Adler v. University Boat Mart, Inc.

• Decision Date: 05 December 1963
• Docket Number: No. 36568,36568
• Citation: 63 Wn.2d 334,387 P.2d 509
• Court: Washington Supreme Court
• Parties: Earline L. ADLER, Administratrix of the Estate of Robert Paul Adler, deceased, Respondent, v. UNIVERSITY BOAT MART, INC., and Robert E. Richardson, Appellants.

Page 334

63 Wn.2d 334

387 P.2d 509

Earline L. ADLER, Administratrix of the Estate of Robert

Paul Adler, deceased, Respondent, v. UNIVERSITY BOAT MART, INC., and Robert E. Richardson, Appellants.

No. 36568.

Supreme Court of Washington, En Banc.

Dec. 5, 1963.

Kenneth O. Welling, Seattle, for appellants.

Johnson, Griffin, Boyle & Ross, Lawrence M. Ross, Tacoma, for respondent.

HILL, Judge.

This is an appeal from a judgment for the plaintiff in a wrongful death action.

The defendant, Robert E. Richardson, President of the defendant University Boat Mart, Inc. (who will be hereafter referred to as though he were the sole defendant), rented an 18-foot plywood boat with outboard motor to Gerald Millholland. Richardson had assured Millholland that the boat was suitable for cruising from Tacoma to the San Juan Islands.

When Millholland took delivery at the Boat Mart in Lake Union, he had with him his 10-year-old son and two adults, Oscar Williams and Robert Paul Adler. They started for Tacoma at about 7:00 p. m. The trip was uneventful until, off Point Robinson, water was discovered in the cockpit. They were unable to find anything with which to bail the rapidly rising water. It was decided that Williams and Adler should go forward and sit on the bow in an effort to bring the stern up higher in the water. The boy was sitting on the portside and Millholland was standing on the starboard side operating the controls; Williams went to the portside in order to climb around the windshield on his way forward; and Adler, instead of going to the starboard to keep the boat in trim, followed him to the portside. The weight of the two men and the boy on the portside and the water in the cockpit also shifting to that side, caused a sudden list, and the two men and the boy were thrown into the water. The boy wore a life jacket and Williams had two buoyant cushions, one of which he immediately gave to Adler. Millholland, seeing his son thrown into the water, jumped to his assistance, leaving the throttle open and the boat in gear. It circled its former occupants twice and then went away from them. The engine ran for four or five minutes; the mast lights were visible for another four or five minutes; and then it was no longer visible.

The tanker 'Dispatch' came along about an hour ¹ later and picked up Williams and, then later, Millholland and the boy; but, though an extensive search was made and a buoyant cushion was floating in the water, Adler was never found. (There were only three buoyant cushions and each of the men had had one.)

The next morning the boat was found upside down on a beach. A patch in the bottom of the hull, which had been applied seven years earlier, was loose at one end; other than this there was no serious damage to the hull.

This action was brought by Earline Adler, as administratrix of the estate of Robert Paul Adler, deceased, under the wrongful death statute. RCW 4.20.010, 4.20.020.

It was tried to the court, and the court found for the plaintiff both on the theory of negligence, i. e., that the defendant was negligent in failing to properly inspect the boat, as the defective patch should have been discovered on a proper examination; and on the theory of an express and implied warranty of fitness.

The defendant urges 18 assignments of error, but the decisive issues are: (a) whether the evidence established the death of Adler; (b) whether negligence of the defendant, which was the proximate cause of Adler's death, was established; (c) whether Adler was contributorily negligent in overloading the portside of the boat; (d) whether Millholland's abandoning the boat was a superseding cause of Adler's drowning ('d' assumes that had Millholland stayed with the boat Adler and the others would probably have been rescued immediately); and (e) whether there was both an express and implied warranty of suitability of the boat, delivered by the defendant to Millholland, for cruising in Puget Sound.

We will consider these issues in that order:

(a) Evidence of death of Adler: The contention that the body of Adler not having been recovered death could not be proved, without the presumption afforded by the lapse of seven years, is without merit. Death, like any other fact, may be proved by circumstantial evidence. Harris v. Security Benefit Ass'n. (1935), 185 Wash. 25, 52 P.2d 329; Fordyce v. Modern Woodmen of America (1924), 129 Wash. 364, 225 P. 434; Brownlee v. Mutual Ben. Health & Accident Ass'n. (C.C.A.9th, 1928), 29 F.2d 71; Continental Life Ins. Co. v. Searing (C.C.A.3rd, 1917), 240 F. 653; Harvey v. Fidelity & Cas. Co. (C.C.A.6th, 1912), 200 F. 925, cert. denied 229 U.S. 614, 33 S.Ct. 774, 57 L.Ed. 1352 (1913); Veselsky v. Bankers Life Co. (1928), 248 Ill.App. 176; In the Matter of Will of Conover (1958), 13 Misc.2d 731, 177 N.Y.S.2d 75; 61 A.L.R. 1327, 1330-1331 (1929); 25 C.J.S. Death § 9 (1941).

Adler was last seen when the small boat from the 'Dispatch' approached Millholland and his son. After they had been taken aboard, a thorough search was conducted but only a bouyant cushion could be found. Adler had been, at that time, a mile and a half from shore and had been in the cold water an hour. The other two men were suffering from exposure when rescued. There is no suggestion of any reason why he should want to disappear. It seems to us that the court could have reached no other reasonable conclusion than that Adler had drowned.

(b) Negligence of defendant: The negligence of the defendant, as found by the trial court, centered around the patch in the forward starboard hull, one end of which was found to be pushed inboard when the beached boat was found the morning after the tragedy.

The trial court found that though the defendant knew of the patch, he

'* * * did not consider the existence of said patch as significant nor did he sufficiently or properly test or examine patch or hull for soundness,'

and that this also applied to the defendant's repairman. The trial court further found:

'That there existed near the end of said patch, at said time, a condition known as 'dry rot', which condition had wasted the wood of the hull on the edge of such patch and caused the said patch to become unsound. That said condition was discoverable at said time under proper examination and testing.'

If there was dry rot, the evidence was conclusive that it would be readily discovered if the patched area was tapped soundly.

Where a trial court's findings are supported by substantial evidence, they will not be disturbed on appeal. Hoke v. Stevens-Norton, Inc. (1962), 60 Wash.2d 775, 375 P.2d 743. (We stated this proposition at least eight times in the last complete volume of our reports, i. e., 160 Wash.Dec.)

The trial court further found that the boat was filling rapidly with water which, unknown to its occupants, was entering the hull through the defective patch; and, fearful that the craft would founder by the stern, it was agreed that Williams and Adler would go forward to the bow to level the craft.

The defendant asserts that the trial court's finding, that the water in the craft which imperiled it came through the defective patch, is mere conjecture.

On the contrary, we think it was not only a permissible inference, but the only inference that a disinterested person could draw.

The constantly rising water in the boat was in nowise conjectural; the defendant's suggestion that it might have come over the transom, has no support in the evidence; and four witnesses agree that when the boat was found upside down on the beach, the integrity of the hull was not impaired except for the patch. As we said in DeYoung v. Campbell (1957), 51 Wash.2d 11, 16, 315 P.2d 629, 632:

'Circumstantial evidence is proof of certain facts and circumstances, from which may be inferred other and connected facts that usually and reasonably follow according to the common experience of mankind. It is unquestioned that proximate cause may be adduced as an inference from other facts proven. Wilson v. Northern Pacific Railroad Co., 44 Wash.2d 122, 265 P.2d 815 (1954).'

The evidence reasonably excluded the possibility that the water, which was filling the boat, came from any other source than the defective patch.

(c) Contributory negligence of Adler: The defendant contends that when Adler followed Williams to the portside of the boat, for the purpose of making his way forward to the bow, an excess of weight was placed on that side. This was responsible for the listing of the boat which threw the two men and the boy into the water. Adler was, therefore, contributorily negligent.

There was no testimony as to Adler's familiarity or experience with boats. We have, on numerous occasions, quoted the following statement from 1 Blashfield Cyclopedia of Automobile Law and Practice § 668, p. 538 (Perm.Ed.1948).

'When one is confronted with a sudden peril requiring instinctive action, he is not, in determining his course of action, held to the exercise of the same degree of care as when he has time for reflection, * * *'

Poling v. Charbonneau Packing Corp. (1954), 45 Wash.2d 845, 852, 278 P.2d 375, 379; Dupea v. City of Seattle (1944), 20 Wash.2d 285, 290, 147 P.2d 272, 275; American Products Co. v. Villwock (1941), 7 Wash.2d 246, 256, 109 P.2d 570, 575, 132 A.L.R. 1010.

Whether a reasonably prudent and cautious man faced with the apparent necessity of getting forward as rapidly as possible, when it was thought the craft might founder by the stern, should have realized the necessity of keeping it trim, weight wise between the port and starboard sides, seems to us an issue that could not be determined as a matter of law. As Judge Cardozo said, in Wagner v. International Ry. Co. (1921), 232 N.Y. 176, 182, 133 N.E. 437, 438, 19 A.L.R. 1,

'* * * 'Errors of judgment,' however, would not count against him if they resulted 'from the excitement and confusion of the moment' Corbin v. Philadelphia, 195 Pa. 461, 472, 45 A.2d 1070, 49...