Jones v. Cary, No. 27652.

• Docket Nº: No. 27652.
• Citation: 219 Ind. 268, 37 N.E.2d 944
• Case Date: December 08, 1941
• Court: Supreme Court of Indiana

219 Ind. 268
37 N.E.2d 944

JONES et al.
v.
CARY.

No. 27652.

Supreme Court of Indiana.

Dec. 8, 1941.

Action by Peggy Cary, a minor, by Roderick H. Cary, her next friend, against William Jones and others, for injuries suffered in automobile collision. From a judgment for plaintiff, the named defendant and another appeal. Transferred from the Appellate Court under Burns' Ann.St. § 4-215.

Affirmed.

Superseding opinion of Appellate Court, 31 N.E.2d 74.

[37 N.E.2d 947]

Appeal from Hamilton Circuit Court; Cassius M. Gentry, Judge.
Bingham, Cook & Bingham, of Indianapolis, and Thomas E. Kane, of Noblesville, for appellants.

Fae W. Patrick and Thomas L. Webber, both of Indianapolis, and Cloe & Campbell, of Noblesville, for appellee.

SWAIM, Judge.

The appellee, a minor, brought an action by her father as next friend for damages for injuries resulting from an automobile accident alleged to have been caused by the negligence of the appellants and one Southwood.

At the time of the accident the appellee was riding with her father in his automobile which was being driven by him in a westerly direction upon and along U. S. Highway 52 about eleven miles southeast of Indianapolis. A short distance in front of the automobile in which the appellee was riding, an automobile belonging to the appellant Jones was being driven by the appellant Hebenstreit along said highway in the same direction. An automobile owned and operated by said Southwood was being driven in an easterly direction on said highway, was in collision with the automobile being driven by Hebenstreit and then collided with the automobile in which appellee was riding, thereby causing the injuries complained of.

The complaint alleged that the appellant Jones owned and was operating his automobile through his duly authorized agent, Hebenstreit; that said Hebenstreit ‘was driving said Chevrolet automobile at said time and place for the said defendant William Jones, as his agent and driver, and within the due scope and course of his employment. That at all times herein mentioned, said automobile was being driven by said defendant Clem Hebenstreit, under the direction, control and supervision of the defendant William Jones who was riding in said automobile at said time.’ The complaint also alleged that the defendants Jones and Hebenstreit ‘carelessly and negligently failed to keep a lookout for other automobiles using said highway and carelessly and negligently failed to keep said automobile under control so that the same could be operated to the north of a certain automobile driven by the defendant, Albert Southwood, then and there approaching from the west, as hereinafter alleged’. The complaint further alleged that the defendant Southwood ‘carelessly and negligently drove and operated his automobile to the left and North of the center line of said highway, and at a high and dangerous rate of speed, * * * and at a rate of speed that was greater than was reasonable or prudent’ under the circumstances; that as a result of such carelessness and negligence of the defendants there was a collision between their automobiles; and that as a result of said collision the Southwood automobile was thrown against the automobile in which

[37 N.E.2d 948]

plaintiff was riding thereby causing the injuries complained of.

To this complaint the appellants and the defendant Southwood filed separate answers of general denial and on the issues thus joined the cause was submitted for trial before a jury. At the conclusion of plaintiff's evidence the appellant Jones filed his motion to instruct the jury to direct a verdict for him and against the appellee, which motion was overruled. During the course of the trial the appellant also moved the court for a withdrawal of submission of said cause and for a venire de novo. The jury found for the appellee as against the appellants but for the defendant Southwood as against the appellee.

The appellants have assigned as error the action of the court (1) in overruling the motion of the appellant William Jones to instruct the jury peremptorily, (2) in overruling the motion of the appellants for a withdrawal of the submission of said cause and for a venire de novo, and (3) in overruling the motion of the appellants for a new trial.

Under their first assigned error the appellants contend that there is a total failure of proof tending to show that the appellant Jones was responsible for the operation of the automobile being driven by the appellant Hebenstreit.

While it is true that the mere presence of the owner in his automobile while it is being driven negligently by another does not necessarily render the owner liable, ‘the owner's presence is an important element where recovery is sought on the theory that the driver was acting as his servant or agent, or that he had control over its operation, as an inference that the car was being driven by his agent, or that he had control over its operation, is furthered by such presence.’ 80 A.L.R. 285, 286, Annotation. Where the owner of an automobile, being himself in possession of it, requests another person to drive, the owner does not thereby exclude his own right and duty to control the automobile. Unless the owner has, by contract or otherwise, abandoned his right to control the operation of his automobile, he is liable as principal for damage caused by the negligence of the person actually driving. If the owner has the right to control the operation of an automobile he cannot escape liability for an injury caused by its negligent operation by being passive and failing to exercise such right. Sargent Paint Co. v. Petrovitzky, 1919, 71 Ind.App. 353, 124 N.E. 881.

By sitting in his own automobile and failing to exercise his right to control its operation while another is operating it negligently, an owner tacitly consents to such negligent operation. Willis v. Crays, 1926, 84 Ind.App. 253, 151 N.E. 13;Daggy v. Miller, 1917, 180 Iowa 1146,162 N.E. 854; Chambers v. Hawkins, 1930, 233 Ky. 211, 25 S.W.2d 363.

In the instant case the evidence shows that the appellant Jones was the owner of the automobile; that he and his wife and Hebenstreit and his wife and daughter had gone over to Hamilton, Ohio, for a visit in the home of Hebenstreit's parents and at the time of the accident were returning to Indianapolis. That on the return trip from Hamilton, Jones drove as far as Oxford and then asked Hebenstreit to drive ‘a little bit’. They thereupon changed places in the front seat and proceeded with Hebenstreit driving and Jones sitting in the front seat with him; that Jones does not like to drive an automobile; that Hebenstreit's parents had given their son and Jones some canned food which was in the automobile at the time of the collision; and that Jones and Hebenstreit with their wives had made several other such visits together to Hamilton, Ohio. This evidence furnishes a sufficient basis for the inference that Jones had not abandoned nor relinquished his right to control the operation of his automobile and that Hebenstreit was simply driving for Jones, as the agent of Jones.

During the course of the trial and immediately after court had adjourned for a recess and while the jury was passing out of the court room, counsel for the defendant, Southwood, made a remark to counsel for appellants about a statement concerning the case taken by an adjuster. Counsel for appellants state in their brief that because of this remark, which they claim was prejudicial and so intended because it was calculated to inform the jury that appellants were insured, the court erred in overruling appellants motion for a withdrawal of submission of said cause and for a venire de novo.

Such a motion is addressed to the sound discretion of the court.

[37 N.E.2d 949]

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