Porter v. Wilson

• Decision Date: 28 November 1960
• Docket Number: No. 2934,2934
• Citation: 357 P.2d 309
• Parties: W. V. PORTER, Appellant (Defendant below), v. Eva WILSON, Appellee (Plaintiff below), and Clarence Wilson (Plaintiff below), Tom Porter (Cross-complainant in intervention below).
• Court: Wyoming Supreme Court

Page 309

357 P.2d 309

W. V. PORTER, Appellant (Defendant below), v. Eva WILSON, Appellee (Plaintiff below), and Clarence Wilson (Plaintiff below) Tom Porter (Cross-complainant in intervention below).

No. 2934.

Supreme Court of Wyoming.

Nov. 28, 1960.

Henderson & Godfrey, Cheyenne, for appellant.

Philip White, Cheyenne, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

This was an action to recover for personal injuries and property damage growing out of an automobile collision. The original complaint was filed by Clarence and Eva Wilson, husband and wife, as joint plaintiffs against W. V. Porter, defendant, who counterclaimed for the loss of his automobile. Later, Tom Porter, defendant's brother and a passenger in his car at the time of the accident, intervened, claiming damages against the Wilsons. The pleadings admitted the collision between the two vehicles, and at pretrial the doctor and hospital bills and the damages to each of the automobiles were stipulated. Thus, the only issues remaining to be determined were the responsibility for the wreck and the amount to be awarded for pain and suffering in the event responsibility was established. Upon the trial the court found that the accident was caused by the negligence of plaintiff, Clarence Wilson, and the contributory negligence of defendant, W. V. Porter; judgment was entered dismissing both the complaint of Clarence Wilson and counterclaim of W. V. Porter, but granting Eva Wilson a judgment against W. V. Porter for $1,517.84 and Tom Porter a judgment against Clarence Wilson for $200. ¹ Defendant has appealed, urging that the court erred in awarding the judgment in favor of Eva Wilson, hereafter called plaintiff. He argues that she was guilty of contributory negligence so as to prevent any recovery by her. His reasoning is that she was the owner of, and a passenger in, one of the colliding cars, the driver of which was her husband, and the negligence of the husband-driver was imputable to her.

It is not necessary to discuss the evidence at length, but it will clarify the situation to review the facts briefly. On the evening of May 16, 1958, the Wilsons were proceeding by automobile eastward toward Carpenter, Wyoming, to vote in a school election. The car was in her name, apparently a gift from him. He purchased the gasoline for it as she did not work. Both of them drove it on occasion and neither of the two could recall whether she had requested him to drive at that time. On the same evening, W. V. Porter, accompanied by Tom Porter, Wayne Warren, and Ed Ide, was proceeding westward on the road, headed for the dog races in Colorado. It was still light but the sun was low. The two cars collided about six-thirty some five miles west of Carpenter. There was ample evidence before the court to substantiate its finding of the negligence of both drivers, and the sole question here is whether or not plaintiff was guilty of negligence which would preclude her recovery against the defendant. Defendant in his answer failed to plead contributory negligence as an affirmative defense in accordance with Rule 8(c), Wyoming Rules of Civil Procedure, and plaintiff argues that such a plea was essential to a defense on that ground. However, she overlooks the fact that here a failure to object to proffered evidence constituted a waiver of the defect. Busch v. Los Angeles Ry. Co., 178 Cal. 536, 174 P. 665, 2 A.L.R. 1607; and see 1 Bancroft's Code Pleading, 1926, §§ 726 and 736.

In arguing that plaintiff was negligent so as to prevent her recovery, defendant recognizes the rule pronounced in Chandler v. Dugan, 70 Wyo. 439, 251 P.2d 580, 586, wherein it was stated:

"* * * It is only when the husband is acting as agent for the wife in the matter at hand or when they are engaged in a joint or common enterprise and participate jointly in the operation of the automobile that the negligence of the one driving the automobile becomes contributory negligence on the part of the other and defeats recovery against a third person. [5 Am.Jur. 784]"

He refers to the case of Wilcox v. Herbst, 75 Wyo. 289, 295 P.2d 755, but only to quote an argument there presented by counsel. He concedes that the case of Hester v. Coliseum Motor Co., 41 Wyo. 345, 285 P. 781, is not in point but urges the similarity between the present case and Gamet v. Beazley, 62 Wyo. 1, 159 P.2d 916. In that case plaintiff Gamet and the driver of his car, Emslie, shared expenses and driving. There the court said at 159 P.2d 918: 'under the circumstances of this case, we think that the negligence of Emslie was imputable to the plaintiff * * * in fact, counsel for the plaintiff do not contend the contrary.' This cursory reference, indicating that the point was unlitigated, shows the case to be of little benefit in discussing the matter before us.

Here the defendant's principal contention seems to be that plaintiff as owner of the car had control of it, but with this argument regarding her ownership he commingles a discussion of her status both as a passenger and as the wife of the driver. He cites Blevins v. Stevens, Ky., 265 S.W.2d 62, and Mustin v. West, La.App., 46 So.2d 136, as authority for the principle that a husband-owner by his presence in the car provides a basis for imputing to him any negligence of a wife-driver. He also relies upon Moore v. Skiles, 130 Colo. 191 274 P.2d 311, 315, where the court recognized that authorities were divided on the question but adopted the rule of imputability of the driver's negligence to the passenger-wife, who was co-owner of the automobile, without other reason than that it was the 'more reasonable and common sense view.'

Defendant then cites 4 Blashfield, Cyclopedia of Automobile Law and Practice, 1946, pp. 674, 675:

'Instances of the imputation of negligence by reason of the occupant's control over the operation of the vehicle are by no means infrequent. Thus the negligence of one driving at the request or permission of the owner riding in the automobile is usually imputable to the owner, and actual control by the owner is not necessary if there is a right to control the operation of the automobile. As said by the Supreme Court of North Carolina, citing this section, the owner of an automobile has the right to control its operation, and when he is an occupant of the automobile when operated by another with his permission or at his request, nothing else appearing, the negligence of the driver is imputable to him.'

This generic statement on imputed negligence standing alone might at first blush seem to be controlling, but it is only a part of the law which must be considered in determining a case of this nature. The same text a few pages later in discussing the specific question before us says at pp. 694, 696:

'The above general rule and its qualifications apply to situations where the parties are husband and wife, and thus the negligence of a husband, driving a machine in which his wife is a passenger, in the management of the machine, which negligence contributes to an accident, in which the negligence of a third person is also present as a proximate cause, and in which the wife is injured, will not ordinarily be imputed to her, and this, according to some authorities, although she is the owner of the car in which they are riding; but the general rule is to be received subject to the qualification that the wife is not thus to be absolved if it appears that she had any joint part in directing the movements of the automobile * * *.'

These two summaries by Blashfield as well as other texts and encyclopedic works ² disclose ramifications of viewpoint which probably account for the lack of uniformity in decisions upon facts substantially similar to those before us. The result in any given case seems to depend upon the nature of the statutes which are effective in the jurisdiction of decision, the background and personal views of the court, or the emphasis given to any one of a number of circumstances said to affect the control of the vehicle. In any analysis of the subject, we must be aware of the many factors contributing to the diverse views of reported decisions and making difficult of practical application the general principles which have been enunciated. Some of these find illustration in excerpts from encyclopedic works, e. g., in 38 Am.Jur. Negligence § 250, it is stated:

'Some courts have taken the view that where a wife sustains an injury while in a vehicle driven by her husband, resulting from the negligence of a third person combined with negligence on the part of her husband, there can be no recovery by the wife. But the great weight of authority is in favor of the proposition that the negligence of a husband is not imputed to his wife where she has no control over the operation of the vehicle and is injured by his and another's concurring negligence. The negligence of the husband will not be imputed to his wife, riding with him in a vehicle, merely from the fact of the marital relationship between them. * * *'

And see 5A Am.Jur. Automobiles and Highway Traffic § 817; Annotations, 147 A.L.R. 960, 974; 110 A.L.R. 1099.

Concerning the effect of the owner's presence, we find it said in 5A Am.Jur. Automobiles and Highway Traffic § 819:

'* * * Although there is some difference of opinion, the weight of authority in the more recent cases subscribes to the proposition that the presence of the owner in his motor vehicle, which is being driven by a member of his family, creates a rebuttable presumption or inference that he has or retains control of its operation, and of the driver as his agent, by virtue of which the negligence of the driver is imputed to him so as to charge him with contributory negligence in an action to recover for the negligence of a third person. Such presumption, it is said, will control in the absence of evidence to the contrary. * * *'

And see the extensive...