Moffitt v. Krueger, 28467.

• Decision Date: 19 December 1941
• Docket Number: 28467.
• Citation: 120 P.2d 512,11 Wn.2d 658
• Parties: MOFFITT et al. v. KRUEGER et al.
• Court: Washington Supreme Court

120 P.2d 512

11 Wn.2d 658

MOFFITT et al. v. KRUEGER et al.

No. 28467.

Supreme Court of Washington

December 19, 1941

Department 1.

Action for injuries by Raulon J. Moffitt and another against Alex C Krueger and others. The verdict was against all the defendants and they, with the exception of defendant Lester J. Marlowe, moved for a judgment notwithstanding the verdict and, in the alternative, for a new trial. Both motions were overruled, but the motion for judgment notwithstanding the verdict was sustained as to Alex C. Krueger in his individual capacity. From a judgment entered on the verdict except as to Alex C. Krueger, he and his wife appeal.

Affirmed.

Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

Robert R. Pence and Orville W. Duell, both of Spokane, for appellants.

H. Earl Davis, of Spokane, for respondents.

MAIN Justice.

This action was brought to recover damages for personal injuries and for property damage. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff Raulon J. Moffitt in the sum of one thousand dollars, and in favor of Sally C. Crandall in the sum of $5,367.20. The verdict was against all of the defendants, and they moved, with the exception of the defendant Lester J Marlowe, for a judgment notwithstanding the verdict and, in the alternative, for a new trial. Both motions were overruled, with the exception that the motion for judgment notwithstanding the verdict was sustained as to the defendant Alex C. Krueger in his individual capacity. Judgment was entered in accordance with the verdict, except as to Alex C. Krueger, from which he and Anna Krueger appeal.

The question for decision in this case, as stated in the appellants' brief, is this: 'Did the respondents establish facts sufficient to make a question for the jury as to the liability of or to sustain judgment against the appellant wife individually or the appellant community under the family car doctrine or principles of agency?'

The facts will only be stated in so far as they appear to be relevant or material to the consideration of that question.

The appellants Alex C. Krueger and Anna Krueger were husband and wife, and resided in the city of Spokane. Prior to the accident involved in this case, Mr. Krueger had purchased three automobiles, all of which were kept in a garage at the family home. One of the cars was used by Mr. Krueger in connection with his business, one was used by Mrs. Krueger, and was referred to as her car; the other was used by Mr. Krueger on hunting and fishing trips, and was regarded as a bad weather car.

The accident happened Sunday evening July 28, 1940. On the morning of that day, Mr. Krueger had taken the car that he ordinarily used in connection with his business, and gone to a lake for a day's recreation. The car that Mrs. Krueger ordinarily used was not available, for reasons not here material. About noon of this day, one Lester J. Marlowe called Mrs. Krueger on the phone and stated that he desired to go to Liberty lake to attend a picnic, and suggested that she pick him up in a car, which she did. Thereafter, they picked up two other couples. Marlowe and Mrs. Krueger rode in the front seat, and the car was driven by Marlowe, with the consent and approval of Mrs. Krueger. The other four rode in the back seat. After they arrived at Liberty lake, each of them consumed more or less beer. After remaining there for a time, they went to two or three other places where they again drank beer. They started to return to Spokane about eight-thirty in the evening, and on the way back the accident happened.

There is no contention that the deiver of the car was not negligent, nor as to the amount of the verdict.

For a number of years, Mr. and Mrs. Krueger had not lived the normal life of husband and wife. They, however, resided in the same house, and Mr. Krueger paid all the expenses incident to the maintenance of the house, and continually supported Mrs. Krueger.

Coming now to the question, above stated, the appellants contend (a) that the car, at the time of the accident, was not being kept or used as a family car; (b) that it was not being used for the benefit of the community; (c) that it was being used by Marlowe with the consent only of Mrs. Krueger and without the consent or knowledge of Mr. Krueger; (d) that the car was not being used for the benefit fo Mrs. Krueger or under her direction or control. For the present, we will pass these various contentions and consider what is known as the family car doctrine, which has long existed in this state and has never been departed from.

In the case of Hart v. Hogan, 173 Wash. 598, 24 P.2d 99 102, it was said: 'We have not receded from the 'family car' doctrine, under which a broad liability is imposed on the husband when his car is operated by his wife for her own pleasure. The doctrine was adopted upon the theory, as stated in Hutchins v. Haffner, 63 Colo. 365, 167 P. 966,...