Painter v. Lingon

• Decision Date: 16 June 1952
• Docket Number: No. 3900,3900
• Citation: 193 Va. 840,71 S.E.2d 355
• Parties: FLORENCE L. PAINTER v. NICHOLAS A. LINGON. Record
• Court: Virginia Supreme Court

Page 355

71 S.E.2d 355

193 Va. 840

FLORENCE L. PAINTER v. NICHOLAS A. LINGON.

Record No. 3900.

Supreme Court of Appeals of Virginia

June 16, 1952.

Forest T. Taylor and Wayt B. Timberlake, Jr., for the plaintiff in error.

Curry Carter, John J. Wicker, Jr. and E. Ballard Baker, for the defendant in error.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

The jury returned a verdict in the sum of $12,000 in favor of Florence L. Painter against Nicholas A. Lingon for personal injuries sustained by her in an automobile accident. The trial court set the verdict aside and entered final judgment for defendant. Plaintiff appeals.

Plaintiff, a woman sixty years of age, and her husband, A. F. Painter, lived in Portsmouth, Virginia. They owned a cabin in Augusta county, situated between Staunton and Waynesboro on the north side of U.S. Route 250. The road leading from the highway to the cabin is approximately 150 feet east of Mathias Service Station. A post or highway market prevented the drivers of westbound motor vehicles from making a right turn into the road to the cabin. At this point the highway (Route 250) is divided into three traffic lanes. Two solid white lines divide the east-bound lane from the center, or passing, lane for west-bound traffic, and a broken white line divides the center, or passing, lane from the west-bound traffic lane.

At approximately 7:00 p.m., on October 9, 1948, plaintiff, riding on the front seat with her husband, who was driving a 1947 Chrysler sedan, title to which was registered in her name, left Portsmouth for the purpose of spending the week end at their cabin. Six hours later, approximately 1:00 a.m., October 10th, traveling west on Route 250, they reached the road leading to the cabin. The driver, not being able to make a right turn into this road, drove approximately 150 feet west of it, to Mathias Filling Station. There he made a left turn across the three-lane highway and started east in the east-bound traffic lane for the purpose of making another left turn across the three-lane highway and going to the cabin. While the Painter automobile was headed east and in the east-bound lane, the driver stopped to permit a west-bound car to pass. As he pulled into, and was headed diagonally across, the middle lane, he saw the lights of defendant's car approaching from the east, well within its proper west-bound lane, and stopped for it to pass. When defendant was within 100 feet of the Painter car, he suddenly applied his brakes, causing his automobile to skid from the west- bound traffic lane into the middle lane and collide with the Painter automobile, severely injuring the occupants of both vehicles.

The dominant question presented is whether the negligence, if any, of plaintiff's husband is imputable to her.

Defendant contends that inasmuch as the uncontradicted testimony is that plaintiff was injured while riding in an automobile, title to which was registered in her name, and driven by her husband on a mutual pleasure trip, she and her husband were engaged in a joint enterprise, and that the negligence of one is imputable to the other. He cites, among others, the following authorities in support of this contention: Lucey v. Allen, 44 R.I. 379, 117 A. 539; Fisch v. Waters, 136 N.J.L. 651, 57 A. (2d) 471; Harper v. Harper, 225 N.C. 260, 34 S.E. (2d) 185; Matheny v. Central Motor Lines, 233 N.C. 681, 65 S.E. (2d) 368.

Defendant states that this court applied the foregoing principle in Washington, etc., R. Co. v. Zell, 118 Va. 755, 88 S.E. 309. The Zell Case, in effect, was overruled by this court in Miles v. Rose, 162 Va. 572, 175 S.E. 230, and Carroll v. Hutchinson, 172 Va. 43, 200 S.E. 644, and we have consistently refused to follow it in subsequent cases. The decision in the Zell Case on the doctrine of joint enterprise, as there applied, is expressly overruled. Compare opinion by Mr. Justice Eggleston, announced at this session of the court, in MacGregor v. Bradshaw, ante, p. 787, 71 S.E. (2d) 361.

It will be noted that the opinion in the Zell Case was written by Judge Kelly, who later wrote the opinion in Director General v. Pence, 135 Va. 329, 345, 116 S.E. 351, where he defined 'joint enterprise' more accurately thus: 'But 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.'

Defendant's contention was rejected by this court in Virginia Ry., etc., Co. v. Gorsuch, 120 Va. 655, 91 S.E. 632, Ann. Cas. 1918B, 838. There the wife was sitting on the front seat of a car owned by her and driven by her husband, en route from a hotel where they had had dinner, to their quarters to spend the night. She sustained personal injuries when the automobile collided with a street car operated by the Virginia Railway and Power Company. In her action to recover damages defendant contended that the husband was negligent and that his negligence was imputable to his wife. Judge Prentis, speaking for the court, said: '* * * it may be regarded as settled by the overwhelming weight of authority, that the negligence of the driver of an automobile will not be imputed to a mere passenger, unless the passenger has or exercises control over the driver. The negligence of the servant is imputed to the master, because the master employs and can discharge the servant and direct his actions. It seems to ge well settled that the negligence of a husband driving an automobile is not, as a general proposition, imputable to his wife merely because of the marital relation; nor is the negligence of the driver of an automobile imputable to his guest merely because he is riding with him by invitation. * * *

* * *

'It is earnestly claimed, however, that because of the fact that Mrs. Gorsuch owned the automobile involved in this collision, none of the rules above stated are applicable to this case, and that Mrs. Gorsuch, as the owner of the machine, had such control, or right of control, over it as to make her responsible for the negligence of her husband.

'We cannot agree with this suggestion. Mr. Gorsuch was the gratuitous bailee of her automobile and had been for a week before the accident. His control of it while his wife remained in Baltimore, was as absolute as if he had owned the machine, and the casual visit of Mrs. Gorsuch to Richmond did not change this control.'

The owner's presence in an automobile driven by another is not alone sufficient to make him responsible for the operator's negligence. Such presence may be an element tending to prove agency, or that the operation was under the owner's control, so that the negligence of the driver would be imputable to him. The fact that the parties are husband and wife does not change this rule. 5 Am. Jur., Automobiles, secs. 496, 498, pp. 783, 784.

In order for defendant to invoke the doctrine of imputed negligence in a case in which one spouse owns the automobile and is present while it is being driven by the other, it is encumbent upon him to prove the actual relationship of the parties, -- that is, that the driver was the agent of the other spouse on the particular occasion. As said by Justice Holt, in Gaines v. Campbell, 159 Va. 504, 512, 166 S.E. 704: '* * * The major test, when we undertake to impute to a plaintiff the negligence of her driver, is this: Was he her agent, and did she have any control over the management of the car? Not until these facts are established can the doctrine of 'joint enterprise' be invoked. ' Virginian Ry. Co. v. Farr, 147 Va. 217, 136 S.E. 668; Seaboard Air Line R. Co. v. Terrell, 149 Va. 344, 141 S.E. 231; Hancock v. Norfolk, etc., R. Co., 149 Va. 829, 141 S.E. 849; Norfolk, etc., R. Co. v. Parker, 152 Va. 484, 147 S.E. 461; Chesapeake, etc., R. Co. v. Hewin, 152 Va. 649, 148 S.E. 794; Majestic Steam Laundry v. Puckett, 161 Va. 524, 171 S.E. 491; Johnston v. Kincheloe, 164 Va. 370, 180 S.E. 540; Stallard v. Atlantic Greyhound Lines, 169 Va. 223, 192 S.E. 800; Yorke v. Mason, 173 Va. 379, 4 S.E. (2d) 375; Outlaw v. Pearce, 176 Va. 458, 11 S.E. (2d) 600.

Each person engaged in a joint enterprise is liable for the negligence of his joint venturers, if the negligent act is committed within the scope of such joint venture. If we were to hold in this case that the husband was negligent, and that his negligence is imputable to plaintiff, then plaintiff would be liable for the negligence of the husband, and a passenger injured in defendant's car would have a right of action against her. This principle is conversely stated in 2 Torts A.L.I., sec. 491, p. 1273, thus: 'Any one of several persons engaged in an enterprise is barred from recovery against a negligent defendant by the contributory negligence of any other of them if the enterprise is so far joint that each member of the group is responsible to third persons injured by the negligence of a fellow member.'

It is clear that the facts in this case are insufficient to hold Mrs. Painter liable for negligence of her husband.

When the question of whether two or more parties were engaged in a joint enterprise becomes pertinent, such question must be determined as any other factual issue; that is, if the evidence is in conflict, or if reasonable men may differ as to the proper inferences to be drawn from the uncontradicted testimony, a jury question is presented; otherwise, it is a question of law to be determined by the court. Director General v. Pence, 135 Va. 329, 116 S.E. 351; Virginian Ry. Co. v. Farr, 147 Va. 217, 136 S.E. 668; Miles v. Rose, 162 Va. 572, 175 S.E. 230; Carroll v. Hutchinson, 172 Va. 43, 200 S.E. 644; Seaboard Air Line R. Co. v. Terrell, 149 Va. 344, 141 S.E. 231; MacGregor v. Bradshaw, supra.

The trial...