Kneff v. Sanford

• Decision Date: 09 June 1911
• Court: Washington Supreme Court
• Parties: KNEFF v. SANFORD.

115 P. 1040

63 Wash. 503

KNEFF v. SANFORD.

Supreme Court of Washington

June 9, 1911

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by Emma C. Kneff against W. B. Sanford. From a judgment for plaintiff, defendant appeals. Affirmed.

Phelps & Selden, for appellant.

Ray &amp Dennis, for respondent.

PARKER J.

This is an action to record damages for personal injuries claimed by the plaintiff to have resulted to her from the negligent operation of an automobile belonging to the defendant while it was in charge of one Boldman as plaintiff's chauffeur. A trial before the court and a jury resulted in a verdict and judgment in favor of the plaintiff. The defendant has appealed.

The negligence upon whih the verdict and judgment rest is that of Boldman, the chauffeur, and it is insisted by counsel for appellant that the question as to whether or not the agent was acting within the scope of his employment was under the evidence a question of law calling for a directed verdict in appellant's favor. This is the only question presented for our consideration.

Appellant is the owner of several passenger automobiles which he operates for hire. These are kept standing in front of the Tacoma Hotel at Tacoma, when not actually engaged in carrying passengers, with a view to securing passengers from the hotel or through orders received at the hotel by telephone message. On October 30, 1909, and for some 10 days prior thereto Boldman was employed by appellant as one of his chauffeurs in charge of one of these machines. Boldman's hours to be on duty were from noon until midnight. He was paid by a commission on the amount of fares earned by the machine he was in charge of. About 6 o'clock in the evening of October 30, 1909, and while he was on duty, a Miss Johnson one of the telephone girls at the hotel, came out of the hotel evidently on her way home from work. Boldman then asked her if she did not want to ride home, to which she replied she did, and thereupon he took her in his machine to her home. It was upon returning to the hotel from Miss Johnson's home on this trip, Boldman being alone in the machine, that respondent was injured. When Miss Johnson was taken into the automobile, nothing was said about her fare, and no fare was ever collected from her or charged to her. The regular fare for the trip would have been about $1.50. Appellant learned of the trip and the accident soon thereafter. He kept Boldman in his employ about 10 months thereafter, and says: 'He would be in my employ yet, only he quit. I did not discharge him. He quit himself.' These facts appear by the record and are not disputed. It seems to us that these facts standing alone are clearly sufficient to support the verdict and judgment, unless we must hold as a matter of law that the evidence offered by appellant overcame the prima facie case thus made against him. In Knust v. Bullock, 59 Wash. 141, 143, 109 P. 329, 330, we said: 'In cases of this kind, where it is shown that the wagon and team doing damage belonged to the defendants at the time of the injury, that fact establishes prima facie that the wagon and team were in possession of the owner, and that whoever was driving it was doing so for the owner.' See authorities there cited.

The only evidence tending to overcome...