Arline v. Brown

• Citation: 190 F.2d 180
• Decision Date: 28 June 1951
• Docket Number: No. 13413.,13413.
• Parties: ARLINE et al. v. BROWN.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

190 F.2d 180 (1951)

ARLINE et al. v. BROWN.

No. 13413.

United States Court of Appeals Fifth Circuit.

June 28, 1951.

Willard Ayres, Frank R. Greene, Ocala, Fla., for appellant.

J. Henson Markham, Jacksonville, Fla., for appellee.

Before HOLMES, BORAH and RIVES, Circuit Judges.

HOLMES, Circuit Judge.

This controversy arose out of a collision in Florida between two automobiles. The action was brought by appellants, who are husband and wife, against the appellee, who filed a counterclaim against both appellants or either of them; but by instruction of the court below, the counterclaim was treated by consent of the parties as being against the husband alone. The appellants' complaint set forth a claim by the husband for his personal injuries, damage to his automobile, and medical expenses and loss of consortium resulting from injuries to his wife. In her own behalf the wife claimed damages for her personal injuries, including pain and suffering.

The appellee, by his answer, denied the allegations of the complaint, and pleaded contributory negligence on the part of the husband, which he claimed on the trial was imputed to the wife and defeated her claim also. At the conclusion of the evidence, the court below denied the wife's requested instruction that any contributory negligence on the part of her husband should not be imputed to her. In addition, the court instructed the jury that contributory negligence on the part of the husband would not only defeat his right to recover but that of his wife, because they were engaged in a joint venture at the time of the accident. The jury rendered its verdict finding the defendant not guilty on the claims of the plaintiffs, and the husband not guilty on the counterclaim of the defendant. Judgment was entered accordingly, which denied all parties, including the wife, any relief.

We find no fault in the verdict or judgment so far as the drivers of the two cars are concerned; and the judgment as to them, we think, should be affirmed; but prejudicial error was committed against the wife in deciding, as a matter of law, that she and her husband were engaged in a joint enterprise and that his negligence was imputed to her. There is no evidence in this record to justify such finding. It affirmatively appears that the wife was a guest in her husband's car; that she had recently undergone an operation, and was in no condition to exercise any control or authority over the car in which she was riding. She was being taken by her husband to visit her relatives on the day of the accident, but this fact alone was not an adequate basis for the court's conclusion that they were engaged in a joint enterprise. There can be no joint enterprise, under the Florida law, without an agreement, express or implied, to enter upon an undertaking, in the objects and purposes of which the parties have a community of interest, and in the pursuit of which they have equal authority. Mutuality of control over the subject matter is essential to the existence of a joint venture. Willis v. Fowler, 102 Fla. 35, 136 So. 358; Boyd v. Hunter, 104 Fla. 561, 140 So. 666; Albert Pack Corp. v. Fickling Properties, Inc., 146 Fla. 362, 200 So. 907; Yokum v. Rodriguez, Fla., 41 So.2d 446, 448; Livingston v. Twyman, Fla., 43 So.2d 354; Am. Jur., p. 682.

The doctrine of imputed negligence has received little recognition in the courts of Florida. On numerous occasions, the Supreme Court of that state has refused to impute the negligence of a husband to his wife, who was riding with him in the car. Seaboard Air Line R. Co. v. Watson, 94 Fla. 571, 113 So. 716; Toll v. Waters, 138 Fla. 349, 189 So. 393; DeSalvo v. Curry, 160 Fla. 7, 33 So.2d 215. In Kirch v. American C. L. Railroad Co., 5 Cir., 38 F. 2d 963, this court...