Chaney v. Tingley

• Decision Date: 01 September 1977
• Docket Number: No. 1-177A11,1-177A11
• Citation: 366 N.E.2d 707,174 Ind.App. 191
• Parties: Hareld E. CHANEY and Mildred C. Chaney, Appellants (Plaintiffs below), v. Sandra TINGLEY, Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 707

366 N.E.2d 707

174 Ind.App. 191

Hareld E. CHANEY and Mildred C. Chaney, Appellants (Plaintiffs below), v. Sandra TINGLEY, Appellee (Defendant below).

No. 1-177A11.

Court of Appeals of Indiana, First District.

Sept. 1, 1977.

Rehearing Denied Sept. 22, 1977.

Frederick T. Bauer, Bauer, Miller & Bauer, Terre Haute, John J. Thomas, Thomas & Thomas, Brazil, for appellants (plaintiffs below).

D. Joe Gabbert, Patrick, Ratcliffe, Gabbert, Wilkinson, Goeller & Modesitt, Terre Haute, for appellee (defendant below).

ROBERTSON, Chief Judge.

Plaintiffs-appellants (Chaneys) are appealing from a negative judgment on a suit for damages resulting from a collision on August 25, 1975, wherein a pick-up truck operated by defendant-appellee (Tingley) struck the rear and left side of an automobile occupied by the Chaneys, which was parked at a curb on a city street in Terre Haute.

The facts show that the Chaneys were parked on the east side of 13th St., facing north. Tingley, who was approaching the Chaney's car from the rear, traveling north, observed Mrs. Chaney open the driver's door into her path when she was 30 to 60 feet to the rear of the Chaneys' vehicle. Mrs. Tingley immediately applied her brakes causing her to skid into the left rear of the Chaney vehicle with the right front of her vehicle and, subsequently, causing her to hit the open driver's door of the Chaney vehicle.

The Chaneys filed a joint complaint as husband and wife with each of them claiming personal injuries and past and future loss of income from their business. Hareld Chaney also claimed loss of services and medical expenses of his wife. Trial began May 25, 1976, and the jury rendered a verdict for Tingley on May 27, 1976.

Judgment was entered May 28, 1976, with the Chaneys filing their Motion to Correct Errors on July 23, 1976.

The issues presented for review are:

1. whether the trial court committed error in tendering and reading to the jury defendant's tendered instructions concerning the theory of "joint enterprise."

2. whether the trial court committed error in refusing to give plaintiff's tendered instructions concerning defendant's duty to keep proper lookout and use due care to avoid a collision 3. whether the verdict and judgment is contrary to law in view of the evidence presented at trial.

I.

The Chaneys first assert that the trial court erred in giving two instructions over their objections in that there was no evidence before the jury from which it might find that a joint enterprise existed between the Chaneys, nor was there any evidence before the jury from which it might find that there was any negligence on the part of Mrs. Chaney which might be imputed to Mr. Chaney.

This court in Grinter v. Haag (1976), Ind.App., 344 N.E.2d 320, 322-323, approved the requirements for establishing a joint enterprise as set forth in Keck v. Pozorski (1963), 135 Ind.App. 192, 191 N.E.2d 325, as follows:

"To establish a joint enterprise, an essential element is the existence of joint control over the management and operation of the vehicle and over the course and conduct of the trip. There must be a community of interest in the object and purpose of the undertaking and an equal right to direct and govern the movements and conduct of each other in respect thereto. As between the parties, there must be a contract either express or implied, to that effect." (Citations omitted.)

Concerning the issue of joint control or right to control, the Grinter court quoted from a discussion by Dean Prosser:

"The prevailing view is that a joint enterprise requires something, beyond the mere association of the parties for a common end, to show a mutual 'right of control' over the operation of the vehicle on or in other words, an equal right in the passenger to be heard as to the manner in which it is driven. It is not the fact that he does or does not give directions which is important in itself, but rather the understanding between the parties that he has the right to have his wishes respected, to the same extent as the driver. In the absence of circumstances indicating such an understanding, it has been held that companions on a pleasure trip, members of the same family, parties engaged in a commercial transaction, servants riding with the employer, or fellow servants in the course of their employment, although they may have a common purpose in the ride, are not engaged in a joint enterprise. Nor, of course, is the fact that the passenger has requested the driver to make the trip for his benefit sufficient to establish such a right of control.

"If the purpose of the journey is a business or financial one, in which the parties have a common interest, the mutual right to direct the operation of the car is much more readily found. There are courts which have gone so far as to say that the mutual right of control does not exist, and so a joint enterprise does not exist, in the absence of such a common pecuniary interest in the use of the car for the trip. The justification for this position may be that such a financial venture involves a closer analogy to the law of partnership, and affords more reason for regarding the risk as properly to be charged against all those engaged in it.

"The essential question is whether the parties can be found by implication to have agreed to an equal voice in the management of the vehicle, which in the normal and usual case is merely an issue of fact for the jury." (Our emphasis.) Prosser, The Law of Torts § 72 (4th Ed. 1971).

The instructions to which the Chaneys have objected were pattern jury instructions very similar to those given by the trial court in Leuck v. Goetz (1972), 151 Ind.App. 528, 280 N.E.2d 847, where the appellate court found no evidence in the record that a joint enterprise existed between the appellant wife and husband in that there was no showing of a joint proprietary purpose.

In the case at bar, evidence was admitted to show that Mr. and Mrs. Chaney, as husband and wife, had owned and operated Chaney's Jewelry Store in Brazil, Indiana since 1939. While the Chaneys did not file partnership returns on their income, they had jointly showed profit or loss from business or profession, and Mrs. Chaney had worked full-time in the jewelry store for twenty-five years, participating in its operation, management, and control.

On the day of the accident, the Chaneys had driven from Brazil to Terre Haute to see about a customer's watch that a Charles Cox was repairing for them. Immediately prior to the accident, the Chaneys had parked near Cox's shop and were trying to decide whether they would leave the watch with Cox or take it with them. After deciding to pick up the watch, the Chaneys were in the process of exiting their vehicle when the collision occurred.

We think that there is ample evidence in the record to show that both Mr. and Mrs. Chaney were directly and actively involved and participating in a common business related enterprise at the time this accident occurred. The Chaneys were exiting their vehicle so as to pick up their customer's watch an action which was directly related to their jewelry business. If Mrs. Chaney was negligent in attempting to exit their vehicle onto the busy city street, then that negligence may be imputed to her husband on the theory of joint enterprise, and the trial court so instructed the jury.

II.

The second specification of error concerns the trial court's refusal to give plaintiff's tendered instructions concerning defendant's duty to keep proper lookout and use due care to avoid a collision.

As this court stated in Thornton v. Pender (1976), Ind.App., 346 N.E.2d 631, 633:

"Under Indiana law, a motorist has a duty to maintain a lookout while traveling on a highway, Samuel-Hawkins Music Co. v. Ashby (1965), 246 Ind. 309, 205 N.E.2d 679; Jackman v. Montgomery, supra. This duty to maintain a lookout includes the duty to look at more than the traveled portion of the highway, e. g., travelers along the side of the highway, Jackman v. Montgomery, supra, vehicles approaching the highway from another intersecting roadway, Samuel-Hawkins Music Co. v. Ashby, supra, and children or bicycles along the road, Mays v. Welsh (1941), 218 Ind. 356, 32 N.E.2d 701. Likewise, the motorist has a duty to use due care to avoid a collision and to maintain his automobile under reasonable control. Taylor v. Fitzpatrick (1956), 235 Ind. 238, 132 N.E.2d 919."

In the instant case, the trial court issued the following instruction concerning the defendant's negligence:

COURT'S FINAL INSTRUCTION NO. 9

The plaintiff has the burden of...