Wilson v. Washington Concrete Pipe Co., 25010.

• Decision Date: 15 August 1934
• Docket Number: 25010.
• Parties: WILSON v. WASHINGTON CONCRETE PIPE CO. et al.
• Court: Washington Supreme Court

35 P.2d 71

178 Wash. 545

WILSON v. WASHINGTON CONCRETE PIPE CO. et al.

No. 25010.

Supreme Court of Washington

August 15, 1934

Department 2.

Appeal from Superior Court, Cowlitz County; Homer Kirby, Judge.

Action by R. H. Wilson against the Washington Concrete Pipe Company and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Dey Hampson & Nelson, of Portland, Ore., and John F. McCarthy, of Longview, for appellants.

Imus &amp Imus and Atwell & Moore, all of Kelso, for respondent.

BLAKE, Justice.

This is an action arising out of a collision which occurred between 9 and 9:30 one night on the Pacific Highway. Plaintiff, driving north in a Chevrolet coupé, collided head-on with a truck going south. The truck belonged to defendant Collins Concrete Pipe Company, but at the time was being operated by Washington Concrete Pipe Company. The negligence charged was that, as the cars approached each other, the driver of the truck got on the wrong side of the highway. The defendants charged contributory negligence, in that the plaintiff was drunk and driving in a reckless manner, and that, as the cars approached each other he got on the wrong side of the highway. Each (the plaintiff and the driver of the truck) testified that he was on the right side and that the other was driving on the wrong side of the road. The only person who saw the collision was the driver of a car following plaintiff's. He testified that when the cars were about 150 feet apart, they both started angling toward each other, and met in the middle of the road. The cars came to a stop head-on. The front end of the truck extended 4 or 5 feet onto what to it was the wrong side of the highway. The jury returned a verdict for plaintiff. From judgment entered thereon, defendants appeal.

The assignments of error raise three questions: First, the admissibility in evidence of a certain letter; second, the refusal of the trial court to give an instruction requested by appellants; third, the liability of Collins Concrete Pipe Company.

I. A cause of action was set up in the complaint for damages to the car respondent was driving. It was alleged that the car belonged to Ray Skillings, and that he had assigned his cause of action to respondent. Prior to the accident, the car had been in the possession of Roy Skillings, who lived 6 or 8 miles south of Kelso, just off the Pacific Highway. Respondent had gone there and gotten the car just a few minutes Before the collision occurred. Ray Skillings lived at Randle, some 90 miles from there. Respondent had spent the day of the accident at Randle. Respondent left Randle about 4 o'clock that afternoon. Before leaving he expressed the intention of going to Roy Skillings' place to get the car.

The letter in question was written by Ray Skillings, and addressed to his brother Roy, just prior to respondent's departure from Randle. (The letter was not delivered until the following day, but this is not material to the question presented.) The letter is as follows:

'Sunday, May 22-32. Randle, Wn.

'Dear Brother Roy:

'Well some more hard luck. The main bearings on your truck is burned out. And I am sending this letter down by Bill Blair to you. I'll go ahead and finish tacking it down and you come and bring my car as soon as you can so we can take the block out of the truck in town to get it fixed. Whatever you do for land sakes don't let Willson have the car. If ma is too sick send Paul Brook up, but don't let Willson have it. I would go back with Blair, but Lottie and Ole and Willson is going back with him and they are all drunk but Blair. Been going strong all day. Well it's 5 o'clock now and Blair is about ready to do. If Bill mails this tonight as he says he will you will get it in the morning. Be sure and come if you can. (Hope ma is better.)

'As ever,

'Ray Skillings

'P. S. Don't let Willson have the (my) car.'

Appellants urge that the letter was competent as the declaration against interest of one beneficially interested in the litigation citing Kinnane v. Conroy, 52 Wash. 651, 101 P. 223, and Greenbaum v. Stern, 90 Wash. 156, 155 P. 751. Under the rule, there can be no question but that the letter was competent as against Ray Skillings, since he was the real party in interest with respect to damages to the car. Furthermore, it may be conceded that it would have been competent as against the respondent had he had any interest in the car, or in any recovery on account of damages to it. Appellants contend that respondent did have an interest in the car, and that the letter was, therefore, admissible against him. We do not think the record bears out this contention. The complaint alleged that the car belonged to Ray Skillings. Respondent attempted to prove he had an interest in it, but, upon objection by appellants, the court held respondent to the allegation of the complaint. Appellants throughout the trial maintained, and successfully sustained, the position that respondent had no interest in the car.

Appellants contend that, in any event, the letter was admissible as against Skillings. The difficulty with this contention is that Skillings, called as a...