Moore v. Skiles

• Decision Date: 20 September 1954
• Docket Number: No. 17322,17322
• Citation: 274 P.2d 311,130 Colo. 191
• Parties: Tracye MOORE, Plaintiff in Error, v. Joseph A. SKILES, Defendant in Error.
• Court: Colorado Supreme Court

Page 311

274 P.2d 311

130 Colo. 191

Tracye MOORE, Plaintiff in Error, v. Joseph A. SKILES, Defendant in Error.

No. 17322.

Supreme Court of Colorado, En Banc.

Sept. 20, 1954.

Neil S. Mincer, Glenwood Springs, for plaintiff in error.

Myron H. Burnett, Denver, for defendant in error.

KNAUSS, Justice.

In the trial court plaintiff in error was plaintiff and defendant in error was defendant. We shall refer to the parties herein as they appeared in the trial court or by name.

Plaintiff alleged that on May 31, 1952 she was a passenger in a pickup truck driven by her husband; that as a result of an automobile accident which occurred on a mountain highway about fourteen miles north of Dotsero, Colorado, she sustained certain injuries resulting from the negligent driving of defendant's automobile at said time and place, causing it to collide with the vehicle in which plaintiff was riding with her husband.

By way of answer, defendant admitted the accident but denied negligence on his part; alleged the injuries complained of were caused by the sole negligence of the driver of the vehicle in which plaintiff was riding and set forth the defenses of contributory negligence and unavoidable accident.

Plaintiff amended her complaint to include a claim for damage to the pickup truck jointly owned by herself and her husband. Defendant amended his answer by including therein a counterclaim for damages to his pickup truck involved in the collision; alleged that plaintiff's vehicle was a family car and on the night of the accident was operated so negligently by plaintiff and her husband as to cause it to collide with defendant's vehicle, causing $200 damages to it, for which he demanded judgment under his counterclaim.

Trial was to a jury which returned a verdict finding the issues in favor of defendant on plaintiff's complaint and in favor of plaintiff on defendant's counterclaim. Judgment was entered on the verdict and plaintiff brings the cause here by writ of error.

On May 31, 1952 plaintiff was riding with her husband in a pickup truck jointly owned by plaintiff and her husband. He was driving the vehicle on a public road from Dotsero to Burns, Colorado from where they were returning home after an evening spent with friends. The road along which they were traveling was narrow and at the point where the accident occurred was not of sufficient width for two cars to pass. At what apparently was a blind curve a collision occurred between plaintiff's pickup truck and a pickup proceeding in the opposite direction, owned and driven by defendant. As to the speed of the respective vehicles immediately preceding the collision, the distance at which the respective drivers sighted one another and other details of the accident, the testimony was conflicting.

Plaintiff in error and her husband claimed that their automobile had come to a stop before the impact and that defendant ran his vehicle into their car. By his testimony and that of his wife, defendant claimed he had stopped his truck and that plaintiff's car ran into his vehicle.

When a husband and wife are journeying together in a vehicle jointly owned by both and engaged in a mission with a purpose common to both, can the negligence of the husband in operating the vehicle be imputed to the wife? This is the primary inquiry presented by this record.

Over objection of counsel for plaintiff, the court submitted to the jury Instruction No. 4, which defined contributory negligence and concluded with the following: 'In this case, if the jury finds and believes from a preponderance of the evidence that each driver was guilty of negligence which contributed to the proximate cause of the accident and that the accident would not have occurred but for the combined negligence of both drivers, then the plaintiff cannot recover for the damages which she claims to have suffered, and the defendant cannot recover for the damages which he claims to have suffered.'

Plaintiff here contends the trial court erred in submitting Instruction No. 4 in that the trial court permitted the negligence of the husband to be imputed to the wife, and erred in permitting the jury to render its verdict solely on the basis of Instruction No. 4 without reinstructing the jury to consider all the instructions as a whole.

We said in Colorado & Southern Ry. Co. v. Thomas, 33 Colo. 517, 81 P. 801, 803 70 L.R.A. 681: '* * * the rule that a person injured by the negligence of a defendant and the contributory negligence of one with whom the injured person is riding as guest or companion is that such negligence is not imputable to the injured person; but there is a well-recognized exception to this rule when the injured person is in a position to exercise authority or control over the driver, or is guilty, or fails to exercise such care under the circumstances as he could and should exercise under the particular circumstances to protect himself.'

The question is not solely whether the passenger actually exercised control over the driver, but whether 'the occupant had the right to exercise such control over the driver, or that the occupant and the driver jointly were controlling the operation of the automobile or had a right jointly to control its operation.' Parker v. Ullom, 84 Colo. 433, 271 P. 187, 189.

A husband's negligence is not to be imputed to the wife unless he is her agent in the matter at hand, or they are jointly engaged in the prosecution of a joint enterprise. Phillips v. Denver City Tramway Co., 53 Colo. 458, 128 P. 460.

Fox v. Lavender, 89 Utah 115, 56 P.2d 1049, 1057, 109 A.L.R. 105, was a case where the plaintiff, a half-sister of defendant, was a guest in an automobile jointly owned by defendant and her husband, who on the occasion of an accident was the driver of the automobile. It was there stated: 'We believe that the better rule is that where an owner is an occupant of his own car there arises a rebuttable presumption that he has control and direction of it. * * * A person being conveyed by his own vehicle is presumed to control his own property in his own transportation. * * * If the presumption of agency is indulged, it throws upon the proper parties the burden of producing evidence to negative the relationship rather than upon the plaintiff to produce evidence to prove it. * * *

'The actual joint possession from which joint control is inferred is not merely common presence in a car. It arises from a joint hiring or a joint ownership. One who jointly possesses an article with another has joint control of it on the assumption that he who has possession of an article has control of it. Joint owners both present in a car presumably have joint possession of the car. From such joint possession, the right of joint control follows and from this right of joint control of the article of which they are jointly possessed, an agency arises which makes the nondriving joint owner present in the car responsible for the negligence of the driving joint owner. * * * We prefer to put this decision on the ground that joint owners both present in the car, without more, raises a presumption of a joint possession and therefore joint control from which arises a reciprocal agency. To sum up, when a sole owner is driving it is presumed, without more, that he is in control and has the complete right of control; when the sole owner is present in the car and another is driving, it is presumed, without more being shown, that the sole owner has the right of control, and that the driver is driving for him, that is, as his agent. If two or more joint owners are in the car, they will be presumed, without more shown, to have joint right of control and therefore the driver will be presumed to be driving for himself and as the agent of the other present joint owners. * * *'

We quote from Clark v. Town of Hampton, 83 N.H. 524, 145 A. 265, 269, 61 A.L.R. 1171: 'If this evidence was accepted as true, it showed a situation where, for purposes of present use and control, the plaintiff stood in the position of a part owner in common with Swanton. In this situation the plaintiff and Swanton proceeded to use the car for their mutual benefit. This would plainly amount to such a joint control that each party would be the agent of the other in the conduct of their common undertaking.'

In Tannehill v. Kansas City, C. & S. Ry. Co., 279 Mo. 158, 213 S.W. 818, it was held that where two brothers, who, together with a third brother, were joint owners of an automobile, were returning home after being away on business or pleasure, and one of them was killed by reason of the negligence of his brother, such negligence of the brother would be imputed to the deceased brother.

We quote from Howard v. Zimmerman, 120 Kan. 77, 242 P. 131, 132: 'The basis of liability of one associate in a joint...