Chase v. Beard

• Decision Date: 12 November 1959
• Docket Number: No. 34786,34786
• Citation: 346 P.2d 315,55 Wn.2d 58
• Court: Washington Supreme Court
• Parties: Floyd E. CHASE and Mary Jane Chase, his wife, Appellants, v. James P. BEARD and Lenore Beard, his wife, Respondents.

Page 58

55 Wn.2d 58

346 P.2d 315

Floyd E. CHASE and Mary Jane Chase, his wife, Appellants, v. James P. BEARD and Lenore Beard, his wife, Respondents.

No. 34786.

Supreme Court of Washington, Department 2.

Nov. 12, 1959.

Rehearing Denied Jan. 13, 1960.

Frederick B. Cohen, John E. Bowen, Bremerton, for appellants.

Bryan & Bryan, Bremerton, for respondents.

FOSTER, Judge.

Chase and wife, plaintiffs below, appeal a judgment dismissing their action upon a verdict for respondent.

Respondents, defendants below, Beard and wife, bought the Cottage Cove motel in March, 1957, and thereafter rented units to both transient and permanent guests. Appellant Chase rented cabin No. 7 on May 27, 1957, by the week. He informed Mrs. Beard that he and his wife would stay at the motel until they bought and moved into their own home. He testified that at that time Mrs. Beard warned him that the outside porch was shaky. The cabin was furnished and supplied with lines. Maid service was provided originally when the plaintiff husband was the lone occupant, but this was discontinued on June 4, 1957, when Mrs. Chase arrived.

Mrs. Chase was not explicitly advised of the condition of the porch.

On June 16, 1957, Mrs. Chase was crossing the porch to empty some trash when a board gave way beneath her. She fell to the bottom of the steps and sustained injuries. Chases brought suit against Beards for negligence in maintaining the premises. The Beards denied negligence and alleged that Mrs. Chase was contributorily negligent.

Error is assigned (1) to the admission of witness Crawford's testimony as to the inspections of the porch prior to respondents' purchase, (2) to the instructions on the duty of care respondents owed to the Chases and the refusal of appellant's requested instrutions in that regard, (3) to the instructions on contributory negligence and the refusal to charge that appellants were not contributorily negligent, (4) to the instructions concerning the effect of failure of either party to prove its case, and (5) to the refusal to instruct on the theory of res ipsa loquitur. Other assignments are devoid of merit.

Crawford, the real-estate broker, testified that he inspected the premises, and cabin No. 7 in particular, in November, 1956, and again in February, 1957. The latter inspection, a month before the Beards took over, was in respondents' presence. Crawford testified to the extent of his inspection and to his observation of the condition of the porch. Objection, made and overruled, was on the grounds of irrelevancy and immateriality, particularly in point of time.

Whether evidence is relevant is within the discretion of the trial court. There are no precise rules. Each case depends upon its own circumstances and the relation of such facts to the ultimate issue.

'* * * All facts are admissible in evidence which afford reasonable inferences or throw any light upon the contested matter. 'Relevancy' means the logical relation between proposed evidence and the fact to be established. * * *' Keisel v. Bredick, 192 Wash. 665, 74 P.2d 473, 475.

All facts which support a reasonable inference on a contested matter and any circumstance whereby an alleged fact may be proved or disproved are relevant. Page v. Spokane City Lines, Inc., 51 Wash.2d 308, 317 P.2d 1076; Bloomquist v. Buffelen Mfg. Co., 47 Wash.2d 828, 289 P.2d 1041.

Crawford's testimony was that, on close inspection, he observed no indication of dry rot in the wood. It tended to prove the reasonableness both of respondents' inspection of the premises and of respondents' lack of knowledge of the defective condition of the porch board. As such, it was material to the issues in the case.

Was it also relevant? That is, were the facts to which Crawford testified too remote to have probative value? This determination rests within the discretion of the trial court. Slaton v. Chicago, Milwaukee & St. Paul R. Co., 97 Wash. 441, 166 P. 644. Although the witness' inspections of the premises were made before the acquisition by respondents, they were relevant to respondents' inspection and were close enough in point of time to lend probability to the reasonableness of respondents' lack of knowledge, as based upon the invisible nature of the board's defect.

The court properly determined materiality and did not abuse its discretion in determining the relevancy of this testimony. It had probative value and was properly admitted.

Appellant contends that the highest degree of care is owed by a motelkeeper to his guests, and that the court's instruction that the standard was one of reasonable care was error. The law is otherwise.

The standard of care owed by a motelkeeper to a guest has been likened to that care owed by an innkeeper to a guest, and was set forth by this court in Brown v. Scharff, 42 Wash.2d 50, 253 P.2d 426, as follows:

'Plaintiff's * * * contention [is] that defendants failed to use reasonable care to maintain their premises in a reasonably safe condition. We will use this as the proper measure of defendants' duty to plaintiff in this case * * *.'

This view is concurred in by a leading treatise as follows:

'* * * Such a one [a hotelkeeeper] has the duty of reasonable care to prepare, and keep reasonably safe, the rooms let to guests, whether by the day, week, or month.

* * * The same thing is true of a boardinghouse or a motor court. * * *' 2 Harper & James, Torts, 1506, 1515, § 27.16(3). ¹

The court correctly instructed that the respondents were required to keep their premises in a reasonably safe condition for the use of their guests, and were required to make reasonable inspection thereof.

The community property system is an important factor in dealing with contributory negligence. Any recovery for personal injuries to the wife is community property. Hawkins v. Front Street Cable R. Co., 3 Wash. 592, 28 P. 1021, 16 L.R.A. 808. The husband is the manager of the community personal property. RCW 26.16.030. This is in the interest of the marital community, and the authority of the husband is complete as long as he acts on behalf of the community. Hanley v. Most, 9 Wash.2d 429, 115 P.2d 933. The statutory authority exists in the husband in his representative capacity for the community. He is in the nature of a managing agent. Thus, the husband is a community agent in the sense that his acts on the community's behalf are binding upon it. Catlin v. Mills, 140 Wash. 1, 247 P. 1013, 47 A.L.R. 545; Schramm v. Steele, 97 Wash. 309, 166 P. 634.

It follows unquestionably that the husband, in acting as community agent, binds the community.

Mr. Chase's act of renting the cabin was done on behalf of the marital community in his role as the community manager. The testimony in that regard is uncontested. His acts bind the community.

In fact, quite apart from the community property system, it may be found that Mr. Chase, in renting the cabin, was acting as his wife's agent. Certainly she gave him authority, at least impliedly, to obtain living accommodations for both until a permanent home was acquired. This rental was well within such authority.

Notice to an agent when acting within the scope of the agency is notice to his principal. Knowledge by the agent of facts relating to the agency is deemed knowledge by the principal. American F. & Cas. Co. v. Backstrom, 47 Wash.2d 77, 287 P.2d 124; Miller v. United Pac. Cas. Ins. Co., 187 Wash. 629, 60 P.2d 714; Staats v. Pioneer Ins. Ass'n, 55 Wash. 51, 104 P. 185. Under this doctrine, an agent's knowledge of the condition of property is imputed to his principal. Rothchild Brothers v. Northern Pac. R. Co., 68 Wash. 527, 123 P. 1011, 40 L.R.A.,N.S., 773.

This general rule of agency applies when a husband is acting as agent for his wife B. F. Goodrich Co. v. Naples, D.C., 121 F.Supp. 345; Young v. Neill, 190 Or. 161, 220 P.2d 89, 225 P.2d 66; Morgan v. Bruce, 76 Ariz. 121, 259 P.2d 558; Palo Alto Building Co. v. Jones, 81 Cal.App.2d 725, 185 P.2d 25; 41 C.J.S. Husband and Wife § 74, p. 552.

Thus, in the instant case, the court was correct in instructing that the notice to Mr. Chase concerning the condition of the porch was imputed to his wife.

The court was also correct in instructing on the issue of contributory negligence by Mrs. Chase. Since she was charged with the knowledge of the defect in the porch, there was a jury question as to whether she had conducted herself in a proper manner for her self-protection under the circumstances. The instructions in this regard were necessary and were correct.

Error is assigned to instruction No. 9, which is as follows:

'If, after considering the whole case, you find the evidence to be in balance, that is to say, you are not convinced that either the plaintiffs or the defendants have made out a case by a preponderance of the evidence, then your verdict shall be for the defendants.'

The interpretation which was, perforce, placed upon the instruction is that, if plaintiffs have failed to prove their case, the verdict shall be for the defendants even if defendants have not proved their affirmative defense of contributory negligence. Such is a correct statement of law.

This instruction is to be distinguished from the one adjudged prejudicial in Dods v. Harrison, 51 Wash.2d 446, 319 P.2d 558, which told the jury if it had difficulty in determining whose negligence caused the injury, if in fact anyone was negligent, they should then find for the defendants. That invited the jury to abdicate its judgment in the face of difficulty. ² Here, however, the jury was instructed, albeit somewhat vaguely, that if plaintiff did not prove defendant was negligent, then plaintiff must fail even if defendant did not prove that plaintiff was contributorily negligent. Dods v. Harrison, supra, is, therefore, not controlling.

An instruction, although unclear, must be prejudicial to warrant reversal. There was no such prejudice here.

Error is assigned on refusal of the court to instruct on...