Delano v. La Bounty

• Decision Date: 27 March 1911
• Citation: 114 P. 434,62 Wash. 595
• Court: Washington Supreme Court
• Parties: DELANO v. LA BOUNTY.

114 P. 434

62 Wash. 595

DELANO v. LA BOUNTY.

Supreme Court of Washington

March 27, 1911

Department 2. Appeal from Superior Court, Pierce County; John A Shackleford, Judge.

Action by James H. Delano against Ed. La Bounty. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas Bedford, for appellant.

Ray &amp Dennis, for respondent.

CROW J.

Action by James H. Delano against Ed. La Bounty, to recover damages for personal injuries. The complaint alleged that the defendant's chauffeur, while running defendant's automobile at a reckless and dangerous rate of speed, struck and injured plaintiff. From a judgment in plaintiff's favor, the defendant has appealed.

The evidence was sufficient to show negligence of the chauffeur. Appellant contends that the automobile did not belong to him, but that it was the separate property of his wife, Josephine La Bounty, who had leased it to one Finnigan, the chauffeur; that Finnigan ran it for hire as a taxicab; that it was under his exclusive control; that Mrs. La Bounty had agreed to furnish the use of a garage, provide gasoline, keep up repairs, and as rental was to receive 70 per cent. of all fares collected. The issues tried were (1) whether the automobile was appellant's property or that of his wife; (2) whether Finnigan was appellant's agent; and (3) whether at the time of the accident Finnigan was operating the automobile in the due course of his employment for and on behalf of appellant. On all of these issues the jury found for respondent.

Appellant first insists that the trial judge erred in denying his motions for a nonsuit and for a directed verdict, contending the evidence was not sufficient to show that the automobile belonged to him, or that Finnigan was his duly authorized agent. Although appellant and his wife testified that the automobile was her separate property, their credibility was for the exclusive consideration of the jury. To show that the machine did belong to appellant, respondent relies upon a bill of sale introduced by appellant, a license obtained from the Secretary of State by appellant, and a taxicab license issued to appellant by the city of Tacoma. The bill of sale for the auto, typewritten upon a blank form, dated August 11 1909, running from one Fred Fischbeck to Josephine La Bounty, has not been recorded. Erasures appear upon its face. An inspection discloses that at one time it contained the name of Ed. La Bounty as a vendee; that his name was subsequently erased, and that other changes have been made. The vendor, the notary who took the acknowledgment, a third party who witnessed the execution of the bill of sale, and the appellant La Bounty were none of them called to explain these apparent changes. Mrs. La Bounty testified that the bill of sale was in the same condition at the time of the trial that it had been at all times since she received it. The...