Hayes v. Brower

• Decision Date: 06 September 1951
• Docket Number: No. 31510,31510
• Citation: 39 Wn.2d 372,235 P.2d 482
• Parties: , 25 A.L.R.2d 1431 HAYES et al. v. BROWER et ux.
• Court: Washington Supreme Court

Page 372

39 Wn.2d 372

235 P.2d 482, 25 A.L.R.2d 1431

HAYES et al. v. BROWER et ux.

No. 31510.

Supreme Court of Washington, Department 1.

Sept. 6, 1951.

Rehearing Denied Dec. 18, 1951.

Kennett & McCutcheon, Seattle, Fred S. Merritt, Seattle, for appellants.

Kahin, Carmody & Horswill, Seattle, for respondents.

BEALS, Justice.

The defendants in this action, A. C. Brower and Mario K. Brower, were, at all times mentioned in the complaint herein, husband and wife and the parents of Allison C. Brower, who, at the time of the events hereinafter referred to, was sixteen years of age and was living with his parents at their home in Seattle. The events which resulted in the institution of this action occurred October 26, 1947, on which date the defendants owned a 1939 two-door Ford sedan, used generally as a family automobile.

On the date referred to, plaintiff James O. Hayes had a son, John Kelly Hayes, eighteen years of age, who died approximately twelve hours after the accident hereinafter referred to, as the result of injuries which he received at that time.

Plaintiff Hattie L. Stevens, a widow, is the mother of Donald Wallace Stevens, who was seventeen years of age at the date hereinabove mentioned. Mrs. Stevens was appointed guardian ad litem of her son prior to the institution of this action.

Plaintiff Wayne N. Rumsey is the father of Wayne Henry Rumsey, then sixteen years of age, and, prior to the institution of this action, was appointed guardian ad litem for his son.

By their complaint in this action, plaintiffs stated several causes of action.

Plaintiff Hayes, in the first cause of action, stated in detail the facts upon which plaintiffs sought recovery of judgment against the defendants. All of the plaintiffs demanded judgment against defendants on account of damages sustained in an automobile collision which occurred at about five minutes after one o'clock a. m., October 26, 1947, and resulted in the death of John Hayes and serious injuries to Donald Stevens and Wayne Rumsey. The complaint alleged that the accident was caused by the negligent and unlawful operation of defendants' automobile by their minor son, Allison C. Brower.

Plaintiff Hayes prayed for judgment against defendants in the sum of $10,767.

Plaintiff Stevens, as guardian ad litem of her minor son, prayed for judgment in the sum of $100,000, and, by a second cause of action, prayed for judgment, individually, in the sum of $28,473.53.

Plaintiff Rumsey, as guardian ad litem of his minor son, prayed for judgment in the sum of $10,000, and, individually, for judgment in the sum of $2,704.

By their answer, defendants admitted that their son, Allison C. Brower, was operating their automobile on the night of October 25-26, 1947, denying the other material allegations of each cause of action pleaded in the complaint and, particularly, that they were liable to plaintiffs or any of them in any sum whatsoever.

As to plaintiff Hayes' cause of action, defendants pleaded contributory negligence on the part of his son, John Hayes, and that, at the time of the accident, he was an invited guest in the automobile.

Answering the complaint of plaintiff Hattie L. Stevens, as guardian, defendants incorporated their answer to Mr. Hayes' complaint and, while admitting that Donald Stevens was injured, denied that his injuries directly and proximately resulted from the negligence of defendants or of their son Allison or that defendants were liable to plaintiff Stevens, as guardian ad litem, in any amount whatsoever. They further alleged that any injuries suffered by Donald Stevens were caused and contributed to by his own negligence; that, at the time of the accident, he was an invited guest in the automobile owned by defendants, and was a licensee without payment for transportation; and that the injuries which he suffered were not intentional on the part of Allison C. Brower.

Defendants also answered plaintiff Stevens' second cause of action, denying the material allegations thereof and, particularly, that she had been damaged in the amount demanded or in any sum whatsoever as the result of any negligence on the part of defendants or Allison Brower.

By way of an affirmative defense, defendants further alleged that any damages suffered by plaintiff Hattie L. Stevens were caused and contributed to by the negligence of her son Donald, repeating the allegations of their answer to her first cause of action.

Answering the complaint of plaintiff Wayne Rumsey, as guardian ad litem for his son, defendants denied liability and pleaded affirmatively, in their defense, the same allegations contained in their answers to the other causes of action referred to above.

By their reply, plaintiffs denied the affirmative allegations contained in defendants' answer to each cause of action, and prayed for judgment as demanded in their complaint.

The action was tried to the court, sitting without a jury. By an oral decision at the close of the trial, the court, after stating its opinion as to the respective amounts of damages to plaintiffs occasioned by the accident, and discussing other pertinent questions, stated that, under the facts disclosed by the evidence, John Hayes and the other two minors, represented here by their guardians ad litem, were guests in defendants' automobile, which was driven by their son, and that plaintiffs should not recover judgment in the action.

Plaintiffs' motion for a new trial, their motion for judgment notwithstanding the oral decision of the court, and their motion for reconsideration of the court's oral decision having been denied, the court entered findings of fact and conclusions of law in favor of the defendants, followed by a judgment dismissing the action with prejudice, to which judgment plaintiffs excepted and from which they have appealed to this court, making the following assignment of errors:

'(1) The court erred in concluding that Orlob's offer to purchase gasoline did not motivate the transportation provided by Brower.

'(2) The court erred in concluding that at the time and place in question Hayes, Rumsey and Stevens were 'the invited guests' of Brower.

'(3) The court erred in concluding that the transportation in question was being furnished by Brower without payment for such transportation.

'(4) The court erred in concluding that Brower 'did not purposely intend to injure the occupants of said automobile.'

'(5) The court erred in concluding that by virtue of Remington's Revised Statutes, § 6360-121, appellants had no cause of action.

'(6) The court erred in not concluding that the defendants had, by reason of their own unlawful acts and those of their son, put themselves without the pale of the protection afforded by the Host-Guest Statute.

'(7) The court erred in entering a judgment of dismissal.'

The trial court made comprehensive findings of fact, finding that respondents were husband and wife; that they had a son, Allison C. Brower, Jr., who, at the time of the accident, was sixteen years of age and a member of their family; and that the respondents owned a 1939 two-door Ford sedan automobile, bearing a 1947 Washington license, which they maintained for the use of their family, including their son Allison.

Appellants assign no error upon any finding of fact made by the trial court. We quote findings Nos. 3 to 10, both inclusive, which state the facts upon which this action was based:

'(3) That of the public streets and highways of the City of Seattle, California Avenue extends in a general northerly and southerly direction. That said avenue is intersected at right angles by another public street in the City of Seattle known as Admiral Way, and several blocks to the south of Admiral Way is intersected at right angles by another public street known as Alaska Street, which intersection is commonly called 'The Junction'.

'That at all times herein mentioned the said streets were open to the public for travel thereon.

'(4) That the defendants, after acquiring said automobile and due to mechanical damage sustained in its motor, caused the Ford motor therein to be removed and a new Mercury motor installed, and did not thereafter comply with the provisions of Remington's Revised Statutes, Sections 6312-4, 6312-5 and 6312-15, pertaining to procedures required in the event a new motor is installed in a motor vehicle, in that the defendants did not forward and surrender to the proper authorities of the State of Washington the certificate of license registration theretofore issued to the defendants covering the operation of said automobile, and, likewise failed to make application for the issuance of a corrected certificate of license registration and corrected certificate of ownership, and failed to furnish the proper authorities of the State of Washington a statement concerning the disposition made of the former Ford motor. That solely by reason of the failure on the part of said defendants to comply with the foregoing statutory provisions, the said car was at all times thereafter and at the time of the accident hereinafter described unlawfully operated on the public streets and highways in the State of Washington.

'(5) That defendants on October 25th, 1947, and subsequent to the installation of said Mercury motor, entrusted their said automobile to their son, Allison C. Brower, Jr., to be used by him. That on said date and at the time of the collision hereinafter mentioned, said automobile was being operated by the said Allison C. Brower, who was then a member of the family and household of the defendants.

'That on October 25th, 1947, John Kelly Hayes, now deceased, son of the plaintiff James O. Hayes, in company with Wayne Henry Rumsey, son of the plaintiff Rumsey, and one Lloyd Orlob, attended a dance at Franklin High School in the City of Seattle. That at said time Hayes was 17 years and 8 months old and Rumsey was 16 years of age.

'That Allison C. Brower, Jr., did not attend said dance. That...