Bartek v. Glasers Provisions Co.

71 N.W.2d 466, 160 Neb. 794, 1955 Neb. LEXIS 87

• Court: Nebraska Supreme Court
• Decided: July 15, 1955
• Docket: 33661
• Status: Published

Opinions

Wenke, J.

Mildred Bartek brought this action in the district court for Douglas County against Glasers Provisions Company, Incorporated, and Howard J. Tallman. We shall hereinafter refer to these defendants as either Tallman or the company. There are - two causes of action. The purpose of the first cause of action is to recover the damages plaintiff alleged she personally suffered because of injuries received in an accident involving a car being driven by Tallman and owned by the company. The second cause of action is to recover for damages to her car. The basis for both causes of action is the claim that Tallman was negligent in operating the car he was driving and that such negligence was the proximate cause of the accident which resulted in plaintiff’s injuries and damage to her car. Plaintiff recovered a verdict of $3,750 and the trial court immediately entered judgment thereon. Thereafter the company filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Tallman filed a motion for a new trial. Both motions were overruled. This appeal was taken from the ruling thereon.

The accident here involved occurred about 6:45 p. m. on Saturday, January 17, 1953, in Omaha, Nebraska, at the intersection of Thirty-sixth and Q Streets, Thirty-sixth Street running north and south and Q Street running east and west. Immediately preceding the accident William F. Bartek, husband of appellee, was driving a 1949 Ford club coupé west on Q Street while, at the same time, Tallman was driving a 1950 Oldsmobile coach north on Thirty-sixth Street. Appellee was- riding in -the car her husband was driving. These two cars collided at about the center of the intersection. As a result plaintiff was injured and the 1949 Ford club coupé, title to which was in her name, was damaged. The intersection of Thirty-sixth and Q Streets was, at that time, controlled by four traffic signals, one at each corner. The signals were operating. Any further statement as to the facts will be made in connection with our discussion of the errors assigned.

The company contends the trial court erred when it overruled its motion for a judgment notwithstanding the verdict. In considering this assigned error the following principles are applicable:

“A motion for directed verdict or for judgment notwithstanding the verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.” Stark v. Turner, 154 Neb. 268, 47 N. W. 2d 569.

“In an action where there is any evidence which will support a finding for a party having the burden of proof, the trial court cannot disregard it and direct a verdict against him.” Stark v. Turner, supra.

As it relates to this assigned error the evidence is not in dispute. Tallman was, at the time of the accident, vice-president of the company and employed by it. The company is a Nebraska corporation engaged in the manufacture and sale of foods and provisions with its principal place of business located in Omaha. In January 1951 the company furnished Tallman a 1950 Oldsmobile coach to be used in connection with his work but also permitted him to use it for the pleasure of his family. Tallman kept this car in a garage at his home, which is located at 3821 Polk Street in Omaha. However, the company kept the title thereto in its name. This is the car Tallman was driving at the time of the accident.

Tallman’s family consisted of himself, his wife, two sons, and a daughter. Shortly after 6:30 p. m. on January 17, 1953, Tallman and his two sons left their home in the Oldsmobile to attend a movie at the Chief Theatre. In going to the theatre Tallman drove north on Thirty-sixth Street, the intersection of Thirty-sixth and Q Streets being 2 blocks east and 11 blocks north of the Tallman home. The sole and only purpose for the trip was to enable Tallman and his two sons to attend the movies.

We said in Shaffer v. Thull, 147 Neb. 947, 25 N. W. : “A person is liable for the negligent operation of an automobile by his servant or agent only where such servant or agent, at the time of the accident, was engaged in his employer’s or principal’s business with his knowledge and direction.” See, also, Neff v. Brandeis, 91 Neb. 11, 135 N. W. 232, 39 L. R. A. N. S. 933; Ebers v. Whitmore, 122 Neb. 653, 241 N. W. 126; Wise v. Grainger Bros. Co., 124 Neb. 391, 246 N. W. 733; Witthauer v. Employers Mutual Casualty Co., 149 Neb. 728, 32 N. W. 2d 413.

And, as stated in Restatement, Agency, § 238, p. 535:

“The master is liable only when the instrumentality is being used by the servant for the purpose of advancing the employer’s business or interests, as distinguished from the private affairs of the servant. Thus, a master who purchases an automobile for the convenience of his servants is not subject to liability when a servant is using it for his own purposes; * *

In view of the foregoing principle, which is controlling of the situation disclosed by the record insofar as it relates to the company, we find the trial court erred in not sustaining the company’s motion for a judgment notwithstanding the verdict and in failing to dismiss the action against it.

Appellants contend the trial court erred in allowing appellee to impeach certain of their witnesses by the introduction of testimony they had given prior thereto at a hearing in the South Omaha police station on January 24, 1953, at which hearing they testified about chasing a car up Railroad Avenue on the evening of January 17, 1953.

Appellants called police officer William G. Hopkins', ■and patrolman James Elder of the Omaha police force as witnesses. They testified that on the evening of January 17, 1953, they were traveling about the streets of Omaha in a cruiser car checking traffic; that they were-called to the accident herein involved at Thirty-sixth, and Q Streets and arrived there about 6:50 p. m.; that, when they arrived there they recognized the blue Ford, coupé involved in the accident as a car they had been chasing up Railroad Avenue; that they identified it through various means, including the license number; that when they were chasing this car up Railroad Avenue it was traveling at a very high rate of speed and being driven in a reckless manner, that is, swerving in and out among cars it was passing; and that they lost it at Twenty-fifth and U Streets when it passed a truck.

The only purpose this testimony could serve was to show the Ford coupé involved in the accident was being driven at a high rate of speed and in a reckless manner just before the accident. For that purpose this evidence was too remote both in time and distance and was clearly incompetent and immaterial.

In rebuttal appellee produced as a witness E. G. Wood-bury, an official court reporter, who took the testimony of these two witnesses when they testified under oath at the hearing held in the South Omaha police station on January 24, 1953. At that hearing Woodbury states patrolman Elder testified they were only able to get part of the license number of the blue Ford they had been chasing north up Railroad Avenue on the evening of January 17, 1953, and that they had lost it at Twenty-fifth and W Streets. Woodbury also testified that police officer Hopkins stated that his testimony would be substantially the same and that he could not add anything to what patrolman Elder had testified to.

This evidence is clearly impeaching and was admissible for that purpose, subject to the following principle, if the evidence of the officers had been competent and material:

“Before a witness, not a party to the suit, can be impeached by proof that he has made statements contradicting of differing from the testimony given by him upon the stand, a foundation must be laid by interrogating the witness himself as to whether he has ever made such statements.” Meyers v. State, 112 Neb. 149, 198 N. W. 871.

“In order to lay a sufficient foundation for the introduction of evidence to contradict the statement of a witness, as to a statement alleged or denied by him, it is indispensable that the witness’s attention be called to the declaration alleged or denied to have been made, and that the time and place, when and where, and the person to whom such statement should have been made be cited. All of which must be done with reasonable certainty.” Wood River Bank v. Kelley, 29 Neb. 590, 46 N. W. 86. See, also, Hanscom v. Burmood, 35 Neb. 504, 53 N. W. 371; Zimmerman v. Kearney County Bank, 59 Neb. 23, 80 N. W. 54.

As to police officer Hopkins we think these requirements were fulfilled with reasonable certainty but as to patrolman Elder they were not. However, before an error requires a reversal, it must be determined that it was prejudicial to the rights of the party against whom it was made for every error does not require a reversal. Here, as already stated, the testimony of these officers in this regard was incompetent and immaterial and for one of them to be improperly impeached in regard thereto cannot result in prejudicial error. While we find error occurred as to the impeachment of patrolman Elder we do not find it was prejudicial to appellants having had a fair trial.

Appellants complain of the fact that the court failed to fully submit the issue of contributory negligence. This complaint is based on two theories: First, that a wife as a guest in a car being driven by her husband may be responsible for the consequences of her own negligence, if any, and second, on the theory that her husband’s conduct, under the circumstances here established, may be imputable to her.

We have said:

“The negligence of a person while driving an automobile with another as his guest may not ordinarily be imputable to the guest, but such guest may be responsible for the consequences of his own negligence.” Kuska v. Nichols Construction Co., 154 Neb. 580, 48 N. W. 2d 682. See, also, Davis v. Spindler, 156 Neb. 276, 56 N. W. 2d 107; Styskal v. Brickey, 158 Neb. 208, 62 N. W. 2d 854.

“The negligence of a husband while driving an automobile with his wife as a guest may not be imputable to her, but she may be responsible for the consequences of her own negligence in failing to warn him of known approaching danger or for failure to protest against his recklessness.” Crandall v. Ladd, 142 Neb. 736, 7 N. W. 2d 642.

However, in this regard, we have said:

“Ordinarily, the guest passenger in an automobile has a right to assume that the driver is a reasonably safe and careful driver; and the duty to warn him does not arise until some fact or situation out of the usual and ordinary is presented.” Lewis v. Rapid Transit Lines, 126 Neb. 158, 252 N. W. 804. See, also, Hamblen v. Steckley, 148 Neb. 283, 27 N. W. 2d 178.

“The duty of a guest riding in an automobile is to use care in keeping a lookout commensurate with that of an ordinarily prudent person under like circumstances. The guest is not required to use the same degree of care as devolves upon the driver. If the guest perceives danger, or if at certain times and places should anticipate danger, he should warn the driver. Ordinarily the guest need not watch the road or advise the driver in the management of the automobile.” Styskal v. Brickey, supra. See, also, Kuska v. Nichols Construction Co., supra.

The car in which appellee was riding was being driven down a surfaced city street, the paved portion of which was 40 feet wide. While it was dark and cold there was nothing that seriously interfered with the driver’s vision. As the car approached the intersection, which was controlled by traffic signals, the traffic signals were clearly visible and his driving was in no way interfered with by other traffic on Q Street. In other words the trip, immediately prior to the accident, was proceeding as would the average trip and involved only such incidents as one would expect on a trip in a car down a city street after dark. Nothing happened that would cause a passenger in a car to anticipate danger about which she should warn the driver and certainly the corner they were approaching presented no such dangerous condition that she should have warned the driver thereof. We find nothing in the record that would justify submitting the issue of contributory negligence of appellee insofar as her conduct is concerned. It would have been error to have submitted it.

On the basis of the family purpose doctrine, joint enterprise and agency, appellants contend appellee was responsible for her husband’s driving and that his negligence, if any, was imputable to her. On the basis of this contention appellants requested instructions to the above effect and also instructions on contributory negligence. They contend the trial court erred in denying their request therefor.

The family purpose doctrine does not have for its objective the purpose of defeating a claim for damages by a guest by imputing the negligence of a driver to such guest but rather to impose upon the owner of a car being used for family purposes the responsibility for its operation as a matter of public policy. It has no application here. We have stated these principles as follows:

“The owner of an automobile kept for family purposes is liable for injuries inflicted upon a stranger as a result of the negligent driving of one of his children, where the car is occupied by members of the family and is being used for one of the purposes for which it is kept.” Stevens v. Luther, 105 Neb. 184, 180 N. W. 87. See, also, Jennings v. Campbell, 142 Neb. 354, 6 N. W. 2d 376.

“The family purpose doctrine is not a restatement of the rules of principal and agent or master and servant, but rather is a development from those principles.” Jennings v. Campbell, supra.

“The rule is based upon public policy and is in the nature of an exception to the rule that a master or principal is not liable for the negligent conduct of his servant or agent, unless in driving he is pursuing an employment or agency for the owner.” Jennings v. Campbell, supra.

“Where a family purpose car is being used by a mem» ber of the family and an accident follows from the use, the rule does not make it necessary that the injured party be able to prove that the driver had the authority of the owner to drive the car at the time and at the place of the accident.” Jennings v. Campbell, supra.

The rule here applicable is as follows: “Where the owner is a passenger in his own automobile while it is being operated by another, the negligence of the operator is not imputable to the owner, except where the operator is the owner’s servant or agent, or where the operator and the, owner are engaged in a joint enterprise, or where the owner assumes to direct the operation of the automobile and to exercise control over it.” Petersen v. Schneider, on rehearing, 154 Neb. 303, 47 N. W. 2d 863.

While other states have held to the contrary we have held that the negligence of a husband, while driving an automobile in which the wife is riding as a guest, may not, merely because of that relationship, be imputed to her (see, Stevens v. Luther, supra; Crandall v. Ladd, supra; Remmenga v. Selk, 150 Neb. 401, 34 N. W. 2d 757; Hendrix v. Vana, 153 Neb. 531, 45 N. W. 2d 429); that the owner of an automobile may be a guest in his own car (see, Petersen v. Schneider, supra; Davis v. Spindler, supra); and that the mere fact of ownership is not sufficient to impose that liability (see Petersen v. Schneider, supra).

As to joint enterprise we said in Ahlstedt v. Smith, 130 Neb. 372, 264 N. W. 889: “Where two persons unite in the joint prosecution of a common purpose so that each has authority, express or implied, to act for the other in respect to the control of the means to accomplish the common purpose, the negligence of one will be imputed to the other.”

' :“To constitute occupants of a motor vehicle joint adventurers there must be not only joint interest in the objects and purposes of the enterprise but also an equal right' to direct and control the conduct of each other in the operation of the vehicle.” Remmenga v. Selk, supra.

As already stated, the title to the 1949 Ford club coupé the husband was driving at the time of the accident was in the. name of appellee, it apparently having been purchased in March 1952 as a second-hand car. Appellee was not able to drive so her husband did the driving and, whenever she suggested going some place, he would' usually take her. On January 17, 1953, appellee’s sister Marie was in the University Hospital in Omaha. She was expecting. It had been planned for the family to visit her that evening. Late that afternoon, at appellee’s suggestion, the husband drove to Forty-fifth and Harrison Streets and picked up appellee’s parents, Mr. and Mrs. George Cherek, that being where they lived. The husband returned home to 7011 Railroad Avenue. There he picked up appellee and his cousin Stella Schiessl who was visiting them. They left the Bartek home sometime between 6:15 and 6:30 p. m. Mr. Bartek was driving, appellee was riding in the middle of the front seat, and Stella Schiessl to her right while the Chereks occupied the back seat. They first drove north on Railroad Avenue and then on Twenty-fifth Street, crossing Q Street while doing so.

That afternoon appellee had called her sister Betty, who lived at Forty-second and Q Streets, and told her they would pick her up and take her with them to the hospital. Apparently she had forgotten to tell her husband of this arrangement for he did not turn west on Q Street as he crossed it going north on Twenty-fifth Street. She did not think of it until they were approaching the intersection of Twenty-fifth and L Streets. At that time she mentioned to her husband that they had to pick up her sister Betty by saying: “Oh, we forgot to pick up my sister Betty.” 'Her husband then turned left at the next intersection onto L Street and proceeded west on L Street to Twenty-sixth Street; there he turned left onto Twenty-sixth Street and proceeded south on Twenty-sixth Street until he reached Q Street; then he turned right onto Q Street and proceeded west on Q Street to where it intersected with Thirty-sixth Street or the place of the accident.

We think this presents the ordinary family picture when it is decided to visit either some of the wife’s or husband’s relatives. In such case either the husband or wife usually makes all the arrangements, depending on whose relatives are to be visited. We certainly can see no agency in this arrangement within the meaning of the principle hereinbefore set forth nor were the parties engaged in a joint enterprise, within the meaning of our decisions, that would justify imputing the husband’s negligence, if any, to the appellee. See Remmenga v. Selk, supra.

We find no error in the trial court’s refusal to submit the issue of contributory negligence to the jury on the theory that the negligence of the husband, if any, could be imputed to appellee. In fact, as stated in Andersen v. Omaha & C. B. St. Ry. Co., 116 Neb. 487, 218 N. W. 135: “‘Where contributory negligence is pleaded as a defense, but there is no evidence to support such defense, it is error to submit such issue to the jury.’ Koehn v. City of Hastings, 114 Neb. 106.” See, also, Bay v. Robertson, 156 Neb. 498, 56 N. W. 2d 731.

The court should not have given instruction No. 6 nor that part of instruction No. 2 that sets out allegations relating to the claim that appellee was negligent. These are not errors of which appellants can complain but we point them out since a retrial of the case as to Tallman is required.

Appellants complain of the court’s failure to give instructions concerning the duties of a driver entering an intersection. It should be remembered that both drivers, and their corroborating witnesses, testified they entered the intersection on a green traffic signal. The court correctly instructed as to the rights of a driver proceeding into an intersection on a green traffic light and his duties in regard thereto. See instruction No. 7 given by the court and Styskal v. Brickey, supra.

However, in view of Tallman’s testimony that as he entered the intersection on a green light he saw appellee’s car approaching from the east we think the jury should have been advised of the following principle: “A person traveling a favored street protected by a traffic signal, of which he has knowledge, may properly assume that oncoming traffic will obey it.” Angstadt v. Coleman, 156 Neb. 850, 58 N. W. 2d 507.

The other contentions in this regard made by the appellants need not be discussed as they were based on the proposition that Mr. Bartek’s negligence, if any, would be imputed to appellee.

Appellants alleged the accident, together with the resulting injuries and damages, was not caused by any negligence on their part but was the direct and proximate result of the negligence of appellee’s driver. In this regard they requested the following instruction:

“You are instructed that if you believe and find from the evidence that the accident in question which is the subject matter of this lawsuit was caused solely by the negligence of the plaintiff’s husband in the operation of plaintiff’s automobile, then your verdict should be for the'defendant.”

We said in Bergendahl v. Rabeler, 133 Neb. 699, 276 N. W. 673: “Although the negligence of the driver of an automobile will not ordinarily be imputed to a passenger therein when the passenger has no control over the-car or driver, the passenger may not recover from a third person for injuries suffered in a collision when the negligence of the driver is the sole proximate cause of the accident.”

As already stated, both drivers contend they entered the intersection on a green light. However, appellee’s driver admitted he did not see the car being driven by Tallman until almost the moment of the impact. Under this factual situation we think the trial court should have instructed on this issue and its failure to do so prevented Tallman from having a fair trial.

We therefore reverse the judgment of the district court and remand the cause with directions to dismiss the action as to the Glasers Provisions Company, Incorporated, and for retrial as to Howard J. Tallman.

Reversed and remanded with directions.