Carroll v. Western Union Telegraph Co.
| Decision Date | 21 December 1932 |
| Docket Number | 23894. |
| Citation | 170 Wash. 600,17 P.2d 49 |
| Parties | CARROLL v. WESTERN UNION TELEGRAPH CO. et al. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, King County; Howard M. Findley, Judge.
Action by Lydia T. Carroll against the Western Union Telegraph Company and another. From a judgment dismissing named defendant after a verdict for plaintiff, the latter appeals.
Affirmed.
Grinstead, Laube, Laughlin & Meakim, of Seattle for appellant.
McMicken Ramsey, Rupp & Schweppe and J. Gordon Gose, all of Seattle for respondent.
The plaintiff, Lydia T. Carroll, while on a public street in the city of Seattle and in a place where she had a right to be was struck and somewhat severely injured by the defendant Preston O'Brien, who at the time was in the general employ of the respondent, Western Union Telegraph Company, as a motorcycle messenger.
Suit to recover for these injuries was instituted against both the Western Union Telegraph Company and O'Brien. A trial was had to a jury, which rendered a substantial verdict in favor of the plaintiff. A motion for a judgment notwithstanding the verdict or in the alternative for a new trial was interposed by the Western Union and granted. Judgment on the verdict was rendered against O'Brien and the Western Union was dismissed from the case with its costs.
The plaintiff has appealed from that part of the judgment which is in favor of the respondent, Western Union.
The one question here presented is based upon the ruling of the trial court in refusing to enter judgment on the verdict against the Western Union and granting to it a dismissal or in the alternative a new trial.
The question we think can be reduced to this: Are the facts such as to justify the court in holding as a matter of law that O'Brien was not acting within the scope of his employment at the time of the accident?
It appears without contradiction that O'Brien was in the employ of the Western Union as a motorcycle messenger stationed at its branch office on First Avenue South in the city of Seattle, and that it was his duty to deliver messages and packages as directed. On the day in question, at about mid-afternoon, not being then busy, he informed his superior that he needed some horn brackets for the purpose of attaching the horn to his motorcycle, and asked permission to go and get them. Permission being accorded, he proceeded on his motorcycle a considerable distance through the public streets to the place where such accessories were sold, there bought the accessories which he sought, and paid for them with his own funds. He returned in a somewhat indirect way via a repair shop where his brother was employed, where he left the horn brackets, intending to return after work hours to have his brother attach them for him.
He then proceeded from the repair shop toward his place of employment for the purpose of returning to his duties. The accident happened while he was so proceeding.
The employer made no deduction from the boy's pay for or on account of the time taken off from his regular duties to make the trip described. O'Brien was required to and did furnish his own motorcycle, was paid at the rate of 55 cents per hour for his services so equipped, and of course had to have a motorcycle and keep it in repair at his own expense, in order to hold his position as motorcycle messenger.
These are all of the facts we are able to gather from the record touching this particular question. They were brought out in the main by the appellant from Preston O'Brien, called as a witness in her behalf. By cross-examination the situation was somewhat amplified and clarified, but there are no inconsistencies in the boy's evidence in this respect, and neither side appears to question any of these facts, though they do differ as to conclusions to be drawn therefrom.
We quite agree with the appellant that it is the settled law of this state that a motion for judgment notwithstanding the verdict involves no element of judicial discretion and can only be granted when the court can say as a matter of law that there is neither evidence nor...
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Smith v. Workmen's Compensation Appeals Bd.
...Club Properties, Inc. (1926), 216 A.D. 107, 214 N.Y.S. 496, affd. 243 N.Y. 567, 154 N.E. 608. See also Carroll v. Western Union Telegraph Co. (1932), 170 Wash. 600, 604, 17 P.2d 49; In re Croxen (1949), 69 Idaho 391, 397, 207 P.2d 537.) This argument stands the facts of this case upside dow......
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D'Amico v. Conguista, 29674.
... ... 96, 288 P. 655; ... Carroll v. Western Union Tel. Co., 170 Wash. 600, 17 ... P.2d 49; and Hill ... ...
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