Roletto v. Department Stores Garage Co.

• Decision Date: 06 April 1948
• Docket Number: 30348.
• Citation: 191 P.2d 875,30 Wn.2d 439
• Parties: ROLETTO et al. v. DEPARTMENT STORES GARAGE CO.
• Court: Washington Supreme Court

191 P.2d 875

30 Wn.2d 439

ROLETTO et al. v. DEPARTMENT STORES GARAGE CO.

No. 30348.

Supreme Court of Washington

April 6, 1948

Department 1

Rehearing Denied May 14, 1948.

Personal injury action by Dorothy Roletto and her husband against Department Stores Garage Company, doing business as Four Stores Garage. The jury returned a verdict in favor of plaintiffs. From an order granting judgment for defendant notwithstanding the verdict and dismissing the actions plaintiffs appeal.

Affirmed.

MILLARD J., dissenting.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Warner Pierce & Peden, of Seattle, for appellants.

Kumm & Hatch, of Seattle, for respondent.

SIMPSON Justice.

The plaintiffs instituted this action for the purpose of recovering compensation for injuries to plaintiff, Dorothy Roletto, sustained while on the property operated by defendant corporation.

Plaintiff alleged that defendant corporation operated a public garage in which automobiles were parked, and that Friday, August 9, 1946, defendant employed Larry G. McCready to drive the cars into and out of the garage, as the public demanded. On the day mentioned, at about 5:45 p. m., as plaintiff, Dorothy Roletto, was entering a car which had been parked in the garage, another car driven by McCready was negligently backed against the car being entered by plaintiff, with the result that both her legs were severely injured. McCready was at the time, working for defendant within the course of his employment. The negligence charged was in not keeping a sharp lookout to the rear, and in failing to observe the car being entered by plaintiff.

In its answer, defendant denied the allegations relating to its employment of McCready at the time of the accident and the charges of negligence.

A trial was had to the court sitting with a jury upon the issues presented. The jury returned a verdict in favor of plaintiffs. Defendant thereafter presented to the court a motion for judgment notwithstanding the verdict, or, in the alternative, for new trial. The court granted the motion for judgment notwithstanding the verdict, and dismissed the action. The order provided further that in the event the judgment n. o. v. be reversed, that defendant be granted a new trial.

On appeal, plaintiffs assign as error the action of the trial court in granting the motions just mentioned.

Some time during the afternoon of August 9, 1946, Mrs. Roletto drove into the city of Seattle with Mr. and Mrs. Klarich. The car was placed in respondent's garage. Returning to the garage after five o'clock, Mr. Klarich asked an attendant to bring the car to the place where it could be received by him. The attendant brought the car to the entrance of the garage, and Mr. and Mrs. Klarich entered it, as did the child of Mrs. Roletto. As Mrs. Roletto started to get into the automobile, she was hit by the rear end of a car driven by McCready. The force of the car pushed her violently against that of the one belonging to Mr. Klarich, and she was severely injured.

Mrs. Klarich testified that she and appellant Dorothy Roletto returned to the garage 'a little bit after 5:00.' Mr. Klarich testified that they got back to the garage about a quarter after five, and that Mrs. Roletto was injured at seventeen or eighteen minutes after five. Appellant, Dorothy Roletto, testified that after she was injured, she waited twenty-five or thirty minutes for the ambulance; that the accident occurred Before 5:30 in the evening. At a pre-trial examination she had stated that the accident occurred at 5:45.

The evidence shows without contradiction that Larry McCready was a part-time parking attendant in respondent's garage, and that he had worked there for respondent Before the war. When he was discharged from the navy, he started to school and was given after-school employment by respondent. McCready was paid by the hour. On the day of the accident he came to work in the clothing which he had worn to school, and then changed into his working clothes at the garage. On the day of the accident McCready had finished his work, changed his clothes, punched a time clock in the presence of David W. Davis, manager of the garage, and then laid his work clothes on the office gate. After that he went downstairs and drove his own car up to the gasoline pump, there he put some gas in it, stepped into the station and charged the gasoline to himself; then he picked up his clothes, got in his car, and prepared to go home. While backing from the pump, he injured Mrs. Roletto. The record discloses that McCready was allowed to park his car in the garage, and that he would have subjected himself to discharge if he had serviced his car during his working hours.

The general rule is that a party injured by the negligence of another, must seek his remedy against the person who caused the injury, since such person is alone liable. To this general rule the case of master and servant is an exception, and the negligence of the servant, while acting within the scope of his employment, is imputable to the master. But, to bring a case within this exception, it is necessary to show that the relation of master and servant exists between the person at fault and the one sought to be charged for the result of a wrong; and the relation must exist at the time, and in respect to the particular transaction out of which the injury arises.

Outside the scope of his employment, the servant is as much a stranger to his master as any third person, and an act of the servant not done in the execution of servces for which he was engaged cannot be regarded as the act of the master. If the servant steps aside from his master's business for some purpose wholly disconnected with his employment, the relation of master and servant is suspended. The act of the servant during such interval is not to be charged to his master. 39 C.J. 129.

The burden was upon appellants to prove their case by showing the negligence of the driver of the car that injured Mrs. Roletto, that the driver of that car was employed by respondent, and that at the time of the injury he was acting within the scope of his employment. All these facts are admitted except the last one, so our only problem is to determine whether there was sufficient evidence to go to the jury on the question of whether McCready was acting within the scope of his employment at the time of the accident.

'The test for determining whether an employee is, at a given time, in the course of his employment, is whether the employee was, at the time, engaged in the performance of the duties required of him by his contract of employment or by the specific direction of his employer, or, as sometimes stated, whether he was engaged at the time in the furtherance of the employers' interests.' McGrail v. Department of Labor & Industries, 190 Wash. 272, 67 P.2d 851, 853.

Accord Young v. Department of Labor & Industries, 200 Wash. 138, 93 P.2d 337, 123 A.L.R. 1171; D'Amico v....