Mitchell v. Nalley's, Inc.

• Decision Date: 22 June 1931
• Docket Number: 22756.
• Citation: 300 P. 526,163 Wash. 183
• Court: Washington Supreme Court
• Parties: MITCHELL et ux. v. NALLEY'S, Inc.

300 P. 526

163 Wash. 183

MITCHELL et ux. v. NALLEY'S, Inc.

No. 22756.

Supreme Court of Washington, En Banc.

June 22, 1931

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Action by Alfred Mitchell and wife against Nalley's Incorporated, and another. From a judgment denying any recovery as against named defendant, plaintiffs appeal.

Affirmed.

HOLCOMB MAIN, and BEELER, JJ., dissenting.

Hayden Langhorne & Metzger, of Tacoma, for appellants.

Louis J. Muscek, of Tacoma, and Ralph S. Pierce, of Seattle, for respondent.

PARKER J.

The plaintiffs, Mitchell and wife, seek recovery of damages for personal injuries suffered by Mrs. Mitchell claimed as the result of the negligent driving by the defendant Miss Roberts of a Ford coupé automobile owned by the defendant Nalley's Inc., in the course of her employment by it. The case proceeded to trial in the superior court for Pierce county sitting with a jury, and resulted in a verdict awarding to Mitchell and wife recovery against both Miss Roberts and Nalley's, Inc. Counsel for Nalley's Inc., by motion for a directed verdict, challenged the sufficiency of the evidence to sustain any recovery against it; which motion the trial court tentatively denied and submitted the case to the jury. After the rendering of the verdict, counsel for Nalley's, Inc., by motion for judgment notwithstanding the verdict, renewed its challenge to the sufficiency of the evidence to sustain any recovery against it; which motion the trial court sustained. Thereafter final judgment was accordingly rendered awarding recovery against Miss Roberts and denying recovery against Nalley's, Inc. From this disposition of the case in the superior court Mitchell and wife have appealed to this court. The ground of the challenge to the sufficiency of the evidence and the trial court's sustaining of the challenge was that the evidence failed to sustain any finding or conclusion that at the time Mrs. Mitchell was injured as the result of Miss Roberts' driving of the coupé, she was acting for Nalley's Inc., in the course of her employment by it. Whether or not the trial court erred in so disposing of the case in favor of Nalley's, Inc., is the question here to be determined.

At the time in question, and for some time prior thereto, Nalley's, Inc., was engaged in food manufacturing, maintaining and operating its factory at 604 South Sprague street, in Tacoma. It then owned and kept, apparently for the personal use of its president, a Ford coupé automobile. Miss Roberts was then one of its employees, her duties being in the mayonnaise manufacturing department putting caps on bottles. She was paid only for the time she worked, and was occasionally laid off. On the day in question she was not working, though she remained an employee with the understanding that she would soon be called back to work. Her duties as an employee did not require any use by her of an automobile. During the forenoon of the day in question, Miss Roberts went to the factory between 10 and 11 o'clock and asked Mr. Nalley, the president, for the use of the coupé. She testified, as far as need be here noticed, as follows:

'Q. Where do you live? A. 3830 North 8th street.

'Q. What is your business? A. I work for Nalley's Inc.

'Q. Were you employed by that company on the 29th of June last year [the day of the accident]? A. I was.

'Q. Were you working on that day? A. I was not.

'Q. Relate the incidents that took place that morning. A. I went down to the factory.

I saw Mr. Nalley and I asked him if I could use the car for about half an hour, and he said 'For half an hour, be sure and be back, because I am going to use it,' and he just casually asked me what I was going downtown for. I told him I had a few errands of my own and I would look over some material at Stone-Fisher's about the uniforms for the new factory, and he said, 'All right; be sure and be back.' I went to Fisher's, and from Fisher's I went to the Bonneville Hotel; picked up my girl friend, Wanda Pavlock, and from there I went to the factory and got out and looked for Mr. Nalley, the half hour was about up. I thought I would see if I could not have the car for the afternoon for a little while. Mr. Nalley was not there, so I left and took her back to the Bonneville Hotel, and then I came back home and I staid and had lunch with mother and asked mother if she would not like to go out for a little drive.

'Q. How long were you at your home before you started out in the car again? A. Oh, I should say it was an hour or so.

'Q. Where was the car during that period? A. Setting in frong of the house.

'Q. Approximately how far do you live from where this accident took place? A. Not very far, a few blocks.

'Q. What did you do after dinner [lunch]? A. We went out driving towards the Point [Point Defiance].

'Q. Who did you take with you? A. Mother.

'Q. Did you call Mr. Nalley up at that time? A. Yes, sir.

'Q. Did you get him? A. He was not there.

'Q. Where did you go from your mother's home? A. Out towards Point Defiance, almost to the Point.

'Q. Now then you started on your homeward journey from there, is that correct? A. Yes, sir. We got to North 9th and Alder. * * * [Here Miss Roberts described the collision occurring there between the coupe she was driving and another automobile in which Mrs. Mitchell was riding, which collision resulted in Mrs. Mitchell's injuries.]'

The above-quoted testimony is corroborated by the testimony of Mrs. Roberts, Miss Roberts' mother, as to Miss Roberts coming home and their pleasure trip out to and returning from Point Defiance to the scene of the accident as follows:

'Q. You are the mother of Dorothy Roberts? A. Yes, sir.

'Q. Do you recall the 29th of June last year as to what took place on that day? A. I do. Dorothy came home. It was near noon. She offered to take me for a ride, and I was busy getting lunch, so I had her sit down and eat lunch, and then she called up the factory to see if Mr. Nalley was back. He was not in then. After lunch I had her again call up the factory to see if he was there to see if she could run the car. He was not there. She said, 'Well, come and go for a little ride; you can go to the factory and come back with me on the street car.' So I did. We went out to the Point, practically to the Point. When we came back, we followed the car line, the Point Defiance car line, to 26th and Alder. We turned at Alder [south] and were approaching 9th street and Alder, and I should say we were around fifty feet anyway, when I noticed. * * * [Here Mrs. Roberts describes the collision resulting in Mrs. Mitchell's injuries.]'

The above-quoted testimony of Miss Roberts has some further corroboration in the testimony of Miss Pavlock as to Miss Roberts coming to see her at the Bonneville Hotel and her going back to the factory with Miss Roberts.

The geography of these occurrences is enlightening in our present inquiry. It is approximately as follows: The factory of Nalley's, Inc., was then situated...