Johnston v. Kincheloe
| Decision Date | 13 June 1935 |
| Citation | 164 Va. 370 |
| Parties | L. MORGAN JOHNSTON v. KATE KINCHELOE, ADM'X, ETC. |
| Court | Virginia Supreme Court |
1. JOINT ADVENTURES — Control and Operation of Automobile — Case at Bar. — In the instant case plaintiff's intestate was killed in an automobile accident. On the morning of the day of the accident, plaintiff's intestate requested one Arrington, a colored man, to drive him in his car to the home of the sister of plaintiff's intestate, that he might bring back some fruit jars. Upon the return trip there was a collision in which plaintiff's intestate was killed. If there was a joint enterprise, Arrington's negligence could be imputed to plaintiff's intestate. But there was none. Plaintiff's intestate had no voice in the management and control of the machine.
2. MASTER AND SERVANT — Imputing Negligence of Servant to Master. — The relationship of master and servant does not exist where the party alleged to be the master has no voice in the control and operation of the automobile in which they are riding.
3. MASTER AND SERVANT — Imputable Negligence — Basis of Doctrine. — If K. was the master and A. the servant, then A.'s negligence should be imputed to K. under the doctrine of respondeat superior. The basis of liability is that one who employs another to do an act for his benefit, and who has the choice of the agent, must take the risk of injury to third persons by the mode, or character, of the servant's performance.
4. MASTER AND SERVANT — Definitions. — A master is one who has the power to control, and a servant is one whose duty it is to obey. Plainly, this relationship did not exist in the instant case. Kincheloe had no power to control Arrington, and Arrington was not under the necessity of obeying him.
5. MASTER AND SERVANT — Agency — Definition of Agent. — An agent is one who represents another, called the principal, in dealings with third persons.
6. MASTER AND SERVANT — Definition of Servant. — A servant is one who is employed to render personal service to his employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master.
7. MASTER AND SERVANT — Servant and Agent Distinguished. — A chauffeur, when driving his master, is a servant. If he contracts with a mechanic to repair the car, he is an agent.
8. NEGLIGENCE — Host and Guest. — If K. was A's guest, then A.'s negligence cannot be imputed to him, and the doctrine of respondeat superior has no application.
9. NEGLIGENCE — Self-Invited Guest — Gross Negligence. — Plainly, a self-invited guest has no rights superior to those of one who goes by express invitation. To recover against his host, he must prove gross negligence, but his status relative to injuries inflicted by others is not changed.
10. FORMER ADJUDICATION OR RES ADJUDICATA — Judgment for Owner of Automobile in Action for Injuries Sustained by Driver in Colliding with Truck Not Res Adjudicata in Action for Injuries Sustained by Occupant of the Car. — Judgment in an action for injuries sustained by the driver of an automobile in colliding with a truck was not res adjudicata in an action sustained by an occupant of the automobile, where the negligence of the driver was not imputable to the occupant.
11. AUTOMOBILES — Agency — Refusal of Instructions — Case at Bar. — The instant case was an action for the death of plaintiff's decedent who was killed when the automobile in which he was riding collided with a truck. The decedent had no control over the automobile and the driver of the automobile had no interest in the purpose of the trip.
Held: That instructions that the jury should apply the doctrine of principal and agent as between the decedent and the driver of the automobile were properly refused where the decedent had no control over the automobile, and the driver had no interest in the purpose of the trip.
12. APPEAL AND ERROR — Affirmance of Judgment. — A jury's verdict, sustained by the trial court, if based on credible evidence must be sustained by the Supreme Court of Appeals.
13. APPEALS AND ERROR — Evidence Not Inherently Improbable — Right of Jury to Believe It — Discrepancy with Evidence Given at Former Trial. — The credibility of the driver of an automobile in an action for the death of an occupant of the automobile is for the jury, notwithstanding that at the hearing of his own case for damages arising out of the same accident the driver's testimony was less favorable to plaintiff's case than that given by him in the instant case.
Error to a judgment of the Circuit Court of Fairfax county in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.
The opinion states the case.
Charles Henry Smith, for the plaintiff in error.
Albert V. Bryan, S. Bernard Coleman and A. W. Embrey, Jr., for the defendant in error.
Thomas Nelson Kincheloe was killed on June 27, 1932, while riding in an automobile driven by Thomas Arrington when in collision with a truck belonging to L. Morgan Johnston. The accident occurred at a bridge across Pike's Run on what is known as Telegraph Road, in Fairfax county. On the morning of that day Kincheloe, a white man, requested Arrington, a colored man, to drive him in the latter's car to the home of Kincheloe's sister, that he might bring back some fruit jars. Pursuant to this request, in the afternoon, Arrington, driving his car, carried Kincheloe to the sister's home. Upon the return trip and while it was still day this collision, in which Kincheloe was killed, happened. His administratrix has obtained a verdict against Johnston, the defendant here, for $2,500, which was confirmed by the court. That judgment is now before us on a writ of error.
The defendant pleaded contributory negligence and filed this special plea of res adjudicata and estoppel by judgment:
"Now comes the defendant, L. Morgan Johnston, and files this, his special plea of res judicata and estoppel, to the claim set up in the notice of motion filed herein by the plaintiff against the defendant and says that the plaintiff's decedent, at the time the injury which resulted in his death was suffered by him as complained of in the notice of motion for judgment, was riding in an automobile owned by and being driven by one Thomas Arrington, who was the agent and servant of the said plaintiff's decedent immediately engaged in the business and carrying out the command of the said plaintiff's decedent, and that, as a result thereof, the rights and interests in the cause of action here complained of by the plaintiff are identical with those asserted by the said Thomas Arrington and that the said Thomas Arrington has heretofore instituted suit for damages against this defendant in the Circuit Court of the county of Fairfax, Virginia, a court of competent jurisdiction, arising out of the identical set of facts and cause of action as herein stated, and that the facts proven or which would have been proven in that case are identical with the facts relied upon to prove this case, and that, on the issue joined therein, a jury, under proper instruction of the said Circuit Court of Fairfax county, Virginia, returned a verdict for the defendant, upon which said verdict final judgment was rendered in favor of the defendant, and remains in full force and effect and was a judgment upon the merits; which said judgment was rendered on the following pleadings and record."
This plea the court rejected and error is assigned.
If there was a joint enterprise, Arrington's negligence can be imputed to Kincheloe. Virginian Ry. Co. Underwood, 152 Va. 264, 146 S.E. 277. But there was none. Whether Kincheloe got his fruit jars or not was a matter about which Arrington had no concern. He was not interested in the purpose of the trip and Kincheloe had no voice in the management and control of the machine. Miles Rose, 162 Va. 572, 175 S.E. 230, 235. It was there said:
"But the engagement between the parties must have given rise to a relationship between them such that each is entitled to a voice in the control and operation of the automobile — which is but to say that there must have been some joint enterprise." See, also, Gaines Campbell, 159 Va. 504, 166 S.E. 704.
If Kincheloe was the master and Arrington the servant, then Arrington's negligence should be imputed to Kincheloe under the doctrine of respondeat superior.
"The basis of liability is that one who employs another to do an act for his benefit, and who has the choice of the...
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