Kellerher v. Porter

• Citation: 29 Wn.2d 650,189 P.2d 223
• Decision Date: 09 January 1948
• Docket Number: 30339.
• Parties: KELLERHER v. PORTER et al.
• Court: United States State Supreme Court of Washington

189 P.2d 223

29 Wn.2d 650

KELLERHER v. PORTER et al.

No. 30339.

Supreme Court of Washington

January 9, 1948

Department 2

Rehearing Denied Feb. 18, 1948.

Action by Agnes Norma Kellerher, as administratrix of the estate of James Joseph Kellerher, deceased, against John B. Porter and others for damages for death of decedent in an automobile collision. Judgment for plaintiff and defendants appeal.

Reversed and remanded for a new trial.

Where codefendant did not deny allegation in complaint that he was principal defendant's partner, and uncontradicted evidence established that principal defendant was on partnership business at time of collision out of which wrongful death action arose, under provisions of Uniform Partnership Act making partners jointly and severally liable for everything chargeable to partnership by reason of wrongful act of any partner acting in ordinary course of business of the partnership or with authority of his copartners, entry of judgment against codefendant personally was not error. Rem.Supp.1945, §§ 9975-40 et seq., 9975-52 9975-54.

Appeal from Superior Court, Kitsap County; E. D Hodge, judge.

Kahin &amp Carmody, of Seattle (Muriel Mawer, of Seattle, of counsel), for appellants.

Marion Garland, Sr., Marion Garland, Jr. and Frank Hunter, all of Bremerton, amici curiae.

John J. Kennett and Shorett, Taylor & Revelle, all of Seattle, for respondent.

STEINERT Justice.

Plaintiff, as administratrix, brought suit against the defendants John B. Porter, individually, and the marital community of which he was a member, and against John B. Porter and Elmer R. Porter, a copartnership, doing business under the firm name of Porter Clinic, to recover damages for the death of plaintiff's husband, resulting from a collision between an automobile driven by defendant John B. Porter and an automobile driven by the decedent James Joseph Kellerher.

The complaint alleged that the accident was caused by the negligence of defendant John B. Porter in that, while driving his automobile at a speed of 60 miles an hour, he suddenly and without warning swerved his car sharply to his left, across the center line of the highway, onto the opposite side, where it came into violent collision with the automobile driven by the decedent, causing the latter's death. The answer of the defendants denied this allegation and further alleged, affirmatively, that the accident and consequent injuries and damages were caused by the negligence of the deceased in the following respects, among others: (1) Driving too close to a car ahead of him, making it necessary for him to turn out to his left when that other car slowed down; (2) driving on the wrong, or lift, side of the highway and blocking the right of way of defendant John B. Porter; (3) driving at an illegal and unreasonable rate of speed, under the existing circumstances; and (4) driving while under the influence of intoxicating liquor.

Plaintiff in her reply denied these affirmative allegations. Upon a trial of the issues thus raised, the jury returned a verdict in the sum of $70,000 in favor of plaintiff and against the defendants John B. Porter, individually, the marital community, and Elmer R. Porter. The court entered judgment on the verdict, and the defendants appealed.

Thirteen assignments of error are set forth in appellants' brief. The order in which we shall number and consider them will be somewhat different from that in which they are presented by the appellants.

The first two assignments are that the court erred in denying appellants' challenge to the sufficiency of the evidence at the close of respondent's case, and in denying appellants' motion for judgment notwithstanding the verdict.

A challenge to the sufficiency of the evidence, a motion for nonsuit, a motion for directed verdict, or a motion for judgment notwithstanding the verdict admits the truth of the evidence of the party against whom the challenge or motion is made and all inferences that reasonably can be drawn from such evidence, and requires that the evidence be interpreted most strongly against the challenger or movant party and in the light most favorable to the opposing party. Billingsley v. Rovig-Temple Co., 16 Wash.2d 202, 133 P.2d 265, and cases therein cited; Fiskaa v. Miller, Wash., 177 P.2d 707.

With this rule in mind in our consideration of these two assignments of error, we shall state the pertinent facts as the jury was entitled to find them from the evidence.

The accident with which we are here concerned occurred April 4, 1946, about 7:10 p.m., at a point approximately one mile south of Port Orchard, in Kitsap county, on State Highway No. 14, which extends between Port Orchard and Bremerton. Although Port Orchard is situated in a southerly direction, and eastwardly across the bay, from Bremerton, the highway in the vicinity of the scene of the accident runs in a northerly course toward Port Orchard and in a southerly course toward Bremerton. In that locality it is a paved, level, two-lane roadway 20 feet in width, with a yellow stripe along the center; bordering the pavement on the east is a 7-foot shoulder; bordering the pavement on the west is a 14-foot shoulder, beyond and about 5 feet below which is a shelf of earth.

At the time of the accident, it was dark; the weather, however was clear, and the road was dry. Just prior to the occurrence, four automobiles were traveling along the highway in the immediate vicinity of the place her involved. They were: (1) The car which the deceased, James Joseph Kellerher, was driving, alone, from Bremerton toward Port Orchard; (2) an official car of the Port Orchard police department, driven by Robert Heath, with whom were riding his wife and his father, Charles A. Heath, chief of police of Port Orchard, which car was also traveling from Bremerton toward Port Orchard, and which was about 100 feet ahead of decedent's car; (3) the car which the appellant Dr. John B. Porter was driving alone, from Port Orchard toward Bremerton; and (4) a car driven by Charles H. Downey, who was accompanied by two other men, proceeding from Port Orchard toward Bremerton, ahead of the car driven by Dr. Porter. These four automobiles will hereinafter be referred to by the surnames of their respective drivers.

The Heath and Kellerher cars, proceeding northwardly, in the order stated, toward Port Orchard, were traveling at a speed of approximately 40 or 45 miles an hour; the Downey car proceeding southwardly toward Bremerton, was also traveling at a speed of 40 or 45 miles an hour, while the Porter car, proceeding in the same direction and following the Downey car, was traveling at a speed of 50 or 60 miles an hour.

As the four cars approached each other in this manner, the Porter car moved into its left-hand, or the east, lane of the highway and began passing the Downey car. At that time, the Heath car, approaching from the opposite direction along the east lane, was about 100 or 125 feet distant from the Downey car and, in order to avoid a collision with the Porter car, swung to its right-hand side onto the east shoulder of the highway; in this manner the Heath car successfully passed the Porter car. About that same time, the driver of the Downey car seeing the situation and being fearful of becoming involved in a collision, pulled over to his right-hand side onto the west shoulder of the highway, applied his brakes, and brought his car to a stop. In consequence of this precaution on Downey's part, he was successfully passed by the Porter car going in the same direction, and by the Heath car going in the opposite direction. This left the Kellerher car and the Porter car, which were approaching each other from opposite directions, still traveling along and upon the paved portion of the highway, the Kellerher car occupying its proper, or the east, lane of the highway, and the Porter car also occupying the east lane to the extent of approximately two-thirds of the car's width and straddling the yellow stripe in the center of the road, but traveling at an increased speed of 60 miles an hour. The two cars were then less than 100 feet apart and were approaching each other at a combined speed of approximately 100 miles an hour.

Immediately Before the collision between these two automobiles, Kellerher, confronted with the situation as just described, swung his car abruptly to the left, or the west, at an angle of approximately forty degrees, so that the left front wheel, and possibly the right front wheel, of his car was across the center line and in the west lane of the highway. While in that position, the Kellerher car was struck by the Porter car, the impact being on the right- hand side of the Kellerher car, just in front of the right rear fender, pinning Kellerher against the steering wheel.

The Kellerher car came to rest with its rear end hanging over the west shoulder of the highway and extending down upon the lower shelf of earth, the car being headed in a northeasterly direction. The Porter car came to rest entirely on the west shoulder, and headed in a northwesterly direction. The two cars stood about four feet apart.

Both cars were wrecked. Mr. Kellerher received critical injuries from which he died five hours later. Dr. Porter was rendered unconscious and was otherwise seriously hurt. Although he had recovered and was able to testify at the trial, he remembered nothing about the accident.

The occupants of the Downey car, who were facing the two colliding cars at the time of, and immediately prior to, the impact, testified for the respondent; the occupants of the Heath car, who at best had a view of the collision from the rear of their car testified for the appellants.

The argument of the appellants on their two initial assignments of...