Wicklund v. Allraum

• Decision Date: 19 December 1922
• Docket Number: 17503.
• Citation: 122 Wash. 546,211 P. 760
• Court: Washington Supreme Court
• Parties: WICKLUND v. ALLRAUM et ux.

211 P. 760

122 Wash. 546

WICKLUND v. ALLRAUM et ux.

No. 17503.

Supreme Court of Washington

December 19, 1922

Department 2.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by J. P. Wicklund against Charles Allraum and wife. From judgment for plaintiff, defendants appeal. Judgment affirmed as to defendant named, but reversed as to his wife.

Howard O. Durk, of Seattle, for appellants.

Ryan &amp Desmond, of Seattle, for respondent.

TOLMAN J.

Respondent as plaintiff sought by this action to recover damages arising from an automobile collision. The cause was tried to a jury which returned a verdict for $650, the full amount claimed and from a judgment against them entered thereon, the defendants have appealed.

The first assignment is that the trial court committed error in permitting respondent to testify to the value of his automobile before and after the accident, and in refusing to strike from the issues the claim for damages to the automobile because such claim rested on that testimony. We cannot so hold. In Alexander v. Barnes Amusement Co., 105 Wash. 346, 177 P. 786, it appears to have been assumed that the owner, simply because he was the owner might testify to such values. Professor Wigmore says:

'The owner of an article, whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury; and courts have usually made no objections to this policy.' 1 Wigmore on Evidence, § 716.

The Supreme Court of Idaho in Rankin v. Caldwell, 15 Idaho, 625, 99 P. 108, says:

'The general rule that, to qualify a witness to testify as to market value, a proper foundation must be laid showing the witness to have knowledge upon the subject, does not apply to a party who is testifying to the value of property which he owns. The owner of property is presumed, in a way to be familiar with its value by reason of inquiries, comparisons, purchases, and sales. The weight of such testimony is another question, and may be affected by disclosures made upon cross-examination as to the basis for such knowledge, but this will not disqualify the owner as a witness.'

To the same effect are Jackson v. Innes, 231 Mass. 558, 121 N.E. 489; Paterson v. Chicago, M. & St. P. Ry. Co., 95 Minn. 57, 103 N.W. 621; Seckerson v. Sinclair, 24 N.D. 326, 625, 140 N.W. 239; Gay v. Shadle (Iowa) 176 N.W. 635, and Midland Valley R. Co. v. Lawhorn, 81 Okl. 288, 198 P. 586.

This seems to be the general rule, and we are content to adopt it.

Appellants requested an instruction in the following form:

'You are instructed that the husband is the agent of the marital community, under the laws of this state, and that his marital community is liable for his negligence and wrongful acts only when he is engaged in the transaction of community business or is acting for the benefit of the community. Therefore, if you believe, from the evidence in this case, that the defendant Charles Allraum, on the date in question, was not engaged in community business, or was not acting for the benefit of the marital community, but was riding in his automobile solely for his individual pleasure or pastime, you are instructed that under such circumstances his marital community cannot be held; and if your verdict shall be for the plaintiff, it must be against the defendant Charles Allraum alone.'

And they assign error in the refusal of the...