Birch v. Abercrombie

• Citation: 133 P. 1020,74 Wash. 486
• Parties: BIRCH et ux. v. ABERCROMBIE et al.
• Decision Date: 29 July 1913
• Court: Washington Supreme Court

133 P. 1020

74 Wash. 486

BIRCH et ux. v. ABERCROMBIE et al.

Supreme Court of Washington

July 29, 1913

Editor's Note: Modified by 135 P. 821.

Department 2. Appeal from Superior Court, Spokane County; Joseph Sessions, Judge.

Action by C. A. Birch and wife against W. R. Abercrombie and others. Judgment for the plaintiffs, and defendants appeal. Reversed and remanded.

Cannon, Ferris & Swan and Walter A. White, all of Spokane, for appellants.

Smith &amp Mack, of Spokane, for respondents.

ELLIS J.

This is an action to recover damages for injuries sustained by the plaintiff Julia M. Birch by being struck by an automobile owned by the defendants W. R. Abercrombie and wife, which was at the time being driven by their daughter, the defendant Frances Abercrombie. The trial resulted in a verdict and judgment in favor of the plaintiffs and against all of the defendants for $2,000 and costs. The evidence, so far as necessary, will be noticed in the discussion. At appropriate times the defendant Frances Abercrombie moved for a directed verdict, for a new trial, and for judgment notwithstanding the verdict. The defendants W. R. Abercrombie and wife moved for a directed verdict and for judgment notwithstanding the verdict. All of these motions were overruled, and each of the defendants appealed.

I. It is first contended on behalf of all the appellants that the evidence was insufficient to establish any negligence on the part of Frances Abercrombie, and that, in any event, the respondent Julia M. Birch was guilty of contributory negligence as a matter of law. We shall not attempt an exhaustive review of the evidence. The following will suffice: It is admitted that the appellant Frances Abercrombie was driving the automobile north on Jefferson street in the city of Spokane, and that near the intersection of that street with First avenue the machine struck the respondent Julia M. Birch, who was crossing Jefferson street diagonally from west to east, that Jefferson street is 60 feet wide, and that Mrs. Birch was struck at a point about 12 feet from the east curb of that street. It seems to be admitted, also, that Mrs. Birch's hearing was slightly impaired prior to the accident. She testified that before leaving the curb on the west side of the street she looked south on Jefferson street and saw nothing, the street being perfectly clear for a distance of about a block; that she had no intimation of the approach of the automobile until the ringing of the bell the instant before she was struck. Another witness testified, in substance, that he heard the bell ring violently just at the time the woman was struck but heard no other warning, and stated that if the bell had been sounded before that time, he thought he would have remembered it, as he was coming down the street in the same direction as the automobile. Evidence was introduced on behalf of the appellants to the effect that the automobile was running slowly at the time of the accident, and that the bell was sounded several times before Mrs. Birch was struck. Upon this conflict of evidence the questions of Miss Abercrombie's negligence in failing to sound the bell and of Mrs. Birch's contributory negligence in failing to look south after leaving the west curb, were clearly for the jury. We have so held repeatedly on facts essentially parallel. Ludwigs v. Dumas, 129 P. 903; Hillebrant v. Manz, 128 P. 892; Lewis v. Seattle Taxicab Co., 130 P. 341.

II. It is contended on behalf of appellants W. R. Abercrombie and wife that, even conceding that a case was made as against the daughter, the evidence exonerates them from liability, in that the automobile was at the time in use by the daughter for a purpose of her own, and not as their servant or agent. The jury, in addition to the general verdict, found in answer to special interrogatories: (1) That Frances Abercrombie was at the time of the accident driving the machine for her own pleasure; (2) that she was not driving the machine without the knowledge or consent of her parents, express or implied; (3) that her parents had not, prior to the accident, ordered or directed her not to drive the machine.

The appellants contend that the last two findings are without support in the evidence. This contention ignores the admitted ownership of the automobile by the appellants W. R. Abercrombie and wife. It is well established that in cases of this kind, where the vehicle doing the damage belonged to the defendants at the time of the injury, that fact establishes prima facie that the vehicle was then in the possession of the owner, and that whoever was driving it was doing so for the owner. We have repeatedly so held. Knust v. Bullock, 59 Wash. 141, 109 P. 329; Kneff v. Sanford, 63 Wash. 503, 115 P. 1040; Burger v. Taxicab Motor Co., 66 Wash. 676, 120 P. 519. The burden was thus cast upon the appellants to overcome this presumption by competent evidence, and it was for the jury to say upon such evidence whether the burden has been sustained.

There was evidence that the automobile was purchased by the appellant W. R. Abercrombie for the use of his family. He testified that it was sent in the morning of each day from the garage, where it was kept, to his home, for that purpose, and taken away in the evening. On June 5, 1912, both W. R. Abercrombie and his wife were away from home, and the daughter, the appellant Frances Abercrombie, entertained a number of friends at luncheon. She was taking them home in the automobile when the accident happened. Both W. R. Abercrombie and his wife testified that the daughter was not strong, and that running the machine was a tax on her nerves, and that for that reason some time before the accident they had advised her not to run the machine, and told her that they would rather she would not run it. Mr. Abercrombie testified that this was 'emphatic and positive, in the shape of an order from parent to child.' This last statement was obviously a conclusion, and hardly sustained by the words actually used, as testified to by him. In rebuttal the respondents introduced certain interrogatories propounded by them to the appellant W. R. Abercrombie and his answers thereto. Two of his answers read as follows: 'Answering interrogatory No. 3, these defendants state that Frances Abercrombie was permitted to use the electric vehicle owned by them at different times. Answering interrogatory No. 4, these defendants state that Frances Abercrombie had used the electric vehicle owned by them on some occasions prior to June 5, 1912.' In view of these answers to the written interrogatories, and in view of the fact that the automobile was being used for the very purpose for which it was purchased and kept, and in view of the presumption attending admitted ownership, we cannot say that the last two findings of the jury are not supported by competent evidence.

The presumption attending ownership was not overcome as a matter of law by evidence of mere advice and an expression of preference on the part of the parents, some weeks before, that the daughter should not drive the machine, especially in view of the fact that antecedent knowledge and consent of the parents to her use of the machine were admitted by the answers to the interrogatories. There being competent evidence from which the jury might reasonably find as it did, we must assume that Frances Abercrombie had been permitted the use of the machine, and that she was, at the time of the accident, using it with the consent of her parents.

This reduces the consideration of the appellant's contention under this head to answering a single question: If Frances Abercrombie was driving the automobile for her own pleasure, were the father and mother, notwithstanding that fact, liable for the injury to the respondent resulting from her negligence under the other evidence adduced? It is conceded that an automobile is not an agency so dangerous as to render the owner liable for injuries to travelers on the highway inflicted thereby while being driven by another, irrespective of the relation of master and servant or agency as between the driver and the owner, and we have so held. Jones v. Hoge, 47 Wash. 663, 92 P. 433, 14 L. R. A. (N. S.) 216, 125 Am. St. Rep. 915. This concession eliminates any necessity to review the following authorities, cited by the appellant, in which the driver was either not in any sense the agent or servant of the owner, or, though a servant, was acting for himself and obviously outside of the scope of his employment, and not in connection with the owner's business. These authorities are cited only to the point conceded: Jones v. Hoge, 47 Wash. 663, 92 P. 433, 14 L. R. A. (N. S.) 216, 125 Am. St. Rep. 915; Robinson v. McNeill, 18 Wash. 163, 51 P. 355; Slater Advance Thresher Co., 97 Minn. 305, 107 N.W. 133, 5 L. R. A. (N. S.) 598; Lotz v. Hanlon, 217 Pa. 339, 66 A. 525, 10 L. R. A. (N. S.) 202, 118 Am. St. Rep. 922, 10 Ann. Cas. 731; Huddy on Automobiles, p. 95.

It must also be conceded that a parent is not liable for the torts of his child solely on the ground of relationship. The liability, if any exists, must rest in the relation of agency or service. This eliminates any necessity for a review of the following authorities, cited by the appellant only in support of that point: Mirick v. Suchy, 74 Kan. 715, 87 P. 1141, 11 Ann. Cas. 366; Chastain v. Johns, 120 Ga. 977, 48 S.E. 343, 66 L. R. A. 958; Kumba v. Gilham, 103 Wis. 312, 79 N.W. 325.

This leaves only two cases, cited by the appellant under this head, for our consideration. They are Reynolds v. Buck, 127 Iowa, 601, 103 N.W. 946, and Doran v Thomsen, 76 N. J. Law, 754, 71 A. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677. The case of Reynolds v. Buck is clearly distinguishable from the case in hand...