LOU JOSEPH LAMONTE, APPELLANT,

v.

EDNA DE DIEGO, APPELLEE

Fla. 2d DCA | 1973-02-16

No. 72-2

HOBSON and McNULTY, JJ., concur.

274 So. 2d 254 Florida District Court of Appeal, Second District (1973) Positive Treatment

Cited by 3 cases

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Holding

A wife's negligence while driving a jointly owned car is not imputed to her husband, a passenger, simply by virtue of their marital relationship or joint ownership.

Headnotes

[1] The negligence of a spouse driving a jointly owned vehicle is not imputed to the passenger spouse merely by virtue of the marital relationship or joint ownership.

[2] A plaintiff is not barred from recovery by the negligent act or omission of a third person, absent specific legal relationships like agency or joint control.

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Facts & Procedural History

A husband, legally blind and not a licensed driver, was a passenger in a car jointly owned with his wife and driven by her. The wife was negligent and…

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Topics

Joint Ownership Imputed Negligence Derivative Claims Community Property

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Opinion of the Court

MANN, Chief Judge.

The question is whether the negligence of a wife driving an automobile owned jointly with her injured husband, a passen-

ger, is imputed to him. The trial judge held that the wife’s negligence barred the recovery of her spouse from the admittedly negligent driver of the other vehicle.1 Our sister court in the Third District took the opposite view in Hammack v. Veillette.2 We agree with the Third District and reverse.

Analysis of the problem is facilitated by determining what it is not. There is no proof of joint control and, in fact, Mr. LaMonte is legally blind and does not hold a driver’s license.3 There is no proof of an agency relationship.4 The husband’s claim is not derivative.5 Nor is there a claim for damages recoverable by a husband and wife indivisibly.6

The most concise summary of the applicable law is found in Restatement of Torts, Second, Section 485 et seq. The general principle is that “a plaintiff is not *256barred from recovery by the negligent act or omission of a third person.” (§ 485) Section 487 states that “The negligence of husband or wife does not bar the other spouse from recovery for his or her own physical harm.”

The appellee contends that Florida’s adherence to the dangerous instrumentality doctrine would require imputation of Mrs. LaMonte’s negligence to her husband. Southern Cotton Oil Co. v. Anderson 7 has been variously interpreted through the years. If it were dispositive of the question now before us we would think the Supreme Court would not have dismissed cer-tiorari for want of jurisdiction in Hammack.8 This would suggest to us that it is important to distinguish cases in which the liability of an owner or co-owner is in issue from those in which that owner seeks recovery from a negligent party.9

There is an ample literature which we need not repeat here. Where, as in the case before us, the question has been presented in its pure form, the consistent answer has been that the spouse’s negligence is not imputed merely by virtue of that relationship although they own the car jointly.10 Cases reaching the opposite result will be found, upon analysis, to rest upon some factor excluded by the stipulation in this case. For example, in Kesler v. Pabst,11 the husband's negligence was imputed to the wife because of their sharing the proceeds of judgment by virtue of California’s community property laws. In Flores v. Brown,12 the husband’s negligence was not imputed to the wife. He was killed in the accident, and thus could not be enriched unjustly through the allowance of recovery. Thus was the question before us isolated from the factor determinative in Kesler v. Pabst. Other courts have indulged a presumption of joint control,13 or found joint control as the inescapable conclusion from the evidence,14 or have grounded the decision on respon-deat superior. 15

Reversed and remanded for entry of judgment for plaintiff pursuant to stipulation.

HOBSON and McNULTY, JJ., concur.

. Tlie parties stipulated :

“1. That the plaintiff was a passenger in an automobile driven by his wife and owned jointly by both of them, and was involved in an accident when the said automobile entered an uncontrolled intersection, and was struck on the right side by defendant’s automobile. That prior to the accident plaintiff suffered from severely diminished eyesight amounting to legal blindness, and therefore did not hold and never had held a driver’s license.

“2. That as a result of said collision, plaintiff was injured and that the sum of $3,250.00 is just compensation for said damages.

“3. That as a matter of law, both the defendant and the plaintiff’s wife were negligent.

“4. That the question for the Court to determine is whether the negligence of the driver-wife is to be imputed to the passenger husband. If the Court decides the question in the affirmative, then the Court shall enter judgment against the plaintiff and for the defendant, and both parties shall recover nothing, and each shall bear his own costs. If the Court decides the question in the negative, then the Court shall enter judgment for the plaintiff in the amount of $3,250.00 plus costs not to exceed $50.00.”

. Klepper v. Breslin, Fla.1955, 83 So.2d 587, imputed a wife’s negligence to a non-negligont husband where their wrongful death claim was indivisible under a peculiar statute. Most statutes are otherwise interpreted to allow recovery by a non-negligent spouse. See Restatement (Second), Torts § 493. Our Supreme Court, in Ward v. Baskin, Fla., 1957, 94 So.2d 859, 66 ALR2d 1320, made it clear that “the mere relationship of husband and wife does not in and of itself constitute a sufficient basis upon which to impute to the wife or husband the negligence of the other.” 94 So.2d at 860, 66 ALR2d at 1322. Klepper was followed in Martinez v. Rodriquez, Fla.1968, 215 So.2d 305, in which a wrongful death action was involved. Nothing in the case before us suggests a claim to which husband and wife are indivisibly entitled.

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Citator

Cited By

De Diego v. Lou Joseph Lamonte, 279 So. 2d 873 (Fla. 1973)

…Certiorari denied. 274 So. 2d 254. CARLTON, C. J., and ADKINS, BOYD, McCAIN and DEKLE, JJ., concur.…
Mason v. Prentky, 298 So. 2d 445 (Fla. 4th DCA 1974)

…PER CURIAM. Affirmed. LaMonte v. DeDiego, 274 So. 2d 254 (Fla.App.2d 1973); Hammack v. Veillette, 233 So. 2d 836 (Fla.App.3d 1970). WALDEN and DOWNEY, JJ., and KNOTT, JAMES R., Associate Judge, concur.…
Seaboard Coast Line R.R. Co. v. White, 281 So. 2d 35 (Fla. 2d DCA 1973)

…PER CURIAM. Oral argument is dispensed with pursuant to F.A.R. 3.10(e), 32 F.S.A., and the judgment is affirmed. See, LaMonte v. De Diego, 274 So. 2d 254 (2d D.C.A.Fla.1973). MANN, C. J., and LILES and HOB-SON, JJ., concur.…

Authorities Cited (12 total)

Kraemer v. Gen. Motors Acceptance Corp., 572 So. 2d 1363 (Fla. 1990)
S. Cotton Oil Co. v. Anderson, 80 Fla. 441 (Fla. 1920)
State v. Bohanan, 66 So. 2d 694 (Fla. 1953)
Weber v. Porco, 100 So. 2d 146 (Fla. 1958)
Orefice v. Albert, 237 So. 2d 142 (Fla. 1970)
Raphael Klepper v. Breslin, 83 So. 2d 587 (Fla. 1955)
Eusebio M. Martinez v. Rodriquez, 215 So. 2d 305 (Fla. 1968)
Ward v. Alva Rufus Baskin, 94 So. 2d 859 (Fla. 1957)
Hammack v. Veillette, 233 So. 2d 836 (Fla. 3d DCA 1970)
The HERTZ Corp. v. Dixon, 193 So. 2d 176 (Fla. 1st DCA 1966)

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