Dahl v. Moore

Decision Date30 March 1931
Docket Number22642.
CourtWashington Supreme Court
PartiesDAHL v. MOORE et al. DAHL et ux. v. SAME.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Separate suits by Lena Dahl, as executrix of the estate of Sophia Gordon, and by Gustave Dahl and wife against Bessie Moore and another. Judgments of nonsuit, and plaintiffs appeal.

Reversed and remanded for a new trial.

Robert B. Abel and Homer T. Bone, both of Tacoma for appellants.

Preston Thorgrimson & Turner and Poe, Falknor, Falknor & Emory, all of Seattle, for respondents.

HOLCOMB J.

Two actions were consolidated for trial and for appeal herein.

Appellants Gustave Dahl and Lena Dahl are husband and wife. They brought suit against respondents for damages due to injuries received in an automobile accident. Appellant Lena Dahl, as executrix of the estate of Sophia Gordon, sued for damages for the death of Sophia Gordon, which resulted from the same automobile accident. At the conclusion of the case in chief of appellants, upon motion of both respondents in both cases the trial court granted nonsuits, from which these appeals were brought.

The nonsuits were granted by the trial court for the reason that it held that the relationship between appellants and respondents was one of guests and host, in which case gross negligence would be necessary, which had not been shown.

Sophia Gordon, the deceased, was a widow and a sister of Mrs. Dahl. In September, 1929, she and her two children were living in the home of the Dahls. Respondent Bessie Moore at that time was engaged in the real estate business, being a saleslady for respondent Dilling Vradenburg Organization, Inc., a corporation. During the period in question it was conducting a campaign to sell real estate in a district known as Lake Ridge, near Seattle.

About a week before September 22, a real estate agent of the corporation came to the home of the Dahls and talked to Mrs. Gordon in the presence of Mrs. Dahl. The agent wanted Mrs. Gordon to go to Seattle to look at some property which he was handling for the Dilling Vradenburg Organization. The agent came to their residence every day and sometimes twice a day during the week before September 22. The agent made arrangements to take the Dahls and Mrs. Gordon to Seattle to view the property. He presented to each of them a ticket as follows:

'This ticket is your reservation for a tour of the Scenic Lake Washington Boulevards and Lake Ridge.
'Your reservation will be made for luncheon on 9/22 Date
'A private car will call for you at A. M. _____. P. M.
'Should you be unable to keep your appointment please notify the Dilling Vradenburg Organization by 5 P. M. on the day previous.
'No. 1756
'Presented by _____
'Tacoma Branch, 620 Provident Bldg.,
'Phone Main 4970--Tacoma.' On Sunday morning, September 22, at about 11:30, respondent Mrs. Moore called to take the Dahls, Mrs. Gordon, and her daughter to Seattle. It is undisputed that the Tacoma manager of the Dilling Vradenburg Organization instructed Mrs. Moore to call for and take the Dahls and Mrs. Gordon to Seattle, which she did. The purpose of Mrs. Moore in taking the Dahls and Mrs. Gordon to Seattle was to show them the real estate known as the Lake Ridge district and sell them real estate therein. Mrs. Moore was in the regular employment of the corporation. She owned her own car. If she made a sale, she got a commission, which was her only compensation. If no sale resulted and she had a car load, she would be paid $1.00 for gas and oil by the corporation. The tickets given to the Dahls and Mrs. Gordon were for the purpose of setting a day for the trip, identifying the holders thereof at the office of the company, and providing a lunch for them on the grounds. It is undisputed also that, if a sale was consummated, all parties benefited. Dahl testified that he was in the market to buy real estate if he had a good chance. The agents representing the company talked to Mrs. Gordon most of the time. The manager of the Tacoma branch and Mrs. Moore testified that, had any sale been made, they would have been benefited.

Mrs. Moore drove from Tacoma to Seattle by way of Renton. After leaving Renton a distance of two or three miles, a Ford roadster, driven by one Van Thul, attempted to go around and pass her. When the Ford pulled up along side of her, Van Thul sounded his horn. Mrs. Moore veered toward the left side of the highway and speeded up her car. Van Thul applied his brakes, and, the pavement being wet, the car swerved slightly, causing it to bump against the left rear fender of Mrs. Moore's car. Thereupon Van Thul, as he said, 'stepped on the gas' to avoid hitting a car coming towards them, then about one hundred feet distant, and went ahead of Mrs. Moore. At the time Van Thul attempted to pass Mrs. Moore, she was talking real estate to the other occupants of the car, looking around to those in the rear seat and telling them about the property in Lake Ridge and in the vicinity of Renton. After the Ford passed, Mrs. Moore ran along the edge of the pavement on the dirt shoulder along side the pavement, which at that place was from nine to eleven feet in width, for a distance of about ninety feet and went over a bluff. There were automobile tracks along this dirt shoulder. Mrs. Moore did not once apply her brakes in an effort to stop her car, but on the contrary speeded up her car, according to the undisputed evidence. A fair inference from the facts last stated is that Mrs. Moore lost control of her car, ran it off the bank and over the bluff. The result was the killing of Mrs. Gordon and the injury of the other occupants.

The evidence also shows that the road, known as the Renton highway, is twenty feet wide and that it winds along the southwest shore of Lake Washington. Van Thul testified that, at the point which he marked on the map introduced in evidence, where he started to pass Mrs. Moore's car, he could see ahead seven hundred feet. Respondents introduced some photographs showing a view of the place in the road where the accident occurred looking south at the double curve, while the automobiles in question were driving north. It is contended that by looking at these photographs the court can see at once the impossibility of obtaining an unobstructed view ahead for any appreciable distance looking north when one is passing another car in this curve. From the view as shown by the photographs, it is urged that the physical facts conclusively controvert the testimony of Van Thul.

The testimony of Van Thul that he could see seven hundred feet ahead from the place where he started to pass Mrs. Moore's car is undoubtedly no more than a rough estimate. It may have been no more than five hundred or six hundred feet. Nor are we able to say from the photographs in evidence what the perspective was or what distance is shown thereby, so that the testimony of Van Thul is conclusively discredited. At all events, we consider that it would have been a question for the jury.

Counsel for appellants make no claim that there was evidence of gross negligence on the part of Mrs. Moore, but contend that the rule of host and guest does not apply in this case, but that the parties were joint venturers, and therefore evidence of ordinary negligence on the part of Mrs. Moore was sufficient to take the case to the jury.

We have held that to constitute a joint venture there must be an agreement to enter into an undertaking in the objects or purposes of which the parties to the agreement have a community of interest and a common purpose in its performance. Jensen v. Chicago, Milwaukee & St. Paul Railway Co., 133 Wash. 208, 233 P. 635; Rosenstrom v. North Bend Stage Line, 154 Wash. 57, 280 P. 932.

We have also held that in the case of a gratuitous bailment, or that of a guest being carried in an automobile gratuitously, the benefit is not mutual, but all on one side. O'Brien v. Woldson, 149 Wash. 192, 270 P. 304, 62 A. L. R. 436. The reason there given is that the guest is the only one who receives the benefit; that it is of no advantage to the driver of the automobile to carry the guest; hence the gross negligence rule applies.

Under the undisputed evidence in this case, the purpose of the trip was primarily for the profit of the realty company and its selling agent. The company arranged the trip, its date, and its conductor and sales agent, Mrs. Moore. Had Mrs. Moore sold real estate to any of the parties as the result of the automobile trip in her...

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