Sidis v. Rosaia

• Decision Date: 21 December 1932
• Docket Number: 24009.
• Citation: Sidis v. Rosaia, 170 Wash. 587, 17 P.2d 37 (Wash. 1932)
• Parties: SIDIS et ux. v. ROSAIA et al.
• Court: Washington Supreme Court

17 P.2d 37

170 Wash. 587

SIDIS et ux. v. ROSAIA et al.

No. 24009.

Supreme Court of Washington

December 21, 1932

Department 2.

Appeal from Superior Court, King County; William J. Steinert, Judge.

Action by Ralph Sidis and wife against George P. Rosaia and the community of George P. Rosaia and wife, and another. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Tucker & Tucker, of Seattle, for appellants.

Pearson & Potts, of Seattle, for respondent.

MAIN J.

This action was brought to recover damages for personal injuries and for damage to an automobile. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiffs in the sum of $4,000. Motion for new trial being made and overruled, judgment was entered upon the verdict, from which the defendants appeal.

The facts essential to present the questions to be determined may be summarized as follows: The appellants George P. Rosaia and Gilda Rosaia are husband and wife, and are the owners of a Studebaker sedan automobile. They have two daughters, named respectively, Florine and Evelyn. The respondents, Ralph Sidis and Seniuru Sidis, are husband and wife, and are the owners of a Chevrolet sedan automobile. The accident for which recovery was sought happened July 7, 1929, at about 11 o'clock a. m., on what is known as the Kent-Des Moines highway, in King county. The respondents, together with their two daughters and a brother of Mrs. Sidis, Albert Peha, were proceeding in the direction of Des Moines, intending to take the Redondo road and go to Redondo Beach. The Kent-Des Moines highway was paved to the width of twenty feet. None of the parties in the Chevrolet was familiar with the road. To reach Redondo Beach, it was necessary to turn to the left and take the Redondo road. Peha, who was driving the Chevrolet, saw a road sign ahead and slowed down, intending to turn to the right on the gravel, which was of sufficient width at that place, and then ascertain from the sign, as nearly as possible, whether that was the place where they should take the Redondo road. After they had slowed down in the Chevrolet, and while it was still on the pavement, it was hit in the rear by the Studebaker sedan owned by Mr. and Mrs. Rosaia, which at the time was driven by their daughter Evelyn.

It is unnecessary here to more particularly detail the facts as to how the accident happened. It is sufficient to say that the questions of Evelyn Rosaia's negligence and of the contributory negligence of Peha were definitely for the jury, and we do not understand it to be contended otherwise.

As a result of the collision, the Chevrolet went into the ditch, and Mrs. Sidis suffered a severe injury to her right knee. After the accident, Evelyn Rosaia caused the young lady who was riding with her at the time to write the name of Florine Rosaia on a piece of paper, together with the telephone number and street number of the house of her parents where she resided, and this piece of paper was given to Peha, the driver of the Chevrolet. The reason that Evelyn caused Florine's name to be written on the paper, as she testified, was because she did not have a driver's license at the time, although she had made application therefor. Subsequently, the present action was brought against Mr. and Mrs. Rosaia and their daughter Florine.

During the trial, it definitely appeared from the evidence that Evelyn Rosaia was driving the car at the time of the accident, and not Florine. The answer of the appellants did not disclose that Florine was not the driver of the car at the time of the accident. At the conclusion of the evidence, the appellants moved that the action as to Florine be dismissed. This motion was granted; the court announcing that a motion to substitute Evelyn for Florine would be entertained. This motion was interposed, and the substitution made. Evelyn Rosaia was present during the trial, and testified. Prior to the trial, she had gone to the place of the accident with her father, an engineer, and one of the counsel for the appellants, and thus assisted in the preparation of the case for trial.

The first question is whether the court erred in making the substitution just recited. Evelyn Rosaia, by delivering to Peha just after the accident the slip of paper referred to, upon which was written the name of Florine, in effect, said that she was Florine, and on this assumption the action was brought against Florine, and not against Evelyn. The negligence which caused the accident, as found by the jury, was that of Evelyn, and, she having been guilty of misleading the respondents as to the one who caused the accident, it would seem that she should not be heard to say that she should not be substituted as a party to the action when that fact appeared and no prejudice resulted in so doing, because she was present during the trial, testified as a witness, and assisted in the preparation of the case for trial. Surprise was not claimed when the motion was made, and no continuance was asked for. Under the circumstances, it would have been a useless proceeding to cause the parties to go out of court and again incur the trouble and expense of trying the case over again.

It is true that jurisdiction of a party to the action must ordinarily be acquired by the service of process, or by voluntary appearance. But the case now Before us presents facts which take it out of the operation of that rule. There appears to be a dearth of authority upon the precise question, and only one case has been cited which is closely analogous, and that case is Boehmke v. Northern Ohio Traction Co., 88 Ohio St. 156, 102 N.E. 700, 701. In that case, the plaintiff was injured while attempting to board an electric interurban railway train. He brought suit against the Akron, Bedford & Cleveland Company. Prior to the accident, the properties of that company had been taken over by the Northern Ohio Traction Company, which company owned and operated the line at the time of the accident. Attorneys employed by...