Fox v. Lavender

• Decision Date: 16 April 1936
• Docket Number: 5523
• Court: Utah Supreme Court
• Parties: FOX v. LAVENDER

56 P.2d 1049

89 Utah 115

FOX v. LAVENDER

No. 5523

Supreme Court of Utah

April 16, 1936

Rehearing denied October 14, 1936.

Appeal from District Court, Third District, Salt Lake County; Allen G. Thurman, Judge.

Action by Mrs. Iva A. Fox against Mrs. Vera Lavender. Judgment for defendant, and plaintiff appeals.

REVERSED AND REMANDED, WITH DIRECTIONS.

Willard Hanson and N. H. Tanner, both of Salt Lake City, for appellant.

Fabian & Clendenin, of Salt Lake City, for respondent.

WOLFE Justice. ELIAS HANSEN, C. J., and FOLLAND, and EPHRAIM HANSON, JJ., concur. MOFFAT, Justice, dissenting in part.

OPINION

WOLFE, Justice.

The review is on an order directing a verdict for the defendant. The facts are simple. The plaintiff and defendant are half-sisters. On the 14th day of April, 1933, when the accident happened out of which this action arose, the defendant and her husband owned in common the Dodge roadster involved in the accident. They jointly contributed to pay the oil and gas bill at the Utah Oil Refining Company where the husband worked. The mother of the plaintiff and defendant lived at that time in Bingham. The defendant and her husband visited the mother about once a week and usually took something or brought something back. On that evening between 6 and 7 o'clock, defendant called plaintiff, her half-sister, on the telephone stating she was going to Bingham "to see mother" and to get a dress that her mother was fixing for her, and asked plaintiff if she would not like to go with her. Plaintiff said that while she had been out there for a week or two she thought her husband would like to go and when he came home she would ask him. Later she called up her half-sister, the defendant, and said that she and her husband would like to go with her. About 8:15 o'clock the defendant and her husband came to the Packard home where plaintiff was staying, and about a quarter of 9 they, with plaintiff's husband, started to leave for Bingham. The testimony then is that the defendant Vera asked her husband, Art, "Will you drive?" and he answered by saying, "Will you drive?" Whereupon she said, "No, I would rather you would drive because Iva (the plaintiff) is nervous." The latter conversation is substantially what was testified to by George C. Fox, the plaintiff's husband. The defendant herself did not remember whether she said that. She remembered she admonished him to drive carefully.

The defendant's husband then drove the car and while driving suffered an accident which injured the plaintiff. It is assumed that the driver of the car was negligent. There is no question but that the plaintiff was a guest passenger. There is no question of negligence on the part of the guest passenger, the evidence being that the accident happened too quickly for her to warn the driver. Plaintiff sued the defendant on the theory that the husband of the latter was at the time of the accident her agent and that she is therefore responsible on the principal of respondeat superior. The court directed a verdict for the defendant on these facts. The sole question is: Could the court say as a matter of law, under the facts as stated, that the driver was not the agent of the defendant in the driving of the car?

The theory upon which the principal must respond for the acts of an agent is that the principal is doing, in contemplation of law, through the agent, his own acts. He is acting through the instrumentality of another. Where the owner drives a car himself, he has the direct control over its mechanism. If he removes himself as the operator of the car and substitutes another to operate it for him, it is the same in law as if he himself were operating it. A principal may control his agent's actions and movements just as he could control his own actions or movements. Of course, this does not mean that he can have the same refinement of physical control over the car as though his brain were directing his own movements as operator, but in contemplation of law if he is operating it through an instrumentality he himself is operating it. The test of whether one is the agent of the other depends upon the right of control of one over the other. The same principles of agency apply to the running of an automobile as apply to any other field of action. The fact that the automobile is capable of causing so much damage has led the courts sometimes unwittingly to depart from the fundamental principles of principal and agent in order to hold owners responsible, the thought in the minds of the courts being that more responsibility should be visited upon the owner of such an instrument because of the potentialities for mischief. In some states, such as New York and Michigan, this has been done by statute.

Control as applied to the operation of an automobile may be broken down into its elements--the when, the where, and the how. Complete control means that the principal could dictate when the car was to be used, the destination or where it should go, the route it should take, and how it should be driven, whether slow or fast, behind or around traffic, inside or outside the lane of traffic, etc. It is not necessary that the principal should be physically able to so direct or control, but only that he has the right to. Such legal right of control arises out of the relationship of master and servant, where the servant is the operator of the car. In contemplation of law, an individual employing a chauffeur or a corporation employing a hundred truck drivers has the right of control over the servants driving their cars, although it would be, in fact, an impossibility to exercise it. Each of such servants is in contemplation of law the agent or instrumentality through which the master acts, and in contemplation of law each is acting in place of the master or principal. Improvement in means of communication between a driver and an absent master may in time make possible actual driving by remote control. In such case the master will be actually doing what in law he already has the right to do.

The five ingredients of the problem before us to be taken into consideration to determine whether the wife had control of the husband (as driver of the car) during the trip to Bingham are: (1) The relationship of husband and wife; (2) the fact that they were on an errand to get a dress for the wife; (3) the joint ownership of the car; (4) the fact that the wife and husband agreed that the husband should drive; and (5) four occupants of the car were on a trip to call on the mother. In this analysis we are only concerned with the question of who had the right of control of the car while it was on the journey. The purpose of the journey is only material in so far as it throws light on that question. The answer to this question must be obtained by an examination of the five ingredients above set out.

The relationship of husband and wife: In law the husband or wife is not the agent of the other although it may take less evidence than ordinary to show agency existing between them. Kolensky v. DeFrancesco, 102 Conn. 660, 129 A. 777; Rodgers v. Saxton, 305 Pa. 479, 158 A. 166, 80 A. L. R. 280; Roper v. Cannel City Oil Co., 68 Ind.App. 637, 121 N.E. 96; 2 C. J. 40, § 35. The mere fact that there was the relationship of husband and wife does not show agency.

The object of the journey: The object of the journey was to obtain a dress for the wife. In ascertaining the effect of this purpose, we shall treat it as if it were the sole purpose. The purpose of a trip is material only in so far as it throws light upon the question of agency or the question of who has the right of control during the trip. Many cases have loosely used expressions such as "for and on behalf," or "in the business of," or "for the benefit of." As stated before, the inquiry must be directed to the question of agency in the operation of the car rather than to the question of agency for the accomplishment of some ultimate purpose. In the case of an independent contractor a person may have the right of control over the act to be done at the destination or at the beginning, but another party or the driver himself may have control in the operation of the car during the trip. In the case of a taxicab the fare has the right to control the destination but not to control the operation of it. A guest being taken for a pleasure ride is having something done for his or her benefit or on her behalf but that does not make the driver his or her agent. A husband may take his own car and do an errand for his wife, such as to fetch home a dress from the cleaners, but the wife has no control over the husband's operation of the car during the journey to obtain the dress. The husband may be the agent to procure the dress but not the agent to operate the car. If, in this case, the defendant had given some person some money to take that person's own car to get the dress such person would have been, in a sense, on the business of the defendant or doing something for or on her behalf, but ordinarily there would be no agency. If I give a pedestrian a lift on my way downtown and when I arrive there find that he is going to the station and drive out of my way to take him to the station and an accident happens during the diversion from my business, that does not make me the agent of the pedestrian whom I accommodate. I still have the right of control during the journey of diversion. Therefore, the ultimate object of what is to be done at the end of the journey is not controlling, but simply a circumstance to throw light upon the question of whether there was the right of control during the journey. The inquiry must still be directed as to whether an agency existed in the operation of the car, or the more fundamental question of whether there...