Bursch v. Greenough Bros. Co.

• Citation: 79 Wash. 109,139 P. 870
• Parties: BURSCH v. GREENOUGH BROS. CO.
• Decision Date: 08 April 1914
• Court: United States State Supreme Court of Washington

139 P. 870

79 Wash. 109

BURSCH v. GREENOUGH BROS. CO.

Supreme Court of Washington

April 8, 1914

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Frank Bursch, as guardian ad litem for Percy Bursch, a minor, against the Greenough Bros. Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Smith &amp Mack, of Spokane, for appellant.

Cannon Ferris & Swan, of Spokane, for respondent.

CROW C.J.

Action by Percy Bursch, a minor, by Frank Bursch, his guardian ad litem, against the Greenough Bros. Company, a corporation, to recover damages for personal injuries. A verdict was returned in plaintiff's favor, whereupon the trial court sustained defendant's motion for a judgment non obstante veredicto and dismissed the action. The plaintiff has appealed.

The evidence shows that respondent owns and operates several automobile delivery trucks; that on July 27, 1912, between 6:30 and 7 o'clock p. m., one Charles Meyers while driving one of these trucks easterly on Third avenue between Division and Pine streets, in the city of Spokane, struck the minor Percy Bursch, who was playing in the street, inflicting the personal injuries of which appellant now complains; that upon striking the boy Meyers did not stop the machine, but immediately continued going east on Third avenue to Pine street, turned north thereon to Pacific avenue, turned west on Pacific avenue, and immediately returned to the Commercial Garage, where respondent's automobiles are housed. It is conceded that the garage was neither owned nor operated by respondent, but that it was owned and operated by a private party, who for hire stored and repaired respondent's cars, receiving them from respondent's drivers each evening, and returning them to the drivers each morning. Appellant introduced certain evidence for the purpose of showing that Meyers was respondent's employé. Answering special interrogatories, the jury found that at the time of the accident Meyers was respondent's employé as a driver. The evidence upon which this finding was based was weak and without convincing force. For the purposes of this appeal, however, and without so deciding, we will assume that it was sufficient to sustain the finding of the jury that Meyers was respondent's employé with authority to drive its automobile in the course of his regular employment.

This leaves but a single question: Was Meyers at the time of the...