Olson v. Veness

• Decision Date: 24 February 1919
• Docket Number: 15199.
• Citation: 178 P. 822,105 Wash. 599
• Court: Washington Supreme Court
• Parties: OLSON et ux. v. VENESS et al.

178 P. 822

105 Wash. 599

OLSON et ux. v. VENESS et al.

No. 15199.

Supreme Court of Washington

February 24, 1919

Department 2.

Appeal from Superior Court, Lewis County; W. A. Reynolds, Judge.

Action by Swen Olson and wife against Fred Veness and another. From order sustaining defendants' motion for nonsuit plaintiffs appeal. Affirmed.

C. A Studebaker and H. E. Donohue, both of Chehalis, for appellants.

Hayden Langhorne & Metzger, of Tacoma, for respondents.

HOLCOMB J.

One Clark, a logging contractor, hired of the defendants Veness and Shives an autotruck, pursuant to the following agreement:

'The contract was drawn for either twenty-five or thirty dollars a day. I don't recall which it is for certain. They were to furnish the driver and truck, and he (Clark) was to furnish oil and gas and any repairs, breakage, to keep the truck in repair and driver's time--the truck's time was to be with the driver's time; if he worked more than eight hours, why the truck was to be more than eight hours that price was to be an eight-hour price and over that the truck was to draw the same ratio.'

This agreement, it is alleged, was made in writing, but subsequently lost, and the foregoing is the oral testimony of the witness Clark as to its contents. While so engaged for Clark, Smith, the driver, collided with a buggy occupied by the appellants, with consequent more or less severe injury to one of them, and considerable damages to the vehicle. The action for damages which ensued was laid against Veness and Shives, as the owners of the hired truck. At the conclusion of the plaintiff's case, the court sustained the defendant's motion for a nonsuit. This appeal is taken from such action by the trial court.

All the material facts in the case are undisputed: The ownership of the truck by Veness and Shives; their employment of the driver Smith; the contract of hire to Clark, and the injury occasioned by what may fairly be conceded to be the tortious carelessness, or almost wantonness, of Smith, to the appellants Olson, the pivotal question of the case being, Was Smith the servant of Clark or of Veness and Shives for the purposes of this action?

The only and uncontradicted facts before the court touching the character of Smith's employment by Clark were as follows On the morning of June 28, 1918, this truck driven by Smith, who previous to that time had been working for the respondents, started to work for...