Miles v. Rose

• Decision Date: 14 June 1934
• Citation: 162 Va. 572
• Parties: R. L. MILES, JR. v. FRANKLIN H. ROSE and R. L. MILES, JR. v. HAROLD HODGES.
• Court: Virginia Supreme Court

Page 572

162 Va. 572

R. L. MILES, JR. v. FRANKLIN H. ROSE and R. L. MILES, JR. v. HAROLD HODGES.

Supreme Court of Virginia, Wytheville.

June 14, 1934.

Present, All the Justices.

1. AUTOMOBILES — Collision — Case at Bar. — The instant cases were actions of trespass on the case. In one of them Franklin H. Rose was the plaintiff, and in the other Harold Hodges was the plaintiff. The same persons were defendants in both cases, which arose out of a collision between two automobiles. Denton, the driver of one of the cars, although made a defendant, made no appearance, filed no pleadings, was not present at the trial, and no testimony given by him was introduced in evidence. Defendant, R. L. Miles, Jr., appeared in each case. While it was not entirely clear whether the court and counsel understood that the case was being tried as to both Denton and Miles or only as to Miles, the Supreme Court of Appeals was of the opinion that it was properly considered as having been tried only as to Miles. In each case the jury returned a verdict for the plaintiff against R. L. Miles, Jr., for $750. Both verdicts were silent as to Denton, the driver of the other car. Defendant, R. L. Miles, Jr., in his petition for a writ of error, assigned as error the refusal of the court to set aside the verdicts and enter judgments for the defendant, on the grounds that the court erred in giving the instructions asked for by the plaintiffs; that the court erred in refusing the instructions asked for by the defendant, and that the court erred in amending certain instructions asked for by the defendant. The court overruled a motion to set aside the verdicts and entered judgment in each case for the plaintiff against R. L. Miles, Jr.

Held: That none of these assignments of error was well made; that the evidence was insufficient to support a verdict finding that either of the plaintiffs was guilty of negligence which was the proximate cause of the injuries received by him; that R. L. Miles, Jr., was not guilty of any negligence which was the proximate cause of the collision, and that Denton was guilty of negligence which was, at least, a contributing proximate cause of the collision. It could not be said as a matter of law that there was no evidence to support a verdict finding that Miles was guilty of negligence which was a proximate cause of the collision.

2. AUTOMOBILES — Joint Enterprise — Case at Bar. — The instant cases were actions arising out of a collision between automobiles. The evidence relied upon by the defendant to establish that plaintiffs and the driver of their car were engaged in a joint enterprise and that the driver's negligence was imputable to them, was, as a matter of law, insufficient to support a verdict predicated upon a finding that plaintiffs and their driver were engaged in a joint enterprise of such a nature as to make the negligence of the driver, if any, in the operation of the automobile, imputable to the plaintiffs.

3. AUTOMOBILES — Joint Enterprise — Negligence of Driver in Operating Automobile — Each of the Parties Entitled to a Voice in the Control and Operation of the Automobile. — That the negligence of the driver in operating an automobile may be imputed to a person riding therein with him on the ground that they are engaged in a joint enterprise, it is not sufficient that they have a mutual or joint interest in the objects and purposes of the trip. There must be a joint enterprise in controlling, directing, and governing the operation of the automobile. The relationship between the parties arising from the engagement, express or implied, between them, must be such that each of them has, or is, entitled to exercise a voice as to the manner in which the automobile shall be controlled and operated while making the trip.

4. AUTOMOBILES — Joint Enterprise — Control and Direction of Automobile. — The "joint enterprise" which will render the contributory negligence of a driver imputable to a person riding with him must invest such person with some voice in the control and direction of the vehicle. The rule is founded upon the doctrine of principal and agent. The passenger must be so related to the driver as that the maxim "Qui facit per alium facit per se" is applicable.

5. JOINT ENTERPRISE — Imputable Negligence. — In a joint enterprise, in order to impute the negligence of one of the parties to the other, each must have authority to control the means or agencies employed to execute the common purpose. To constitute a joint enterprise within the meaning of the law, the parties must have a community of interest in the object and purpose of the undertaking, and an equal right to direct and govern the movements and conduct of each in respect thereto.

6. AUTOMOBILES — Joint Enterprise — Case at Bar. — In the instant case the evidence does not show a state of facts from which it can be reasonably inferred that the plaintiffs had, exercised, or were entitled to exercise, a voice as to the control and operation of the driver's automobile. Notwithstanding the fact that the driver and the plaintiffs were mutually interested in going for, purchasing, and bringing back to campt the whiskey, so far as their presence in the driver's automobile was concerned, their relationship to him was that of guests to a host.

7. AUTOMOBILES — Collision — Instructions — Case at Bar. — The instant case was an action arising out of a collision between automobiles. The court instructed the jury that if they believed from the evidence that the proximate cause of the injury suffered by the plaintiff was solely due to the negligence of the driver of the car in which they were riding, then they should find for the defendant. The instruction as offered by the defendant did not contain the words "solely due to."

Held: That the court did not err in refusing to give the instruction as offered, or in making the amendment which it made therein.

8. AUTOMOBILES — Collision — Instructions — Case at Bar. — In the instant cases it was assigned as error that the court erred in refusing to give instructions Nos. 10 and 11 offered by the defendant. Instructions Nos. 10 and 11 told the jury that if they believed from the evidence that the driver of one of the cars was negligent and that the plaintiff knew of and acquiesced in his negligence, he could not recover.

Held: That the court did not err in refusing to give instructions 10 and 11. The evidence was not sufficient to sustain a verdict predicated upon a finding that the plaintiffs acquiesced in any negligence of which the driver of the car in question might have been guilty.

9. AUTOMOBILES — Appeal and Error — Fraudulent Joinder of Parties for Purpose of Venue — Question Raised on Appeal. — Where no motion was made to dismiss the causes of action on the ground that one of the parties defendant was made a party for the purpose of venue, nor a motion in arrest of judgment, the question could not be considered on appeal.

10. AUTOMOBILES — Appeal and Error — Fraudulent Joinder of Parties for Purpose of Venue — Case at Bar. — In the instant case it was assigned as error that it was error to permit plaintiffs to argue to the court and jury that their driver was not negligent after having founded their cause of action and forum for trial upon his negligence. While the plaintiffs introduced no evidence to establish that the driver was guilty of negligence, the defendant did. Defendant did not lose the right to complain of the court's ruling by not moving to set aside the verdicts on this ground.

Held: That the court erred in permitting counsel for the plaintiffs to argue to the jury that the driver was not guilty of any negligence which was a proximate cause of the accident. It should have corrected him and have told the jury that for the purposes of this trial it stood admitted by the plaintiffs that the driver was guilty of negligence which was a proximate cause of the collision.

11. DAMAGES — Personal Injury Cases — Inadequate Damages. — The general rule is that in a personal injury case a verdict against a defendant will not be set side on his motion on the ground that the damages awarded are less than the plaintiff was entitled to on the evidence.

12. DAMAGES — Personal Injury Cases — Inadequate Damages — Exception — Case at Bar. — When, as in the instant case, A and B are sued jointly for personal injuries alleged to have been caused by their independent but concurring negligence, and the great preponderance of the evidence tends to show that A was, and B was not, guilty of negligence which was a proximate cause of the injuries, if the jury returns a verdict against B alone for a sum plainly greatly less than would appear to be a reasonable compensation for the injuries which the uncontradicted evidence shows the plaintiff suffered, the smallness of the verdict casts serious suspicion on the integrity of the finding by the jury that B was liable. Particularly is this true where, as in this case, the plaintiff's counsel in his argument invited and urged the jury to exculpate A and fix the whole blame on B for the manifest purpose of escaping the possible imputation of A's negligence to his client.

Error to judgments of the Corporation Court of the city of Hopewell, in actions of trespass on the case. Judgments for plaintiffs. Defendant assigns error.

The opinion states the case.

W. R. Ashburn, for the plaintiff in error.

K. L. Woody and Archer L. Jones, for the defendants in error.

EPES, J., delivered the opinion of the court.

These two cases are actions of trespass on the case instituted in the Corporation Court of the city of Hopewell. In one of them Franklin H. Rose is the plaintiff and in the other Harold Hodges is the plaintiff. The same persons were defendants in both cases. They both arose out of a collision between two automobiles which occurred on August 31, 1930, in the intersection of Arctic avenue and Nineteenth street in the town of Virginia Beach, in Princess Anne...