Vacca v. Steer, Inc., 39281

• Decision Date: 23 May 1968
• Docket Number: No. 39281,39281
• Parties: Ralph VACCA, Respondent, v. STEER, INC., a corporation, Appellant.
• Court: Washington Supreme Court

Page 892

73 Wn.2d 892

441 P.2d 523

Ralph VACCA, Respondent, v. STEER, INC., a corporation, Appellant.

No. 39281.

Supreme Court of Washington, Department 2.

May 23, 1968.

Griffin, Boyle & Enslow, Carson F. Eller, Tacoma, for appellant.

Schneider, Smythe & Salley, Lyle R. Schneider, Auburn, for respondent.

NEILL, Judge.

Plaintiff seeks monetary redress for damages to his vegetable crops caused by trespassing cattle, and reimbursement for his expenses in corralling and caring for the marauders. Defendant appeals from a judgment entered against it in the sum of $2,830 and costs.

Defendant does not challenge the fact of the trespass by the some 15 head of cattle, nor does it challenge the amount of the judgment. Rather, it is defendant's contention that it is not the party responsible for the damage to plaintiff's vegetable crops nor for his care of the animals. ¹

Defendant is a nonprofit corporation which acts as a sort of 'middle man' in a plan designed to increase the benefits of gifts for foreign mission projects of all churches. The advertising and solicitation material circulated by defendant set forth the plan and identified it with the language 'a stewardship partnership plan' whereby solicitation of cash gifts for missionary purposes is made. With the cash donation, defendant would purchase or cause to be purchased cows or steers and would then solicit a farmer to feed and care for the animals as his donation to the missionary project. At such time as a steer was ready for market or a cow had calved and the calf was ready for market, the farmer would market the animal or animals on behalf of Steer, Inc., and would remit the entire proceeds back to defendant which, in turn, took 15 per cent of the 'gain' for management and remit the balance to the mission specified by the original cash donor.

Pursuant to such plan, defendant received a cash donation, purchased 33 head of cattle therewith, and placed them with a Mr. Glasscock who was farming near Auburn. Mr. Glasscock failed to properly feed and care for the cattle and kept them in a pasture enclosed by inadequate fences. The fencing consisted of two strands of barbed wire on posts some 50 feet apart, to which was also attached a single wire electric fence. The electric fence was not connected to the power and was on the ground in many places. On at least five occasions during August, September and October, 1963, cattle escaped from the Glasscock enclosure and trespassed upon the cauliflower and carrot producing lands of the plaintiff. On the occasion of the first four trespasses, plaintiff rounded up the cattle and returned them to the Glasscock enclosure. On the occasion of the fifth trespass, the plaintiff impounded the cattle on his premises, erected a corral, and fed the cattle for 90 days. Prior to the impounding of the cattle by plaintiff, he advised a Seattle field director of defendant of the repeated trespasses and requested that action be taken to remedy the situation. Defendant, by letter from the field director, dated September 7, 1963, acknowledged notice of the trespass of the cattle and the damage to crops of plaintiff and stated: 'We are proceeding with plans to have the cattle removed from that pasture unless steps are taken at once to make the fence safe. We deeply regret the inconvenience this has caused you and assure you again we will do all in our power to see that the fence is made safe or that the cattle are removed.' Thereafter, on October 6, 1963, the fifth trespass occurred and the cattle were impounded and maintained by plaintiff. On January 5, 1964, representatives of defendant obtained possession of the animals from the plaintiff and sold them in a sales yard at Auburn.

In entering judgment for plaintiff, the trial court found that the defendant was the owner of the cattle; was in control of the cattle; and that the damage caused by the cattle resulted from their escaping from an enclosure with inadequate and improperly maintained fences. It appears from the trial court's oral decision that its finding of liability against defendant was based either on agency or on the theory that a partnership existed between defendant and Mr. Glasscock. However, the findings of fact do not contain either statement. Rather, the court found that

the cattle owned by the defendant left the premises wherein they were pastured and entered the premises of the defendant (sic) causing damages to the growing crops of the plaintiff. That the defendant was negligent in maintaining the fences, and the fences were down on the ground and were not sufficient to contain the cattle in the premises of the defendant; that the direct cause of the cattle leaving the premises of the defendant and trespassing and entering the fields of the plaintiff, was due to the inadequate and poorly maintained fences of the defendant. Finding of fact No. 3.

In view of the contention made by defendant, we have read the trial court's findings in conjunction with its oral decision. Northern Pac. Ry. Co. v. Washington Util. & Transp. Comm., 68 Wash.2d 915, 416 P.2d 337 (1966).

Defendant assigns as error findings by the trial court (1) that defendant was negligent; (2) that defendant had control over the action and control of Mr. Glasscock; and (3) that defendant and Mr. Glasscock were partners. As we have already indicated, the findings of fact signed by the trial court do not contain any finding of partnership.

It is clear from the record that the cattle were not being kept on premises of the defendant and we agree that the record does not support a finding that a partnership existed between defendant and Mr. Glasscock. We further agree with defendant's contention that it was not in control of the actions of Mr. Glasscock. However, we believe these contentions of...