Appeal from Circuit Court, Multnomah County. John C. Beatty, Judge.
Kenneth D. Renner, Portland, argued the cause for appellant. With him on the briefs were Wayne A. Williamson and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.
Raymond J. Conboy, Portland, argued the cause for respondents. With him on the brief were Garry Kahn and Pozzi, Wilson & Atchison, Portland, for respondent Heide, and Jack L. Kennedy and Kennedy & King, Portland, for respondent Parker.
Howell, Justice. O'Connell, Chief Justice, and McAllister, Denecke, Holman and Bryson, Justices.
These are actions for personal injuries arising out of a collision between cars driven by Sheila Bebout and Thomas Parker. Both drivers were killed, and Marvin Heide, a passenger in the Parker vehicle, was injured. Heide and the administratrix of the Parker estate filed actions against defendant, T.C.I. Incorporated, the employer of Mrs. Bebout.
The cases were consolidated for trial on the issue of liability only. The defendant moved for a nonsuit and directed verdict on the ground that the evidence failed to show that Mrs. Bebout was acting in the course and scope of her employment at the time of the accident. Both motions were denied, and the jury returned a verdict for defendant. The trial court granted a new trial on the ground that the jury should have been instructed that Mrs. Bebout was negligent as a matter of law. Defendant appeals.
Defendant presents two assignments of error. However, it is necessary that we consider defendant's second assignment only -- that the trial court erred in
denying the motions for a nonsuit and directed verdict because plaintiffs failed to establish that Mrs. Bebout was in the course and scope of her employment at the time of the accident.
All parties agree that the essential evidence is undisputed.
The accident occurred on Thursday, February 26, 1970, when Mrs. Bebout's auto left the southbound lane of Interstate 5 a few miles north of Salem, crossed the median divider, and collided head on with the northbound auto of Thomas Parker.
Mrs. Bebout, who lived in Salem, was a vice-president of defendant T.C.I. Inc., a newly established advertising and public relations firm with offices in southwest Portland. The entire corporate personnel consisted of three officers and a receptionist-secretary.
The auto involved in the accident was owned by Mrs. Bebout and her husband. When the car was purchased, the corporation advanced three or four months' "car allowance" to Mrs. Bebout to be used as a down payment. Thereafter the corporation paid Mrs. Bebout $118 per month (the amount of her car payment) as car allowance; paid for any necessary maintenance; and paid Mrs. Bebout 3 cents per mile for any business use of the car. She was not paid mileage for going to and from her home in Salem unless she happened to be making some deliveries for the company or unless she was going from Portland to Salem on a business trip. She was paid mileage if she returned to the office to work on a Saturday or Sunday. The corporation leased one or two other cars for the use of other personnel.
Mr. Bebout testified that "it was very rare that
she [Mrs. Bebout] did not work at home on weekends and fairly often in the evening." The work consisted of "typing, writing or telephoning."
For some time prior to the accident, Mrs. Bebout had been doing public relations work on the opening of a new plant for Freightliner Corporation. On the day of the accident she was "physically exhausted" from the hours spent on the opening, which had occurred a few days previously. That afternoon a friend called her at the office and invited her to have a drink when she was free. She declined, saying that she had to "head south" and "I can't tonight, I'm going home." A representative of Freightliner was in the office, and a few minutes after 5 p.m. the two left the office together, stopped at a bar four or five blocks from the office, and had a drink. Mrs. Bebout departed for Salem, and the accident occurred approximately four miles north of Salem at 6:20 p.m.
At the time of the accident Mrs. Bebout's car contained some notebooks, her briefcase, and two partial cases of liquor which had been left over from the Freightliner opening and which ...