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Wilken v. Sickle

March 23, 1973

WILKEN, APPELLANT,
v.
VAN SICKLE, DEFENDANT, FREIGHTLINER CORPORATION, RESPONDENT



Appeal from Circuit Court, Multnomah County. Clifford B. Olsen, Judge.

John S. Marandas, Portland, argued the cause for appellant. With him on the briefs were Lekas, Dicey & Marandas, Portland.

David C. Landis, Portland, argued the cause for respondent. With him on the brief were Jeffrey M. Batchelor and Gearin, Landis & Aebi, Portland.

In Banc. Howell, J.

Howell

An auto driven by defendant Van Sickle collided with a vehicle in which plaintiff was riding as a passenger. Plaintiff brought this action against Van Sickle and the defendant Freightliner Corporation, contending that Van Sickle was either an agent or servant of Freightliner at the time of the accident. Plaintiff appeals from a judgment of involuntary nonsuit entered in favor of defendant Freightliner.*fn1

The parties stipulated that the question of the vicarious liability of the defendant Freightliner under

the doctrine of respondeat superior could be determined separately by the trial court. The parties agreed that "the initial issue of whether plaintiff had made a prima facie case of agency or scope of employment" could be determined by the court using a stipulation of facts and depositions of Van Sickle and the manager of Freightliner, who eventually hired Van Sickle.

After considering the depositions and the stipulation of facts, the trial court entered a judgment of involuntary nonsuit in favor of Freightliner, because the "plaintiff has not made out a prima facie case of either agency or scope of employment."

In the instant case only one question -- the vicarious liability of Freightliner -- was submitted to the court sitting without a jury. The total evidence relating to that issue was contained in the stipulation and in the depositions of Van Sickle and the representative of defendant Freightliner. If the evidence as a matter of law is insufficient to create liability in Freightliner under the doctrine of respondeat superior, the judgment must be affirmed. On the other hand, if there was evidence from which a jury could find that Van Sickle was an agent or a servant in the course of his employment for Freightliner, the judgment must be reversed.

The following facts appear from the depositions and the stipulation:

On a date prior to the accident, Van Sickle applied for a job with Freightliner. On the day of the accident, he had completed his aptitude test and was given certain forms for a required medical examination ...


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