Nelson v. Broderick & Bascom Rope Co., 34808

• Decision Date: 04 December 1958
• Docket Number: No. 34808,34808
• Citation: 332 P.2d 460,53 Wn.2d 239
• Court: Washington Supreme Court
• Parties: Ardelle NELSON, Appellant, v. BRODERICK & BASCOM ROPE COMPANY, a corporation, Respondent.

Page 239

53 Wn.2d 239

332 P.2d 460

Ardelle NELSON, Appellant, v. BRODERICK & BASCOM ROPE COMPANY, a corporation, Respondent.

No. 34808.

Supreme Court of Washington, Department 1.

Dec. 4, 1958.

Orvin H. Messegee, Ernest R. Cluck, Seattle, for appellant.

Peyser, Cartano, Botzer & Chapman, John D. Cartano, Seattle, for respondent.

OTT, Justice.

September 6, 1955, Tom Verhoef, an employee of Broderick & Bascom Rope Company, and Ardelle Nelson were engaged in a lovers' quarrel. They had discussed their differences at some length in a telephone conversation that morning. Shortly thereafter, at approximately twelve o'clock noon, while Verhoef was driving a company automobile out of the driveway from a parking area, he was intercepted head on by Ardelle Nelson, driving her Cadillac automobile. Having blocked the exit, she forced Verhoef to back his car into the lot. She pursued him around the parking lot until she cornered his car with hers in such a manner that he could not escape without making a sharp turn to either the right or left.

When both cars were stopped, Ardelle Nelson left her car and approached the car in which Verhoef was sitting. He locked the doors and rolled down the left-door window a few inches. The conversation between them relating to their love affair continued for approximately twenty minutes. When Ardelle Nelson could not gain entrance to the company car operated by Verhoef, she picked up a rock and broke the glass window in the door on the driver's side. Violent argument ensued for about five minutes. While Ardelle Nelson was at the driver's side of the automobile (and, as she stated, was preparing to return to her automobile), Verhoef started the company car in motion and turned it sharply to the left to miss the Cadillac. The evidence is in dispute as to whether Ardelle Nelson hung on to the company car as Verhoef turned it to the left, or whether she was dragged along the side of the automobile some twenty feet, in her effort to avoid being struck. She fell to the ground when Verhoef stopped the car, and was injured.

Ardelle Nelson commenced this action for damages against Broderick & Bascom Rope Company, the employer, contending that she was injured by its employee, Verhoef, while he was engaged in the performance of his master's duties. At the close of the plaintiff's evidence, the court sustained a challenge to its sufficiency and dismissed the action.

From the judgment of dismissal, the plaintiff has appealed.

Appellant contends that, considering the evidence most favorably for appellant, it established that (1) respondent owned the offending vehicle, (2) Verhoef was an employee of respondent and was driving the company vehicle, (3) the incident occurred within the working hours of the employee, (4) the moving of the offending car was in furtherance of the master's business, (5) the incident occurred on the master's property, and that this evidence established a presumption of the employer's liability which was sufficient to submit the issue to the jury.

Assuming that these elements establish a presumption of employer liability, the presumption is rebuttable and may be overcome by the plaintiff's testimony. Gray v. Department of Labor & Industries, 1953, 43 Wash.2d 578, 262 P.2d 533; McNew v. Puget Sound Pulp & Timber Co., 1950, 37 Wash.2d 495, 224 P.2d 627; Van Court v. Lodge Cab Co., 1939, 198 Wash. 530, 89 P.2d 206; Hager v. Lenzi, 1929, 152 Wash. 611, 278 P. 673.

Further, the doctrine of respondeat superior provides, generally, that the master is liable for the acts of his servant committed within the scope or course of his employment. The general rule, however, has several exceptions, one being that, when a...