Forsberg v. Tevis , 191 Wash. 355 ( 1937 )

ROBINSON, J., dissents. The plaintiff owned an automobile trailer, which, between two and three o'clock in the afternoon of April 1, 1936, was parked on the north side of Cherry street, in Aberdeen. While Mrs. Forsberg was inside the trailer, a truck, driven by one Kullander, collided with it. The truck bore the inscription, "Tevis Laundry Cleaners."

Alleging that the defendant, David R. Tevis, was the owner of the truck, and that Kullander was his servant, acting within the scope of employment, plaintiffs brought this action to recover for damage to the trailer, and on account of injuries sustained by Mrs. Forsberg.

The defendant denied ownership of the truck. He also denied that Kullander was acting within the scope of his employment. The cause was tried to a jury, which returned a verdict in favor of plaintiffs, both for personal injuries and property damage. From judgment on the verdict, defendant appeals.

That Kullander's negligence was the proximate cause of damages to respondents, is not questioned. The assignments of error raise three questions: (1) The sufficiency of the evidence to establish appellant's ownership of the truck; (2) the sufficiency of the evidence to show that Kullander was acting within the scope of his employment; (3) excessive verdict.

[1] First: As has been noted, the truck bore the trade name, "Tevis Laundry Cleaners." In addition, it clearly appears from the evidence that a laundry and cleaning business was conducted in Aberdeen under the name of "Tevis Laundry," and that the truck was, and had been for several months, used daily in the establishment's service. By decisive weight of authority, these facts are sufficient to make a prima facie case of ownership of the truck in the proprietor of "Tevis Laundry." Berry, Law of Automobiles (7th ed.), § 4,482; 15-16 Huddy, Cyc. of Automobile Law (9th ed.), § 160; Hartig v. American Ice Co., 290 Pa. 21, 137 A. 867; Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204,140 N.E. 634; Weber v. Thompson-Belden Co.,105 Neb. 606, 181 N.W. 649; Buckley v. Sutton, 231 Mass. 504,121 N.E. 527; Howell v. J. Mandelbaum Sons, 160 Iowa 119,140 N.W. 397, Ann. Cas. 1915D 349, (Note) 353.

Appellant contends, however, that his ownership of the business (Tevis Laundry) is not sufficiently shown by the evidence to warrant submission of the issue to the jury. Brooks Murphy, who was Kullander's predecessor in operating the truck, testified that appellant hired him, and told him that he was the owner of the business. This testimony was not controverted. Appellant did not take the witness stand. His son, James Tevis, testified that he (James) was manager of "Tevis Laundry;" that his father was not the owner of the business, but that he (David) had "an interest" in it.

But, says appellant, this evidence is not sufficient to establish his ownership at the time of the collision; that, at most, it only tends to prove his ownership at a time some months prior. But, where it is shown that property belongs to a particular person, the law presumes that the ownership remains unchanged, in the absence of proof to the contrary. 22 C.J. 90, 126; Collins v. Denny Clay Co., 41 Wash. 136, 82 P. 1012.

Clearly, under this evidence, the jury was warranted in holding appellant responsible, as owner of the truck, if Kullander was acting within the scope of his employment at the time of the collision.

[2] Second: It appears that Kullander was hired by James Tevis February 1, 1936. He remained in the employ of "Tevis Laundry" until the day after the collision. His duties were to drive the truck, pick up and deliver laundry, and solicitbusiness. He testified that his territory covered Aberdeen, Hoquiam, and Cosmopolis. James Tevis testified that Kullander's territory did not extend to Hoquiam.

The collision occurred while Kullander, with two other young men in the truck, was on his way to Hoquiam. He testified that his purpose was to solicit business for "the company." He admitted that he and the other boys had been drinking, and that there had been talk about calling on some girls in Hoquiam. He was confronted with a statement signed by him the day after the collision, which recited: "I had no company business in Hoquiam." Nevertheless he insisted throughout his testimony that, whatever the purpose the other boys had in mind in going to Hoquiam, his own was to solicit business for "the company." The rule applicable under the evidence is stated in 1 Restatement of the Law of Agency, p. 530, as follows:

"The fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. If the purpose of serving the master's business actuates the servant to any appreciable extent, the master is subject to liability if the act otherwise is within the service . . ."

This rule was in substance applied in the case of McMullen v.Warren Motor Co., 174 Wash. 454, 25 P.2d 99. Applying it to the evidence in this case, we are satisfied that it was for the jury to say whether Kullander was acting within the scope of his employment.

[3] Third: The jury awarded $3,500 on account of injuries sustained by Mrs. Forsberg. At the time of the collision, she was standing on a box, painting the inside of some cupboards. She was thrown so that the imprint of her feet appeared on the ceiling of the trailer. Radiographs did not show any broken bones, but that she sustained severe bruises of the soft tissues there can be no doubt — particularly to the left knee. She was confined to her bed for a month and was on crutches for another month. At the time of the trial, the injured knee was still discolored, and a half inch larger than the other. It was described as a "loose joint" — the result of a "wrenched and pulled . . . ligament." "There was a grating in the knee joint underneath the patella — scraping when . . . moved . . . back and forth or up and down." Opinion was expressed by physicians that the condition was permanent — that there would always be "a residual weakness" in the joint.

While the verdict, to us, seems large, we do not feel that we can say that the amount in itself indicates it was the result of passion and prejudice. See Blau v. Puget Sound etc. Co.,88 Wash. 260, 152 P. 1023; Johnson v. Hunter, 141 Wash. 190,251 P. 123; Johnston v. Elmore, 141 Wash. 293, 251 P. 558. And we find nothing in the record that would tend to excite the jury to passion and prejudice. Under the facts, we feel that for us to disturb the verdict would simply amount to a substitution of our opinion in the stead of the jury's.

Judgment affirmed.

MILLARD, MAIN, and GERAGHTY, JJ., concur.