Burnett v. Edw. J. Dunnigan, Inc.

• Decision Date: 09 November 1931
• Docket Number: 23054.
• Citation: 165 Wash. 164,4 P.2d 829
• Parties: BURNETT et al. v. EDW. J. DUNNIGAN, Inc.
• Court: Washington Supreme Court

4 P.2d 829

165 Wash. 164

BURNETT et al. v. EDW. J. DUNNIGAN, Inc.

No. 23054.

Supreme Court of Washington, En Banc.

November 9, 1931

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by W. F. Burnett and another against Edw. J. Dunnigan Incorporated. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Stratton & Kane, of Seattle, for appellant.

Padden & Moriarty, of Seattle, for respondents.

HOLCOMB J.

In November, 1929, appellant was engaged in state highway construction in Kittitas county. The work was being done under one McGuire, as general superintendent of appellant, he having entire supervision and control of the work under the contract between appellant and the state. A heavy blast under the direction of this superintendent dislodged a greater quantity of rock than was anticipated, and it soon became apparent that the highway, the only road over the Cascade Mountains from Seattle to Ellensburg and Yakima, would be closed to traffic for eight or nine hours, contrary to the contract of appellant. On the side of the highway west of the point of the blockade many automobiles were awaiting the opening of the highway. Among those cars was one in which there were an elderly lady and other persons traveling to Yakima to attend a funeral. To enable these persons to attend the funeral, appellant's superintendent had them walk over the blocked space and then put them in a truck and took them to another portion of the work, agreeing with them that he would get a car and take them to Easton, which was east of the blocked space, where they could catch a train and go on to Yakima. The automobile of respondent husband, one of appellant's employees, was parked at a point east of, or towards Easton from, the blocked space on the highway. Burnett granted permission to appellant's superintendent to use the automobile to transport the persons to Easton. Missing the train at Easton, the superintendent proceeded with Burnett's car, without any further consent from him and without his knowledge, to Ellensburg, where the party again missed the train. The superintendent then proceeded with the automobile, delivering the party at their destination in Yakima. The superintendent then started back with the automobile for the road camp, where he had taken charge of it. Through the negligence of this superintendent the automobile was completely wrecked on the return trip. The car was placed in a garage at Cle Elum, where it remained approximately one week. It was then, pursuant to orders from the general superintendent of appellant, shipped to Seattle to the Pontiac agency, where it was repaired. It was then placed in storage by the Pontiac agency in a public garage some time in February or March, 1930. Appellant refused to pay for the repairs, amounting to $363.75, whereupon, in June, 1930, the Pontiac agency enforced payment of its claim by garnisheeing the bank account of appellant.

The automobile was purchased by Burnett from a dealer in Ellensburg, June 4, 1929, under a conditional sale contract which contract was by the vendor assigned to the General Motors Acceptance Corporation. Of the purchase price of $1,155, Burnett paid $500 at the time of purchase and obligated himself to pay the balance at the rate of $38 monthly. The four monthly installments of July, August September, and October, 1929, were paid by him. The November and December, 1929, and January and February, 1930, installments he never paid. In March, 1930, the General Motors Acceptance Corporation paid the storage charges on the automobile and repossessed the car.

Action was instituted by respondents against appellant for the conversion of the car, the complaint alleging that the car was converted on November 4, 1929, by appellant's employee; that respondents were the owners of the automobile; that it was taken, carried away, and converted without the permission or authority of respondents; and that its then reasonable value was $1,155, for which amount recovery was demanded.

As an affirmative answer, appellant alleged that at the time of the commencement of the action and at the time of the alleged taking and damage of the automobile, respondents were not the owners thereof; that they had a conditional contract for its purchase upon monthly payments, subject to forfeiture in the event the payments were not made according to the terms of the contract, and only a small portion of the purchase price was paid at the time of the commencement of the action; that subsequent to the time of the acts alleged in the complaint in regard to the ownership, damage, and conversion of the car, respondents refused and neglected to make the payments upon the car as provided by the conditional contract of purchase, and because thereof the holder of the vendor's interest in the contract forfeited the contract and all payments theretofore made thereon, repossessed itself of the car; and that all interest in the automobile was lost to respondents because of such forfeiture, and without the fault of appellant.

The trial of the cause to the court resulted in judgment in favor of respondents in the sum of $900, which the court found was the value of the car at the time it was taken by appellant.

The trial court found, among other things, in addition to the facts hereinBefore recited, that on November 4 1929, it was the duty of appellant to keep the road in question open for traffic during the day; that McGuire had full power and authority to act for appellant in all capacities in connection with the details of the performance under the contract with the state; that on November 4, 1929, respondents were the owners of and in possession of the car in question under a conditional bill of sale with the vendor thereof dated June 4, 1929; that McGuire as superintendent in the performance of the duties of appellant and acting within the scope of his employment and as the agent of appellant, and to carry out its business and duties obtained possession of the car above mentioned for the sole and express purpose of driving it to Easton; that McGuire did drive the car to Easton, and then without the knowledge or consent of respondents drove the same from Easton to Yakima, all in the performance of the duties of the appellant and in carrying out its business and for its benefit; that while the car was returning from Yakima and was at a place east of Easton, McGuire negligently and carelessly wrecked and damaged the car so that it was useless and for all intents and purposes a wreck. It was further correctly found that appellant had...