Olson v. Clark

• Decision Date: 26 July 1920
• Docket Number: 15843.
• Citation: 111 Wash. 691,191 P. 810
• Court: Washington Supreme Court
• Parties: OLSON et ux. v. CLARK et ux.

191 P. 810

111 Wash. 691

OLSON et ux. v. CLARK et ux.

No. 15843.

Supreme Court of Washington

July 26, 1920

Department 2.

Appeal from Superior Court, Lewis County; E. M. Card, Judge.

Action by Swen Olson and wife against W. H. S. Clark and others. Judgment for plaintiffs, and defendants W. H. S. Clark and wife appeal. Affirmed.

Hayden, Langhorne & Metzger, of Tacoma, for appellants.

C. A Studebaker and H. E. Donohoe, both of Chehalis, for respondents.

HOLCOMB C.J.

On June 28, 1918, plaintiff Olson and wife, while driving a horse and buggy along the county road near Winlock, were struck by an automobile truck owned by Fred Veness and A. C. Sheves and driven by one Smith. In this collision Mrs. Olson was severely injured, and the vehicle in which she and her husband were riding was damaged. The Olsons brought this action against defendants Clark on the theory that defendants were hirers of the truck, and that Smith, the driver, was their employé or servant. As to defendants Robert Clark and wife, a nonsuit was entered. Defendants W. H. S. Clark [called Henry Clark] and wife also moved for a nonsuit and for a directed verdict, both of which motions were denied. The jury returned a verdict in favor of plaintiffs, and from the judgment evtered upon that verdict defendants have appealed.

For a further and more particular statement of the facts, reference is made to Olsen v. Veness, 105 Wash. 599, 178 P. 822; that being an action arising from the same circumstances here involved. Here the controlling question is: Were appellants the hirers of the truck, and, as such, responsible for the negligence of the driver in causing the collision resulting in the injuries of which respondents complain? While generally true, as urged by appellants, that the owner of an automobile is prima facie responsible for the negligence of the driver, that rule is not inexorable, as decided in Olsen v. Veness, supra.

Over the objection of appellants, the court gave the jury the following instruction:

'Members of the jury, it is the law that one who hires from another a vehicle and driver, and agrees to pay therefor a given amount per day, is responsible for any accident or injuries caused by such vehicle and driver, if due to the negligence and want of care of the driver, even though such driver might be paid by the owner of such vehicle. In other words, after the owner has turned such rented vehicle and driver over into the control of the person renting or leasing same, then such latter person stands in the same position with third persons as though he were the owner, and is liable to any third persons for all injuries caused by such vehicle or truck, due to the negligence and want of care of the driver of same.'

We think this instruction correctly stated the law as laid down in Olsen v. Veness, supra. That case came before us on an appeal from the action of the trial court in sustaining a motion of defendants Veness and Sheves for a nonsuit [respondents here being appellants in that case], and we said:

'To our minds, the question of control of operation is the determining factor in this case. The respondents [Veness and Sheves], in the course of business, had transferred the vehicle and driver to the control of the hirer, who alone could say where and in what the work of the truck should thereafter consist; and if this effected a transfer of control it must, ipso facto, have effected a transfer of responsibility. If such be the fact, we feel that respondents' contention, that the hirer stood, in relation to the law of this case, as if he had purchased the truck and hired the driver,

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