Pierce v. Horvath, 20433

• Citation: 142 Ind.App. 278,233 N.E.2d 811
• Decision Date: 20 February 1968
• Docket Number: No. 20433,No. 1,20433,1
• Parties: Leo W. PIERCE, Appellant, v. John HORVATH and Louise Horvath, Appellees
• Court: Court of Appeals of Indiana

Page 811

233 N.E.2d 811

142 Ind.App. 278

Leo W. PIERCE, Appellant, v. John HORVATH and Louise Horvath, Appellees.

No. 20433.

Appellate Court of Indiana, Division No. 1.

Feb. 20, 1968.

Louis L. Anderson, South Bend, for appellant.

James H. Pankow, Jones, Obenchain, Johnson, Ford & Pankow, South Bend, for appellees.

FAULCONER, Judge.

Appellant sued appellees for injuries he allegedly received as a result of alleged neglignece of appellees when a collision occurred between an automobile driven by appellant and an automobile owned by appellee Louise Horvath and operated by appellee John Horvath. Appellant alleged in his amended complaint that John Horvath was, at such time and place, 'the agent of his wife, the defendant, Louise Horvath, and was acting within the scope of his agency relationship.'

At the conclusion of the evidence the appellee Louise Horvath filed her motion to direct a verdict in her favor 'for the reason that the evidence submitted in said cause and all reasonable inferences therefrom favorable to the plaintiff will not support a finding that John Horvath, for the time of the accident alleged in the complaint, was acting as the agent of Louise Horvath within the scope of his agency.' The trial court granted said motion.

The cause against John Horvath was submitted to the jury which returned a verdict in his favor on which judgment was duly entered that plaintiff-appellant take nothing by reason of his complaint. The overruling of appellant's motion for new trial is assigned as error in this appeal.

The first question here presented concerns the action of the trial court in directing a verdict in favor of appellee Louise Horvath at the close of the evidence.

'This court has held in many cases that a peremptory instruction for a defendant will be upheld only if one or more of the material allegations of the complaint essential to recovery are not supported by evidence of probative value or by any reasonable inference that may be drawn therefrom.' Boswell v. Washington (1967), Ind.App., 221 N.E.2d 184, 185 (Trans. Denied).

The trial court also may properly give a peremptory instrcution to find for the defendant where the evidence is without conflict and is susceptible to but one inference and that inference is in favor of defendant. Reynolds, Admtrx. etc. v. Langford (1961), 241 Ind. 431, 433, 172 N.E.2d 867; Whitaker, Admr. v. Borntrager (1954), 233 Ind. 678, 680, 122 N.E.2d 734: 2 F.W. & H., Ind.Tr. & App.Pract. ch. 20, § 1661, p. 96, (1963 P.P.).

If there was no substantial evidence of probative value, or reasonable inferences therefrom, that appellee John Horvath was appellee Louise Horvath's agent at the time and place alleged, or reasonable minds could only conclude from such evidence, or reasonable inferences therefrom, that he was not acting in such capacity, the trial court was correct in directing a verdict in favor of appellee Louise Horvath at the close of all the evidence.

The evidence is undisputed on this issue and will show that appellees John and Louise Horvath were husband and wife; that each owned an automobile and ordve their respective automobiles to their respecive places of employment in the morning and back home in the afternoon. On the morning of January 23rd, John arose first and went out to start the automobiles so they would 'warm up'. He discovered that considerable snow had fallen the night before and his automobile would not start. Since Louise's car did start and since she had to be at work at 6 A.M. and he at 7 A.M. it was agreed that he would drive her in her automobile to her place of employment then proceed to his--obtain permission to leave his employment temporarily at 2:30 P.M.,--pick her up at her place of employment, drive her home and return to his place of employment and finish his working day. It was while John Horvath was backing Louise's automobile from the parking lot at his place of employment onto Sample Street about 2:30 P.M., on his way to pick up Louise at her place of employment, that the collision occurred.

The so-called 'family purpose' doctrine, is not recognized in Indiana thus a husband or wife is only liable for the negligence of the other when the relation of principal and agent, or master and servant, exists between them, and the agent or servant was acting within the scope of the agency or employment at the time the negligence occurred or they were engaged in a joint enterprise. 3 I.L.E., Automobiles, § 106, Page 453; Bryan v. Pommert (1941), 110 Ind.App. 61, 66, 37 N.E.2d 720; Smith v. Weaver, Admx. (1920), 73 Ind.App. 350, 355, 124 N.E. 503.

The mere fact that the marital relation existed between them, or that the one spouse is negligent in operating the automobile owned by the other spouse, will not impose liability upon the owner spouse. 8 Am.Jur.2d, Automobiles and Highway Traffic, § 585, p. 141; 6 Blashfield Auto Law, § 255.2, pp. 412, 413 (3rd Ed. 1966); Willis v. Crays (1926), 84 Ind.App. 253, 255, 151 N.E. 13.

The plaintiff-appellant had the burden of proving by a preponderance of the evidence that the defendant-husband was acting as the agent or servant of the defendant-wife at the time of his alleged negligent act. Such relationships may arise expressly or by implication and may be shown to exist by direct or circumstantial evidence. The relationship of principal and agent, master and servant or employer and employee involving husband and wife are governed by the same principles as when involving other persons.

In Bryan v. Pommert, supra, at page 66 of 110 Ind.App., page 721 of 37 N.E.2d, this court said:

"There is no basic or fundamental distinction to be drawn between the liability of a principal for the tortious act of his agent and the liability of a master for the tortious act of his servant. In both cases, the liability is grounded upon the the maxim of respondeat superior, and in both cases the liability, exclusive of that which results from ratification is to be determined by considering, from a factual standpoint, the question as to whether or not the tortious act was done while the agent or servant was acting within the scope of his employment. A distinction based upon the difference in control has been suggested, but the distinction has not been maintained by the courts of this country, which have taken agents and servants to be coextensive categories as far as the question of their control by the employer is concerned. * * *.' 2 Am.Jur., Agency, § 359, p. 278.'

See also: 60 C.J.S. Motor Vehicles § 434, p. 1080.

The question whether or not the driver was acting as agent for the owner, or with the owner's permission, or was about the owner's business is usually a question of fact for the jury. 6 Blashfield Auto Law, § 255.2, p. 418, (3rd Ed. 1966). 41 C.J.S. Husband and Wife § 70, p. 547.

We are of the opinion that the evidence most favorable to the appellant is such that the question concerning whether appellee John Horvath was acting as the agent of appellee Louise Horvath and within the scope of that agency at the time of the collision in question should have been submitted to the jury and, therefore, it was error for the trial court to grant a directed verdict.

The trial court gave, over plaintiff-appellant's objection, defendant-appellee's tendered Instruction No. 7, which reads as follows:

'In these instructions, the court has several times referred to the term 'reasonable care.' The law, in cases such as this, recognizes perfection as humanly impossible. Therefore, the law requires the exercise of reasonable care under the circumstances.

'Accordingly, you should, in considering the conduct of any person here, place yourself in the position of that person at the time of the conduct being questioned and judge the conduct accordingly. You are not to use hindsight and judge conduct by what thereafter transpired, but should restrict your consideration to the situation and the person at the time the conduct or act was undertaken.'

Plaintiff-appellant's objection to the giving of this instruction reads, in pertinent part, as follows:

'The plaintiff objects to the court's giving defendants' tendered instruction number seven on the grounds and for the reason that by the said instruction number seven the court advises the jury to put themselves in the positions of the parties and asks them to judge the conduct of the parties by their own position of either the plaintiff or defendant, when the juror should judge the conduct on the standard of not what they themselves think as a person in the position of either the plaintiff or defendant but the standard of conduct is to be adjudged on the criteria of what a reasonable and prudent person would do under like or similar circumstances. It also contains an abstract statement of the law in the second sentence thereof which says the law recognizes perfection as humanly impossible, and is misleading to the jury; and the instruction further does not set out that contributory negligence is not a defense available to the defendant in a suit for wilful and wanton misconduct.'

Reasonable care has been defined in Indiana as that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. Neal, Admr. v. Home Builders, Inc. (1953) 232 Ind. 160, 168, 111 N.E.2d 280, 713; 21 I.L.E., Negligence, § 7, p. 269.

This court in Tabor v. Continental Baking Company (1942), 110 Ind.App. 633, at pages 640, 641, 38 N.E.2d 257, 259, 260, (Transfer denied), in discussing the application of the reasonable man doctrine, stated:

'Under the uniform decisions of the courts of this state negligence consists in the failure to use due care, or ordinary care, which is miasured by the care a person of reasonable prudence would ordinarily exercise under like conditions and circumstances. City of Decatur v. Eady, 1...