses speculations, are surmises but conduct, type is needed to evidence that of substantial not the reason that convinced this The same a verdict. sustain agency inference of could not be that an before court me now. convinces from the evidence drawn carried The conclude: To subsequently disappeared. It past plaintiff a nonsuit plaintiff did displaced facts which had been dispute. to the favorable No inference not Accordingly, any the motion present at time. have been sustained. should the directed verdict by majority. result reached I in the concur my are reasons. above