Barach v. Island Empire Tel. & Tel. Co.

• Decision Date: 18 March 1929
• Docket Number: 21460.
• Court: Washington Supreme Court
• Parties: BARACH et ux. v. ISLAND EMPIRE TELEPHONE & TELEGRAPH CO.

275 P. 713

151 Wash. 279

BARACH et ux. v. ISLAND EMPIRE TELEPHONE & TELEGRAPH CO.

No. 21460.

Supreme Court of Washington

March 18, 1929

Department 1.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Anton Barach and wife against the Island Empire Telephone & Telegraph Company. Judgment adverse to plaintiffs, and plaintiffs appeal. Reversed and remanded, with instructions.

Burkey & Burkey and J. F. O'Brien, all of Tacoma, for appellants.

Hayden Langhorne & Metzger, of Tacoma, for respondent.

TOLMAN J.

Appellants as plaintiffs, brought this action to recover for personal injuries sustained by the appellant wife, which, it is alleged, were the result of being struck by an autotruck owned by the defendant and operated by its employee, who was also its manager and one of its officers and stockholders. The case was tried to a jury, which returned a general verdict in favor of the defendant. The plaintiffs have appealed from an adverse judgment based on the verdict.

Errors are assigned upon five instructions given by the court to the jury and upon the denial of their motion for a new trial. The position taken by the respondent, as hereinafter set forth, makes it necessary to give a brief statement of the salient facts.

Appellants live on a small acre tract fronting on a paved highway in a community known as Gig Harbor, their home being about half a mile northerly from the ferry landing toward what is known as the head of the bay. The road upon which their property fronts is paved to a width of 16 feet, but on the curve in front of appellants' home the pavement is 18 feet wide. There are no sidewalks on either side, but the roadbed is graded to a width of 4 or 5 feet on each side of the pavement; such dirt and gravel shoulders being practically level with the pavement. The roadway seems to abound in curves, and the entrance to appellants' premises is near the center of the inner side of a rather sharp curve.

On December 4, 1926, the appellant wife in the late afternoon walked from her home about half a mile toward the ferry landing, there made a purchase of meat, and, returning to her home, was given a ride in an automobile by a neighbor who lived in the vicinity. The car in which she road passed the entrance to her home and came to a stop on its right-hand side of the road, partly off the pavement, about 75 feet northerly and on the opposite side from her gate. She immediately alighted from the car, and, according to her testimony, walked around in front of it, looked in both directions for approaching traffic, saw respondent's truck on a curve distant 600 or 700 feet, and then walked rapidly across the pavement onto the dirt embankment and turned southerly and walked along on the dirt embankment toward her gateway. Having so proceeded only some 30 or 40 feet, she was, according to appellants' theory, then run down and injured by the respondent's truck coming from her rear, traveling at a high rate of speed, with the right wheels off of the pavement and on the dirt embankment, and that no warning of any kind was given by the driver of the truck before the impact.

The appellants also showed that the truck belonged to the respondent, that it was the one commonly employed in its business, and that the driver was an employee of respondent and a stockholder and its vice president and manager, who had no regular hours of employment, in that he was the 'trouble man' and was on call at all hours. It further appeared that at the time there was considerable telephone equipment and some tools in the truck.

Upon the other hand, the respondent offered testimony tending to show that the truck was driven at a speed of about 25 miles an hour, entirely on the pavement; that the driver, as he approached the point where the automobile, from which Mrs. Barach had alighted, was parked, was blinded by its headlights so that he could not see anything beyond; that he did not slacken his speed and on passing beyond the obstructing headlights saw a clear roadway before him. At about that time, the driver claims, that he saw a woman presumably Mrs. Barach, coming from behind the automobile from which she had alighted, and that she was practically in the middle of the pavement when he passed her; that he felt a jar or impact. and, upon stopping his truck, found Mrs. Barach injured, and, from certain circumstances, which he details, he drew the conclusion that she ran into the rear fender of his truck.

It was not denied that the truck belonged to the respondent, and was commonly used at all hours in its business, but the driver testified in detail that he had finished his day's work for the respondent a few minutes before, had loaded some material which the respondent had sold to another company and which he had been directed to deliver to Olalla, and then started in a direction, directly opposite from Olalla, for the ferry landing, there to get a suit of clothes for himself which he had left three days before to be cleaned and pressed, and that he had no business for respondent in that direction.

There was testimony of others connected with the respondent company tending to show that the driver of the truck had no business for the company in the direction which he was going at the time, and a Mrs. Jones, who had a place of business near the ferry landing, testified that the driver had left a suit of clothes to be cleaned and pressed on December 1st, and that he came and got it between the hours of 5 p. m. and 6 p. m. on December 4th. On cross-examination, however, she admitted making statements at a prior time to the effect that her book did not show who was the customer, who left and afterwards received back this suit, and that she did not know and had no way of knowing whose suit it was.

This testimony raised three issues upon which the court instructed the jury: (1) The question of negligence of the driver of the truck; (2) the question of the contributory negligence of Mrs. Barach; and (3) the question of whether the truck was in the service of the defendant at the time of the accident or had been diverted from that service and was being used solely for the personal advantage of the driver.

It is respondent's contention that a general verdict for the defendant found all of these issues in its favor, and, since the last-named issue concededly was correctly submitted to the jury, then, notwithstanding any possible error in the submission of the issues of negligence and contributory negligence, the judgment must be affirmed.

Our statute on verdicts (Rem. Comp. Stat. § 362), is cited and apparently relied upon, but the statute reads: 'A general verdict is that by which the jury pronounces generally upon all or any of the issues either in favor of the plaintiff or defendant.'

The words 'all or any' are significant, and indicate what might take place in such a case as this and what probably did take place here; that is, the jury, guided by an erroneous instruction, reached the conclusion that the driver of the truck was not negligent or that Mrs. Barach was guilty of contributory negligence, and, so finding, saw no need to go further and consider in whose behalf the truck was being operated at the time of the accident. In other words, a finding against the plaintiffs on any one of the three issues would be sufficient to justify a verdict against them, and, if any one was improperly submitted, such improper submission must be presumed to have caused an adverse finding upon that particular issue.

Respondent produces a strong showing of authority to support its contention. Some states, notably Ohio, seem to have clearly adopted such a rule. From other states there are produced many cases in which expressions may be found that seem to support the doctrine, but a careful analysis greatly reduces the seeming strong array. Among the cases cited and relied upon by respondent upon this issue are McAllister v Hartzell, 60 Ohio St. 69, 53 N.E. 715; Ochsner v. Cincinnati Traction Co., 107 Ohio, 33, 140 N.E....