Bessett v. Hackett

• Decision Date: 24 July 1953
• Citation: 66 So.2d 694
• Parties: BESSETT v. HACKETT et al. MAXON et al. v. BESSETT.
• Court: Florida Supreme Court

Page 694

66 So.2d 694

BESSETT v. HACKETT et al.

MAXON et al. v. BESSETT.

Supreme Court of Florida, Division A.

July 24, 1953.

Strayhorn & Strayhorn, Ft. Myers, for Raymond Bessett, appellant and appellee.

Henderson, Franklin, Starnes & Holt, Ft. Myers, for Warren Hastings Hackett and Kittie Ann Hackett, appellees and Dudley Wendle Maxon and Lulu Irene Maxon, appellants.

SEBRING, Justice.

Dudley Wendle Maxon and Lulu Irene Maxon, his wife, sued Raymond Bessett to recover damages for personal injuries suffered by them as the result of a collision which occurred when the driver of an automobile owned by Bessett made a left turn across the public highway immediately in front of an automobile which Maxon was driving and in which Maxon's wife, and Warren Hastings Hackett and Kittie Ann Hackett, his wife, were riding as passengers. Hackett and his wife also sued Bessett to recover damages for injuries sustained by them arising out of the same accident. The cases were consolidated for trial and tried together.

The answer filed by the defendant to the complaint in each of the suits admitted ownership of the automobile involved in the collision, denied that the driver thereof was guilty of negligence, and averred that the collision occurred as the result of the violation of certain traffic regulations by Maxon and his failure to take proper precautions for his own safety and the safety of his passengers. The answer averred, further, that the passengers in the plaintiffs' car were negligent in that they were aware of the negligent manner in which Mr. Maxon was driving at and prior to the time of the accident but nevertheless continued to ride in the car without offering any objection. Included in the answer filed in the Maxon suit was a counterclaim wherein the defendant sought to recover from Maxon for the injuries to himself and damage to his automobile resulting from the alleged negligent operation of the plaintiffs' car by Maxon.

The accident occurred in the late afternoon of February 24, 1950, as Maxon, his wife, and Mr. and Mrs. Hackett, the two other occupants of the plaintiffs' car, were proceeding along the Tamiami Trail in a westerly direction toward Naples, Florida. As they reached a point some two miles east of Naples, Maxon saw the defendant's car, which was being driven by a female companion of the defendant, approaching in the south traffic lane of the highway. When the oncoming car reached a point approximately 100 feet away, the driver thereof, without giving any signal of an intention so to do, made a left hand turn to cross the highway. This placed the defendant's car directly in the path of the Maxon vehicle. As the driver of the defendant's car first started to turn, Maxon blew his horn, slowed his speed and placed his brakes in emergency but was unable to stop his car in time to avoid a collision.

There was evidence from the plaintiffs that at and immediately prior to the accident the Maxon car was traveling approximately 55 to 60 miles an hour. Testimony given by the defendant's witnesses, who saw the Maxon car for the first time only after it was within approximately one-fourth mile of the scene of the accident, estimated that it was traveling 80 miles an hour. All the witnesses seem to be in agreement that when the driver of the Bessett car made the left turn across the highway this car was traveling only 15 or 20 miles an hour. There is also evidence that the accident occurred in a country settlement where three or four dwelling houses and a filling station were located along the highway. However, the evidence seems to be clear that the immediate area was not a business district within the meaning of section 317.01(3), Florida Statutes 1951, F.S.A.; that the State Road Department had provided no traffic control at the location; and that the state speed law of 60 miles an hour was effective.

At the conclusion of the evidence in the case, the trial judge charged that: 'If from all the evidence you believe that Mr. and Mrs. Hackett and Mr. and Mrs. Maxon were sharing the expenses of their vacation in Florida, specifically their automobile expenses, even though the car belonged to Mr. Maxon and was being driven by Mr. Maxon I charge you that if you believe that the plaintiff driver, Mr. Maxon, was in even the slightest degree responsible for the accident, then you may not allow any recovery whatsoever to any of his passengers, Mrs. Maxon or Mr. and Mrs. Hackett, for in that event they would have engaged in a joint enterprise and joint adventure, and the carelessness of Mr. Maxon would be imputable to those riding with him and sharing expenses and his carelessness would be imputable to them.'

Upon the evidence, which we have stated in brief, and upon the charges given by the court, the jury returned a verdict in favor of the defendant. Subsequently, the trial judge granted a motion for new trial filed by the Hacketts, because he was of the opinion that as to the Hacketts he had erred in giving the charge as to joint adventure. However, he denied a similar motion made by the Maxons and entered judgment in favor of the defendant.

The Maxons have appealed from the judgment entered in favor of the defendant. The defendant Bessett has appealed from the order granting a new trial to the Hacketts. For the sake of convenience the cases have been consolidated, and the questions raised on appeal will be considered in one opinion.

The record shows that no issue as to joint adventure was raised by the pleadings. There was no evidence in the record to support such an issue even had it been raised by the pleadings. There was some testimony to the effect that the Hacketts and Maxons had driven in the Maxon car from Akron, Ohio, to Naples and that Hackett had assisted Maxon in driving. This was not sufficient to establish a joint adventure in respect to the trip from Ohio to Naples, since by the established test it must be shown that the passengers' right to control and management must be 'such as practically to amount to joint or common possession thereof.' Yokom v. Rodriguez, Fla., 41 So.2d 446, 448. 5 Am.Jur. p. 787.

But even assuming that it was sufficient, there is nothing in the evidence to indicate that after the parties reached their destination in Florida this relationship continued. The law is settled that instructions to the jury must be predicated upon facts in proof, and a charge on an issue as to which evidence has not been submitted will constitute error. Seaboard Airline Ry. v. Royal Palm Soap Co., 80 Fla. 800, 86 So. 835; Murden v. Miami Poultry & Egg Co., 113 Fla. 870, 152 So. 714; Postal Telegraph & Cable Co. v. Doyle, 123 Fla. 695, 167 So. 358. It is plain, therefore, that as to the Hacketts the trial judge did not commit reversible error in granting them a new trial.

As to Mrs. Maxon, the only positive evidence in respect to the ownership of the car in which she was passenger at the time of the accident, was that it belonged to her husband. Aside from the question of ownership, the only possible theory upon which it might have been presumed that a joint adventure relationship existed between Mr. and Mrs. Maxon was bottomed upon the fact that the couple were husband and wife and that the husband defrayed the expenses of their joint trip to Florida. If this be the theory it is not maintainable, because the mere relationship of husband and wife does not constitute a sufficient basis upon which to impute to the wife the negligence of the husband. Seaboard Air Line R. Co. v. Watson, 94 Fla. 571, 113 So. 716; De Salvo v. Curry, 160 Fla. 7, 33 So.2d 215.

We conclude, therefore, that the trial court erred in refusing to grant a new trial to Mrs. Maxon. Having reached this conclusion, we think there is another aspect of the case that should be given consideration.

The issues as to the right of recovery by Mrs. Maxon were submitted to the jury on the complaint filed by the plaintiffs and upon the defense, among others, 'That plaintiff passenger was careless and negligent in that she observed and was fully aware of the careless and negligent driving of the plaintiff of the automobile in which she was riding but nevertheless without regard to her own safety she continued to ride with said careless driver without remonstration in any way with said driver.'

In regard to this defense, the rule is that the negligence of the driver of an automobile is not in general imputable to a passenger who has no authority or control over the car or the driver. Porter v. Jacksonville Electric Co., 64 Fla. 409, 60 So. 188; Miami Coca Cola Bottling Co. v. Mahlo, Fla., 45 So.2d 119. In the absence of agency or joint enterprise, contributory negligence on the part of the driver will not ordinarily be imputed to a guest or invitee if the latter relies on the skill and judgment of the driver and does not attempt to impose his will on the driver to see that the machine is properly driven. Florida Motor Lines v. Hill, 106 Fla. 33, 137 So. 169, 143 So. 261; Seaboard Air Line R. Co. v. Watson, supra.

An exception to the general rule that a guest riding in an automobile is entitled to trust the vigilance and skill of the driver arises where the passenger knows, or by the exercise of ordinary and reasonable care should know, from the circumstances of the occasion, that the driver is not exercising that degree of care in the operation of the vehicle compatible with the safety of his passenger. 'In such case it becomes the duty of the guest to make some...