Carter v. King County

• Citation: 208 P. 5,120 Wash. 536
• Decision Date: 26 June 1922
• Docket Number: 17134.
• Court: Washington Supreme Court
• Parties: CARTER v. KING COUNTY.

208 P. 5

120 Wash. 536

CARTER v. KING COUNTY.

No. 17134.

Supreme Court of Washington

June 26, 1922

Department 2.

Appeal from Superior Court, King County; Sam B. Hill, Judge.

Action by D. A. Carter against King County. From an order directing a verdict for defendant, plaintiff appeals. Affirmed.

Lundin & Barto, of Seattle, for appellant.

Malcolm Douglas, Howard A. Hanson, and Wm. Parmerlee, all of Seattle for respondent.

HOLCOMB J.

This action was to recover damages sustained by appellant while driving his automobile on the streets of Seattle. The damages complained of were sustained when a Packard automobile alleged to be owned by respondent, King county, and driven by one Asa Lee, alleged to have been a servant or agent of King county, collided with appellant's car. The complaint alleged that the car was in the control of Lee, who was in the employ of King county, and that it was driven and operated by Lee as a servant and agent of King county, and that at the time Lee was transporting a deputy sheriff of King county.

When the case came on to be tried before a jury, counsel for appellant made their opening statement, and, among other things, being challenged by counsel for respondent to state whose agent Lee was, stated that Lee was employed by the sheriff for the purpose of driving the cars assigned to the sheriff, which belonged to the county; that he was paid by the county; that he was also a deputy sheriff; that the sheriff would testify that he employed Lee as a mechanic and automobile driver for the purpose of driving the sheriff's car.

Thereupon counsel for respondent moved the court to direct a judgment in favor of the defendant on the opening statement of counsel for plaintiff, for the reason that it was apparent from the opening statement that the person alleged to have been driving the car was not an employee, servant, or agent of the county, but was an employee, servant, or agent of the sheriff. The court sustained the motion and directed a verdict and judgment for respondent.

The errors complained of are in sustaining the motion that a directed verdict be granted on the opening statement of counsel for appellant, and that the court erred in directing judgment of dismissal in favor of the respondent and against the appellant.

We have held that judgment may be directed on the opening statement of counsel for appellant. Redding v. Puget Sound Iron &amp Steel Works, 36 Wash. 642, 79 P. 308; Brooks v McCabe & Hamilton, 39 Wash. 62, 80 P. 1004; James v Pearson, 64 Wash. 263, 116 P. 852, and Frisell v. Surry, 99 Wash. 201, 169 P. 317.

In the last case cited, where a judgment of dismissal upon the opening statement of counsel was reversed, we said:

'The rule is so well settled that it requires no elaboration. It means simply what it says, that the opening statement must either include matter which constitutes a complete defense to the action, or must affirmatively and expressly exclude matter essential to the plaintiff's right of recovery, before the trial court is warranted in entering judgment thereon.'

And it was held that a judgment for defendant on the merits based upon plaintiff's opening statement to the jury was justified only when facts are admitted from which it positively appears that there is no cause of action, or that there is a complete defense, and the omission to state a case fully was not ground for such a judgment.

The question then to be determined here is whether counsel in his opening statement made such admissions as would make it affirmatively appear that there was no cause of action, or that there was a complete defense. That depends upon whether or not the admission made by counsel shows that the driver alleged to have caused the accident was not the agent or servant of the county, but was the agent or servant of another.

The distinct admission was made that the sheriff would testify that he (the sheriff) employed Lee as mechanic and automobile driver for the purpose of driving the sheriff's car.

It is sought to hold the county on the doctrine of re...