Meadows v. Grant's Auto Brokers, Inc.

• Decision Date: 24 August 1967
• Docket Number: No. 38450,38450
• Citation: 431 P.2d 216,71 Wn.2d 874
• Parties: Nancy MEADOWS, as Administratrix of the Estate of Wayne A. Meadows, Deceased, and Nancy Meadows Watson, Individually, Appellant, v. GRANT'S AUTO BROKERS, INC., a corporation, Grant's Suburban Dodge, Inc., formerly Grant's Renton Auto Brokers, Inc., a corporation, Courtesy Chevrolet, Inc., a corporation, Arnolds Auto Wrecking and Repair, Inc., a corporation, Respondents, Tyler N. Williamson and Weselene Williamson, husband and wife, Defendants.
• Court: Washington Supreme Court

Page 874

71 Wn.2d 874

431 P.2d 216

Nancy MEADOWS, as Administratrix of the Estate of Wayne A.

Meadows, Deceased, and Nancy Meadows Watson, Individually, Appellant, v. GRANT'S AUTO BROKERS, INC., a corporation, Grant's Suburban

Dodge, Inc., formerly Grant's Renton Auto Brokers, Inc., a

corporation, Courtesy Chevrolet, Inc., a corporation,

Arnolds Auto Wrecking and Repair, Inc., a corporation, Respondents,

Tyler N. Williamson and Weselene Williamson, husband and

wife, Defendants.

No. 38450.

Supreme Court of Washington, Department 2.

Aug. 24, 1967.

Clinton, Moats, Andersen & Fleck, James A. Andersen, Seattle, for appellant.

Kahin, Horswill, Keller, Rohrback, Waldo & Moren, Harold Fardal, Seattle, for respondents.

HAMILTON, Judge.

Plaintiff, in her administrative and individual capacities, appeals from an order granting summary judgment dismissing her claim for relief as against defendant corporations, hereinafter referred to as respondents.

Plaintiff's claim, an action for wrongful death, stems from an automobile accident which, she alleges, was due to the negligence of defendant Tyler Williamson. She further alleges that at the time of the accident Tyler Williamson was the servant, employee, or agent of respondents and was acting within the scope of such relationship. Furthermore, plaintiff alleges that respondents were negligent in employing an incompetent driver. The sole issue contested by the motion for summary judgment, and the respondents' affidavits in support thereof, was whether, at the time of the accident, there existed any relationship between Tyler Williamson and respondents from which vicarious liability could flow. Counter affidavits of plaintiff's counsel were likewise primarily directed to this lone issue.

On appeal, plaintiff contends the counter affidavits executed by her counsel demonstrate the existence of a genuine issue of fact as to the nature and extent of the pertinent relationship. In response, the main thrust of respondents' brief and argument in support of the judgment of dismissal is aimed at the form, evidentiary competency, and/or legal sufficiency of plaintiff's counter affidavits.

Two questions thus appear: One, whether plaintiff's counter affidavits comply with the pertinent provisions of Rule of Pleading, Practice and Procedure 56, RCW vol. O and, two, if the affidavits do comply and may be considered, whether such affidavits successfully counter respondents' showing.

Briefly, and by way of background to a consideration of the questions posed, it appears to be uncontested under the issues raised by the instant motion for summary judgment that the respondent corporations constitute an integrated enterprise which, in part at least, deals with the purchase, repair, and resale of used cars. This enterprise, at the time here involved, purchased used cars from various sources, both within and without the state, and funneled them into respondent Arnold's Auto Wrecking and Repairing where they would be reconditioned and delivered to the different lots operated by the companion corporations for resale. The task of delivering the cars to the various lots was accomplished after normal working hours by a regular mechanic employed at the repair shop, with the date, destination, and number of cars to be delivered being designated by the manager, Arnold Timm. The mechanic, Douglas Williamson, a brother-in-law of Tyler Williamson, was paid a certain rate for each car he delivered. Because he sometimes needed another driver, when more than one car was involved, and always needed return transportation after completing delivery, he would on occasion invite the assistance of members of his family or friends. Whether on the date and at the time of the accident here concerned, Tyler Williamson had been engaged and was on his way in his own car to assist Douglas Williamson with a delivery is the core of the issue about which respondents' and plaintiff's summary judgment affidavits revolve.

Respondents presented the affidavits of their accountant, W. H. Phillip, the manager of the repair shop, Arnold Timm, the mechanic, Douglas Williamson, and the defendant Tyler Williamson. In substance, these affidavits asserted that Tyler Williamson had never been an employee of any of the respondent corporations or ever engaged in any manner by Douglas Williamson in the car delivery operation, and, particularly, that no car deliveries had been scheduled or made on the date of the accident, and that Tyler Williamson was on his way home from a social evening at the time of the accident. Further, an affidavit of respondents' attorney averred that the above-mentioned affiants represented the only witnesses with testimonial knowledge bearing directly upon the pertinent issue.

In response plaintiff submitted two counter affidavits, each executed by her attorney.

In the first affidavit plaintiff's counsel asserted that prior to initiating suit he had interviewed Tyler Williamson and with the aid of a qualified reporter had taken an unsworn question and answer statement from him. Interspersing excerpts from a transcript of the interview with editorial comment, counsel, in essence, averred that Tyler Williamson had stated that at the time in question Douglas Williamson, his brother-in-law, occupied a supervisory capacity in the repair shop during the absence of the manager; that on several occasions preceding the date of the accident Douglas Williamson had with the knowledge of the manager engaged him to assist in the delivery of automobiles from the repair shop to the sales lots; that on one of these occasions his own car was used as the return vehicle; that the consideration for his assistance was free repair work upon his personal automobile in the repair shop; that on the evening of the accident Douglas Williamson had requested his assistance in delivering some automobiles and told him to stand by; that he waited for a period of time and then contemplating that his car might be needed in the operation that night proceeded with his car toward the repair shop; and that while en-route, and but two blocks from the repair shop, the accident occurred.

By his second affidavit, plaintiff's counsel averred that after initiation of suit he had taken a pretrial discovery deposition of the repair shop manager, Arnold Timm. He then asserted, with references to page numbers of the deposition, that Arnold Timm, after explaining the operating methods of the respondent corporations, had stated, in substance, that Douglas Williamson was, during the time period involved, employed at the repair shop as a mechanic and did, after working hours, deliver reconditioned automobiles to the various sales lots for a fee; that he knew Douglas Williamson obtained assistance in the delivery operation from his family, relatives and friends; that he knew Tyler Williamson although he could not say whether Tyler had ever assisted Douglas Williamson in transporting vehicles; that he designated when, where, and which cars were to be delivered; and that he instructed Douglas Williamson as to the quality and kind of drivers he could utilize and the manner in which the automobiles were to be operated.

Neither the transcript of the interview with Tyler Williamson nor the pretrial deposition of Arnold Timm were attached to counsel's affidavits nor do they, in anywise, appear in the record before us. Likewise, neither is mentioned in the trial court's judgment of dismissal, nor in its certification of the statement of facts. We must therefore assume such documents were not furnished to or before the trial court when the motion for summary judgment was considered. American Universal Ins. Co. v. Ranson, 59 Wash.2d 811, 370 P.2d 867 (1962)....