Kahn v. Home Telephone & Telegraph Co.

Mr. Justice McBride delivered the opinion of the court. Only two questions are presented on this appeal; the first being as to the sufficiency of the testimony to justify a verdict for plaintiff, and the second, the strictures of plaintiff’s counsel during the argument. 1. It is clearly shown that the defendant was the owner of the automobile; that the driver was a person regularly employed by it to drive it, and that the accident happened through his negligence. These facts being shown, the plaintiff contended in the court below, and contends here, that a presumption arose that the driver was using the automobile in the company’s business, which authorized the jury to find for the plaintiff under the rule of respondeat superior, notwithstanding the testimony of the defendant’s witnesses that the machine was being used by them upon their private business without permission of the company. It has been frequently held by the courts that where an automobile is operated by a person employed for that purpose, it will be presumed that he is acting within the scope of his authority and about his employer’s business. If he is not so operating it, this is a fact peculiarly within the knowledge of the employer, and the burden is upon him to overthrow this presumption by evidence of which the law presumes he is in possession: Huddy, Automobiles (3 ed.), § 281; Long v. Nute, 123 Mo. App. 204 (100 S. W. 511); Moon v. Matthews, 227 Pa. 488 (76 Atl. 219, 136 Am. St. Rep. 902, 29 L. R. A. (N. S.) 856); Ludberg v. Barghoorn, 73 Wash. 476 (131 Pac. 1165); Purdy v. Sherman, 74 Wash. 309 (133 Pac. 440); Birch v. Abercrombie, 74 Wash. 486 (133 Pac. 1020, 50 L. R. A. (N. S.) 59.); Langworthy v. Owens, 116 Minn. 342 (133 N. W. 867). By the — 313 — terms, “raises a presumption,” “will be presumed,” and other similar language used in the decisions above cited, it is evident it is not meant that the circumstances of the use or possession of an automobile by an employee of the owner raises any presumption of law that the person in charge of it is using it upon the business of the master, but rather that such facts are sufficient to justify a jury in inferring-that such is the case; in other words, the fact that a person is in possession of the automobile of another, and the additional fact that he is shown to have been employed by the owner to drive and care for it, taken together, form a chain of circumstantial evidence from which a jury is authorized to infer the further fact that the employee is using the machine upon the employer’s business. This being the case, the owner is called upon to rebut the evidence of these circumstances by showing, by testimony satisfactory to the jury, that the real fact is otherwise'; that notwithstanding the testimony introduced by plaintiff presents those circumstances which usually justify the inference that the machine is being used for his business and by his authority, the actual fact is that the employee is not so using the machine, but is taking it in connection with his own business and in performance of errands not connected with his employment. The inference to be drawn from the facts shown by the testimony adduced on behalf of plaintiff .is similar in principle and effect to that arising from evidence of the recent possession of stolen property, which it is said presents an evidential fact to be considered by the jury with other facts shown in the case in determining the guilt or innocence of the accused: State v. Pomeroy, 30 Or. 16 (46 Pac. 797). 2. "We are of the opinion that the testimony introduced by plaintiff tended circumstantially to prove — 314 — that the automobile was being used by defendant’s employee upon defendant’s business. This being the ease, the relative weight of the testimony introduced by the defendant to- explain away these circumstances was a matter solely for the jury. It is observed by Mr. Justice Strahan, in State v. Jones, 18 Or. 261 (22 Pac. 842): “As soon as enough is shown to require the defendant to enter upon his defense, and to introduce evidence, it is the province of the jury to weigh the evidence, and pass upon the credibility of the witnesses.” This appears to have been the view taken by many courts, even in jurisdictions where the power of the court to consider the relative weight of testimony is not so restricted as it has been, since the Constitution was amended in 1910 by the adoption of Article VII, Section 3. Thus, in Langworthy v. Owens, 116 Minn. 342 (133 N. W. 867), the court, referring to similar testimony in a case resembling the one at bar, says: “There was direct evidence tending to establish the claim that Rogers was not the agent; but upon examination of the whole evidence we are of the opinion that it was not conclusive as a matter of law, and that the cause should have been submitted to the jury.” In Purdy v. Sherman, 74 Wash. 309 (133 Pac. 440), Mr. Justice Chadwick says: 1 ‘ The evidence offered by defendant might have sustained a verdict in his favor, but under repeated decisions of this, court the jury was not bound to believe such testimony; the ownership of the automobile being admitted to be in the defendant: * * Knust v. Bullock, 59 Wash. 141 (109 Pac. 329); Kneff v. Sanford, 63 Wash. 503 (115 Pac. 1040); Burger v. Taxicab Motor Co., 66 Wash. 676 (120 Pac. 519). Whether the prima facie case made by the respondent was overcome was — 315 — a question for the jury, and it has decided that it was not.” And in the case of Knust v. Bullock, 59 Wash. 141 (109 Pac. 329), Mr. Justice Mount says: “In cases of this kind, where it is shown that the wagon and team doing damage belonged to the defendants at the time of the injury, that fact establishes prima facie that the wagon and team were in possession of the owner, and that whoever was driving it was doing so for the owner: Edgeworth v. Wood, 58 N. J. Law, 463 (33 Atl. 940); Schulte v. Holliday, 54 Mich. 73 (19 N. W. 752); Norris v. Kohler, 41 N. Y. 42; Seaman v. Koehler, 122 N. Y. 646 (25 N. E. 353). This being the rule, it is plain that the plaintiff made a case for the jury, and that the court did not err in refusing to direct a verdict in favor of the defendants.” To the same .effect see Geiselman v. Schmidt, 106 Md. 580 (68 Atl. 202); Baldwin v. Abraham, 57 App. Div. 67 (67 N. Y. Supp. 1079). Whatever may be the rule in those jurisdictions where courts are permitted to set aside verdicts deemed contrary to the weight of evidence, we consider ourselves precluded from doing so by that clause in Article VII, Section 3, of our amended Constitution, which provides: “No fact tried by a jury shall be otherwise reexamined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.” 3, 4. The second point presented by defendant’s counsel relates to the argument of counsel for plaintiff before the jury. The objectionable remarks as shown by the bill of exceptions are as follows: “Their only object is to keep from paying this man what he is entitled to. They go out and pick up the best lawyers they can get to try to keep this man from getting justice. I say they did maim him, and I say it — 316 — is a shame and an outrage for them to come here and try to say they didn’t, and you, gentlemen, all I ask you to do is to put yourself in that man’s place, if you can, sitting here for a part of three days, like this man, and going to a sick-bed like he did, pnt yourself in his place; that is all I ask you to do. You are not here representing the Home Telephone Company, and you are not here representing this man, and you are not here to be biased or prejudiced in any way. Take all the facts and surrounding circumstances, and the way they come in here and twist and try to distort this case, and see what chance you would have at the hands of these people. That is all I ask you to do. Do unto this man as you would be done by. That is the theory we should go on in this world if we expect to find happiness.' It is all right for Mr. Montague to try to beat this man out of his gust deserts if he can.” To these statements defendant objected on the ground that they were prejudicial, improper and misconduct. To the overruling of this objection defendant excepted, and an exception was allowed by the court. “You can say what you want to about the case not being cooked up, but I am going to say that it is cooked up, whether Mr. Montague likes it or not. How ridiculous it was that every man there had ah errand on this side of the river, to keep from being in the employ of the company, a man living out at St. Johns, ordinarily takes an hour to go home, and he comes clear over on this side of the river because it was handier for him to take a car and sit down and let some poor working man stand up; that is the size of it. I know these fellows. A man who will come in and testify against his fellow-citizen like that, I say is devoid of principle. “Mr. Montague: I object to these remarks, your Honor. “The Court: Yes, that is incompetent. “Mr. Davis: I am saying this man came over here because it was handier for him to take a car over there. — 317 — “The Court: There is no objection to that. “Mr. Montague: That is not what I objected to. “The Court: Gro'ahead. “A. If I have been unfair in this thing I want to apologize to you gentlemen and to the court, and if I have been unfair in a righteous cause, and when I look over the slick, well-fed manager of the company, Mr. Middleton, I am wondering if he will ever be called on to come into the court and get what is his right and just dues. I am not religious, I am not a member of any church, but I did receive a few instructions as a boy, and as I grew older — it may be because my mother was religious — I have always tried to follow the golden rule, and I am going to repeat it, not for Mr. Montague’s benefit, because I think he is familiar with it, ‘Whatsoever you would that men should do unto you, do you also unto them.’ That is Christ’s golden rule; that is not the lawyer’s golden rule, but that is Christ’s golden rule, and he says he was sent on earth to preach the gospel to the poor. They were the ones that needed his protection, not Mr. Montague or Mr. Middleton, or that class of people; they don’t need it; that is just exactly the situation.” To these remarks the defendant objected on the ground that they were an appeal to class prejudice, and this objection was sustained by the court. While the remarks covered by the first objection of counsel for defendant were vehement and, perhaps, unnecessarily severe, we cannot say as a matter of law that there was not some basis for them in the testimony. At all events they did not go beyond the very common measure of denunciation indulged in by attorneys in the heat of argument. The objection to the remarks embraced in the second exception on this subject was sustained by the court, and there the matter rested; counsel for defendant taking no exception to the ruling of the court and not asking the court to direct the jury to disregard the remarks to which they objected. — 318 — 5. Further remarks of counsel for plaintiff along the same line appear in the transcript of testimony, but, not being made part of the bill of exceptions, will not be considered here. While it must be conceded that the testimony introduced by defendant was strong and, in the judgment of the writer, tended greatly to discredit plaintiff’s theory of the case, we feel ourselves precluded by the law from disturbing the finding of a jury upon testimony the value and effect of which it was their exclusive province to determine. The judgment is affirmed. Affirmed. Rehearing Denied. Mr. Chief Justice Moore, Mr. Justice "Burnett and Mr. Justice Benson concur.