Stevens v. Nurenburg

• Decision Date: 05 May 1953
• Docket Number: No. 286,286
• Citation: 117 Vt. 525,97 A.2d 250
• Parties: STEVENS v. NURENBURG.
• Court: Vermont Supreme Court

Page 250

97 A.2d 250

117 Vt. 525

STEVENS v. NURENBURG.

No. 286.

Supreme Court of Vermont.

May 5, 1953.

Richardson & Caldbeck and Witters, Longmoore & Akley, St. Johnsbury, for plaintiff.

Arthur L. Graves, St. Johnsbury, for defendants.

Before SHERBURNE, C. J., JEFFORDS, CLEARY, CUSHING, JJ., and HUGHES, supr. J.

SHERBURNE, Chief Justice.

This is an action of tort to recover for personal injuries received in an automobile collision, and comes here upon the defendant's exceptions after a verdict and judgment for the plaintiff.

The undisputed evidence shows that the accident happened shortly after 8 A. M. on January 30, 1952, on the East Lyndon or Red Village Road, so-called, extending from its junction with U. S. Route 5 in the village of Lyndon in a southeasterly direction toward East Lyndon. In the vicinity of the accident the road was about 30 feet wide between the snow banks on either side made by plowing and comparatively straight in each direction. The weather was clear and the temperature was about 20 degrees below zero. The plaintiff was riding in a 1946 Chevrolet sedan owned and operated by one Melvin Davis, his neighbor and a man 80 years old, in a northerly direction toward Lyndon at a speed of about 20 miles per hour, and one Wilbur D. Beer as the servant of the defendant was driving a Chevrolet wrecker in a southerly direction at a speed of about 30 miles per hour. As they approached the scene of the accident and came within 200 to 300 feet of each other both vehicles were on the westerly side of the road, the defendant's wrecker being on its right side while the Davis car was on its left side. When each vehicles was a little more than 50 feet from the point of collision and the westerly wheels of each were 8 feet from the westerly edge of the plowed surface both drivers at approximately the same time turned toward the easterly side of the road, Davis turning to his right and Beer to his left, and the two vehicles collided head-on cornerwise at or near the center of the road. The wrecker was under 8 feet wide.

At the close of all the evidence the defendant moved for a directed verdict upon four grounds, and excepted to its denial upon each ground. We will first discuss the second ground, which was: 'That upon all the evidence, viewed in the light most favorable to the plaintiff, the driver of the automobile in which the plaintiff was riding, which driver had put himself at the disposal of the plaintiff and also his car, which means that the car and driver were subject to the control of the plaintiff, for the purposes of this trip, was negligent as a matter of law, and that the negligence of Davis is imputable to the plaintiff.' So viewed, the evidence shows that plaintiff's water pipe had frozen, and he went over to the Davis house to get some 'gas' for his blow-torch, and Davis offered to take him to the village to get some and that that was how he happened to be riding with him that morning. A little before the collision the plaintiff bent down to check the heater and pulled the fan back to see if it was on, and found that the heater was working, and he was so bent over when the collision occurred. The only other evidence bearing upon this ground of the motion was brought out in defendant's cross-examination of Davis, and was to the effect that the plaintiff asked Davis to take him to the village, that that was the only purpose of the trip, and that he drove his car for the plaintiff's benefit. The defendant contends that Davis in the operation of the car for the plaintiff's benefit was acting as the plaintiff's agent and servant, and that the plaintiff aided and took part in the management of the car by undertaking to check the heater, and that consequently the negligence of Davis is imputable to the plaintiff.

The test determine whether the owner while driving his own automobile is acting as a proprietor or as the servant of another is whether he is in control so that he can at any time stop or continue and determine the way in which it shall be driven or used, not merely with reference to the result to be reached, but with the method of reaching that result even as to its small particulars. The vital inquiry concerns the right to control. If that rests in the owner, he is acting as proprietor. If that rests with another person, then he is the servant of that other person, who becomes responsible for the conduct of the owner. Reardon v. Coleman Bros. Inc., 277 Mass. 319, 178 N.E. 638. As stated in Foley v. Hurley, 288 Mass. 354, 193 N.E. 2, 3, a case cited by the defendant and which cites the above case, 'The test of the * * * relationship of principal and agent is the right to control and not the actual exercise of control by the principal.' To constitute the relation of master and servant, the one for whom the service is rendered must consent to receive the services as master, that is, consent to their being performed under his direction and control. There must be submission by the one giving service to the directions and control of the one receiving it as to the manner of performance. Oleksinski v. Filip, 129 Conn. 701, 30 A.2d 912; Rest. Agency § 221, Comment c. If both parties understand that the rendition of the service is merely a courtesy extended by one to the other, without intent to create the relationship of master and servant, then the relationship does not exist. Oleksinski v. Filip, supra. In this case the driver of a car owned by a third party came to the defendant's farm on an errand, and while he was there the defendant remarked that he wanted to go to a certain town to hire some help. Thereupon the driver offered to drive him there and bring him back, and the defendant accepted the offer. On their way back the accident occurred. It was held that the trial court reasonably could have concluded that the defendant did not have the right of control essential to render him liable as master.

The negligence of the driver of an automobile for hire is not attributable to a passenger having no control over the driver further than to indicate the route to be followed or the place to which the car is to be driven. 5 Am.Jur., Automobiles, § 495. Our case of Bancroft's Adm'x v. Cote, 90 Vt. 358, 361, 98 A. 915, 916, is cited in an annotation in 90 A.L.R. at page 634 in support of this universally conceded rule. We there said: 'The proposition that the deceased was a passenger for hire fairly implied that he was not in control of the car and was not engaged in a joint enterprise which included the driver.' When one hires a taxi to take him to a certain place and back its operator drives it for his benefit. Had Davis been hired to carry the plaintiff to the village the mere fact that the plaintiff, after riding on the front seat with him about a mile in a car taken out of a cold garage on a very cold morning, leaned forward to see if the heater was working, would not warrant any inference that he was in control of the car or driver. On the evidence the absence of compensation makes no difference. Even if the plaintiff asked Davis to carry him to the village as testified to by Davis, rather than Davis offering to carry him without being asked, as testified by the plaintiff, makes no difference. A person riding in an automobile with the knowledge and consent of the owner is no less a guest because he has asked for the privilege of doing so. Robinson v. Leonard, 100 Vt. 1, 9, 10, 134 A. 706; Higgins, Adm'x v. Metzger, 101 Vt. 285, 290, 143 A. 394.

On the undisputed evidence there was no submission by Davis to the direction and control of the plaintiff as to the manner of driving the car. The right to its control always rested in Davis. The plaintiff was a guest passenger. Consequently the negligence of Davis could not be imputed to him. Wentworth v. Town of Waterbury, 90 Vt. 60, 62, 96 A. 334; Lee v. Donnelly, 95 Vt. 121, 128, 113 A. 542; Le Febvre's Adm'r v. Central Vt. Ry. Co., 97 Vt. 342, 349, 123 A. 211. The exception to the denial of the motion for a directed verdict on this ground is not sustained.

For like reasons the exceptions to the court's charge that the plaintiff was a guest and as such not chargeable with the negligence of Davis, and that he was merely a passenger having no control over the management of the vehicle, the exception to the failure of the court to submit to the jury the question of whether or not there was an agency between the plaintiff and Davis, the exception to the denial of defendant's request to charge to the effect that if the jury found that Davis was the agent or servant of the plaintiff his negligence will be imputed to the plaintiff, and the exception to the denial of the request to charge in effect that if the jury find that the plaintiff requested Davis to drive him to Lyndon, and Davis at the plaintiff's request placed himself and automobile at the disposal of the plaintiff so that the plaintiff had the right to control, then Davis was his agent, are overruled.

The first ground of defendant's motion for a directed verdict was that there was no substantial evidence that the plaintiff was free from contributory negligence. Viewed most favorably to the plaintiff the evidence tended to show the following facts in addition to the facts which we have stated were undisputed: The plaintiff was 25 years old and had driven an automobile for 9 years. He had ridden with Davis on numerous occasions and had observed that he was 'careful and easy driving'. Davis had good distance sight without glasses and was not wearing them. When the plaintiff and Davis got into the car in the garage the windows were fairly clear. On the road the windshield became 'fogged up' some just before the collision, although the defroster was working, but Davis 'could see through it all nice' and could see ahead. Shortly before the accident Davis had gotten over on to his left side of the road, but he didn't realize that he had done so until he saw the wrecker 200...