Hollingbery v. Dunn, 37883

• Decision Date: 24 February 1966
• Docket Number: No. 37883,37883
• Citation: 68 Wn.2d 75,411 P.2d 431
• Court: Washington Supreme Court
• Parties: O. E. HOLLINGBERY, Jr., Appellant, v. Joseph M. DUNN, Respondent.

Page 75

68 Wn.2d 75

411 P.2d 431

O. E. HOLLINGBERY, Jr., Appellant, v. Joseph M. DUNN, Respondent.

No. 37883.

Supreme Court of Washington, Department 2.

Feb. 24, 1966.

Nashem & Prediletto, Norman R. Nashem, Jr., Yakima, for appellant.

Gavin, Robinson, Kendrick, Redman & Mays, John Gavin, Yakima, for respondent.

HAMILTON, Judge.

On the night of April 7, 1962, three horses escaped from premises owned by plaintiff, O. E. Hollingbery, Jr. One wandered onto U.S. Highway 410 and was struck by an automobile. As a result, one person was killed and two were seriously injured. A wrongful death and two personal injury claims were asserted against plaintiff. Before suit was commenced, he compromised and settled the claims for a reasonable sum.

Thereafter, plaintiff brought this action against defendant, Joseph M. Dunn, seeking indemnification for the sum paid in settlement of the claims. Plaintiff predicates his prayer for indemnification upon the contention that the escape of the horses was caused by the active or primary negligence of defendant while acting as an employee of plaintiff. The trial court, sitting without a jury, found and concluded that at the time of the tortious acts involved defendant was an independent contractor, rather than an agent or employee of plaintiff. From this premise the trial court concluded that plaintiff was not liable for the acts of defendant and that in making the compromise settlement and payment plaintiff did so as a volunteer. ¹ Indemnification was denied and judgment of dismissal entered. Plaintiff appeals.

On appeal, plaintiff makes but one assignment of error and brings but one issue before us. He assigns error to the trial court's finding and conclusion that defendant acted as an independent contractor. He does not challenge the trial court's prefatory findings of fact or the conclusion that plaintiff made the settlement as a volunteer. Neither does he present nor argue any alternative theories of vicarious liability or equitable subrogation. Our review is accordingly narrowed and limited to the question of whether the pertinent unchallenged findings of fact and the evidence support the finding and conclusion of an independent contractor relationship between the parties.

Briefly, and so far as relevant to the issue before us, the background facts may be summarized as follows:

At all times concerned, plaintiff, a hop broker by occupation, was the owner of a farm located in the Lower Naches Valley of Yakima County and proximate to U.S. Highway 410. On this farm was plaintiff's residence, farm outbuildings, and two fields, one of which was devoted to pasture and the other to pasture grass and wheat. The two fields were enclosed by a perimeter fence and divided by a gated cross-fence.

There were three horses pastured on the farm, at least one of which belonged to another person and was being cared for by plaintiff as an agistor. At appropriate times the horses were permitted to indiscriminately graze over the two fields.

About March 30, 1962, plaintiff and his family consummated vacation plans and departed for Hawaii. A few days prior to this departure, plaintiff and the members of his family inspected the fences, particularly the perimeter fencing, at which time the fences were found to be proper and completely adequate to restrain and retain the pastured horses.

The defendant is an experienced farmer. At all times concerned, he resided on and farmed extensive properties located some 20 miles distant from plaintiff's ranch. Plaintiff, as a hop broker, and defendant, as a farmer, maintained business relations with each other.

Plaintiff wished to reseed the pasture grass and wheat field in the early spring of 1962. Not having the equipment, the time, nor the experience to perform this work himself, he sought out the defendant. The arrangement between the parties and the execution thereof are described by findings of fact Nos. 5 and 6, as follows That a week or ten days prior to the departure of plaintiff for Hawaii with his family, he and the defendant had a brief conversation, the essence of which was that the plaintiff Hollingbery wanted to seed a certain area of his property to wheat and a certain area to pasture and asked the defendant Dunn if he would do this, and the defendant Dunn agreed to do it. That the manner and method and details of the seeding of the wheat and pasture were left to Dunn, and the selection and time of seeding was left to Dunn's judgment. That thereafter the defendant Dunn went with Hollingbery to the property of Hollingbery where Hollingbery pointed out to Dunn a place where he could bring his, Dunn's, equipment through the outer fence and advised Dunn to be certain to put the fence back up after he had finished his work; that he further pointed out to him points along the cross fence within the enclosure which he felt should be strengthened and requested Dunn to accomplish this work, to which Dunn agreed. He further advised Dunn to secure the open gate in the cross fence so that the pastured horses could not come through into the area being seeded and Dunn agreed to do this. That there was no specific agreement between the parties as to compensation to be paid Dunn for the seeding work and that Hollingbery relied upon Dunn to determine whether to disc or plow the property or disc it only, leaving to Dunn the matter of providing his, Dunn's, own equipment consisting of a truck, tractor, seeder and a disc and the matter of what men Dunn would employ to help him do the work was left up to Dunn. That Hollingbery had utilized the services of Dunn in seeding operations on a prior occasion and did not direct or attempt to direct the manner or method in which the work was to be done because he, Hollingbery, recognized that Dunn knew how to do seeding of this nature and Hollingbery did not. That Dunn was to receive no money for the work done by Dunn, but that it was anticipated that Hollingbery would reimburse him for any additional labor that Dunn employed and that Dunn was required to pay, together with any gasoline or repair expenses that Dunn might incur in connection with performing the work. That such an arrangement had existed in a prior year and that the parties hereto had on occasion exchanged work and favors with one another. Finding of Fact No. 5.

That thereafter and not more than three days before the accident hereinafter referred to, defendant Dunn accompanied by his brother, the one driving a tractor and the other a pickup truck, came to the Hollingbery property from the lower valley ranch at which time the exterior fence at the Hollingbery property was in proper condition and intact and at which time the plaintiff and his family were absent on their trip to Hawaii. That the defendant and his brother took down the outside fence at the point previously directed and drove his equipment through this aperture and proceeded thereafter to engage in seeding operations on that day and on a second day. That although the defendant Dunn removed and laid down a portion of the fence, he did not replace it or put it back up at the time he finished his work nor did he secure the cross gate in the cross fence as he had agreed to do. Finding of Fact No. 6.

Subsequent to defendant's departure from plaintiff's premises, the pastured horses escaped through the open fence and the accident giving rise to this litigation occurred.

Plaintiff did not argue in the trial court nor here that the work and duties to be performed by defendant regarding the seeding and the fences, or defendant's status with respect thereto, were in anywise severable. Indeed, plaintiff insists defendant's responsibilities as to the fencing were incidental to and an integral part of the seeding operation. We, accordingly, proceed upon the same theory. Thus, as heretofore,...