O'Brien v. Woldson, 21119.

• Decision Date: 25 September 1928
• Docket Number: 21119.
• Court: Washington Supreme Court
• Parties: O'BRIEN et ux. v. WOLDSON et ux.

270 P. 304

149 Wash. 192

O'BRIEN et ux. v. WOLDSON et ux.

No. 21119.

Supreme Court of Washington

September 25, 1928

Department 2.

Appeal from Superior Court, Spokane County; William A. Huneke Judge.

Action for personal injuries sustained in an automobile accident by S.W. O'Brien and wife against Martin Woldson and wife. From a judgment for plaintiffs, defendants appeal. Affirmed.

Post &amp Russell, of Spokane, for appellants.

C. C Lantry, of Spokane, for respondents.

MAIN J.

This action was brought to recover damages for personal injuries sustained in an automobile accident. The cause was tried to the court without a jury, and resulted in findings of fact and conclusions of law sustaining a recovery in the sum of $5,670. Judgment was entered for this amount, from which the defendants appeal.

A number of the findings of fact of the trial court were excepted to, but no errors are assigned in this regard, and the findings will be taken as presenting the situation.

The appellants, Mr. and Mrs. Woldson, resided in the city of Spokane and were the owners of an automobile, a Packard sedan, and the respondents, Mr. and Mrs. O'Brien, also resided in that city. On or about September 28, 1926, Mrs. Woldson and Mrs. O'Brien left Spokane in the automobile owned by the appellants for a pleasure trip to Portland and Seattle and with the intention of meeting Mr. Woldson in Seattle upon his arrival in that city from Alaska. Mrs. Woldson was to furnish the automobile, and each of the ladies was to pay her own expenses. Mrs. O'Brien was to pay for the gasoline for the automobile. The trip was made as planned, and on the return trip the accident out of which this litigation arose occurred. October 6, 1926, the parties were proceeding from Ritzville on the principal highway toward Spokane. When a few miles northeast of Ritzville the accident occurred. A road scraper had recently been over the road and had scraped the gravel from the outer edge to the center, leaving a ridge from 4 to 8 inches high. On either side of the ridge there was a lane in which an automobile could be driven. Mr. and Mrs. Woldson were in the front seat of the automobile, and Mrs. Woldson was driving. At the suggestion of her husband, the automobile was being driven astride the ridge of gravel. The speed was from 35 to 40 miles per hour. An automobile approached from the opposite direction upon the highway which was straight. This automobile was traveling at a high rate of speed. Mrs. Woldson did not slacken her speed or attempt to cross into the right lane until within 100 feet of the approaching car, and then attempted to cross the ridge of gravel without slackening the speed of the automobile. The result was the loss of control of the car, which went into the ditch, and Mrs. O'Brien was seriously injured. As stated, it was to recover for the injury sustained in this accident that the action was brought.

The appellants in their answer alleged that Mrs. O'Brien and Mrs. Woldson upon their trip to the coast and return were engaged in a joint enterprise or common adventure. This was substantially admitted by respondents. Without discussing that question, the case will be treated here as one of joint enterprise.

The first question is whether the negligence of Mrs. Woldson in operating the car will be imputed to Mrs. O'Brien, the other member of the joint enterprise. Where the action is brought against a third party, the rule is that the negligence of one member of the joint enterprise within the scope of that enterprise will be imputed to the other. Masterson v. Leonard, 116 Wash. 551, 200 P. 320; Hurley v. City of Spokane, 126 Wash. 213, 217 P 1004; Jensen v. Chicago, Milwaukee & St. P. R. Co., 133 Wash. 208, 233 P. 635. It does not necessarily follow, however, that that rule should be applied when the action is by one member of the joint enterprise as against the other. When the action is against a third person each member of the joint enterprise is a representative of the other, and the acts of one are the acts of all if they be within the scope of the enterprise. When the action is brought by one member of the enterprise against another, there is no place to apply the doctrine of imputed negligence. To do so would be to permit one guilty of negligence to take refuge behind his own wrong. The situation when the action is brought by one member of the enterprise against the other is entirely different from that when recovery is sought against a third person. For present purposes it is sufficiently accurate to say that the relations of joint adventurers as between themselves are governed practically by the same rules that govern partners. Harm v. Boatman, 128 Wash. 202, 222...