Fuller v. Tucker, 27931.
Citation | 103 P.2d 1086,4 Wn.2d 426 |
Decision Date | 01 July 1940 |
Docket Number | 27931. |
Court | United States State Supreme Court of Washington |
Parties | FULLER v. TUCKER et ux. |
Department 1.
Personal injury action by Romayne Fuller against W. H. Tucker and wife. From a judgment dismissing the action, plaintiff appeals.
Affirmed.
Appeal from Superior Court, Grays Harbor County; Wm. E. Campbell judge.
Oscar A. Zabel, of Seattle, and Paul O. Manley, of Aberdeen, for appellant.
J. E Stewart, of Aberdeen, for respondents.
While riding in an automobile owned by defendants and operated by one Charles Preble, plaintiff sustained personal injuries as a result of the alleged negligence of the operator of the automobile. The action instituted to recover therefor was dismissed upon a challenge to the sufficiency of the evidence at the close of the plaintiff's case. Plaintiff has appealed from the judgment entered in accordance therewith.
Respondents a marital community residing in Aberdeen, owned two automobiles. Respondents' son was a member of the Aberdeen high school football team which was scheduled to play a night game of football with Tacoma high school team in Tacoma, Saturday, October 18, 1936, at eight o'clock. Appellant, who was a teacher in the Aberdeen high school, was unable to operate an automobile. Monday or Tuesday of the week the game was played appellant's mother telephoned respondent wife that she and her daughter (appellant) desired to ride in respondents' automobile to the football game. At that time the accommodation requested could not be extended by respondents to appellant and her mother. Friday, the day Before the game, respondent wife telephoned appellant's mother of a change of respondents' plans which would enable appellant and her mother to use one of respondents' automobiles to make the trip to the football game. The plan suggested was that respondent wife would accompany appellant and her mother in one of respondents' automobiles as far as Olympia where Mrs. Tucker (respondent wife) would join her husband, who, unaccompanied, had prior thereto driven to Olympia in the family car, and accompany him to the football game in Tacoma. Appellant and her mother had made other plans.
According to the testimony of appellant, as follows, Mrs. Tucker insisted that appellant take the car and make the trip, the only requirment being that as appellant could not operate an automobile she obtain a driver satisfactory to Mrs. Tucker:
At request of appellant Mr. Preble agreed to operate the automobile for Mrs. Tucker. Saturday morning Mrs. Tucker drove one of respondents' two automobiles to appellant's home in Aberdeen. At that point appellant and Mr. Preble entered the automobile and occupied the rear seat of that car which was operated by Mrs. Tucker from Aberdeen to Olympia.
Appellant testified that when the three arrived at Olympia, Mrs. Tucker got out of the automobile and 'we again talked over our agreement as to what we were to do, and the returning of the car, etc.' Mrs. Tucker accompanied her husband in one of their automobiles to Tacoma. The other car, in which appellant was riding was operated by Mr. Preble who drove from Olympia to Tacoma. After the football game one of the members of the Aberdeen football team and a young lady returned with appellant in the automobile operated by Mr Preble which was in accordance, cordance, appellant testified, with Mrs. Tucker's instructions. On the return from Tacoma Miss Fuller was seated on the front seat between two men, one of whom was Preble, the operator of the car, and the rear seat was occupied by the other guests. South of Fort Lewis between Tacoma and Olympia the excessive speed a which the car was...
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