Lampe v. Tyrell

• Decision Date: 28 September 1939
• Docket Number: 27462.
• Citation: 200 Wash. 589,94 P.2d 193
• Court: Washington Supreme Court
• Parties: LAMPE et al. v. TYRELL et al.

94 P.2d 193

200 Wash. 589

LAMPE et al. v. TYRELL et al.

No. 27462.

Supreme Court of Washington, En Banc.

September 28, 1939

Action by Mary Lampe, by her guardian ad litem, Annie Lampe, and others against A. J. Tyrell and another for injuries sustained in an automobile collision. From a judgment for the defendant, plaintiffs appeal.

Affirmed.

Appeal from Superior Court, Pierce County; Ralph C. Bell, judge.

S. A Gagliardi, of Tacoma, for appellants.

Robert E. Evans and Hayden, Metzger & Blair, all of Tacoma, for respondents.

JEFFERS Justice.

This action was brought by Mary Lampe, by her guardian ad litem Annie Lampe; Anton Lampe and Annie Lampe, husband and wife Elsie Hauge, by her guardian ad litem, Jennie Hauge; Andy Hauge and Jennie Hauge, husband and wife; Mildred Walentiny, by her guardian ad litem, Thresa Walentiny Mathias Walentiny and Thresa Walentiny, husband and wife, against A. J. Tyrell and Joe Tyrell, to recover for injuries claimed to have been sustained by Mary Lampe, Elsie Hauge and Mildred Walentiny, as the result of a collision between a car in which they were riding and a parked car, the car in which plaintiffs were riding being driven by defendant Joe Tyrell, and owned by his father, A. J. Tyrell.

A demurrer to plaintiffs' amended complaint, interposed by defendant A. J. Tyrell, having been sustained, and plaintiffs having elected to stand on their amended complaint, the cause proceeded to trial against Joe Tyrell alone. At the close of plaintiffs' case, the court granted a motion for nonsuit made by defendant Joe Tyrell, and thereafter entered a judgment of dismissal on the merits as to both defendants. A motion for new trial was timely made and denied, and this appeal followed.

Appellants contend the court erred (1) in sustaining the demurrer of respondent A. J. Tyrell, and dismissing him from the case; (2) in granting a nonsuit at the conclusion of appellants' evidence; and (3) in denying the motion for new trial, and entering a judgment of dismissal.

The facts in this case, in so far as material to a decision of what we deem the vital questions in the case, may be stated as follows: On May 10, 1934, twenty-one girls from the senior class of St. Leo's high school, in Tacoma, together with two chaperons, went out to Lake Killarney to spend the week-end. Among these girls were appellants Mary Lampe, Elsie Hauge and Mildred Walentiny, who at that time were about seventeen years of age. The next day, shortly Before supper time, Dale Forkenbrock and Mark Lowell drove out to the girls' camp in Dale's Austin car. These boys had supper at the camp, and sometime thereafter, respondent Joe Tyrell, driving his father's car, and accompanied by John Rhea, Phil Bartinetti and Glen Collins, drove into the camp. These boys were all high school boys, and about the same age as the girls, some of whom they knew and some of whom they did not know.

These young folks did the things young people usually do at picnics, but eventually it was suggested by someone that thay have a wiener and marshmallow roast. This suggestion led to an inspection of the supplies, and it was found there were not enough wieners and marshmallows for the crowd. It was suggested that someone would have to go into Tacoma to get some wieners and marshmallows.

During this conversation, the crowd was scattered around, some of them being on the lake, some of them in the cabin, where the conversation, or at least part of it, seems to have taken place, and some outside. During the conversation, someone suggested that they take up a collection to get the wieners and marshmallows, and apparently this was done, but none of the appellants knew who took up the collection, who contributed, other than that they thought most of the girls who had some change contributed, how much was contributed, or who got the money. It does, however, appear that John Rhea had the money at the time the six young people started for Tacoma. All of these appellants testified that the collection was taken up for the sole purpose of getting the wieners and marshmallows, and it does not appear from the testimony of any of the appellants, or any other witness, except Phil Bartinetti, that anything was said about any part of this money being used to pay the expense of transportation to Tacoma and back.

About this time, someone suggested that Dale Forkenbrock take his car and go after the supplies, but it appears that Dale's car, being an Austin, was small, and as he had apparently already been into Tacoma once that afternoon, he did not want to go. Joe Tyrell then said he would take his car and go, but that he did not want to go alone, and would not go unless some of the girls went along for company. None of the appellants seemed to know just how it happened that they were the ones who finally went, except that it appears that some of the girls were engaged in other activities, some of them had work to do around the camp, and it was suggested that appellants go with Joe for company, so they went. It does not appear that Joe Tyrell at any time talked personally to any of the appellants about the trip, or that at any time it was discussed with them as to what was to be done after they got to Tacoma, or that appellants were to take any part in purchasing the supplies. Nothing appears in the testimony to indicate that anyone other than respondent was to have any control, either directly or indirectly, in the operation of the car. It does not appear from the testimony that respondent expressly invited any one of these appellants to accompany him, but it does appear from all the testimony that respondent said he would take his car and go, if some of them would go with him for company, and so eventually appellants went.

As an example of the testimony of appellants, Mildred Walentiny testified that Joe offered to go, but did not want to go alone; that some of the boys offered to go, and 'we went with him because he did not want to go alone--we went along for company.' Appellant Elsie Hauge testified that Joe Tyrell said he would go, but would not go alone; that he wanted someone to go with him for company; that nobody designated them to go, but that the girls went because Joe wanted some of them to go for company, and that was the reason they went. Appellant Mary Lampe did not know who asked her to go, did not remember seeing the collection taken up, and did not remember who did any of the talking or what was said, except that they were going to take up a collection. She did not remember whether she contributed or not. Phil Bartinetti testified that he went because Joe asked him to go, and that was the only reason he went. During his examination, on three different occasions he testified the collection was taken up for the purpose of getting wieners and marshmallows, and for no other purpose, but finally, in answer to a question by Mr. Gagliardi, he testified that they were to use some of the money to buy gas and oil. On cross-examination by Mr. evans, he admitted that, during the conversation, he had heard no one say anything about buying gas and oil, but that after the collection was taken, and just Before they got in the car, John and Joe said they were to buy gas and oil with some of the money. He further testified that no gas or oil was purchased, and, on being further interrogated by Mr. Evans as to whether he had stated in Mr. Evans' office that nothing had been said at any time about gas and oil, the witness said he did not remember. On being further questioned by Mr. Evans as to whether or not a short time Before , in the hall, the witness had said he had lied to Mr. Evans in his office, the witness said he did not remember, but, referring to that occasion, further testified: 'I might have made a lot of lies.'

Dale Forkenbrock testified that Joe said he would take his car and go in, and Rhea and Bartinetti were going with him; that they asked if anybody else wanted to go along, and it was finally decided three of the girls would go; that they did not ask any definite girl-- they just asked who would like to go along, and these girls said they would be the ones that would like to go. In answer to a question by Mr. Gagliardi, 'Who said that?' the witness replied, ' The boys asked the girls who would like to go along.'

Appellants contend that the trial court erred in ruling that appellants had failed to prove a joint adventure, and in taking the case away from the jury and deciding as a matter of law that the appellants were not entitled to recover.

Appellants seem to argue that, unless it appears that the relationship was that of host and guest, or licensor and licensee, the relationship of the parties should have been submitted to the jury, and thus to argue, inferentially at least, that possibly there could have been, under the testimony in this case, some relationship other than that of joint adventurer, host and guest or licensor and licensee. We think, under the testimony, the status of the parties hereto was either that of joint adventurer, host and guest, or licensor and licensee. Counsel for appellants does not suggest what other relationship could have existed. Certainly they were not passengers for hire; neither were they trespassers. However, later on in his brief, counsel for appellants flatly contends the facts proven bring this case squarely within the definition of joint adventurer.

The trial court held the status of the parties was not that of joint adventurer, but was that of either host and guest, or licensor and licensee, and, there being no evidence that the accident was intentional on the part of respondent, there could be no recovery herein.

The question of whether or not the relationship of joint adventurer has been established...