Action was brought to recover for damage to automobile as result of collision, and defendant filed a counterclaim. A justice of the peace entered judgment adverse to plaintiff and plaintiff appealed. The Superior Court, Carey, J., held that negligence of husband in driving automobile, which was owned by wife, and in which wife was riding at time of collision, did not bar recovery by wife from driver of other involved in collision for damage to wife's automobile.
Judgment for plaintiff.
Where there was no evidence of right of control by wife of husband in operation by husband of wife's automobile, in which wife was riding, negligence of husband in operation of automobile could not be imputed to wife under the doctrine of joint enterprise, and wife was not barred from recovering from driver of other automobile involved in collision with wife's automobile for damage to wife's automobile.
[48 Del. 520] Appeal from a Justice of the Peace in an action for damages arising out of an automobile collision. The defendant filed a counterclaim. The case was tried by the Court without a jury. The facts appear in the Court's opinion.
Samuel R. Russell, of Tunnell & Tunnell, Georgetown, for plaintiff.
John J. McNeilly, Georgetown, for defendant.
At the time of the accident here involved, plaintiff's car was being driven by her husband, and the defendant was driving his own car. As the trier of fact, I find both drivers guilty of negligence proximately contributing to the accident. This finding necessitates a ruling against defendant's counterclaim.
The legal problem for consideration is whether plaintiff can recover for the damage to her car, in view of the fact that she was riding with her husband when the accident occurred. Stated differently, the question is whether her husband's negligence is imputed to her under the circumstances of this case. There is no contention that she was personally guilty of contributory negligence.
No reported Delaware case touches upon the precise problem, and courts of other states are in disagreement. 4 Blashfield, Sec. 2497. Some of the cases are from states which observe the ‘ family use’ doctrine, expressly repudiated by our Supreme Court in
Smith v. Callahan, 4 W.W.Harr. 129, 144 A. 46, 64 A.L.R. 830. The rule in community property states is likewise of little interest to us.
Aside from those cases based upon the family use doctrine or community property law, the conflict of authority centers [48 Del. 521] largely upon whether agency or control is to be presumed from the facts of ownership and presence of the wife. Both Guy v. Union St. R. Co., 289 Mass. 225, 193 N.E. 740 and Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185, for example, apply the principle that a car, driven by another, is presumptively under the control of the owner when present, although they agree that the proof may overcome this presumption. On the other hand, Painter v. Lingon, 193 Va. 840, 71 S.E.2d 355 and Rodgers v. Saxton, 305 Pa. 479, 158 A. 166, 80 A.L.R. 280 are illustrative of instances wherein Courts have declined to apply this presumption against the wife-owner, although recognizing that there may be cases where the facts would justify a finding of agency.
Whether the presumption is applicable becomes important in the present case because of the extremely meager evidence presented. There has been no suggestion here that the wife was anything but a bona fide owner of the car. Whether she could drive, or ever did drive this car, was not brought out. The general use to which the car was put was not mentioned. Whether she did in fact ask her husband to drive on this particular occasion or whether she attempted to exercise any control over his driving does not appear. She was not called to the stand. All we have in the record is the husband's testimony on cross-examination to the effect that he was driving, his wife and her sister were in the car with him and they were taking the wife's sister back to her home, she having spent the evening with them.
In the light of this meager evidence, the Massachusetts and North Carolina Courts would no doubt apply the presumption of agency and control, whereas the Virginia and Pennsylvania Courts would decline to do so. In determining which theory to follow, we have little in the Delaware reports to assist us. A husband's negligence is not ordinarily imputed to his wife, who is a passenger but not the owner. Island Express v. Frederick, 5 W.W.Harr. 569, 171 A. 181;
Bennett v. Barber, 7 Terry 132, 79 A.2d 363. Moreover, no presumption of agency arises from ownership of a car being driven by another, if the owner is not present. [48 Del. 522]Cerchio
v. Mullins, 3 W.W.Harr. 245, 138 A. 277. It has not been suggested that the mere relationship of husband and wife is sufficient to raise any presumption of agency.
The argument made is that the wife here was as much interested in the purpose of the trip as was the husband and, since she was not only the owner but also a passenger in the car, it is reasonable to infer the right of control in the wife, whether she actually exercised it or not and that this is sufficient to establish a principal and agent relationship or something closely akin thereto. A similar theory was followed in Eskridge v. Ruth, Del.Super.,105 A.2d 785, wherein the driver was not the spouse of the owner. I have no doubt that the Eskridge case was correctly decided, but it would be a mistake, in my opinion, to carry its reasoning to the extent necessary in this case. It is fully in accord with common experience to presume that an owner-passenger retains the right of control when he asks or permits a friend or even a child to drive. Cf. Balick
v. Philadelphia Dairy Products Co., 5 ...