Feldtman v. Russak

• Decision Date: 17 December 1926
• Docket Number: 20034.
• Court: Washington Supreme Court
• Parties: FELDTMAN v. RUSSAK et al.

251 P. 572

141 Wash. 287

FELDTMAN v. RUSSAK et al.

No. 20034.

Supreme Court of Washington

December 17, 1926

Department 2.

Appeal from Superior Court, King County; Douglas, Judge.

Action by Madeline H. Feldtman against Harry Russak and another doing business as the Motorcar Wrecking Company. From a judgment on a directed verdict for defendants, plaintiff appeals. Affirmed.

Adam Beeler, of Seattle, for appellant.

Bausman Oldham & Eggerman, of Seattle, for respondents.

MACKINTOSH J.

The appellant was seriously injured, at about 6 o'clock, on November 21, 1924, by being struck by a touring car owned by the respondents, and at the time being driven by one of their employees named Gordon. At the close of the case the respondents' motion for a directed verdict was granted and from the judgment thereon this appeal is taken. The only question is whether Gordon was acting within the scope of his employment in driving the automobile at the time of the accident.

At testimony as it relates to this question is that Gordon was employed by the respondents, who were partners in buying and wrecking secondhand automobiles. His duties were those of a clerk and stock man, and were performed exclusively inside the yard and shop in taking care of and checking material. His hours of employment were from 8 in the morning until 5 in the evening. The automobile which Gordon was driving at the time of appellant's injury was used only by the respondent Russak. There is no testimony that the one else had ever driven this car until the time that Gordon drove it on this evening. On November 21, Russak was out of town on business, and left his car in the alleyway back of respondents' place of business. At about 4:30 o'clock Gordon had occasion to visit a doctor's office to have an infected finger attended to, and, noticing the car standing in the alley and knowing that Russak was away from town, took the car for the purpose of calling on the doctor. This errand having been performed, he returned to the respondents' place of business, on that return trip making some purchases for himself. The return was somewhere around 5:30 p. m., and it was Gordon's intention to leave the car at respondents' shop but upon his return he found that the shop and yard were both locked up, and, having no key, he decided to drive the car home and keep it there for the night. He did not proceed directly home, but stopped at the place of business of one Sidell, where for approximately half an hour he discussed a trip that he was planning to take to California for pleasure. After leaving Sidell's place of business, and on his way home, the accident occurred.

Several witnesses testified, and their testimony is undisputed, that Gordon had never received any permission to drive any automobile belonging to respondents and that it never was his duty to drive any car on any of respondents' business. This testimony, tending to establish the fact that the automobile, at 6 o'clock in the evening, was being driven by Gordon without the knowledge or permission of respondents and for his own purposes, came from Gordon himself, from the respondents, from another employee of the respondents named Keiser, from one Daggett, who was in no way connected with the respondents' business, but who testified as to the time of the accident, saying that it was after the hours of Gordon's employment, from the Bower, who at the time of the accident was foreman of the respondents' shop, but at the time that he testified was a disinterested witness, not at that time an employee of the respondents, but being engaged on his own account in a competing business. Another witness was Sidell, the manager of another firm and in no way connected with the respondents, though engaged in the same general line of business, who testified that he knew Gordon's duties, that he did not use an automobile of respondents in coming to or going from his work, that he had never seen Gordon drive respondents' automobile before, and that Gordon had visited with him for half an hour before the accident on a matter purely personal to Gordon himself. To dispute all this evidence the appellant offered nothing.

The general rule, of course, is that the burden at all times was upon appellant to prove that the act complained of was done while the employee was engaged in doing some act under authority from his master and in furtherance of the master's business. A prima facie case that the automobile was in the use of the owner is made when it is shown that the car belonged to the respondents and that the driver was an employee. But this prima facie case rests upon a presumption that only exists until the respondents have made a prima facie defense. The burden of proof remains all the time where it originally was. If the presumption in favor of appellant has been overcome by showing that the automobile was not being used at the time on the respondents' business, but on the business of the driver, then the appellant must meet this with evidence, and the original presumption is not sufficient to carry the case to the jury. In order for the respondents, however, to establish their prima facie case of lack of responsibility to such an extent that...