Palmeno v. Cashen

• Decision Date: 22 April 1981
• Docket Number: No. 5398,5398
• Citation: 627 P.2d 163
• Parties: Joseph F. PALMENO, Appellant (Defendant), v. Jeanne C. CASHEN, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 163

627 P.2d 163

Joseph F. PALMENO, Appellant (Defendant), v. Jeanne C. CASHEN, Appellee (Plaintiff).

No. 5398.

Supreme Court of Wyoming.

April 22, 1981.

Glenn Parker, of Hirst & Applegate, Cheyenne, for appellant.

Judith A. Chapman, of Boyer & Svilar, Lander, and H. S. Harnsberger, Jr. (argued), Riverton, for appellee.

Before ROSE, C. J., and McCLINTOCK ^*, RAPER, THOMAS and ROONEY, JJ.

RAPER, Justice.

This is an appeal from an August 21, 1980 judgment awarding appellee $24,814.15 for damages suffered in an automobile accident. The issues raised here involve comparative negligence, imputed negligence, the "Warning Device When Vehicle Disabled" statute, ¹ and the sufficiency of the evidence supporting the trial court's judgment.

We will affirm.

On the evening of November 11, 1978, in response to a call for wrecker assistance, appellant drove his wrecker truck to a point on Wyoming Highway 789, approximately two miles north of Lander, Wyoming, where two vehicles had driven off the northbound side of the highway during a heavy snowfall. The purpose of Mr. Palmeno's trip was to determine whether or not he could retrieve the vehicles from their positions off of the road and pull them back onto the highway if possible. He parked his south-facing truck on the northbound side of the highway, as close as he could get to the cars down in the barrow pit. However, the snow bank along the edge of the highway prevented him from completely removing his vehicle from the oncoming lane of traffic. Appellant activated his vehicle's emergency flashing lights and dimmed its headlights to low beam before leaving it to reconnoiter the automobiles off in the barrow pit.

Meanwhile, appellee was riding with her husband north on Highway 789 out of Lander towards Hudson. They were on their way there to pick up Mr. Cashen's daughter by a previous marriage for a weekend visit. Prior to their departure, appellee had expressed reservation about making the trip due to the road conditions; however, her husband allayed her fears by telling her he had just been on the roads and they were not so bad. According to appellee, her husband was driving capably as they left Lander; she noticed the speedometer indicated their speed was 35 miles per hour. Appellee also observed that the night was quite dark, and with snow continuing to fall, the roadway was snow-packed. As the Cashen car crested a hilltop, appellee saw what she believed to be oncoming headlights; in actuality, it was appellant's parked wrecker. She believed that the vehicle was on the proper side of the road until "just a matter of a second or two" before the Cashen auto hit it. Mr. Cashen died in the accident; appellee was thrown into the windshield and was severely injured. Also, the Cashen vehicle was totally destroyed.

Appellee initiated this suit on August 7, 1979, for recovery of her separate injuries and damages against appellant. The case was tried without a jury on the 8th and 9th of July, 1980. On August 21, 1980, judgment was formally entered for appellee; damages were awarded totaling $24,814.15.

Appellant's first contention appears to be that the trial judge did not comply with the Comparative Negligence Statute, § 1-1-109, W.S.1977. ² However, appellant has totally failed to explain in what way the trial judge erred. Under comparative negligence law in this state, the trier of fact should find the percentage of negligence attributable to each of the actors who have proximately caused the plaintiff's injuries regardless of whether the actors have been named as parties to the lawsuit. Board of County Commissioners of the County of Campbell v. Ridenour, Wyo.1981, 623 P.2d 1174; Cline v. Sawyer, Wyo.1979, 600 P.2d 725; Beard v. Brown, Wyo.1980, 616 P.2d 726. The purpose of this requirement is to accurately gauge the percentage of plaintiff's own contributory negligence, if present, which is an important finding since it will operate to reduce a plaintiff's recovery or completely preclude recovery if greater than that of each of the actors, separately determined on a one-on-one basis. Ridenour, supra.

Under its own terms, § 1-1-109, supra, becomes operative in those cases only where the plaintiff is contributorily negligent. Where the plaintiff is found to have been free from negligence, the statute does not apply. If the plaintiff's negligence is found to be nil, then his recovery is not diminished.

Here, the judge specifically found the appellee free from any negligence. Thus, § 1-1-109, supra, did not operate to require the trial judge to apportion the negligence between any of the parties or nonparties. The court had no jurisdiction over the estate of appellee's husband, the driver of the Cashen vehicle, since he was not a party to the suit, and any finding of a percentage of negligence in this case on the part of the driver of the pickup truck in which appellee was riding would not be binding on the estate of the deceased husband.

Appellant's second argument is that the trial judge erred in not imputing any negligence of Mr. Cashen to the appellee. He lists several factors as dictating that this imputation was mandatory:

" * * * She owned the car jointly with her husband. She had it at the time they were married. At the time of the crash she was engaged with him in the joint enterprise of picking up his daughter to spend the weekend with them. She was squeamish about the slick roads and got very nervous when the road was slick. She knew of her husband's drinking and assumed that he had been drinking that day. She had a practice that when he was too drunk she would drive. She knew or reasonably should have known his state of intoxication. She could have driven the truck herself, but she allowed him to drive it that evening. After the crash his blood-alcohol level by a test which the Court admitted in evidence was 0.26% ethyl alcohol, an amount which the undisputed evidence, received by the Court, showed Mr. Cashen to be incapable of driving safely. Under this uncontroverted state of the Record, there was substantial evidence sufficient to impute the driver's negligence to Plaintiff, i. e., joint ownership and control of the vehicle together with a common purpose or joint enterprise of Plaintiff and the driver. * * * "

The law in this state is well settled that imputation of a driver's negligence will not occur unless the spouse-owner-passenger had actual control over the vehicle at the time of the accident. Porter v. Wilson, Wyo.1960, 357 P.2d 309; Edwards v. Harris, Wyo.1964, 397 P.2d 87; Hume v. Mankus, Wyo.1965, 401 P.2d 703; Mooneyham v. Kays, Wyo.1965, 405 P.2d 267. ³ The trial judge found that appellee had no control over the vehicle in which she was riding at the time her injuries occurred. There is substantial evidence in the record, as we have previously outlined, to support that finding; thus we must uphold it. Since appellee was found to have had no control over the vehicle, the trial judge's determination not to impute Mr. Cashen's negligence, as driver, to her was correct. His finding of 25% negligence by the husband, having been stated only as an alternative, is therefore a nullity.

Appellant also alludes to a joint enterprise. Though it is difficult to tell what he specifically had in mind, apparently appellant contends that Mr. Cashen and his spouse were on a joint enterprise such that Mr. Cashen's negligence should be imputed to her. However, in Edwards v. Harris, supra, 397 P.2d at 92, this court held that in order for a specific venture to be categorized legalistically as a joint enterprise, it must have been made pursuant to a search for material gain. Clearly that was not the case here, and the district court was correct in rejecting appellant's assertion. There is no evidence that there was any business or profit motive for the trip. The trip was clearly motivated only by the husband's desire to see his daughter.

Next appellant questions the propriety of the trial judge's construction of the "Warning Devise When Vehicle Disabled" statute, § 31-5-959, W.S.1977. Appellant's brief states:

"The Trial Court expressed the view that W.S.1977 § 31-5-959 ⁴ required Defendant to place flares and that Defendant's failure to do so was negligence, even stating, 'There was no hint of emergency situation at that time.' and 'He (Defendant) could have waited until daylight.' "

A careful examination of the record, however, discloses that the statute was not the real factor in the trial judge's determination that appellant was negligent. The only reference to the statute occurs during a discussion of the testimony expected from a witness who was to be called the following day.

"MR. GORMAN: * * * We do have a problem with Patrolman Galbraith as he's testifying in a criminal hearing tomorrow morning in Casper.

"THE COURT: What will he testify to?

"MR. GORMAN: Basically, he's the Casper Motor Carrier Officer. He's going to testify that he did not Mr. Palmeno did not need authority from the Superintendent of the Wyoming Highway Department to operate his wrecker; that Mr. Palmeno as a wrecker-operator under the rules of the Public Service Commission is authorized to if there's only one feasible means to get those vehicles out would be authorized to position his vehicle accordingly to extract them.

"THE COURT: I don't have any problem with that.

"MR....