Silsby v. Hinchey

• Decision Date: 29 June 1937
• Docket Number: No. 24118.,24118.
• Citation: 107 S.W.2d 812
• Parties: SILSBY v. HINCHEY.
• Court: Missouri Court of Appeals

107 S.W.2d 812

SILSBY v. HINCHEY.

No. 24118.

St. Louis Court of Appeals. Missouri.

June 29, 1937.

Rehearing Denied July 6, 1937.

Appeal from Circuit Court, Jefferson County, E. M. Dearing, Judge.

"Not to be published in State Reports."

Action by Ethel E. Silsby against Paul P. Hinchey, who filed a counterclaim. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

R. E. Kleinschmidt, of Hillsboro, for appellant.

Edgar & Matthes, of De Soto, for respondent.

BENNICK, Commissioner.

This case, which comes to the writer on reassignment, is an action for damages for personal injuries sustained by plaintiff, Ethel E. Silsby, as the result of the collision of defendant's automobile with the automobile in which she was riding. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $7,500. Judgment was rendered accordingly, and defendant's appeal to this court has followed in the usual course.

There was a counterclaim filed in the case, upon which plaintiff likewise prevailed, but inasmuch as the counterclaim is not brought in issue on this appeal, no further mention need be made of it.

The negligence pleaded and relied upon by plaintiff as the basis of her cause of action was the act of defendant, Paul P. Hinchey, in having driven and operated his automobile to the left of the center of the road, and in having failed to keep a lookout for vehicles that were lawfully upon the road at the time.

The answer was a general denial, coupled with a specific plea to the effect that plaintiff was engaged at the time upon a joint venture with her husband who was driving the automobile in which she was riding, and that her injuries were primarily caused by her own carelessness and negligence as she acted in conjunction with her husband.

All of the parties involved in the case are residents of De Soto, Mo.

The accident happened about 7:15 o'clock in the evening of March 28, 1935. Plaintiff and her husband, H. N. Silsby, were on their way from their home in De Soto to a church supper in Hematite, Mo. Their route was over highway No. 21, an improved gravel road about 25 feet in width from shoulder to shoulder. Silsby was doing the driving, as we have already pointed out, with plaintiff seated beside him in the front seat of the automobile, which the evidence shows was owned jointly by Silsby and his son, though title was registered in the son's name alone in the state of Tennessee. Plaintiff herself had no interest in the automobile, though it appears that she had theretofore driven it on occasions in connection with the usual family affairs.

Plaintiff and her husband were northbound on the highway, which appears to have been quite hilly, although its surface was smooth. The scene of the accident was only a mile and a half north of De Soto, just beyond what is locally known as the "Haverstick place."

According to the testimony of plaintiff's husband, he was driving along at a speed of about 25 miles an hour, keeping well on his own side of the road, and first saw defendant's automobile approaching from the north as he struck a little level at the bottom of a hill. Defendant's car was then coming over the crest of a hill about 500 feet away; both cars had their headlights burning; and there was no obstruction or intervening object of any sort to have prevented defendant from seeing the approach of the other automobile.

Observing that defendant was coming down the hill on the wrong side of the road, Silsby at first slowed up, and then, by the time that defendant had come within 200 feet of him without having changed his position on the road, pulled entirely over on the shoulder on the right-hand side. Thinking that a collision would thus be avoided in view of the fact that defendant had practically the entire width of the road at his disposal, Silsby continued onward at the reduced speed, but just as the two cars were in the act of meeting, defendant for some reason cut his car further to the left, striking the Silsby car squarely in the side, and knocking it over into the ditch which paralleled the road at that point. Plaintiff was injured in the collision, and attributing the accident to defendant's negligence in the respects alleged in her petition, she seeks to be compensated in this action for the injuries she received.

The appeal being by defendant from a verdict in plaintiff's favor, we have necessarily stated the facts in accord with plaintiff's version of the case, and have disregarded all countervailing evidence for defendant. In fact, defendant concedes in his brief that the state of the evidence was such as to have warranted the court in submitting the case to the jury, but he contends that not only was prejudicial error committed in connection with the admission of evidence and the giving of instructions, but that in any event the verdict returned was patently and grossly excessive.

For his first point, defendant contends that the court was in error in sustaining an objection to a question put to plaintiff's husband on cross-examination as to how long the automobile which he was driving had been in De Soto prior to March 28th, the date of the accident. It was just previous to this that it had been shown that the automobile, though owned by the father and son jointly, was registered in the son's name in Tennessee. Though the connection is not made clear, it is suggested by counsel that such evidence would have been relevant to the question of joint enterprise on the part of plaintiff and her husband, which question, in turn, was material to the issue of contributory negligence as the same had been set up in the answer.

It would be enough to say that the question of whether plaintiff and her husband were engaged in a joint enterprise at the time of the accident could have been in nowise dependent upon the mere showing of how long the automobile in which they were riding had been in De Soto, but inasmuch as the question of joint enterprise appears at intervals throughout the case, it may as well be determined now as in connection with some subsequent point.

It is, of course, true that if the wife makes an automobile trip, either on her own account, or else in joint enterprise with her husband, who is the driver, and if she is in, or has the right to exercise, joint control of the automobile, then the husband's negligence, if any, in the operation of the automobile, concurring with the negligence of some third person to produce an injury to the wife, will be imputed to her so as to bar her recovery in an action brought by her against such third person. However, the converse of the rule is equally true, which is that if the status of the wife is that of a mere guest or invitee, then her husband's negligence, if any, is not to be imputed to her, and she will be chargeable only with her own negligence in the event that she failed to exercise due care for her own safety. Pence v. Kansas City Laundry Service Co., 332 Mo. 930, 59 S.W.(2d) 633.

As a general proposition of law, the wife, lacking the right to control her husband's actions, and he being in no sense of the law her servant or agent, is merely to be regarded as her husband's guest when riding with him in an automobile which he is driving, and his negligence, if any, in the operation of the automobile is therefore not to be imputed to her. Corn v. Kansas City, C. C. & St. J. Ry. Co. (Mo.Sup.) 228 S.W. 78; Allen v. Chicago, B. & Q. Ry. Co., 313 Mo. 42, 281 S.W. 737; Setzer v. Ulrich (Mo.App.) 90 S.W.(2d) 154; Pettitt v. Kansas City (Mo.App.) 267 S.W. 954.

Before the wife may be held to have been engaged in a joint enterprise with her husband so that his negligence, if any, is imputable to her, there must be some such showing in the case as that she owned the automobile or had an interest in it, or else that the mutual purposes to be served by the particular journey were of such an unusual character as to have given rise, not only to a joint responsibility, but also to the legal right of joint control, on the part of both husband and wife as regards the operation of the automobile. Perrin v. Wells (Mo.App.) 22 S.W.(2d) 863. But, on the other hand, where all that appears in the case is that the wife was merely riding with her husband in the family automobile, which he was driving at the time, and that their purpose was merely to serve their mutual pleasure or to transact the usual and ordinary affairs of the family, with no right of joint control disclosed, then the trip is not to be regarded as a joint enterprise or venture in the sense that the husband's negligence, if any, is to be imputed to his wife. Corn v. Kansas City, C. C. & St. J. Ry. Co., supra; Pettitt v. Kansas City, supra; Munger v. City of Sedalia, 66 Mo. App. 629.

In this case plaintiff neither owned the automobile, nor did she have an interest in it. The purpose of the trip upon which she and her husband had embarked was merely to attend a social function in a neighboring town. She had no legal right to control her husband's actions as he drove to their destination, nor was she personally responsible for the operation of the automobile save only as she was required to exercise due care for her own safety. Indeed the relationship existing between plaintiff and her husband on the occasion in question was no different than that which obtains in every instance where the husband and father takes the members of his family out for a drive in the family automobile, and there was no evidence adduced which could have served as a basis for a finding that plaintiff and her husband were engaged in what the law regards as a joint enterprise at the time the accident occurred.

For his next point defendant assigns error to the action of the court in connection with an incident which occurred during the course of the direct examination of plaintiff herself. She had previously testified to the details of the accident as she...