Gilmore v. Grass

• Decision Date: 16 December 1933
• Docket Number: No. 812.,812.
• Parties: GILMORE et al. v. GRASS.
• Court: U.S. Court of Appeals — Tenth Circuit

68 F.2d 150 (1933)

GILMORE et al. v. GRASS.

No. 812.

Circuit Court of Appeals, Tenth Circuit.

December 16, 1933.

George F. Short, of Oklahoma City, Okl. (John W. Blood, of Wichita, Kan., and Charles Hill Johns, of Oklahoma City, Okl., on the brief), for appellants.

Frederic S. Anderson, of Oklahoma City, Okl. (Gomer Smith and A. J. Taft, both of Oklahoma City, Okl., on the brief), for appellee.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

BRATTON, Circuit Judge.

This appeal brings here for review the correctness of the trial court's action in refusing to submit to the jury the question of imputed negligence.

Anna Grass, surviving widow of Lee Grass, deceased, on behalf of herself and her five minor children, instituted the suit to recover damages for the wrongful death of her husband resulting from the collision of an automobile in which he was riding with a bus owned by Southern Kansas Stage Lines Company and operated by Lee Gilmore, its agent. For convenience, the parties will be denominated as they were in the trial court. The jury returned a verdict in the following language: "We, the jury in the above-entitled case, duly impaneled and sworn, upon our oaths, find for the plaintiff, and assess her damages at ten thousand ($10,000.00) dollars, on the grounds that both drivers were guilty of contributory negligence and from the preponderance of the evidence said negligence caused the death of plaintiff's husband."

Judgment was rendered for plaintiff. Defendants appealed.

James D. De Friese had sold an automobile to Blackburn and desired to repossess it because of default in payment. Roy McMahon was a brother-in-law of De Friese and worked for him at a garage. On the Sunday morning in question De Friese directed McMahon to repossess the Blackburn car. Pursuant to such direction and using an automobile owned by De Friese, McMahon started to the Blackburn residence to get the car. Masters accompanied him for the purpose of showing him where Blackburn lived and Grass went along to drive the Blackburn car back to the garage. Grass, a carpenter and electrician, was not employed by De Friese and was not to receive compensation for driving the car, it being entirely an accommodation on his part. McMahon was driving the car in which the three of them were riding and had complete charge of it at the time of the accident. Grass was riding in the front seat with him and Masters occupied the rear seat. They traveled south on Lincoln boulevard in Oklahoma county, Okl. The bus came north on the boulevard. McMahon turned to the left into Thirty-Sixth street. The bus and the car collided, resulting in the death of Grass. There is a direct conflict in the testimony with respect to the negligence of the respective drivers. It is unnecessary to detail the incidents attending and immediately preceding the collision because the jury found that both drivers were negligent, and that finding is not challenged here.

Defendants tendered a requested instruction, as follows: "You are instructed that if you find in the evidence in this case that the deceased and the driver of the Ford car, in which he was a passenger, were engaged in joint enterprises, and that the driver of the Ford car was guilty of negligence, then such negligence would be imputable to deceased, and if you find that the negligence of the driver of the Ford car contributed to, or was the approximate cause of the collision, which resulted in the death of the deceased the verdict should be for the defendant."

The court refused it and stated to the jury that the evidence did not justify the submission of that issue.

Although McMahon, Grass, and Masters were engaged in an undertaking having for its common purpose the repossession of the Blackburn car and its return to the garage, each had a separate and distinct duty to perform quite apart from the others. No one of them had the right to direct or control the others. McMahon was driving and in complete control of the automobile at the time of the fatal accident. Grass had no control over it; he had no right to direct the manner of its operation; he had no voice in that matter; there was no community of interest between them with respect to the manner of its operation as an agency used in connection with the repossession of the Blackburn automobile. They were not partners in any sense. The relation of master and servant or that of principal and agent did not exist between them.

While the doctrine has sustained certain facets, it is generally held to apply in a case of this kind only where the parties are engaged in a joint enterprise in which they have a community of interest with respect to the manner in which the operation of the automobile is used as an agency and where they each have some control over the manner of its operation. There must be some relation between them, such as partnership, principal and agent, master and servant, or some other kindred identity in order to constitute such community of enterprise and joint control over the operation of the automobile.

The case of Little v. Hackett, 116 U. S. 366, 6 S. Ct. 391, 397, 29 L. Ed. 652, is an early and leading one. There plaintiff hired a public hackney coach with a driver furnished. He could direct the driver where to go, but otherwise he had no control over the operation of the coach, that being entirely with the driver. Plaintiff suffered an injury consequent upon concurring negligence of those operating a train and the driver of the coach. The court held that the negligence of the driver could not be imputed to plaintiff in the absence of some power of control or direction on his part over the operation of the vehicle, either through the relationship of master and servant or otherwise. It was said: "Those on a hack do not become responsible for the negligence of the driver if they exercise no control over him further than to indicate the route they wish to travel or the places to which they wish to go. If he is their agent, so that his negligence can be imputed to them to prevent their recovery against a third party, he must be their agent in all other respects so far as the management of the carriage is concerned, and responsibility to third parties would attach to them for injuries caused by his negligence in the course of his employment. But, as we have already stated, responsibility cannot, within any recognized rules of law, be fastened upon one who has in no way interfered with and controlled in the matter causing the injury. From the simple fact of hiring the carriage or riding in it no such liability can arise. The party hiring or riding must in some way have co-operated in producing the injury complained of before he incurs any liability for it."

In Chicago, R. I. & P. Ry. Co. v. Fanning (C. C. A.) 42 F.(2d) 799, 803, plaintiff and her husband, while en route to a dance in an automobile driven by the husband, drove into a ditch carelessly and negligently maintained by the railroad company. It was contended that the trial court erred in refusing to submit to the jury the question of the husband's negligence in the operation of the automobile and its imputation to the wife. This court speaking through Judge Lewis, said:

"Specifications 3 and 4 cover in part the same subject. The first one relates to the claimed negligence of appellant's husband in operating the automobile, and the second one is on the theory that the husband and wife were using the automobile in a joint enterprise for their mutual pleasure, and it again couples therewith the husband's claimed negligence in the operation of the car. Each seeks to attribute the claimed negligence of the husband to the wife as a bar. Neither proposition can be supported. In Berry on the Law of Automobiles (4th Ed.) § 550, which follows a discussion of the rule as to occupants of cars being liable for the driver's negligence, we find this:

"`The rule that the negligence of the operator is not imputable to a guest or passenger riding in the automobile, applies as between a husband, who is driving, and his wife, who is riding with him.'

"Whether the occupant be a stranger to the driver or a member of the driver's family, the negligent acts of the driver are in neither case imputable to the passenger unless the relation between them is such as to entitle the passenger to give directions as to the operation of the automobile, — the...