Helf v. Hansen & Keller Truck Co.

• Decision Date: 11 March 1932
• Docket Number: 23471.
• Court: Washington Supreme Court
• Parties: HELF v. HANSEN & KELLER TRUCK CO. et al.

9 P.2d 110

167 Wash. 206

HELF v. HANSEN & KELLER TRUCK CO. et al.

No. 23471.

Supreme Court of Washington

March 11, 1932

Department 2.

Appeal from Superior Court, Mason County; D. F. Wright, Judge.

Action by H. M. Helf against the Hansen & Keller Truck Company and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Pearson & Potts, of Seattle, for appellants.

J. W Graham, of Shelton, for respondent.

MAIN J.

This action was brought to recover damages to an automobile. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $850. The defendants moved for judgment notwithstanding the verdict, and, in the alternative, for a new trial, both of which motions were overruled. Judgment was entered upon the verdict, from which they appeal.

The facts supported by the testimony offered by the respondent may be summarized as follows: During the year 1930, the city of Tacoma was constructing a dam at Lake Cushman, in Mason county, to be used in connection with its electric power and light project. From a point on the Olympic Highway, about three miles distant from the dam, the city had constructed a gravel roadway, eighteen or twenty feet wide, for the use of those having reason to go to the project. Over the road was hauled material for the construction of the dam, including sand and gravel. The appellant Hansen & Keller Truck Company a corporation, operated a number of trucks in hauling material over the highway to the dam, and the appellant Barney Eastlick was the driver of one of its trucks. The highway was used both day and night, and the traffic upon it was heavy. The respondent was employed at the dam in some capacity.

On the evening of November 15, 1930, one of the appellant's trucks, driven by Eastlick, was proceeding upon the highway to the dam with a load of sand, and at a point in the highway the truck was stopped because of lack of supply of gas. After stopping, the truck stood in the middle of the highway with no lights on at either the rear or in the front. Some distance behind the truck, the respondent, in a Hudson sedan driven by himself, was going to the dam to go to work. At the time 'it was misty, slightly raining.' The color of the truck was gray, which made it 'difficult to distinguish an object of that kind on the highway due to the color.' The headlights of the Hudson sedan were on, and the respondent testified:

'Q. How did you have them on? A. What is known as the fog light.

'Q. Tilted down? A. Yes.

'Q. And with them tilted down, how far could you see ahead? A. I could make no estimation of how far the light showed ahead. It would be just a guess proposition.

'Q. What is your estimate? A. I don't know. I suppose it would show around maybe 20 feet.'

The respondent was traveling at a speed of about twenty-five miles per hour. As he approached the truck standing in the middle of the road, he did not see it until he was within about twelve feet of it, when he attempted to turn to the left to avoid it, but the right side of the automobile collided with the truck and the automobile was badly damaged. The windshield wiper of the automobile was operating at the time. The respondent testified that at the speed he was going he could stop within a distance of about forty feet.

Some months previously, the respondent had purchased the automobile on contract. Subsequent to the time of the accident and the beginning of the action, the Pacific Finance Company, the owner of the contract, repossessed the automobile, placed it in a garage, and later shipped it to Portland where the company had an office. At the time of the accident and the bringing of the suit, no payment upon the contract was delinquent, but subsequent to the accident and the bringing of the suit the payments became delinquent. As already indicated, the facts stated are those supported by the evidence offered by the respondent. The evidence offered by the appellants is in conflict with that offered by the respondent in many, if not all the material, particulars. The case having been tried to a jury, we are not concerned with the weighing of this conflicting evidence.

The first question is whether the respondent had a right to maintain the action, in view of the fact that subsequent to the accident and the institution of the action the automobile had been repossessed by the finance company. In Messenger v. Murphy, 33 Wash. 353, 74 P. 480, it was held that the purchaser of goods on the installment plan the title remaining in the vendor, could recover the value of the property which had been converted, since the contract contained an unqualified agreement to pay the purchase price. In Stotts v. Puget Sound Tr., L. & P. Co., 94 Wash. 339, 162 P. 519, 520, L. R. A. 1917D, 214, it was held that the right of the vendee under a conditional sales contract, as against third parties, 'may well be likened to that of a bailee, and we see no reason why the same rules should not apply,...