Kenney v. Lewis Revels Rare Coins, Inc.

741 F.2d 378, 40 Fed. R. Serv. 2d 184
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 11, 1984
DocketNo. 83-8121
StatusPublished
Cited by8 cases

This text of 741 F.2d 378 (Kenney v. Lewis Revels Rare Coins, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kenney v. Lewis Revels Rare Coins, Inc., 741 F.2d 378, 40 Fed. R. Serv. 2d 184 (11th Cir. 1984).

Opinion

GODBOLD, Chief Judge:

In this case we review a jury verdict and award in favor of plaintiffs against Lewis Revels Rare Coins, Inc. and its two employees, Paul Whiting and William Hargraves. We affirm the judgment with respect to awards against Revels and Whiting. With respect to Hargraves, the trial court’s instructions improperly allowed the jury to impute to Hargraves the negligence of his co-employee Whiting, who was driving the truck at the time of the accident. The jury [380]*380could have used this imputed negligence to bar Hargraves’s counterclaim against plaintiffs and cross-claim against Whiting. Therefore we reverse the judgment insofar as it granted an award to plaintiffs against Hargraves and barred Hargraves’s counterclaim against plaintiffs and cross-claim against Whiting.

I. Background

Both Whiting and Hargraves were employees of Lewis Revels Rare Coins, Inc. Revels instructed the two to transport a rented U-Haul truck from Georgia to New York in furtherance of Revels’s precious metals business. The jury could have inferred from the evidence that they shared control of the automobile.1 While on 1-81 in Virginia, the truck, driven by Whiting, crashed into the rear of plaintiffs’ van, which plaintiffs contended had been pulled into the left median and off the road because of inclement weather conditions. Both plaintiffs suffered personal injuries. Plaintiffs alleged that Whiting had been negligent in driving too fast for conditions and that this negligence proximately caused the accident. Alternatively, plaintiffs contended that, even if Linda Kenney had been negligent in failing to pull completely off the road, Whiting had the last clear chance to avoid the accident. Both of these issues were hotly disputed. The jury resolved the credibility choices in favor of plaintiffs and against all three defendants and awarded Wayne Kenney $221,280 and Linda Kenney $479,100 against all defendants. The jury found against Whiting on his counterclaim against plaintiffs and against Hargraves on his counterclaim against plaintiffs and cross-claim against Whiting.

II. Imputation of Whiting’s negligence to Hargraves

Plaintiffs alleged that Whiting and Har-graves were engaged in a joint venture so that Whiting’s negligence could be imputed to Hargraves to render him liable as a defendant and to bar his counterclaim against plaintiffs. Whiting adopted this argument on appeal in order to sustain the barring of Hargraves’s cross-claim against Whiting. Since the jury was instructed to impute negligence only for a joint venture, it necessarily found that Hargraves and Whiting were engaged in a joint venture.

We must decide whether the facts justified a joint venture instruction. So far as we, with the aid of the parties, can tell, the Virginia courts, whose law we look to under Georgia’s lex loci delicti conflicts rule, have never addressed the question whether, when two co-employees are about their master’s business, the negligence of the driver may be imputed to the passenger absent some understanding or venture outside of the employment relationship. The courts of other states are not uniform in their views. Since Virginia has no certification procedure, Erie requires us to decide what rule the Virginia Supreme Court would apply. We believe the better view is that negligence should not be imputed to the passenger under the facts of this case, and, simply because it is the better view, we assume that Virginia would adopt it. The district court erred in giving the instruction on joint venture. Hargraves is entitled to a new trial on his counterclaim and cross-claim and reversal of the plaintiff’s judgment against him.

The classic discussion of a joint venture, and the one used by the district court to charge the jury, appears in Miles v. Rose, 162 Va. 572, 585, 175 S.E. 230, 235 (1934):

That the negligence of the driver in operating an automobile may be imputed to a person riding therein with him on the ground that they are engaged in a joint enterprise, it is not sufficient that they have a mutual or joint interest in [381]*381the objects and purposes of the trip. There must be a joint enterprise as hereinafter defined in controlling, directing, and governing the operation of the automobile. The relationship between the parties arising from the engagement, express or implied, between them, must be such that each of them has, or is, entitled to exercise a voice as to the manner in which the automobile shall be controlled and operated while making the trip. If the relationship between the parties is such that each is entitled to exercise a voice in the control and operation of the automobile, it is not material that the one not driving does not know how to operate an automobile, or has no opportunity actually to control the conduct of the driver, or that it has been expressly agreed or is necessarily understood that he will not interfere with the driver in the control and operation of the automobile. But the engagement between the parties must have given rise to a relationship between them such that each is entitled to a voice in the control and operation of the automobile.

Virginia courts have not clarified the application of this doctrine between co-employees about their master’s business when that business is their only common enterprise.

Most jurisdictions hold that the mere existence, as between the driver and the passenger, of the relationship of co-employee or fellow servant does not bar recovery by the nondriving employee against a negligent person despite the fellow employee’s negligence. See 1 Blashfield Automobile Law and Practice § 62.34, at 513 & nn. 85-86 (F. Lewis & P. Kelly 3d ed. 1965), and cases cited therein; see also W. Pros-ser, Law of Torts § 72, at 478 & n. 92 (4th ed. 1971) (“In the absence of circumstances indicating [an understanding that the passenger has a right to have his wishes respected], it has been held that ... fellow servants in the course of their employment, although they may have a common purpose in the ride, are not engaged in a joint enterprise.”) (footnotes omitted). Other courts have imputed negligence to the passenger co-employee where both employees have an equal right to drive. See 1 Blash-field Automobile Law and Practice, supra, at 514 & n. 89, and cases cited therein.

In Parton v. Weilnau, 169 Ohio St. 145, 169, 158 N.E.2d 719, 735 (1959), the court explained the rationale for not imputing negligence between two co-employees when engaged in their master’s business:

In our opinion, it would be unreasonable to impose upon an employee responsibility for the negligence of his co-employee. Unlike an employer, an employee has no right to choose his co-employees. That choice is the right ... of his employer. Hence, although it may be reasonable to impose responsibility on an employer for what his employee does, it does not follow that it would be reasonable to impose any such responsibility on a co-employee for what that employee does. We believe therefore that imputation of negligence because of a joint enterprise should be confined to the kind of a joint enterprise where a member thereof can select his joint adventurers, just as a partner can select his partners, and an employer can select his employees. In such instances, there is some justification for making a member of the joint enterprise responsible for what another member does in its execution.

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741 F.2d 378, 40 Fed. R. Serv. 2d 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenney-v-lewis-revels-rare-coins-inc-ca11-1984.