Handley v. Anacortes Ice Co.

• Citation: 5 Wn.2d 384,105 P.2d 505
• Decision Date: 16 September 1940
• Docket Number: 27769.
• Parties: HANDLEY et al. v. ANACORTES ICE CO. et al.
• Court: United States State Supreme Court of Washington

105 P.2d 505

5 Wn.2d 384

HANDLEY et al. v. ANACORTES ICE CO. et al.

No. 27769.

Supreme Court of Washington

September 16, 1940

Department 2.

Action by M. Handley and K. Handley, his wife, and Mrs. K. Handley as guardian ad litem for Reinhard Lehne, a minor, against the Anacortes Ice Company, a corporation, and Ralph Oakley, for injuries sustained by the minor when he was struck by a baseball and for medical and surgical expenses incurred on behalf of the minor. From judgment for plaintiffs on verdict for minor for $3,000 and verdict for parents for $421.50 defendants appeal.

Judgment affirmed as to defendant Ralph Oakley, and judgment reversed with instructions to dismiss as to defendant Anacortes Ice Company.

In action wherein parents of injured minor sought to recover for medical and other expenses, instruction on damages was subject to criticism as being too broad in that it permitted jury to return verdict for items not supported by evidence but defendants could not complain where court limited amount jury could return to $421.50, jury returned verdict for that amount, and evidence supported a verdict in that amount.

Appeal from Superior Court, Skagit County; W. L. Brickey, judge.

Henderson & McBee, of Mount Vernon, for appellants.

John W. Brisky and Welts & Welts, all of Mount Vernon, for respondents.

BEALS Justice.

This action was instituted against Anacortes Ice Company, a corporation, and Ralph Oakley, as defendants, by the mother of Reinhard Lehne, a minor, as his guardian ad litem, and by the mother, K. Handley, and her husband, M. Handley, stepfather of the minor, for the purpose of recovering damages on behalf of the minor for personal injuries suffered by him, and also for the purpose of recovering judgment for medical and surgical expenses incurred by the parents on behalf of the minor.

As disclosed by the record, the following facts may be said to be undisputed: The central labor council of Anacortes (which will hereinafter be referred to as the council) staged a Labor Day celebration at an athletic field in the city of Anacortes, on Labor Day, 1937. The festivities commenced early in the afternoon, with bicycle races, tug-of-war, and some amusing acts, concluding with a baseball game. Defendant Ralph Oakley was chairman of the council's refreshment committee, and it having been advertised that children attending the celebration would receive free ice cream, Mr. Oakley ordered from defendant company fifteen gallons of ice cream in bulk, a quantity of ice cream bars, and some soft drinks. It was proposed that the bulk ice cream should be given to the children in cups or cones, while the ice cream bars and soft drinks would be sold.

At about one o'clock in the afternoon, a truck referred to as a 'pick-up', belonging to defendant company, containing the supplies above referred to, arrived at the field, where it was met by Mr. Oakley, who stepped on the running board of the truck and indicated to the driver the spot where the truck should be parked. This place was near the baseball diamond, approximately twenty-five feet outside the diamond, and a little over half way from the home plate to third base. No protection for the truck by way of a screen or otherwise was provided. A small railing was put in position beside the truck, to keep the children in single file while approaching to receive their free ice cream. Oakley was in charge of the distribution of the ice cream, assisted by other members of the council.

It appears that the first quantity of ice cream was soon exhausted, and a further quantity was ordered, which was delivered by appellant to some members of the council, at the entrance to the athletic field, and by them carried by hand to the place where the truck was parked. Apparently it was during the dispensing of this second lot of ice cream that respondent Reinhard was injured. The portion of the truck in which the containers carrying the ice cream were placed was refrigerated, so as to keep the ice cream from melting. Some witnesses testified that the containers were, by Oakley and other persons assisting him, lifted to the ground as needed, opened, and the ice cream removed in small quantities for the individuals who were to receive the same, while there is some testimony that the ice cream was scooped out of the containers while the latter were still in the truck. It is immaterial which method was followed.

Free ice cream was given to the children during the first part of the festivities, some witnesses testifying that all the free ice cream was passed out prior to the beginning of the ball game, while others testified that it was still being distributed after the ball game commenced. In any event, during the progress of the game, ice cream bars and soft drinks were being dispensed from the truck, or by hawkers.

After the conclusion of the first portion of the program, it was requested over the loud speaker that the field be cleared, and shortly thereafter the ball game commenced. During the fourth inning, plaintiff Reinhard Lehne was standing near the truck, when a batter struck a fast foul ball, which hit the lad on the head, seriously injuring him. Plaintiff suffered a skull fracture, which necessitated a serious surgical operation, the lad's parents incurring other medical and surgical expenses.

In the amended complaint, the defendants and each of them were charged with negligence in placing the truck in a dangerous position near the baseball diamond, and in leaving the same there after the game commenced, knowing that children and other persons would approach the truck for the purpose of procuring ice cream. Defendants were also charged with negligence in failing to provide any screen or protection to prevent batted balls from injuring persons in and around the truck; in failing to cause the truck to be removed to a safe place after the ball game commenced; and in dispensing ice cream and soft drinks from the truck on the side toward the home plate, so as to expose persons frequenting the truck to injury during the progress of the game.

The defendants answered the complaint separately, the company denying all negligence on its part, and affirmatively pleading that on the day in question it had loaned its truck to the council, and that during the progress of the festivities mentioned in plaintiff's complaint, the truck was under the exclusive supervision and control of the council.

The issues having been fully made up, the action was tried to a jury, which returned a verdict in plaintiffs' favor and against both defendants. Motions for judgment in defendants' favor notwithstanding the verdict, or in the alternative for a new trial, having been denied, judgment was entered on the verdict, from which the defendants have appealed.

Appellant Anacortes Ice Company will be referred to herein as appellant, and Mr. Oakley will be referred to either as Oakley or appellant Oakley.

Appellant assigns error upon the denial of its motion for nonsuit, and upon the denial of its motion for a directed verdict. Appellants jointly assign error upon the giving of certain instructions; upon the refusal to give one proposed instruction; and upon the denial of their motions for judgment notwithstanding the verdict, or in the alternative, for a new trial.

The first question is whether the record supports the jury's verdict against appellant, which, of course, can stand only if some officer or agent of appellant, by his acts, rendered appellant liable for the damages suffered by respondents.

Respondents contend that appellant Oakley, who it is admitted directed the parking of appellant's truck and supervised the distribution of the ice cream, was acting as appellant's agent. In support of this contention, respondents argue that a presumption of agency arose from the fact that the truck was admittedly owned by appellant and used in its business. It is admitted that after the ball game, Oakley drove the truck back to appellant's place of business.

The truck was driven to the field Before the commencement of the exercises, by appellant's driver, who was accompanied by a helper. As above stated, the truck was parked at a place selected by appellant Oakley and Vernon Pierce, the general chairman of the council, who was in charge of the festivities. It clearly appears that appellant's truck driver had nothing whatever to do in connection with the selection of the place where the truck should be parked, but merely drove it to that spot under Oakley's direction. After the truck was parked, the driver, leaving his keys in the truck, with his fellow employee, according to their evidence, returned to appellant's plant, the driver having accomplished his mission and obeyed the instructions given him to take the truck to the field and turn it over to Oakley.

It appears that, prior's to Labor Day, a representative of the council had arranged with appellant's president for the purchase of the ice cream and soft drinks, and for the use of the truck as a storage depot during the celebration. The council ordered the supplies it wanted, and purchased them at wholesale rates.

Appellant's two employees who accompanied the truck testified that they left the field immediately after the truck had been parked, and that they did not return to the field during the afternoon. One of respondents' witnesses, a member of one of the ball teams, in answer to a question as to whether or not appellant's driver, Gerald Bushey, was at the truck while the ball game was in progress, stated:

'A. As I recall, he was at the truck.

'Q. Doing what? A. Passing out ice cream, and after the accident had happened they moved the truck in back of the bleachers and Gerald Bushey was selling ice cream behind there.

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