Alice Loomis, B/N/F v. Louis Abelson. Gerald Loomis, B/N/F v. Louis Abelson (Two Cases)

• Decision Date: 19 January 1929
• Citation: Alice Loomis, B/N/F v. Louis Abelson. Gerald Loomis, B/N/F v. Louis Abelson (Two Cases), 144 A. 378, 101 Vt. 459 (Vt. 1929)
• Parties: ALICE LOOMIS, b/n/f v. LOUIS ABELSON. GERALD LOOMIS, b/n/f v. LOUIS ABELSON (Two Cases)
• Court: Vermont Supreme Court

144 A. 378

101 Vt. 459

ALICE LOOMIS, b/n/f v. LOUIS ABELSON. GERALD LOOMIS, b/n/f v. LOUIS ABELSON (Two Cases)

Supreme Court of Vermont

January 19, 1929

November Term, 1928.

Negligence---Sufficiency of Evidence To Sustain Verdict---Automobiles---Speed of Driver on Previous Occasion---Witnesses---Impeachment---"Joint Enterprise"---Necessity of Exception in Lower Court---Jury Question.

1. In actions of tort for injuries received by driver of automobile and another person riding therein, by collision with another automobile, evidence held legally sufficient to sustain verdicts in their favor.

2. In actions of tort for injuries received by plaintiff while driving an automobile by collision with another automobile that plaintiff had driven too fast on some previous occasion was no evidence that he was driving too fast at time of collision.

3. In such action, where plaintiff on cross-examination stated that he had never driven autmobile which he was driving at time of accident in excess of 25 miles per hour, held that evidence offered for purposes of impeachment, that State motor vehicle inspector had on a previous occasion stopped him when driving same automobile in excess of 30 miles per hour, was properly excluded.

4. Doctrine of "joint enterprise," so that negligence of one person is imputed to another, is founded upon theory of agency, and involves as a necessary element such a relation between person at fault and one sought to be charged therewith as to make each the agent of the other.

5. Where employee was directed by employer to go to store for groceries, and same employer directed another employee to take employer's automobile and drive the first employee to the store, held that these employees were not engaged in a joint enterprise, although co-servants of a common master and engaged in an enterprise having a single object, since their duties were separate, specific, and exclusive, and neither could direct nor control the other in discharge of other's duty.

6. Instruction of trial court, to which no exception is taken will not be considered by Supreme Court on review.

7. In

ACTION OF TORT for injuries received by driver of automobile, resulting from collision with another automobile, held that negligence of defendant and contributory negligence of plaintiff were questions for jury under evidence.

ACTION OF TORT to recover damages for personal injuries received in automobile collision. Plea, general issue. Trial by jury at the March Term, 1928, Rutland County, Sherburne, J., presiding. Cases of two plaintiffs against same defendant growing out of same accident, were consolidated and tried at same time. Verdict and judgment for each of plaintiffs. The defendant excepted. The opinion states the case.

Judgment affirmed.

Jones & Jones for the defendant.

Fenton, Wing & Morse for the plaintiffs.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

POWERS

These tort actions, which grow out of an automobile collision, were tried together. The plaintiffs are minors and bring suit per prochein ami. Verdicts were returned below for the plaintiffs, and the defendant excepted. The evidence at the trial was sharply conflicting, especially on the question of liability, but the following facts were fairly within its range.

The accident occurred in the early evening of August 23, 1927. It was then dark and raining. Both of the cars involved had their lights on. The highway, which was the main road from Castleton Corners to Hubbardton was wide, straight, and smooth. Just at nightfall of the day named, Mrs. Hurlbut, the grandmother of the plaintiffs, by whom both were employed, and who ran a boarding house at Lake Bomoseen, directed the plaintiff Alice Loomis to go to the Corey store for some groceries, and at the same time she directed the plaintiff Gerald Loomis to take her Ford car and drive Alice up to the store on this errand. This was done. As the plaintiffs were returning, they met and collided with a Chevrolet car driven by the defendant, and then suffered the injuries for which they have sued. Gerald saw the approaching car and noticed that it was "crowding the road," meaning apparently that it was working over onto his side of the road. To avoid a collision, he edged the Ford over to his right--so far, indeed, that it grazed a stump standing on that side of the road, well out of the traveled part. In spite of this, the Chevrolet ran into the Ford, tipped it over, and injured its occupants. It is quite obvious that the collision was inexcusable. One of the drivers or both were at fault. There is no use of our trying to sift or reconcile the widely divergent testimony regarding the causes of the accident. Each driver threw all blame on the other. The jury accepted the plaintiffs' version of the matter, and it is enough for us to say that the evidence was legally sufficient to warrant the verdicts.

Gerald Loomis testified as a witness. He said that before the accident he had been driving about twenty or twenty-five miles an hour; that he slowed down as he was about to meet the defendant's car so that at the moment of the collision he was going at a speed of not over fifteen miles an hour. In cross-examining him, counsel for the defendant drew from him the statement that he had never driven this Ford fast or over twenty-five miles an hour. Later in the trial, for the purposes of impeachment, the defendant offered to show by a State motor vehicle inspector that on a previous occasion he stopped Gerald when he was driving this car at a speed in excess of thirty miles an hour. This offer was excluded, and the defendant excepted. The ruling was clearly right. That Gerald drove too fast on some previous occasion was no evidence that he was driving too fast at his time. Nones v. Northouse, 46 Vt. 587, 593; Ronan v. Turnbull Co., 99 Vt. 280, 290, 131 A. 788. The testimony offered was irrelevant and inadmissible and properly rejected for impeachment purposes. Comstock's Admr. v. Jacobs, 84 Vt. 277, 283, 78 A. 1017, Ann. Cas. 1913A, 679, and cases cited; Davis v. Dunn, 90 Vt. 253, 261, 98 A. 81, Ann. Cas. 1918D, 994; Niebyski v. Welcome, 93 Vt. 418, 421, 108 A. 341.

The defendant seasonably requested the court to instruct the jury that the plaintiffs were engaged in a joint enterprise, and that any negligence on Gerald's part would be imputed to Alice. This, the court declined to do, and charged, in effect, that the latter was a mere passenger, to whom the former's negligence could not be imputed. The defendant excepted, but we find no error in the ruling or charge. The doctrine of joint enterprise is founded upon the theory of agency. It involves as a necessary element such a relation between the person at fault and the one sought to be charged therewith as to make each the agent of the other. Boyden v. Fitchburg R. R. Co., 72 Vt. 89 91, 47 A. 409; Wentworth v. Waterbury, 90 Vt. 60, 62, 96 A. 334; Landry v. Hubert, 100 Vt. 268, 274, 137 A. 97. Such a relation did not here exist. These plaintiffs, to be sure, were co-servants of a common master; but this is not enough. Simpson v. Wells, 292 Mo. 301, 237 S.W. 520, 526. They were engaged in an enterprise which had a single object; but this is not enough. Bowley v. Duca, 80 N.H. 548, 120 A. 74, 75. As between themselves, there was no joint object. Their duties were separate, specific, and exclusive. Alice had nothing whatever to do with driving the car; Gerald had nothing whatever to do with purchasing the groceries. Neither could direct or control the other...