Hart v. Hogan

• Decision Date: 24 July 1933
• Docket Number: 24453.
• Citation: 24 P.2d 99,173 Wash. 598
• Court: Washington Supreme Court
• Parties: HART v. HOGAN. HART et ux. v. SAME.

24 P.2d 99

173 Wash. 598

HART v. HOGAN.

HART et ux. v. SAME.

No. 24453.

Supreme Court of Washington

July 24, 1933

Department 1.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Separate actions by Eileen Hart, a minor, by Mary Hart, guardian ad litem, and by Theodore Hart and Mary Hart, his wife against E. F. Hogan, which were consolidated. From judgments for defendants notwithstanding the verdicts, which also granted defendant new trial in case judgments notwithstanding verdicts should be reversed, plaintiffs appeal.

Reversed and remanded.

McCarthy & Edge, H. E. T. Herman, and Turner, Nuzum & Nuzum, all of Spokane, for appellants.

Cannon McKevitt & Fraser, Lawrence H. Brown, and H. Earl Davis, all of Spokane, for respondent.

MILLARD Justice.

A road known as the'High Drive' runs along the brow of a very steep hill in the city of Spokane. On July 16, 1930 shortly after 8 p. m., and while it was still daylight, an automobile owned by E. F. Hogan and operated by the owner's wife, Theresa Hogan, left that road, ran over the brink of the hill, and plunged downward a distance of approximately 1,000 feet. Mrs. Hogan was killed. Two of the occupants (Mary Hart and her minor daughter, Eileen Hart) of the automobile were seriously injured. E. F Hogan was made defendant in each of two actions growing out of that accident. One was instituted by the marital community composed of Theodore and Mary Hart to recover for personal injuries sustained by Mrs. Hart and to recover for expenses incurred by plaintiffs for medical attention for their minor daughter, Eileen. The other action was brought for the minor by her guardian ad litem to recover for personal injuries sustained by the minor. The trial of the two causes (they were consolidated for trial and appeal) to a jury resulted in verdicts of $9,500 and $15,000, respectively, in favor of the parents and the minor. The trial court expressed the view that Mrs. Hart and her daughter wee guests of Mrs. Hogan and were therefore, under the host-guest rule, not entitled to recover, as they failed to show 'by the preponderance of the evidence that the accident was the result of gross negligence on the part of the host.' The court also stated that the rule enunciated in Jones v. Harris, 122 Wash. 69, 210 P. 22, precluded recovery, as the complainants failed to establish by the preponderance of the evidence the allegation that the husband was negligent in permitting his wife, with knowledge that she was inexperienced, reckless, and incompetent in the handling and operation of automobiles, to use his automobile at the time in question. Motion for judgment notwithstanding the verdict was granted in each of the two causes. The order granting that motion also granted the defendant's motion for a new trial to become effective in the event that 'the order granting the motion for judgment notwithstanding the verdict shall thereafter be reversed, vacated or set aside in the manner provided by law.' Plaintiffs appealed.

The facts are as follows: Respondent and his wife, to whom several children had been born, expected another blessed event on June 15, 1930. By reason of his business--traveling salesman--respondent was absent from his home in Spokane approximately two-thirds of the time. It was necessary that respondent be absent from his home during the trying enceinte period. He was anxious to employ some one as a companion for his wife, who was very nervous and restless. Two employees proved unsatisfactory. Mr. Hogan testified: 'Well, we found it awfully hard--we tried very hard to get somebody to stay with my wife. We tried out two, and they were not suitable at all, so my wife suggested that she would have Miss McDonald Come.'

Miss McDonald was a graduate nurse of thirty years' experience. She could not go to Spokane, but suggested that Mary Hart, the mother of ten children, but not a graduate nurse, be requested to accept the rôle of companion to Mrs. Hogan. Mrs. Hart and Miss McDonald were sisters. Mrs. Hogan, their cousin, had been adopted by the parents of Miss McDonald and Mrs. Hart and raised in that family. Mr. Hogan arranged for Mrs. Hart, who resided in Winnipeg, Manitoba, to be with his wife during her confinement. He telegraphed $50 to Mrs. Hart and urged her to hasten her departure for Spokane because of Mrs. Hogan's condition. Mrs. Hart and her minor child, Eileen Hart, arrived in Spokane June 15, 1930, one month and one day prior to the accident out of which these actions arose. While Mrs. Hart's status was in fact that of companion and nurse to Mrs. Hogan, the record does not disclose what compensation Mrs. Hart was to receive for her services. On July 16, 1930, Mrs. Hogan was nervous and irritable. For several nights her sleep had not been continuous. More than a month had elapsed since she expected the baby to be born. A five-passenger automobile sedan owned by the respondent had been left by him in his garage at his residence and was used at all times by Mrs. Hogan for her convenience and pleasure and for the convenience and pleasure of her guests. On July 16, 1930, about 8 p. m., and while it was still daylight, Mrs. Hogan suggested that she and Mrs. Hart go for a ride. Mrs. Hogan and her daughter Alice sat in the front seat of the respondent's automobile. Mrs. Hart, her daughter Eileen, and Mrs. Hogan's son sat in the rear seat, as they had previously done when automobiling with the Hogans. On this occasion Mrs. Hogan insisted that her daughter sit in the rear seat and that Mrs. Hart sit behind the steering wheel on the front seat with Mrs. Hogan sitting on the right side of the front seat. It was the purpose of Mrs. Hogan to teach Mrs. Hart, who knew nothing about an automobile, how to operate a car. Mrs. Hogan started the car. Mrs. Hogan held the wheel and steered the car down Jefferson street toward the business section of the city, until they came to a steep hill, and then over to the 'High Drive' which is described in the first paragraph of this opinion. When they came to the grade leading down into the city Mrs. Hart wanted to get out of the car; she did not want to be in the car while it was driven down the hill. Mrs. Hogan turned the car around and went south back up the hill, coming out on Twenty-Ninth avenue, an easterly and westerly avenue which joins, but does not extend beyond, the 'High Drive.' When Mrs. Hart found they were on the 'High Drive,' she again wanted to get out of the automobile. Her wishes were disregarded by Mrs. Hogan who continued to drive the car a short distance and then asked Mrs. Hart to take the wheel. It should be remarked in passing that the trip--from the commencement of the ride until its sad termination--consumed only five to ten minutes. Mrs. Hart guided the car a distance of three or four yards to the left (the safe said of the road) into some bushes and insisted on getting out of the car. (At that time the car was in a safe place. The entire width of the road lay between the line of travel on which the car was proceeding and the dangerous edge of the cliff.) Again the wishes of Mrs. Hart were disregarded by Mrs. Hogan, who got excited, took the wheel, made a quick turn sharply to the right and steered the car directly over the high bank. Mrs. Hogan died prior to her husband's return from California via aeroplane. Mrs. Hart and her daughter were seriously injured.

A motion for judgment notwithstanding the verdict involves no element of discretion and should not be granted unless it can be said as a matter of law that there is neither evidence nor reasonable inference from evidence to sustain the verdict. Allen v. Landre, 120 Wash. 171, 206 P. 845; Lydon v. Exchange National Bank, 134 Wash. 188, 235 P. 27; Reynolds v. Morgan, 134 Wash. 358, 235 P. 800.

One who furnishes an automobile for the use of his family is liable to a third person for injuries sustained as the result of the negligence of a member of the family in the operation of the automobile for such member's pleasure. In Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 1023, 50 L. R. A. (N. S.) 59; Id. (Wash.) 135 P. 821, we held that an owner of an automobile purchased for the use of his family was liable for a third person's injuries sustained by the negligence of his daughter using the car for her own pleasure with his consent, expressed or implied, since it was being used for one of the purposes for which the automobile was kept. We said: 'It seems too plain for cavil that a father, who furnishes a vehicle for the customary conveyance of the members of his family, makes their conveyance by that vehicle his affair--that is, his business--and any one driving the vehicle for that purpose with his consent, express or implied, whether a member of his family or another, is his agent.' See, also, Allison v. Bartelt, 121 Wash. 418, 209 P. 863.

We have not receded from the 'family car' doctrine under which a broad liability is imposed on the husband when his car is operated by his wife for her own pleasure. The doctrine was adopted upon the theory, as stated in Hutchins v. Haffner, 63 Colo. 365, 167 P. 966, 967, L. R. A. 1918A, 1008, 'that the wife was the husband's agent in carrying out one of the purposes for which the car was purchased and...