Parrish v. Ash

• Decision Date: 04 March 1949
• Docket Number: 30648.
• Citation: 32 Wn.2d 637,203 P.2d 330
• Parties: PARRISH v. ASH et ux.
• Court: Washington Supreme Court

203 P.2d 330

32 Wn.2d 637

PARRISH v. ASH et ux.

No. 30648.

Supreme Court of Washington, En Banc.

March 4, 1949

Rehearing Denied April 18, 1949.

Action by Etta J. Parrish, individually and as administratrix of the estate of Thomas J. Parrish, deceased, against A. A. Ash and Hazel Ash, husband and wife, to recover for the death of deceased and for injuries sustained by the plaintiff as result of a collision between defendants' automobile, in which the plaintiff and deceased were riding, and a truck. From a judgment in favor of the plaintiff, the defendants appeal.

Judgment affirmed.

HILL ROBINSON, SIMPSON, and GRADY, JJ., dissenting.

Appeal from Superior Court, Benton County; B. B. Horrigan, judge.

Skeel McKelvy, Henke, Evenson & Uhlmann, of Seattle, for appellants.

Futter Merrick & Merrick, of Pasco, for respondent.

STEINERT Justice.

This action was brought by the plaintiff individually, and as administratrix of her deceased husband's estate, to recover damages for personal injuries to herself and for the death of her husband. The accident out of which the action arose occurred at a time when both the plaintiff and her husband were riding in the defendants' automobile, on an occasion when the automobile, driven by one of the defendants, collided with a truck operated by a third person not a party to this litigation.

The complaint alleged that, during the trip which culminated in the collision, plaintiff and her husband were riding as paying passengers in the defendants' private automobile, and that the collision, injuries, death, and loss were proximately caused by the negligence of the defendant automobile driver. The defendants denied these allegations, and, by way of affirmative defense, alleged that, at the accident, plaintiff and her husband were riding as invited guests or licensees in defendants' car, and that the accident was not the result of any negligence or of any intentional act on the part of the defendants. They further alleged, as an additional affirmative defense, that the accident was caused by the negligence of the truck driver. The allegations of both affirmative defenses were denied by the plaintiff in her reply.

The action was tried Before a jury, which returned a verdict for the plaintiff on both causes of action, in the total sum of $8,703.53. The usual post-trial motions were thereafter interposed and were denied by the court, whereupon judgment was entered on the verdict. Defendants appealed.

No contention is made on this appeal that the appellant driver was not negligent, or that her negligence was not the proximate cause of the damages sustained by the respondent. The sole question here involved, and the one upon which the validity of the judgment herein depends, is whether the status of the respondent and her husband, while they were riding in appellants' car, was that of paying passengers or was merely that of invited guests or licenses, within the purview of Rem.Rev.Stat., Vol. 7A, § 6360-121, which provides:

'No person transported by the owner or operator of a motor vehicle as an invited guest or licensee, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator * * *.'

Whether one who is being transported in a motor vehicle is a passenger for hire or is a guest or licensee, within the contemplation of a statute relating to the liability of the owner or operator of such vehicle for injury to an accompanying guest or licensee, depends largely upon the facts and circumstances of the particular case. George v. Stanfield, D.C.Idaho, 33 F.Supp. 486; 4 Blashfield (Part 1), Cyclopedia of Automobile Law and Practice, Perm. Ed., § 2292, page 306; 5 Am.Jur. 634, Automobiles, § 239; 42 C.J. 1055, Motor Vehicles, § 803.

The unusual and peculiar factual situation presented in this particular suit and the issues raised therein make the case one to which the principle just stated is singularly applicable. For this reason, and because of the conflicting contentions relating to the crucial point here under consideration, we shall refer to the evidence in some detail and, to the extent deemed necessary, shall quote directly from the testimony as given by the witnesses.

For some time prior to the accident here involved, respondent, Etta J. Parrish, and her husband, Thomas J. Parrish, now deceased, owned, lived upon, and operated a nine-acre farm near the town of Finley, about seven miles east of the city of Kennewick. In addition to their farm operation, they also from time to time took employment elsewhere. In the city of Kennewick was a grape juice plant, and, at the beginning of the grape harvest season of 1947, commencing in the early part of September, Mr. and Mrs. Parrish obtained employment at this plant. As a means of transportation to and from work they contemplated using an automobile which they themselves owned.

Appellants, A. A. Ash and his wife, Hazel Ash, resided upon a ten-acre farm a half-mile east of Finley and approximately the same distance east of respondent's home. Mrs. Ash had likewise secured employment at the Kennewick grape juice plant and, as a means of transportation to and from work, contemplated using that automobile owned by herself and her husband, which is the automobile involved in this action.

Mrs. May McCalmant, whose home was situated between that of the respondent and that of the appellants, had also sought and obtained employment at the grape juice plant. It does not appear that she owned an automobile or had any regular means of transportation to and from her work.

The accident out of which this action arose occurred on September 9, 1947. However, in determining whether respondent and her husband were at that time paying passengers or were merely guests of the appellants, the events of the preceding day, September 8th, must be considered.

It appears that the parties in charge of the grape juice plant in Kennewick had intended to begin grape pressing operations on the morning of September 8th. Accordingly, on that morning, Mr. and Mrs. Parrish drove to the plant, in their automobile, expecting to commence their seasonal employment there at that time. With that same purpose in mind, appellant Hazel Ash drove appellants' automobile to the plant. Mrs. McCalmant likewise reported for work, having come with Mr. Donald Hummel, a neighbor who was also to be employed at the same premises.

Upon their arrival at the grape juice plant, the men were not to work at once, but as the plant was not quite ready to begin the particular operation upon which the women were to be engaged, the latter were told at about noon of that day that there would be no work for them until the next day.

Mrs. Parrish then desired to go home, rather than wait until her husband had finished his work in the late afternoon. Seeking a means of transportation to her home, she asked Mrs. Ash for a ride, to which request Mrs. Ash gave a favorable response. Mrs. McCalmant, who also wished to return home, made a similar request, which Mrs. Ash likewise granted. The homes of the three women were on or near the same public road and not more than a half-mile distant from each other.

On the homeward trip in Mrs. Ash's five-passenger automobile, the three women above named occupied the front seat. Upon the back seat and in the rear portion of the car was a large quantity of stale bread, which Mrs. Ash had purchased in Kennewick for use as chicken feed; the bread was a day old, but otherwise was in good condition. According to the testimony of Mrs. Ash, there was also then present in the car Mrs. Edna Brand, who rode in the back seat, on her way home from the plant; according to the testimony of Mrs. Parrish and Mrs. McCalmant, however, Mrs. Brand was not present on that occasion.

The principal question of fact here in dispute is whether payment for her individual transportation as above described was made by Mrs. Parrish and was accepted as such by Mrs. Ash. Upon the determination of that question depends the nature of the relationship existing between the respondent and the appellants on September 8th and, by inference, the relationship existing between the Parrishes and the appellants on the following day when the accident occurred.

The evidence submitted by the respondent was to the effect that when the Ash car, carrying the three women as testified by respondent, arrived at a row of mail boxes situated about a quarter of a mile from respondent's home, she alighted from the automobile and immediately thereafter paid Mrs. Ash the sum of ten cents for the ride; and that she then asked for and purchased from Mrs. Ash one of the loaves of bread for home use, paying an additional five cents therefor. Mrs. Ash's testimony was to the contrary. Her version was that nothing whatever was said about payment for the ride, but that Mrs. Parrish paid her ten cents for two loaves of bread. This dispute in the evidence constituted the principal and vital issue in the case and, in our opinion, presented an exceedingly close question for determination. For these reasons, we deem it advisable to quote directly from the testimony of the principal witnesses.

On direct examination, Mrs. Parrish first related the events which took place on the day of the accident, September 9th. She was then interrogated, and testified, regarding the events of the preceding day, as follows:

'Q. Had you ridden with Mrs. Ash the day Before ? A. Yes, sir.

'Q. Had you paid her for riding? A. Yes, sir.

'Q. How much? A. A dime.

'Q. Was anyone with you? A. Yes, sir.

'Q. Who was it? A. Mrs. MaCalmet.

'Q. She was working at...