Hurley v. Peebles

• Decision Date: 30 November 1964
• Docket Number: No. 5-3380,5-3380
• Citation: 384 S.W.2d 261,238 Ark. 739
• Parties: Mrs. Gladys HURLEY, Executrix, Appellant, v. Edward Eugene PEEBLES, Appellee.
• Court: Arkansas Supreme Court

Page 261

384 S.W.2d 261

238 Ark. 739

Mrs. Gladys HURLEY, Executrix, Appellant, v. Edward Eugene PEEBLES, Appellee.

No. 5-3380.

Supreme Court of Arkansas.

Nov. 30, 1964.

John D. Eldridge, Augusta, Wright, Lindsey, Jennings, Lester & Shults, Little Rock, for appellant.

Fletcher Long, Forrest City, W. J., Dungan and James F. Daugherty, Augusta, for appellee.

JOHNSON, Justice.

This appeal involves attempted imputation of negligence in a suit for personal injuries sustained by a back seat passenger in the rear car of a rear end collision.

Early on the morning of September 20, 1960, about 5:00 A.M., a car driven by Alpheus Hubbard going south on Highway 17 collided with the rear of a truck near Shoffner eleven miles south of Newport. The truck was being driven by Donaciano Vasquez, an employee of W. G. 'Buck' Hurley (who has since died). Passengers in the Hubbard car were appellee Edward Eugene Peebles and Joe F. Stobaugh. Hubbard and Stobaugh, in the front seat, died as a result of their injuries and appellee, who was asleep on the back seat of the car, was injured. (Another case resulting from this collision is Stobaugh v. Hubbard, 234 Ark. 917, 355 S.W.2d 283.)

Appellee filed suit in Woodruff Circuit Court on February 25, 1963, against appellant Gladys Hurley, executrix of the estate of W. F. 'Buck' Hurley, deceased. The complaint alleged, inter alia, that appellee was a passenger in Hubbard's car when it collided with the truck driven by Vasquez, an employee and agent of Hurley in the course of his, Vasquez', employment. The complaint contained detailed allegations of Vasquez' negligence, appellee's injuries and damages, and prayed judgment for $35,145.00 (including $24,600.00 for past and future loss of earnings). Appellant answered, (1) denying appellee's allegations, (2) alleging that appellee was negligent in failing to exercise ordinary care for his own safety as a passenger and that such carelessness caused or contributed to his damages, and (3) pleaded that Hubbard was negligent in operating his vehicle and that Hubbard's negligence is imputed to appellee for the reason that Hubbard and appellee were engaged in a joint enterprise with an equal right to direct and control Hubbard's vehicle, and that Hubbard's negligence caused or contributed to appellee's damages.

Appellee amended his complaint on August 8, 1963, alleging additional injuries and damages based on a physical examination made in July, 1963, and increased his prayer for damages to $67,545.00, which appellant answered and denied.

Trial was had on February 5, 1964, and after deliberation the jury returned its verdict for appellee in the sum of $28,583.00. From judgment on the verdict comes this appeal.

For reversal appellant urges that the trial court erred in holding as a matter of law that negligence, if any, of Hubbard would not be imputed to appellee, and in refusing to submit that issue to the jury.

Appellant offered several instructions on imputation of negligence, the first of which was:

'Defendant's requested instruction No. 4.

'If you find from a preponderance of the evidence that Alpheus Hubbard was under the influence of intoxicants to such an extent that his ability to drive a vehicle was impaired, or that he was operating his vehicle at an excessive rate of speed under the circumstances, then you may take this into consideration in determining whether or not Alpheus Hubbard was negligent and whether or not such negligence, if any, was a proximate cause of the collision, injuries and damages.'

The court refused this instruction, stating:

'Defendant's requested instruction No. 4 is refused for the reason that the court has held that, as a matter of law, the testimony in this case is insufficient to establish joint venture and that, therefore, the negligence of Alpheus Hubbard would not be imputed to the plaintiff in this case.'

The court gave appellee's requested instruction No. 4 as follows:

'You are instructed that there is no competent evidence in this case that the plaintiff Peebles was engaged in a joint venture with the decedent Hubbard at the time of the collision. Therefore, Hubbard's negligence, if he was guilty of any negligence, would not be imputed to the plaintiff in this case.'

And the court then instructed the jury orally as follows:

'As you have already been told, a joint venture was alleged in the answer and some proof was offered along that line, but the court holds that there is no competent evidence in this case to establish a joint venture.'

to which instruction appellant objected, urging that under the evidence in this case the jury should be instructed, as a matter of law, that they were engaged in a joint venture, or at least the court should submit the issue of whether they were engaged in a joint venture to the jury.

Joint venture, variously called joint enterprise, common purpose and joint adventure, has been the subject of confusion in this state, and we therefore seize upon this opportunity to attempt to clarify the law. There is no confusion, however, about the basic law of joint enterprise.

'This court has consistently held that in order for a joint enterprise to arise two fundamental and primary requisites must concurrently exist, to-wit: A community of interest in the object and purpose of the undertaking in which the automobile is being driven and an equal right to direct and govern the movements and conduct of each other in respect thereto. If either or both of these elements is absent, there is no joint enterprise.' Woodard v. Holliday, 235 Ark. 744, 361 S.W.2d 744.

The confusion has arisen relative to application of the law and in erroneous use of the term; that is, mislabeling apparent 'assumption of risk' as 'joint enterprise.' This mislabeling has evolved into what could be called the 'drunken joint enterprise' theory. This unique 'theory' seems to have resulted from a misconception of the language in Albritton v. C. M. Ferguson & Son, 197 Ark....