La Lone v. Smith, 31693
| Decision Date | 16 August 1951 |
| Docket Number | No. 31693,31693 |
| Citation | 234 P.2d 893,39 Wn.2d 167 |
| Court | Washington Supreme Court |
| Parties | LA LONE, v. SMITH et al. |
Edge, Davenport & Edge, Grant L. Kimer, Seaton M. Daly, Jack Dean, all to Spokane, for appellants.
Dressel & Lehan, Del Cary Smith, Spokane, for respondent.
This is an action to recover damages for personal injuries received when plaintiff was assaulted by an employee of defendants. The employee was named in the complaint as a party defendant, but was never served with process and, upon plaintiff's motion, the court at the beginning of the trial dismissed him from the action.
After the close of the testimony, the court took the case under advisement and later filed a memorandum decision in favor of plaintiff. Subsequently, the defendants' motions for judgment notwithstanding the decision or for a new trial were heard and denied. Findings of fact and conclusions of law were entered by the court, together with a judgment awarding damages to the plaintiff. Defendants have appealed from this judgment.
Appellants' three assignments of error state one and the same ground for reversal, namely, that the court should have dismissed the case as to each of them.
No error is assigned upon any of the trial court's findings of fact, so we are bound to accept them as the established facts upon which our decision must be predicated.
In State v. Moore, 34 Wash.2d 351, 208 P.2d 1207, 1210, we said:
The facts as found by the trial court are these. Appellant Smith at all times material to this controversy was the owner of the Broadway Apartments in Spokane. Appellant Fancy was engaged in the property management business in that city and was employed by Smith to manage the Broadway Apartments. In the course of his management of Smith's property, Fancy employed one Trask to work as a janitor in the Broadway Apartments on a twenty-four-hour basis. (Trask, though subpoenaed as a witness by appellants, was not present at the trial.) He committed the assault on respondent which is involved in this action.
Respondent, Chauncey La Lone, was a tenant in the Broadway Apartments, renting a storeroom on the ground floor in which he carried on a new and second hand furniture business.
February 27, 1949, Trask assaulted one Atchley, also a tenant in the same apartment building. Regarding the retention of Trask in the employ of appellants after that episode and the circumstances surrounding Trask's assault on respondent April 15, 1949, the trial court found as follows:
'VI
'That James Trask at times during his employment by the defendants had exhibited to other tenants of the defendants traits of dissipation and irresponsibility and was addicted to periods of drunkenness while on the premises of the defendants, and while under the influence of intoxicants was of a quarrelsome nature and possessed a violent temper, and that said James Trask was thereby unsuited to the employment assigned to him by the said defendants. That on or about the 27th day of February, 1949, James Trask, while in an intoxicated condition, and upon the above described premises, physically assaulted and abused one Thomas W. Atchley, a tenant of the defendants and threatened to commit further bodily harm. That the tenant, Thomas W. Atchley, notified Jay W. Fancy, the agent, of the assault committed upon him by James Trask, such notification being by telephone communication, and that thereafter Thomas W. Atchley went to the office of the defendant agent and described the manner in which he had been assaulted and abused, and described the extent of his injuries, and that such notification in both instances was given directly to Jay W. Fancy, who thereafter went to the Broadway Apartments, interviewed Atchley, and at that time told Atchley he would fire Trask if Atchley said the word. That James Trask was not discharged at any time prior to April 16, 1949.
'VII
'That on the 15th day of April, 1949, James Trask, while employed by the defendants, was also entertaining an acquaintance, and he and said acquaintance had secured a case of beer and had consumed undetermined quantities, and Trask had consumed a quantity of such beer that he was under the influence of liquor during the afternoon of April 15, 1949. That while in such condition, he came upon the premises leased by the plaintiff and requested a loan from plaintiff, which was refused. That said refusal angered and enraged James Trask, who thereafter left the premises and later on the same afternoon went upon the premises of one Randall, a shoe repair man, a tenant of the defendants, with space adjoining the space occupied by plaintiff. That at such time he was in an intoxicated condition, and stated that 'that fellow', (meaning plaintiff or his son-in-law), must remove his car, or he would 'show those S. O. B. s' (meaning plaintiff or plaintiff's son-in-law) 'that they couldn't use his alley.' That to implement his design, the said Trask sprinkled roofing tacks around a car and truck parked on the rear of the premises above described. That thereafter, between 4:00 and 5:00 P.M. April 15, 1949, the plaintiff went to his parked truck, which was ready to be driven away, for the purpose of giving instructions to his son-in-law for the delivery of a rug pad. That the truck was driven away, and thereafter Trask berated plaintiff in an angry manner and swung his arm and fist at plaintiff, who endeavored to escape, and James Trask knocked plaintiff down, jumped on top of him, beat him about the head and body, grabbed plaintiff's tie and attempted to choke him, all the while beating him, inflicting upon him the injuries and damage hereinafter described.
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'X
'That the defendants Smith and wife as owners and principals, and the defendants Fancy and wife as agents, were each and both negligent in retaining in their employ the said James Trask, after actual notice had been given that said Trask was of a violent nature, that he was addicted to the use of intoxicants and would be a person likely to commit an assault upon others rightfully upon the defendants Smiths' premises, and that he had upon a previous occasion committed such an assault upon one actually a tenant thereof; and the Court further finds that the assault of James Trask upon the plaintiff as hereinbefore described was committed while in the employment of defendants and while on the premises of defendant Smith, and that the retention of said Trask in defendants' employ, after knowledge...
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