Greyhound Lines, Inc. v. Caster

Decision Date19 January 1966
Parties, 59 Del. 220 GREYHOUND LINES, INC., a corporation of the State of California, Defendant Below, Appellant, v. Joseph S. CASTER and Julia Caster, his wife, Plaintiffs Below, Appellees, and John Calvin Griffin, Defendant Below, Appellee.
CourtUnited States State Supreme Court of Delaware

Appeal from Superior Court for New Castle County.

C. Waggaman Berl, Jr., of Berl, Potter & Anderson, Wilmington, for appellant.

F. Alton Tybout, Wilmington, for plaintiffs below, appellees.

No brief for defendant below, appellee.

WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.

CAREY, Justice:

The Court below entered a judgment based upon a jury verdict in favor of the plaintiff for damages sustained as the result of injuries suffered by Joseph Caster in an automobile accident which occurred in July, 1964, at about 2:55 A.M. A passenger car, owned by Mr. Caster and driven by defendant Griffin, collided with a bus owned by Greyhound Lines and driven by defendant Womble, Greyhound's employee, at the intersection of U.S. Route 13 and Delaware Route 16 at Greenwood in Sussex County. That intersection is guarded by a yellow flashing light facing traffic coming south on Route 13, and by a red flashing light preceded by two large stop signs facing traffic coming east on Route 16. The bus was moving south on Route 13 and the car was moving east on Route 16. The Court below directed a verdict against Griffin but left it to the jury to determine the claim against Greyhound and Womble. No appeal has been taken by Griffin or Womble.

There was uncontradicted testimony that Caster was asleep on the back seat of his car at the time of the accident and had been asleep for some time prior thereto. He testified that he was familiar with Griffin's ability to drive and considered him a good driver, and that, when he had become tired, he turned over the driving to Griffin. Another passenger got into the front seat so that Caster would have the entire rear seat for sleeping. Caster gave no instructions to Griffin concerning the driving, and was satisfied that Griffin was fully capable of driving properly without any instructions. From the meager record before us, there appears to have been no testimony that Griffin was incompetent or that his faculties were in any way impaired. There was no charge that Caster himself was negligent. There is no suggestion that Griffin was Caster's employee or agent. The sole contention is that Griffin's negligence should be imputed to Caster because he was the owner of the car and a passenger therein.

The trial Judge instructed the jury that, if they found Caster was asleep at the time of the accident, they must find that Griffin's negligence is not imputed to Caster. Appellant duly excepted to that instruction. It also excepted to certain other parts of the charge which will be discussed later herein.

Much has been written by Judges, as well as textwriters, concerning the imputation of a driver's contributory negligence to an owner-passenger. See, for example, annotations in 147 A.L.R. 978 and 50 A.L.R.2d 1296; 4 Blashfield, Automobile Law and Practice, § 2493; Prosser on Torts, § 72. No discussion of the various underlying theories is presently needed. If we were to adopt the rule followed in some states, there could be no such imputation in this case, even if the owner had been awake. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149; Johnson v. Los Angeles-Seattle Motor Express et al., 222 Or. 377, 352 P.2d 1091, overruling White v. Keller, 188 Or. 378, 215 P.2d 986; Schweidler v. Caruso, 269 Wis. 438, 69 N.W.2d 611. But the majority rule, in the absence of statute, seems to be that the driver's contributory negligence will be imputed to, and will be a bar to an action by, an owner-passenger, unless the owner can establish that he had actually surrendered his right of control to the operator, even though the owner was not in fact exercising that right at the time of the accident. Beam v. Pittsburgh Rys. Co., 366 Pa. 360, 77 A.2d 634; Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185; Brooks v. Sentle, 74 Ohio App. 231, 58 N.E.2d 234; Langham v. Talbott, Tex.Civ.App., 211 S.W.2d 987; Ridgon v. Crosby, 328 Ill.App. 399, 66 N.E.2d 190. That rule has been followed by our Superior Court in Eskridge v. Ruth, 9 Terry 439, 105 A.2d 785, and presumably in Balick v. Philadelphia Dairy Products Co., 5 W.W.Harr. 269, 162 A. 776. See also Halpern v. United States, D.C., 129 F.Supp. 326, applying Delaware law. This Court has never been obliged to pass upon these conflicting theories. * We see no need to do so now because even the majority rule permits a recovery by the owner if he can prove that he had in fact surrendered control to the driver. Appellant so concedes.

The important question in this connection is, therefore, whether Caster had relinquished control by going to sleep. On the point, we are impressed with the reasoning of Stafford v. Roadway Transit Co., 3 Cir., 165 F.2d 920, and Rocky Mountain Produce Trucking Co. v. Johnson, 78 Nev. 44, 369 P.2d 198. Those cases stand for the propositions that a sleeping owner cannot exercise control; that the situation is the same in this regard as if he were not present in the car; and that there is no more reason to charge the driver's negligence against him than there would be if the owner had been at home. Indeed, it is difficult for us to imagine how the owner could more effectively divorce himself from control than by crawling into the back seat and going to sleep.

Several cases have been cited by appellant which have denied recovery by a sleeping owner. Some of them are distinguishable. Baird v. Baird, 223 N.C. 730, 28 S.E.2d 225, was primarily based upon a New York statute making an owner responsible for a driver's negligence whether he was present in the car or not. In Knudson v. Boren, 10 Cir., 261 F.2d 15, there was a finding of joint enterprise. Ter Haar v. Steele, 330 Mich. 167, 47 N.W.2d 65, involved an employer-employee relationship. Rodriguez v. State Farm Mutual Ins. Co., La.App., 88 So.2d 432, has been expressly overruled by Gaspard v. LeMaire, supra. Both Kline v. Barkett, 68 Cal.App.2d 765, 158 P.2d 51, and Malone Freight Lines v. Tutton, 177 F.2d 901, may possibly be predicated upon a husband-wife relationship, although the opinions are not clear in this respect. In any event, to the extent that these authorities disagree with Stafford v. Roadway Transit Co., supra, we decline to follow them. We are of the opinion that the jury instruction on this point was correct.

Appellant suggests that this conclusion sets a dangerous precedent in that an owner could turn over the driving duties to a drunkard or an incompetent...

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