Powers v. State, for Use and Benefit of Reynolds

• Citation: 11 A.2d 909,178 Md. 23
• Decision Date: 21 March 1940
• Docket Number: 12.
• Parties: POWERS et al. v. STATE, for Use and Benefit of REYNOLDS et al.
• Court: Court of Appeals of Maryland

11 A.2d 909

178 Md. 23

POWERS et al. v. STATE, for Use and Benefit of REYNOLDS et al.

No. 12.

Court of Appeals of Maryland

March 21, 1940

Dissenting Opinion March 27, 1940.

Rehearing Denied May 22, 1940.

Appeal from Circuit Court, Washington County; D. Lindley Sloan Judge.

Action by the State, for the use and benefit of Anna C. Reynolds and husband, parents of Mary M. Reynolds, deceased, against Paul E. Powers and another, to recover damages for deceased's death. Judgment for plaintiff, and defendants appeal.

Affirmed.

OFFUTT J., and BOND, C.J., dissenting.

Robert H. McCauley, of Hagerstown, for appellants.

William P. Lane, Jr., of Hagerstown (Edward J. Ryan, of Cumberland on the brief), for appellees.

Argued before BOND, C.J., and OFFUTT, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

DELAPLAINE Judge.

This appeal is from a judgment entered on the verdict of a jury in the Circuit Court for Washington County allowing damages for the death of Mary M. Reynolds as a result of an accident, which occurred while she was riding in an automobile owned by Paul E. Powers and driven by Raymond H. Coffman.

On November 11, 1938, Coffman motored with his wife and Miss Reynolds from Cumberland to Hancock, where they invited Powers to accompany them on a trip to Hagerstown. Powers agreed to drive his new La Salle sedan, and they left Hancock about 8:30 P. M. After reaching Hagerstown, they drove to a night club, arriving there about 9:30 P. M. During the evening Coffman had three drinks of 'Tom Collins.' The others in the party drank more than he did. When they left the club after midnight, Powers was not in a fit condition to drive, so he entered the back seat with Miss Reynolds while Coffman took the wheel. In Hagerstown they had some food at a restaurant. They then started on the way back to Hancock. While taking a curve on the east side of Fairview Mountain about 1:30 A. M., the car swerved from the road, knocked down three posts in the guard rail, and went a distance of 48 feet, 7 inches, up the road. Miss Reynolds was thrown out of the car and killed by the accident.

The appellants prayed for a directed verdict because of lack of legally sufficient evidence. At the trial of the case at bar, a Connecticut motorist testified that he observed the car, about 50 seconds before the accident, traveling at a speed of about 70 miles an hour. Coffman admitted that his speed had reached 60 miles an hour, but claimed that on reaching the mountain he slowed down to between 45 and 50 miles an hour. The jury is not required to believe that the witnesses for either side are accurate in their testimony regarding the speed or the manner of operation of a motor vehicle. The testimony as to the speed, the impact against the guard rail, and other facts justified the trial Court in submitting the case to the jury. In order to justify a directed verdict, the evidence should admit of no inference of negligence in the operation of the automobile. Ottenheimer v. Molohan, 146 Md. 175, 126 A. 97; Bozman v. State, Md., 9 A.2d 60.

Powers sought a directed verdict on the ground that there was no evidence to show that Coffman was operating the automobile on his behalf. It is well established that the owner of an automobile, who is riding in it while driven by another, is not relieved of responsibility because he is not personally at the wheel, when he tacitly assents to the manner in which it is driven. At the trial of this case, Powers testified that he put his key in the switch of the car, and assented to a suggestion that Coffman be allowed to drive. There is no question that Coffman was operating the car on behalf of Powers. If the owner of a car either requests or allows another person to drive while he is occupying it, his request or permission will not of itself exclude his right of control. The owner has the right and the duty to prevent, if possible, the driver from operating the machine in a reckless and dangerous manner. If the car is negligently operated, it is presumed that the owner consented to the negligence. Therefore. in the absence of proof that he abandoned the right of control, he is liable for any damage resulting from the negligence of the driver. Randolph v. Hunt, 41 Cal.App. 739, 183 P. 358; Harris v. Boling, 132 Okl. 17, 269 P. 274; Rodgers v. Saxton, 305 Pa. 479, 158 A. 166, 80 A.L.R. 285, 289; 5 Berry, Law of Automobiles, 193; 5-6 Huddy, Automobile Law, sec. 749.

The contention was made that the parties were engaged in a joint enterprise, and therefore the negligence of the driver should be imputed to the other occupants of the car. Joint advanture or enterprise is an association of two or more persons intended to carry out a single transaction for profit. Dolan v. Dolan, 107 Conn. 342, 140 A. 745; 63 A.L.R. 913. At common law this relationship was not recognized unless the elements of a formal partnership existed, but in the passage of time a modification of this rule developed in American judicial decisions by the recognition of joint enterprise as a limited partnership. Joint enterprise as a legal concept is not a status created by law; it is a contractual relationship of mutual agency. Krause v. Hall, 195 Wis. 565, 217 N.W. 290. In order to impute the negligence of a driver of a motor vehicle to another occupant, in an action brought against a third party alleged to have been negligent, it must be shown that the relationship of the parties was that of partners, or principal and agent, or master and servant. Potter v. Florida Motor Lines, D.C., 57 F.2d 313. The question whether occupants of an automobile were engaged in a joint enterprise is often a question for the jury. Link v. Miller, 133 Kan. 469, 300 P. 1105. It is generally held that the common purpose of riding together for pleasure is insufficient to establish a joint enterprise. Although the purpose of a pleasure journey is a common one, the Courts usually hold that such a purpose is not sufficiently joint to have the effect of imputing the negligence of the driver to the others, unless the parties had entered into an actual or implied contract giving common possession of the vehicle and joint control of its operation. Claxton v. Claxton, 16 Tenn.App. 399, 64 S.W.2d 854; Rogers v. Goodrich, 131 Cal.App. 245, 21 P.2d 122; Miles v. Rose, 162 Va. 572, 175 S.E. 230; Bailey v. Parker, 34 Ohio App. 207, 170 N.E. 607; Archer v. Chicago, M.St. P. & P. R. Co., 215 Wis. 509, 255 N.W. 67, 95 A.L.R. 857. So, where a group of boys agreed to share equally the expenses of a pleasure trip, and each had the right to be heard in carrying out its details and an equal right to direct the speed and the movements of the car, the Court held that they were engaged in a joint adventure. Frisorger v. Shepse, 251 Mich. 121, 230 N.W. 926. If there is no prearrangement for a substantial sharing of the expenses of a pleasure trip, it is the general rule that the trip is not a joint enterprise, even though the parties have a common destination and a common purpose and even though the guest drives alternately with his host. But if the parties do not own or hire the car jointly, even the fact that they share the expenses of a trip does not of itself make their trip a joint enterprise. 2 Restatement of the Law of Torts, sec. 491.

In Maryland a sharing of losses as well as of profits is an essential test in determining whether there has been a joint adventure. Atlas Realty Co. v. Galt, 153 Md. 586 139 A. 285. We have held that a driver and a guest were not joint adventurers merely because the guest requested the driver to take him to certain places, gave certain directions and indicated dangers on the way. State v. Norfolk & Western Ry. Co., 151 Md. 679, 135 A. 827. And in a case in this State, wherein an automobile owner was returning with five friends from a pleasure trip, during which an accident occurred, this Court declared that the parties had not embarked upon a joint adventure equally beneficial to all of them. Vacek v. State, 155 Md. 400, 142 A. 491. In a later Maryland case, wherein the plaintiff and the defendant had been riding in the defendant's automobile on a trip to drinking places in the common purpose of seeking pleasure, the Court declared that, even though the plaintiff had given directions to the chauffeur, the facts were not enough to establish the relationship of joint enterprise. Warner v. Markoe, 171 Md. 351, 189 A. 260. We conclude, therefore, that the parties in the present case were not joint adventurers. But even if they were, the doctrine of imputed negligence could not be invoked in this case; for, according to many authorities, the doctrine of imputed negligence does not apply to an action between joint adventurers. 5-6 Huddy, sec. 149, page 291; 2 Restatement of the Law of Torts, sec. 491, page 1274. The general rule is that where the occupants of a vehicle are engaged in a joint enterprise, the negligence of one member of the enterprise will be imputed to another when the action is brought against a third party; but the rule does not apply when one member of the enterprise brings the action against another member who owns or operates the vehicle, for the doctrine of imputed negligence is inapplicable as between the parties. Bates v. Tirk, 177 Wash. 286, 31 P.2d 525; Adams v. Hilton, 270 Ky. 818, 110 S.W.2d 1088. In a case in Arizona the Court allowed one joy rider to recover from another on the theory that the common will directed their movements and the joby riders were virtually joint adventurers. Franco v. Vakares, 35 Ariz. 309, 277 P. 812. But joy riders, when considered in an exceptional case such as that in Arizona, are defined as two or more persons who drive 'at a dangerously high rate of speed merely for the purpose of enjoying the exhilarating and...