Allison v. Bartelt

• Decision Date: 06 October 1922
• Docket Number: 16985.
• Citation: 209 P. 863,121 Wash. 418
• Court: Washington Supreme Court
• Parties: ALLISON v. BARTELT et ux.

209 P. 863

121 Wash. 418

ALLISON v. BARTELT et ux.

No. 16985.

Supreme Court of Washington, En Banc.

October 6, 1922

Appeal from Superior Court, Spokane County.

Action by Lillian Allison, administratrix of the estate of Audley D Allison, deceased, against Herman Bartelt and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

Mackintosh and Hovey, JJ., dissenting.

W. C. Losey and Tustin & Chandler, all of Spokane for appellants.

Ferris & Ferris and Turner, Nuzum & Nuzum, all of Spokane, for respondent.

MAIN J.

This action was brought by the plaintiff as administratrix of her deceased husband's estate for the death of her husband caused by negligence alleged to be chargeable to the defendants. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $20,000. At the conclusion of the plaintiff's evidence the defendants moved for a directed verdict, which motion was overruled. After the return of the verdict, they moved for a judgment notwithstanding the verdict, and, in the alternative, for a new trial, both of which motions were likewise overruled. Judgment was entered on the verdict, and the defendants appeal. The respondent is the surviving widow of Audley B. Allison, deceased, and the action is brought by her in her own behalf and for the bonefit of her two minor children, aged respectively, 10 and 13 years. The appellants are husband and wife and are the owners of a five-passenger Jordan automobile.

On the afternoon of February 13, 1921, Roger Bartelt, the son of the appellants, aged approximately 16 years, took the automobile and with three companions, two grils and a boy of about the same age as Roger, drove from the city of Spokane, where the appellants resided, to Liberty Lake. As they were returning therefrom that evening after dark, the automobile struck and killed Audley B. Allison a short distance outside of the city of Spokane. The car at the time was traveling at a speed of approximately 40 miles per hour, and the accident occurred just after this car had passed another automobile upon the highway. After the accident occurred, the car was driven by the young people to a point about two miles from the business section of Spokane, where they drove it against a telephone pole and left it there and made up among themselves that they would say that the car had been stolen. After the accident they said, apeaking of it, that Roger Bartelt was driving. They now say that they had made up among themselves that Roger was to take the blame, and that they would all say that he was driving the car, even though Ray English, they now testify, was at the wheel. In answer to special interrogatories, the jury found that, not Ray English, but Roger Bartelt, the son of the appellants, was driving the car at the time of the accident, and that he had the car with the express or implied permission of the appellants.

The first and principal question is whether the appellants are liable for an accident which was due to the negligence of their son; there being no other member of the family in the car at the time. If they are not liable, the motions for a directed verdict and for a judgment notwithstanding the verdict were well taken. On the other hand, if they are answerable for the minor son's negligence, these motions were properly overruled.

In support of their motions, the appellants challenged the soundness of the doctrine announced in Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59. In that case it was held that an owner of an automobile purchased for the use of his family was liable for a third person's injuries sustained by the negligence of his daughter using the car for her own pleasure with his consent, expressed or implied, since it was being used for one of the purposes for which the automobile was kept.

Since that case was decided, the same question has been before the courts of last resort of a large number of the states, approximately 14 or 15 of which have declined to adopt the doctrine of that case and have sustained a rule of nonliability. About an equal number have announced the same doctrine as that stated in Birch v. Abercrombie. It is unnecessary here to numerically balance the cases accepting one view as against the other. We have again, however, re-examined the question and adhere to the doctrine of that case. The question there is fully discussed, and there appears to be no reason why that discussion should be repeated or an attempt made to add to it at this time. The holding in that case will be sustained.

It is argued, however, that there is no room in this case for the doctrine laid down in the Birch Case because it is claimed that the car was not bought or maintained by the appellants for the convenience or pleasure of members of their family. The jury found, in answer to a special interrogatory as above stated, that the car at the time was being driven by the minor son of the appellants with their expressed or implied consent. The question was properly submitted to the jury, and there is ample evidence to sustain their finding, even though the appellants deny that the car was bought and maintained for any...