Petition for rehearing denied February 11, 1936 ON PETITION FOR REHEARING (54 P.2d 290) In a petition by plaintiff for rehearing, six grounds are assigned for challenging the following statements in the original opinion:
(1) "The testimony in behalf of defendants is the only testimony in the case on the subject of the alleged relationship of principal and agent between Stephen A. and Joseph A. Hull."
(2) "There is nothing in the record from which it reasonably can be inferred that Stephen A. Hull had any interest in the mission or enterprise of his son, or had any knowledge of it."
Those six grounds of challenge are:
(1) Conduct and demeanor of witnesses not portrayed on printed page.
(2) Use of the car on the day of the collision by defendant, Joseph A. Hull.
(3) Appearance in court at the trial by both defendants in person.
(4) Failure of Stephen A. Hull to testify.
(5) Absence of testimony that Stephen A. Hull had given instructions against use of the car by his son.
(6) Use of the car by the son on other occasions. *Page 482
As to the first of the above grounds, it is conceded that the record before us does not reflect the conduct and demeanor of witnesses. That fact, however, does not relieve us from the necessity of being guided by the record.
As to the second ground, the doctrine of the case of Judsonv. Bee Hive Auto Service Co., 136 Or. 1, 5 (294 P. 588,297 P. 1050, 74 A.L.R. 944), is that the use of the car by one other than its owner creates an inference of agency on the part of the user for the owner; but when the actual relationship is disclosed by uncontradicted testimony and from the entire record no reasonable deduction of agency can be made, the inference of agency is without effect.
When it is remembered that the mission of the son was to take a young man and two young ladies to the golf links for an evening's entertainment and that the son's effort to contact his father in order to secure the father's permission to so use the car was fruitless, the conclusion is inescapable that the father had no interest whatever in the son's enterprise upon that evening.
The third and fourth grounds of challenge must be considered together, namely, that defendant, Stephen A. Hull, was personally present at the trial and did not testify, hence, his silence is deemed to be an admission against him. There was no testimony tending to show agency on the part of his son. The only testimony on the subject was to the contrary. His silence could not be construed to be an admission of testimony not given.
The case of Bly v. Travelers' Insurance Co., 142 Or. 523 (20 P.2d 1089), cited by plaintiff, comments upon the failure of defendant to introduce any testimony on a given point, not the failure of any individual *Page 483 defendant to testify when other testimony on that point has been introduced and has not been contradicted.
The case of Wimer v. Smith, 22 Or. 469 (30 P. 416), is one wherein the testimony, with reference to an alleged conversation, was conflicting and the failure to produce the testimony of a person, who was said to have been present at such conversation, is given consideration. In the case at bar, the testimony is not conflicting on the question of the son's alleged agency.
In Schreyer v. Turner Flouring Mills Co., 29 Or. 1 (43 P. 719), cited by plaintiff, the defendant failed to produce certain original documents. We quote from the opinion:
"The defendant's failure or refusal to produce the documents called for by the notice cannot be considered as evidence of the truth of what plaintiff claims he would be able to prove by them.", etc.
In Williams v. Commercial National Bank, 49 Or. 492 (90 P. 1012, 91 P. 443, 11 L.R.A. (N.S.) 857), it was held that where the pleadings and proof question the good faith of a party and such party withholds proof exclusively within its control or fails to produce it on demand, the law puts an interpretation upon such conduct most unfavorable to such party. In the case at bar, there was no proof challenging the testimony introduced by defendants on the point under consideration. The plaintiff could have called Stephen A. Hull to the witness stand, hence, his testimony was not exclusively within said defendant's control.
We still think that in the case at bar as in the case ofCaldwell v. Hoskins, 94 Or. 567 (186 P. 50), cited by plaintiff, there was no wilful suppression of testimony by defendant Stephen A. Hull. *Page 484
The fifth ground seems to distinguish between the case of an adult son living apart from his parents, and any other adult person. It certainly can not be said that one sought to be charged as principal for another must introduce testimony of an express refusal to enter into such a relation. It would be a strange principle to say that because the owner of a car had not refused to employ another person as his agent, such other person could incur liability binding upon the owner by the use of the owner's automobile on a mission foreign to the interests of the owner and without his knowledge or consent. The relationship of father and son, when, as in this case, the son is an adult and not a member of the father's household, does not create agency on the part of the son for the father.
The sixth ground implies that the use of the car by the son on former occasions constitutes a basis for inferring either that the mission of the son on the evening of the accident was not as he said it was, or that some interest of the father was conserved in carrying out such an enterprise. Not even conjecture or speculation could divine any purpose or errand beneficial to or in the interest of the father in respect to such an enterprise; and there is not a suggestion in the records that the son went anywhere or did anything with the automobile on that occasion other than as he testified.
It is also urged that the doctrine heretofore announced by this court is not in harmony with the holding that the relationship of father and son does not ipso facto establish agency of the son for the father. No authorities, however, are cited thereon.
Davis v. Underdahl, 140 Or. 242 (13 P.2d 362), is cited as being out of harmony with the doctrine of the case at bar. There, testimony was introduced tending *Page 485 to show that the driver of the car was working part time for the owner thereof. As stated in the opinion:
". . . instead of the inference or presumption arising by virtue of the ownership of the car having been overcome, there is other testimony tending to show that the driver, David Moore, was the agent of defendant."
In Purdin v. Richardson, 148 Or. 68, 70 (34 P.2d 929), there was evidence that the driver just took the car when he wanted it and that was all there was to it; there was never any question asked. No such testimony occurs in the case at bar.
In Millar v. Semler, 137 Or. 610 (2 P.2d 233,3 P.2d 987), the defendant introduced no testimony whatever. His sixteen-year old son was the driver of the car. After referring to the rule that proof of ownership of an automobile negligently operated and causing injury makes a prima facie case against the owner and is prima facie evidence that the person operating the automobile was the agent or servant of the owner and was operating the same with his consent, it is stated in that case:
"When such proof was offered, the duty devolved upon the owner to go forward with his own testimony and show, if true, that the driver was not acting for him or under his authority. That duty, in the instant case, the defendant refused to perform."
In the case at bar, the adult son testified in that regard disclosing that the relation of principal and agent did not obtain.
In West v. Kern, 88 Or. 247 (171 P. 413, 1050, L.R.A. 1918D, 920), it is said:
"However, the prima facie case which is made out from the admission of ownership, is, in the instant case, supplemented by other evidence. . . . A complete statement of all the evidence would not serve any good *Page 486 purpose. It is sufficient to say that we have carefully examined the entire transcript of the testimony and find that there are many facts which when construed together and with relation to each other form a chain of circumstances tending to show that the persons were driving the car in behalf of defendant and within the scope of their authority."
There is no such chain of circumstances in the record of the case at bar.
In Miller v. Service and Sales Inc., 149 Or. 11 (38 P.2d 955, 96 A.L.R. 628), it is said:
"Let us now consider the facts in the instant case to determine whether but one reasonable inference could be drawn therefrom, viz., that Erskine had borrowed the automobile and at the time of the accident was using it for his sole benefit and pleasure. We are not prepared to say that a reasonable-minded person might not consider it improbable that the sales company would take this new 12-cylinder, seven-passenger car off the floor and lend it to Erskine — who was not a prospective purchaser and had not talked about buying the car — to take his family to the coast. Ordinarily, high priced cars are not loaned for such trips unless there is some prospect of sale."
Sather v. Giaconi, 110 Or. 433 (220 P. 740), involves the question of liability for damages by reason of the use of a fishing vessel together with the necessary fishing appliances and paraphernalia belonging to it, including what is generally known as a purse seine. The defendant admitted ownership thereof. We quote from the opinion:
"The ownership of the purse-seine fishing outfit having been admitted, it was competent to show that the defendant collected the proceeds of the catch. This was shown by his own cross-examination. It is true that he explains why he collected the money, that it was by authority of his lessees and that he was acting for *Page 487 them in so doing; but that is not conclusive upon the jury. They had a right to infer from his apparent assumption of authority over the proceeds of the catch that he was the owner and in control of the vessel and the seine that caught the fish."
We have given this extensive review of the authorities cited by plaintiff, not because we failed to consider them when the original opinion was written but because it is suggested that a comment from the court during the oral argument caused plaintiff to understand that the point here discussed would be decided favorably to him, and, hence, at that time his argument thereon was withheld.
We adhere to the original opinion. The motion for a rehearing is denied.