Callen v. Coca-Cola Bottling Inc.

• Decision Date: 25 April 1957
• Docket Number: COCA-COLA,No. 34071,34071
• Citation: 50 Wn.2d 180,310 P.2d 236
• Court: Washington Supreme Court
• Parties: Marshall K. CALLEN and Marllyn L. Callen, his wife, Respondents, v.BOTTLING Inc., a corporation, Appellant.

Page 180

50 Wn.2d 180

310 P.2d 236

Marshall K. CALLEN and Marllyn L. Callen, his wife, Respondents, v. COCA-COLA BOTTLING Inc., a corporation, Appellant.

No. 34071.

Supreme Court of Washington, Department 2.

April 25, 1957.

N. A. Pearson, Kenneth M. Elliott, Seattle, for appellant.

Wright, Booth & Beresford, Seattle, Paul M. Anderson, Seattle, of counsel for respondents.

DONWORTH, Justice.

This action was brought by plaintiffs to recover damages for injuries they suffered as a result of the negligent operation of an automobile owned by defendant. In its answer, defendant admitted ownership of the vehicle and negligence on the part of the driver thereof, but denied that the driver was its agent acting within the scope of his authority at the time of the accident. Judgment was entered on a jury verdict in favor of plaintiffs. Defendant appeals, raising only one question for our consideration: did the trial court err in submitting to the jury the issue whether the driver was acting within the scope of his employment at the time he caused the accident?

The evidence showed that, at about 7:30 p.m. on Saturday, December 20, 1952, respondents were walking across west Mercer street at the intersection of First avenue west in Seattle. An automobile which had been proceeding on west Mercer street had stopped at the crosswalk waiting for them to pass. Appellant's automobile, driven by F. Richmond Smith, Jr., ran into the rear of the waiting automobile, causing it to strike and injure respondents. At the time of the accident Mr. Smith was president of appellant corporation and manager of its Seattle plant. With him in the car was C. R. Dawson, then manager of appellant's Tacoma plant. Both Mr. Smith and Mr. Dawson died before the case came to trial. Neither party at the trial was able to produce direct evidence showing whether or not Mr. Smith was on company business at the time of the accident.

In deciding the issue before us, we are governed by the fundamental rules enunciated in the leading case of Bradley v. S. L. Savidge, Inc., 1942, 13 Wash.2d 28, 123 P.2d 780. These are as follows:

(1) Where it is admitted or proved that the defendant owned the offending vehicle in a motor vehicle accident, it is presumed that the driver thereof was the defendant's agent or servant and that he was acting within the scope of his authority at the time of the accident.

(2) This presumption does not have the force of evidence; that is, it does not shift the burden of proof from plaintiff to defendant, but simply casts upon the defendant the burden of going forward with rebuttal evidence.

(3) The defendant may overcome the presumption by the testimony of either interested or disinterested witnesses, provided that their testimony is uncontradicted, unimpeached, clear and convincing.

(4) Where the defendant introduces evidence of this degree and character, the presumption disappears from the case and the defendant is entitled to a directed verdict, in the absence of countervailing evidence produced by the plaintiff.

(5) If the defendant's evidence does not attain the degree and character required for a directed verdict, the case should be submitted to the jury to be decided by it on all the evidence then before the court.

These rules have been followed in a number of later cases. See Carlson v. Wolski, 1944, 20 Wash.2d 323, 147 P.2d 291; Davis v. Browne, 1944, 20 Wash.2d 219, 147 P.2d 263; Pickering v. Hanson, 1947, 28 Wash.2d 603, 183 P.2d 487; Nawrocki v. Cole, 1952, 41 Wash.2d 474, 249 P.2d 969, 35 A.L.R.2d 799; Barnett v. Inland Motor Freight, 1954, 44 Wash.2d 619, 269 P.2d 592.

In attempting to rebut the presumption of agency, appellant's principal witness was the widow of the deceased driver. Although much of Mrs. Smith's testimony was clearly hearsay, we may consider it because no proper objection was made to it. Merritt v. Department of Labor & Industries, 1952, 41 Wash.2d 633, 251 P.2d 158. She testified that on the day of the accident Mr. Smith stayed home...