Hamilton v. Vioue

• Decision Date: 11 April 1916
• Docket Number: 13157.
• Citation: 90 Wash. 618,156 P. 853
• Court: Washington Supreme Court
• Parties: HAMILTON et al. v. VIOUE et ux.

156 P. 853

90 Wash. 618

HAMILTON et al. v. VIOUE et ux.

No. 13157.

Supreme Court of Washington

April 11, 1916

Department 2. Appeal from Superior Court, King County; Everett Smith Judge.

Action by W. W. Hamilton and C. T. Hamilton against J. E. Vioue and wife, who counterclaimed. From a judgment for defendants plaintiffs appeal. Sustained as to the first-named plaintiff and reversed as to the other.

C. A. Holtz and Warren H. Lewis, both of Seattle, for appellants.

Million & Houser, of Seattle, for respondents.

MORRIS C.J.

Appellants jointly owned a Ford automobile, which collided with an Everett car owned by respondents. Action was brought alleging a collision as a result of respondents' negligence. Respondents counterclaim, alleging appellants' negligence. The cause was tried to the court without a jury, resulting in findings and judgment in respondents' favor against both appellants.

Two errors are presented by the appeal. First, the correctness of the findings in respondents' favor upon the question of negligence; and, second, the entry of judgment against both appellants.

The first question presents a plain question of fact which the lower court has determined against appellants, making findings which are abundantly sustained by the weight of the testimony, and with which we agree. Appellants' main argument here, in seeking to overthrow the findings, is based upon the positions of the two machines in the ditch after the collision. It does not seem to us that the positions of the machines after being hurled from the highway into the ditch by the force of the impact is any proof of the manner in which the accident occurred, or the relative positions of the machines at the time of the collision. The fault of the accident must be determined by what took place prior to, and at the time of, the collision, and we are satisfied that the negligent driving of the Ford was the cause of the collision.

The accident occurred on Saturday afternoon while W. W. Hamilton accompanied by a gentleman and two lady friends, were out on a pleasure ride. Under the circumstances we can find no legal liability against C. T. Hamilton. The Ford car, at the time of the collision, was neither operated by him, nor by his agent or servant while engaged in any service for him. Neither was it operated as a part of any joint enterprise in which he and his brother were engaged. Even though it should be held that the Hamilton brothers were partners in the ownership of the car (losing sight for the moment of the general rule that ownership of property does not of itself create a partnership), no liability will follow to C. T. Hamilton, as the record fails to show that the car at the time in question was operated on behalf of, or within the reasonable scope of, any partnership business. W. W. Hamilton was, at the time of the accident, using the automobile for his own personal pleasure and that of his companions. Under such circumstances there is no rule of law that will fasten liability against C. T. Hamilton. Jones v. Hoge, 47 Wash. 663, 92 P. 433, 14 L. R. A. (N. S.) 216, 125 Am. St. Rep. 915; Towers v. Errington, 78 Misc. 297, 138 N.Y.S. 119; ...