Angel v. McClean

• Decision Date: 27 May 1938
• Citation: 116 S.W.2d 1005,173 Tenn. 191
• Parties: ANGEL v. McCLEAN.
• Court: Tennessee Supreme Court

116 S.W.2d 1005

173 Tenn. 191

ANGEL v. McCLEAN.

Supreme Court of Tennessee.

May 27, 1938

Error to Circuit Court, Shelby County; Harry Adams, Judge.

Consolidated suits by Mrs. J. Porter McClean and her husband against Mrs Sam Angel for injuries received in an automobile collision. Verdict and judgment for named plaintiff was affirmed by the Court of Appeals and defendant brings certiorari.

Reversed and case remanded for a new trial.

Canale Glankler, Loch & Little, and Andrew O. Holmes, all of Memphis, for plaintiff in error, Angel.

Chandler Shepherd, Owen & Heiskell, of Memphis, for defendant in error, McClean.

McKINNEY Justice.

Mr. and Mrs. McClean instituted separate suits against Mrs. Angel to recover damages for injuries received in an automobile collision. The two cases were consolidated and heard together. The jury found in favor of Mrs. McClean in the sum of $1500, but against Mr. McClean, and the latter did not appeal. The Court of Appeals affirmed the judgment in favor of Mrs. McClean, and the petition of Mrs. Angel for writ of certiorari has heretofore been granted and argument heard. It seems to be conceded that the suit of Mr. McClean was dismissed because his negligence contributed to Mrs. McClean's injury. The question upon which the case was disposed of in the Court of Appeals, and which has been very ably presented in this court, is whether the negligence of Mr. McClean is imputable to his wife so as to bar a recovery by her against Mrs. Angel.

The McClean automobile was owned by the wife and registered in her name. On the morning of the day that the accident occurred Mr. McClean had used the car in going to his work on Main Street and returning to his home for his midday meal. After lunch both Mr. and Mrs. McClean entered the car, occupying the front seat, for the purpose of going to the business section of the city. Mr. McClean was driving. Mrs. McClean, upon arriving at the store where her husband worked, was to take charge of the car, park it, and then walk to the office of her physician for treatment. While en route to the business section of the city the accident occurred.

This case is governed by the rule applied in Ringwald v. Beene, 170 Tenn. 116, 92 S.W.2d. 411, the only difference being that in that case the car owned by the wife was being driven by the husband for the exclusive benefit of the wife; while in the case on trial the car was being used for the common or joint use of the husband and wife. In the case just referred to it was said (page 413): "We do not see that the husband, driving this car on this mission, occupied a position different from that of any other driver whose services the wife might have secured. It was her car, her trip, and her driver." In the present case it was the wife's car, her trip, and her driver. The fact that it was also being used for the benefit of the husband cannot affect the result. The liability seems to hinge upon the right to control.

In Turnpike Co. v. Yates, 108 Tenn. 428, 440, 67 S.W. 69, 72, this court quoted approvingly from A. & E. Ency. Law, vol. 7, p. 448, as follows:

"The true principle seems to be that, when a person is injured by the negligence of the defendant and the contributory negligence of one with whom the injured person is riding as a guest or companion, such negligence is not imputable to the injured person; while, on the other hand, it may be imputable when the injured person is in a position to exercise authority or control over the driver."

In Guy v. Union St. Ry. Co., 289 Mass. 225, 193 N.E. 740, the Supreme Court of Massachusetts said (page 742): "It is not necessary that there be an actual control by the owner to make the operator a servant or agent of the owner, it being sufficient that there is a right to control." In that case the husband was to drive the wife in her car to visit her sister, and then use the car in his own business. While en route to the home of the wife's sister the accident occurred. The court held the husband's negligence was imputable to the wife, barring her recovery against the defendant.

In Gochee v. Wagner, 257 N.Y. 344, 178 N.E. 553, the Court of Appeals of New York held that the wife's negligence must be imputed to the husband where the wife driving the automobile with permission of the husband had taken her mother to the city, and on the way home stopped at the husband's father's house, where the husband got into the car and sat on the rear seat, intending to ride to his home, at which time he regained dominion over the car, in that he was present and had the legal right to control its operation.

In Challinor v. Axton, 246 Ky. 76, 54 S.W.2d 600, the facts were that the husband was driving his wife and children home from town, in the wife's car when the accident occurred. In holding that the wife could not recover against defendant, the court said (page 603): "It was being driven by her her husband with her consent and acquiescence on a mission as much for the benefit of herself as it was for him or any member of the family; and,...