Mitchell v. Churches

• Decision Date: 13 April 1922
• Docket Number: 16780.
• Citation: 119 Wash. 547,206 P. 6
• Court: Washington Supreme Court
• Parties: MITCHELL et al. v. CHURCHES et al.

206 P. 6

119 Wash. 547

MITCHELL et al. v. CHURCHES et al.

No. 16780.

Supreme Court of Washington

April 13, 1922

Department 2.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by R. H. Mitchell and another against R.I. Churches and another. From judgment for plaintiffs, defendant named appeals. Affirmed.

Glenn C. Beechler, of Seattle, for appellant.

Flick &amp Paul, of Seattle, for respondents.

HOLCOMB J.

Respondents had judgment in the court below for property damages in the sum of $747.25 alleged to have been sustained to their automobile through a collision between it and an automobile operated by defendant Colbard.

At the time of the collision the automobile operated by Colbard belonged to appellant Churches. Churches was not in the automobile at the time, nor present. At the date of the accident, and for some time prior thereto, Churches was working as a salesman for a baking powder concern in Seattle. He was employed and paid by one Stout, who represented the company. Defendant Colbard worked for the same company. On the day of the accident Churches permitted Stout to take the automobile, Churches and Stout testifying that Stout was going to use it for the purpose of going to a ball game with his wife. Stout often used the automobile in the business of the company for which he, Churches and Colbard worked. There was testimony by Stout and Churches that Stout paid Churches the sum of $1 per week for the use of the car when he desired it; that Stout paid for some of the repairs and gasoline, and that Churches paid a part of the expenses. After Stout left the office where he and Churches worked, he took Colbard and several others in the car, permitting Colbard to drive. At the time of the collision Colbard was driving, and Stout was on the seat beside him.

The collision occurred about 4 o'clock in the afternoon of May 2, 1920, on Cherry street between Fourth and Fifth avenues, in Seattle. This is a hill street, and respondents were driving down the street on the right-hand side towards Fourth avenue, while appellants' car was being driven up the hill towards Fifth avenue. The amended complaint alleged and the evidence in behalf of respondents showed, that Colbard was pursuing a very erratic and zigzag course up the hill. There was evidence tending to show that Colbard and Stout were under the influence of liquor, and intoxicated at the time, and that the accident was due to the reckless speed at which Colbard was driving the car, and his intoxicated condition. Stout, being absent from the state, was not sued. He testified by deposition.

The allegations of the amended complaint as to the ownership of the automobile were that Churches and Colbard were jointly interested in the car driven by Colbard at that time, using it in joint adventures and under joint payments of expenses. It is alleged that Colbard approached Churches on the day in question, stating to him that he would use the machine on that afternoon; that he and several friends were going out to a drinking party; that he at that time had a quart of whisky with him, displaying it to Churches; that Churches well knew that Colbard was in the habit of getting drunk; that there was great danger that he might injure pedestrians or others when in that condition, and that, well knowing the fact that it was the intention of Colbard and his friends to go out upon a 'spree,' as they termed it he gave his consent to the use of the machine. Well knowing the consequent danger.

Appellant demurred to the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action against him, which demurrer was by the court overruled. Churches then answered by way of general denial, and pleaded contributory negligence.

The first of the 14 assignments of error by appellant is based upon the overruling of the demurrer to the amended complaint. The argument upon this assignment is that, even if defendants were the joint owners of the automobile being driven by Colbard, then, under the decisions of this court, Churches could not be held liable. It is asserted that this court has held that, when one of two persons, being joint owners of an automobile, was using it on a pleasure trip of his own, and not on behalf of nor within the reasonable scope of any partnership business, the other joint owner is not liable for damages sustained in a collision caused through the negligent driving of his co-owner, citing Hamilton v. Vioue, 90 Wash. 618, and that this court has always held that, in order to hold the owner of an automobile for the negligence of another in driving, the relationship of agency or service must be established, citing Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59; Olsen v. Veness, 105 Wash. 599, 178 P. 822, and Olson v. Clark, 111 Wash. 691, 191 P. 810. The statute (Rem. Code, § 5562-33) is also quoted as follows:

'Nothing in this act shall be construed to curtail or abridge the right of any person to prosecute a civil action for damages by reason of injury to person or property resulting from the negligent use of the public highways by the driver or operator of any motor vehicle or its owner or his employee or agent, and the owner of such vehicle shall be equally liable for the negligent operation thereof, when at the time of such injury the vehicle was operated by the agent of such owner, or by any person employed by him for the purpose of operating such vehicle.'

Appellant insists that at best Colbard in his relation to the machine at the time of the collision could be considered only as a bailee, and that this could not in any way create a liability on the part of appellant for Colbard's negligence, citing Lloyd v. Northern Pacific Railway Co., 107 Wash. 57, 181 P. 29, 6 A. L. R. 307.

We have consistently held through a long line of decisions that the relation of owner and agency at the time of the act complained of must be established, or at least must present such a question of fact as to the truth of the agency on the part of the one causing the injury as to leave it a question for the jury. Purdy v. Sherman, 74 Wash. 309, 133 P. 440; Knust v. Bullock, 59 Wash. 141, 109 P. 329; Delano v. LaBounty, 62 Wash. 595, 114 P. 434; Kneff v. Sanford, 63 Wash. 503, 115 P. 1040; Glover v. Richardson & Co., 64 Wash. 403, 116 P. 861; Minor v. Stevens, 65 Wash. 423, 118 P. 313, 42 L. R. A. (N. S.) 1178; Hammons v. Setzer, 72 Wash. 550, 130 P. 1141; Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59; Maskell v. Alexander, 91 Wash. 363, 157 P. 872; George v. Carstens Packing Co., 91 Wash. 637, 158 P. 529; Peters v. Casualty Co., 101 Wash. 208, 172 P. 220; Moore v. Roddie, 103 Wash. 386, 174 P. 648; Moore v. Roddie, 106 Wash. 548, 180 P. 879; Macale v. Lynch, 110 Wash. 444, 188 P. 517; Buckley v. Harkens, 114 Wash. 468, 195 P. 250; Samuels v. Hiawatha Holstein Dairy Co. (Wash.) 197 P. 24. And we have consistently held as in Purdy v. Sherman, supra, and Moore v. Roddie, supra, that, where nothing but the testimony of interested witnesses as to the ownership of the car and the agency of the driver at the time of the injury was presented to the jury, the jury was not bound to believe such testimony, where the ownership of the automobile was admitted or was conclusively shown to be in the defendant.

In the case at bar, while the ownership of the automobile was denied by appellant's answer, he admitted at the trial that he was the owner of the car, and in fact testified positively that he was the sole owner of it. The question of the sufficiency of the complaint, however, was determined by something more than the mere ownership of the car and the agency of Colbard. The complaint alleged...