Judson v. Bee Hive Auto Service Co. , 136 Or. 1 ( 1930 )

BELT, J.

This is an action to recover damages for personal injuries sustained in an automobile collision alleged to have been caused by the negligence of the defendant. It is admitted that defendant was the owner of the automobile driven by C. M. Mills at the time of the accident and that Mills was driving it with the owner’s knowledge and consent. There was evidence tending to show that the alleged negligence of the' driver of the automobile owned by defendant was the proximate cause of plaintiff’s injuries. Defendant, in its answer, denied the charge of negligence and alleged as affirmative defenses: (1) Contributory negligence; and (2) that defendant had leased the automobile to Mills and that he was using the same for his own use and benefit.

Verdict and judgment were had for the plaintiff. Defendant appeals, asserting that it was entitled to a directed verdict.

The sole question involved is whether or not proof of ownership of the automobile, together with the further fact that it was being driven with the knowledge and consent of the defendant, constitutes a prima facie case, or one that is sufficient to go to the jury. This court, in a long line of decisions, has answered such question in the affirmative: Kahn v. Home Telephone & Telegraph Co., 78 Or. 308 (152 P. 240); Houston v. Keats Auto Co., 85 Or. 125 (166 P. 531); West v. Kern, 88 Or. 247 (171 P. 413, 1050, L. R. A. 1918D, 920); Doherty v. Hazelwood Co., 90 Or. 475 (175 P. 849, 177 P. 432); Sather v. Giaconi, 110 Or. 433 (220 P. 740). It is clear that from such facts a presumption arose that the automobile was driven by the agent of the defendant and that he was acting within the scope of his employment. Such presumption, under the statute, is evidence. Or. L., § 793, provides that indirect evidence is of two kinds: (1) inferences; and (2) presumptions. Or. L., § 797, provides:

“A presumption * * * may be overcome by other evidence, direct or indirect; but unless so overcome, the jury are bound to find according to the presumption.”

Whether this disputable presumption was overcome by evidence of the defendant was a question of fact for the jury to determine. It is not for this court to weigh conflicting evidence. Particularly is this true in view of art. VTI, section 3c of the Constitution of the State of Oregon, which provides:

“ * * * no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.”

It was the duty of the court to instruct the jury, in accordance with Or. L., §868, subd. 2, “That they are not bound to find in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption or other evidence satisfying their minds.”

Sather v. Giaconi, supra, is particularly in point and is adverse to every contention made by appellant. In that case Justice Burnett, spealdng for the court, said:

“The principle is thoroughly established in this state that if it is shown by any evidence that the instrumentality which caused injury was the property of the defendant, albeit some other person was operating it, the presumption is that such person was agent, servant or employee of the defendant and that a situation thus disclosed is sufficient to take the case to the jury on behalf of the plaintiff, notwithstanding the defendant on his part may give strong testimony to the effect that the instrumentality was not under his control but was under lease or was operated entirely without his authority.”

We see no need to make an extended restatement of the law.

The judgment of the circuit court is affirmed.

Kelly, Bean and Brown, JJ., concur.