Vernarelli v. Sweikert

• Decision Date: 01 March 1923
• Docket Number: 17543.
• Citation: 123 Wash. 694,213 P. 482
• Court: Washington Supreme Court
• Parties: VERNARELLI v. SWEIKERT et al. GREGORIS v. SAME.

213 P. 482

123 Wash. 694

VERNARELLI v. SWEIKERT et al.

GREGORIS v. SAME.

No. 17543.

Supreme Court of Washington

March 1, 1923

Department 2.

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Consolidated actions by Ercole Vernarelli and by Charles Gregoris against J. F. and William F. Sweikert, doing business as Auburn Garage, and another. Judgment for plaintiffs, and the named defendants appeal. Affirmed.

Wright Kelleher, Allen & Hilen, of Seattle, for appellants.

Rummens & Griffin, of Seattle, for respondents.

PEMBERTON J.

This is an appeal in two consolidated cases from a judgment in favor of plaintiffs entered upon the verdicts of a jury awarding damages against appellants and one G. H. Osborne. On September 28, 1921, the defendant Osborne driving an automobile on a public highway in King county carelessly and negligently came into collision with another automobile in which respondents were riding, overturning the same resulting in serious injury to respondents. Appellants, sued as copartners jointly interested in the operation of a garage at Auburn, Wash., and doing business under the name and style of Auburn Garage, denied the charge of negligence and pleaded contributory negligence.

The defendant Osborne was a salesman for appellant and generally used a car for demonstration purposes furnished by appellant. On the day in question, this car was in for repairs, and Osborne was using another car which bore the appellants' license plate, dealer 525. He had no regular hours of employment. His business was to sell automobiles upon commission; appellant furnishing car, gasoline, and equipment. His territory included that between Auburn and Franklin. The accident occurred near Black Diamond in Osborne's territory. He had been in Enumclaw in the morning and in the afternoon started for Franklin. It was on the return that the accident occurred. He had sold a car in Franklin, near Black Diamond, and had prospects in that territory and in Franklin.

The only question on this appeal is whether or not the defendant Osborne at the time of the accident was in the employment of appellants. It appears that osborne testified in the case that upon his return in the morning he discovered that his wife was ill and decided to take her out for a little fresh air and recreation that afternoon; that he did not see or call on any prospects and did not have that purpose in mind. One of the witnesses, Marshall, a copartner of appellants testified that he had given orders to Osborne not to go to Black Diamond because there was a strike on at that place. He further testified that it was the rule that the cars had to be reported out and reported in. But the testimony shows that Osborne did not always comply with the rule in that regard. Osborne testified that he had frequently solicited orders in this same territory and that he was selling cars wherever he could sell them. He was asked:

'Q. If anybody had offered to buy a car that day, you would have stepped down for it? A. Yes. Q. That is what you are always looking for? A. That is the way I get my bread and butter. A. That is what you were doing at that time? A. Yes, sir.'

It is the theory of appellant that mere ownership of an automobile and the employment of a servant to drive it is not enough to charge the master for the servant's negligence unless at the time of the injury the servant is engaged in the master's business, and, when the uncontradicted testimony of the defendant and his agent shows that the agent was acting outside of the scope of his authority at the time of the accident driving the car for his own pleasure, the court should direct a verdict for defendant, relying on the following cases: Ludberg v. Barghoorn, 73 Wash. 476, 131 P. 1165; Bursch v. Greenough Bros. Co., 79 Wash. 109, 139 P. 870; Babbitt v. Seattle School Dist. No. 1, 100 Wash. 392, 170 P. 1020; Morris v. Raymond, 101 Wash. 34, 171 P. 1006; Warren v. Norguard, 103 Wash. 284, 174 P. 7; Savage v. Donovan, 118 Wash. 692, 204 P. 805.

In the case of Ludberg v. Barghoorn, supra, the court said:

'The fact that the automobile was admitted to belong to the defendant, and that the driver of the automobile was in the employ of the defendant, was sufficient to put the defendant upon proof that the automobile was not used in his business or for his employment, has been held in a number of cases. * * * But where upon the defense it is shown conclusively and without any substantial dispute that the automobile was not being used at the time of the injury in the defendant's employment or upon his business, and was being used by some other person on business of his own and without any reference to the business of the owner, it becomes the duty of the court to direct the judgment under Rem. & Bal. Code, § 340.'

In that case the agent of the defendant secured permission to take the automobile of defendant to secure a doctor for a member of the agent's family. The car was not being used in any sense in the interest of the defendant, and this fact was shown by evidence other than that given by defendant and his agent.

Our attention is specially called to the following quotation taken from the case of Babbitt v. Seattle School Dist. No. 1, supra:

'The presumption growing out of a prima facie case, established by proof of the injury, and the ownership of the motorcycle, and the use thereof by an employee of the owner of the motorcycle, subsisted only so long as there was no substantial evidence to the contrary. When that was offered, the presumption disappeared, unless met by further proof.'

The Babbitt Case is one where a boy was using the motorcycle, and the court found as a matter of law that he was not at the time of the accident engaged in the business of his master. He was using the motorcycle outside of the hours of his employment and was not at the time performing services for the school district.

In the case of Bursch v. Greenough Bros. Co., supra, the testimony of the defendants and the agent in support of the contention that the truck...