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Palmer v. Van Petten Lumber Co.

April 2, 1973


Appeal from Circuit Court, Union County. W. F. Brownton, Judge.

Charles R. Cater, La Grande, argued the cause and filed a brief for appellant.

James A. Monce, La Grande, argued the cause for respondent. With him on the brief were Carl G. Helm and Helm & Wasley, La Grande.

In Banc. O'Connell, C.J. Denecke, J., dissenting. Tongue, J., dissenting.


This is an action to recover damages for personal injuries which plaintiff suffered when defendant's truck collided with plaintiff's automobile. Plaintiff appeals from a judgment of nonsuit.

At the time of the accident defendant's truck was in the possession of Frank Lovely, one of defendant's employees. In the absence of rebutting testimony, this fact would give rise to an inference of agency.*fn1

The trial court held, however, that the inference was rebutted by the evidence adduced in this case. The evidence rebutting the inference was the uncontradicted testimony of several witnesses for defendant. The issue on appeal is whether there was any evidence other than the uncontradicted testimony of defendant's witnesses from which the jury could have reasonably inferred that Lovely was acting as defendant's servant at the time of the accident.

We begin with the well-established principle that the credibility of witnesses is ordinarily to be determined by the jury. We carefully examined this generalization in Rickard v. Ellis, 230 Or 46, 51, 368 P2d 396 (1962), observing that "[i]n some cases an issue upon which there is uncontradicted testimony is properly submitted to the jury; on the other hand in some cases the question of the credibility of a witness is properly withheld from the jury." We re-asserted the test adopted in Wiebe v. Seely, Administrator, 215 Or 331, 343-344, 335 P2d 379 (1958),*fn2 and elaborated upon it by noting two important factors to be considered in deciding whether the jury should be permitted to draw inferences contrary to the uncontradicted testimony. The factors were (1) the availability

of evidence to contradict the witness's statement, and (2) the likelihood that the witness's interest in the litigation may tempt him to testify falsely.

The general standard to be applied in determining whether a case should be submitted to the jury is well stated in Jerke v. Delmont State Bank, 54 S D 446, 456, 223 NW 585 (1929) and endorsed by 9 Wigmore on Evidence, ยง 2495, p. 306 (1940) as expounding "the correct principle with inexorable logic." The court, after noting that "We are too often prone to exaggerate the powers and privileges of a jury as a trier of facts," reminds us that "the general superintendence and control of the court and all its machinery, including the jury, rests with the judge, and [that] it is fundamental that an issue arising between litigants must be tried by a general, rational, or reasoning process, both as to the ascertaining of facts and the application of the law." Going on, the court says:

"* * * Before there is anything for submission to the jury, the evidence offered as to the ultimate facts must be such that the application of normal intellectual faculties thereto might by the customary and normal processes of reasoning arrive at different judgments or conclusions. * * *

"Jurors do not determine all questions of ultimate fact, even in jury cases. They determine the existence or nonexistence of those facts, and those only, with reference to the existence of which the judgment of reasonable men might differ as a result of their intellectual faculties to the evidence." 54 S D at 457-458.

The court, turning to the specific question of the effect to be given the factor of credibility, said:

"* * * But the entry of the factor of credibility, either one way or the other, can make no difference in the operation of the fundamental

principle which necessarily underlies the direction of verdicts in all cases. The question of whether reasonable minds could arrive by reasoning process at more than one opinion or conclusion is always a question for the judge. The entry of the factor of credibility means simply the existence of one more item upon which the intellectual faculties are to operate. * * *

"A jury has no greater or better right to act arbitrarily or unreasonably in forming a judgment or opinion as to whether or not a witness speaks the truth than it has to act unreasonably in arriving at any other opinion or conclusion. Forming an opinion as to credibility should be just as much a process of rationalization or reasoning from the data presented in the light of human experience as the formation of any other opinion or judgment in a court, and this has always been recognized by the great majority of the courts, and the proposition, subject to various qualifications, has been laid down in some such phrasing as that 'the positive testimony of a disinterested, uncontradicted witness cannot be arbitrarily or capriciously disregarded by the jury.'" 54 S D at 459-460.

With this general background of the applicable principles, we now turn to a more detailed statement of the facts.

Defendant was engaged in the roofing business, which was conducted along with a retail lumber business. Frank Lovely was employed by defendant as foreman of its roofing crew. Lovely used a pick-up truck owned by defendant in carrying out his duties as foreman of the crew. According to the testimony of Lovely and John Whittemore, former manager of defendant's business, Lovely was permitted to keep the pick-up truck in his possession, not only when he was performing his regular daily duties but also after

regular working hours. Lovely provided a garage for the truck and was permitted to use the truck for his own personal use whenever it was not being used for his employer's purposes. Defendant provided all the fuel for the pick-up.

During the evening hours Lovely was subject to call by defendant in the event of an emergency requiring the temporary repair of a roof. For this purpose, the truck carried a few tools and supplies belonging to defendant.

On the evening of the accident Lovely had driven the truck over to the residence of Robert Hansen, who was also employed by defendant and worked on Lovely's roofing crew. Lovely parked the truck on the street in front of Hansen's house. While the truck was unattended it rolled down the street and collided with plaintiff's automobile, causing the personal injuries for which this action is brought. Both Lovely and Hansen testified that the purpose of Lovely's visit was to pick up Hansen, who by previous arrangement had been employed by Lovely to help Lovely remodel one of his own rental houses.

Upon examination by plaintiff's counsel, Hansen testified as follows:

"Q All right. On the evening we're talking about, Mr. Lovely came to your door, knocked, you went to the door; right?

"A Yes.

"Q All right. What happened then?

"A He came in. I got my coat and hat.

"Q Well, what did he say when he came in?

"A Well, he asked me if I was ready to go. I was going out to his place to help him put up some sheet rock on his house.

"Q And did he ask you the status of the job you had been working on for Van Petten that day?

"A No.

"* * *

"Q Now, you and I talked about this, didn't we, Mr. Hansen?

"A Yes.

"Q And you told me what had happened there, didn't you?

"A Yes.

"Q Didn't you tell me that he asked you if you had finished the job that you were doing for Van Petten that day?


"Q You tell us all that was said there, Mr. Hansen, when Mr. Lovely came to your place that night.

"A It's been quite awhile ago. He came in, asked me, -- He came in. He asked me if I was ready to go. I said, 'Yes, I'll get my coat.' I got my coat and hat. When we started out, he said, 'Did you get done with your job?'

"THE COURT: * * * What did he say?

"THE WITNESS: He said was I about ready to go. I said, 'Yes.' I got my coat and hat. As we was going out, he said, 'How did you fellows do today?'


"THE WITNESS: 'How did you fellows do today?'


"Q What did he have reference to, Mr. Hansen?

"A That could cover a lot of things.

"Q Yeah, but you knew what he meant, didn't you?

"A Yes, I knew what he meant. The job we were working on, he asked me how we had done. That was all.

"Q This was the work that you did for Van Petten Lumber Company that day?

"A Yes.

"Q That he was asking you about?

"A Yes.

"* * *

"Q Had he [Lovely] been present on that roofing job that you were working on for Van Petten on that particular day?

"A He was in the morning.

"Q Then in the afternoon, he wasn't there?

"A Not to my knowledge.

"Q So he was asking you what happened in the afternoon; is that right?

"[Objection sustained]

"Q What did you tell him in answer to his question?

"A I never answered him.

"Q You never answered him?

"A No.

"Q How come?

"A Because there was a lady at the door. As we walked out, we met this lady there."

Upon examination by defendant's counsel, Hansen testified that Lovely had employed him to work for Lovely in remodelling a house owned by Lovely, for which Hansen was to be paid. On previous occasions Hansen had worked for Lovely on a similar arrangement and was paid by check.

In describing the visit to Hansen's home, Lovely,

when examined by plaintiff's counsel, testified as follows:

"Q What did you say to Mr. Hansen?

"A Asked him if he was ready to go.

"Q And what else?

"A I don't recall anything.

"Q Did you ask him about the condition or progress of the job that he'd been working on for Van Petten that day?

"A Not that I recall.

"Q You don't recall ...

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