Plаintiffs (husband and wife) brought suit in separate counts to recover for personal injuries arising from a collision between the Stover automobile and a car driven by defendant. Mrs. Stover sought $75,000 and Mr. Stover asked for $15,000 to cover his injuries plus loss of consortium and expenses caused by injuries to his wife. After the jury returned a verdict for defendant on both counts, the trial court sustained plaintiffs’ motion for new trial on the basis that certain instructions given at defendant’s request were erroneous. Defendant has appealed from that order. We affirm the order for a new trial for Ruby Stover but rеverse and remand with directions as to the claim of Lewis Francis Stover.
The issues presented on appeal do not require an extended recital of the evidence and we set out only so much as is necessary to an understanding of our decision.
The collision occurred in midafternoon on Highway 60 at a point which at that time was a paved two-lane highway. The Stovers, with Mr. Stover driving, were going west enroute to Springfield to “stand up” at a wedding and then spend the night with the friends who were being married. Mrs. Patrick was traveling east enroute to her home in Rogersville.
There hаd been a very heavy snowstorm the night before and, according to evidence offered by the defendant, the highway at that point was covered with ice and snow and was very slick. However, the Stovers testified that at that point the highway had been cleared and was not slick. They stated that there was only loose, blowing snow on the highway and at times the center line could be seen. The Stovers fixed their speed at 20 to 30 miles per hour, and Mrs. Patrick fixed her speed at 20 to 25 miles per hour.
According to the Stover evidence, they came over a rise and started dоwn into a dip in the highway, at which time they observed cars approaching from the opposite direction come over another rise in the highway and start down into the dip. The Patrick car was described as the second of the automobiles, traveling about a car’s length behind the first automobile. When plaintiffs and defendant were about 700 feet apart, the Patrick car pulled out as though to pass, getting out far enough for plaintiffs to see the left headlight. It then pulled back in behind car No. 1. When the Patrick car was 200 to 300 feet away, it pulled out a second timе. About the same amount of the front of the automobile could be seen as before. Again, it went back into its own lane of travel, but this time it was observed to go to the right onto the lip on the concrete pavement and perhaps the shoulder, after which, according to plaintiffs, it whipped back to its left and across the highway in front of the Stover automobile. The Stovers testified that they observed the wheels of the Patrick automobile turning and that it was not skidding on any of these occasions.
Mr. Stover testified that when the Patrick car came out the third time, he put his сar in low gear, shut the engine off, started to apply his brakes, and to turn to the right. He did not fix the distance between the cars when this occurred other' than to say that it was the distance between the witness stand and some wall in the room, but that distance was not more specifically stated. The collision occurred in the westbound lane of the pavement (possibly partially on the north shoulder), the front end of the Stover car colliding with the right side of the Patrick automobile.
The evidence on behalf of Mrs. Patrick was that as she came over the rise and *395 started down into the lower area of the highway, there was no car in front of her, and that she did not pull out to pass another automobile. She stated that her car began to slide gradually to the opposite side of the road without any act on her part, such as turning the wheels or accelerating or applying the brakes. She testified that when her car began to skid, she tried cutting her wheels against the skid and then tried to steer back to her own side of the road. When the car wouldn’t respond, she tried to steer it into the ditch on her left-hand side in order to try to avoid colliding with the plaintiffs’ oncoming car, but the two cars collided.
Both plaintiffs submitted solely on the basis that defendant drove on the wrong side of the road. Instruction No. 4, tendered by Ruby Stover, was as follows:
“Your verdict must be for plaintiff, Ruby Stover, on Count I of the petition if you believe:
“First, defendant drove on the wrong side of the road, and
“Second, defendant was thereby negligent, and
“Third, as a direct result of such negligence the plaintiff, Ruby Stover, sustained damage.”
Instruction No. 6, given on behalf of Mr. Stover, was similar.
Defendant offered and the court gave Instruction No. 8, as follows:
“Your verdict must be for defendant on plaintiffs’ claims for damages if you believe that defendant’s motor vehicle skidded from its proper lаne of travel onto the wrong side of the road.”
In sustaining plaintiffs’ motion for new trial, the first reason given by the trial court was that Instruction No. 8 was improperly given because it “did not hypothesize the finding that the skid of defendant’s automobile was not negligent.” We conclude, for the reasons which follow, that the giving of said instruction was reversible error.
Defendant seeks to justify Instruction No. 8 as a proper converse of Instructions 4 and 6 given by plaintiffs. No contention is made that No. 8 is a true converse, and obviously it is not. Rather, it is defendant’s contention that it was a permissible affirmative сonverse under the Third Method of conversing provided in MAI 33.01, Second Edition. 1
MAI does permit affirmative converse instructions. Such an instruction was approved in Wilson v. Checker Cab Co., Mo.
Is Instruction No. 8 a proper affirmative converse instruction under MAI 33.01 and under the principles announced in Wilson v. Checker Cab Co., supra? We hold not. Even if we should hold that a defendant may give an affirmative converse based on the theory that her car skidded from her proper lane onto the wrong side of the road, Instruction No. 8 would be erroneous because it does not limit its application to non-negligent skidding. Instead, it told the jury that any skidding, regardléss of how caused, would constitute a defense. 2 There is a line of cases in this state which have held that mere skidding is not negligence and does not give rise to an inference of negligence, 3 but those cases would not justify Instruction No. 8 as given. Accordingly, we hold that Instruction No. 8 was prejudicially erroneous.
The more difficult question is whether Instruction No. 8, modified to hypothesize and submit the issue of whether the skidding was negligent, would be a proper affirmative converse instruction. Since this case must be retried, we have concluded that it is incumbent upon us to consider and decide that question.
In the Checker Cab case the affirmative converse told the jury, in effect, that even though the taxicab driver moved the cab while plaintiff was alighting, and even though he did not provide her with a safe рlace to alight, still if, after alighting, plaintiff walked twenty feet before falling, she could not recover. It submitted an additional fact which, if found, defeated recovery. That is not comparable to an instruction submitting only the question of whether movement of defendant’s car into the wrong lane was the result of non-negligent skidding (which is what a modified Instruction No. 8 would do). It merely converses, but in different language, the very same issue submitted in the verdict directing instruction of whether the driving of the automobile into the wrong lane was negligent. Under MAI 33.01, this can be done only by a true converse instruction. Hencе, to meet the issue presented by Instructions 4 and 6, the proper course would be to submit a true or exact converse under MAI 33.02. Under such an instruction, defendant would be permitted to argue (similar to what can be done in sole cause situations) that she did not negligently drive onto the wrong side of the road as submitted by plaintiffs’ instructions but, instead, got there as a result of a non-negligent skid, and consequently that the verdict should be for defendant under that converse instruction.
“Mere skidding” instructions are not prohibited by specific language in *397 MAI, as are unavoidable accident instructions (MAI 1.01) and sole cause instructions (MAI 1.03). However, they are similar in nature to such instructions. In any event, they are not authorized under any of the three methods of converse specifically set out in MAI 33.01. They are not permissible and should not be used.
Ordinarily, the conclusion that the giving of Instruction No. 8 was error would dispose of this appeal and we would affirm the action of the trial court in granting both plaintiffs a new trial on their respective counts for personal injuries. However, defendant urges that the jury’s verdict on defendant’s counterclaim is res ju-dicata on the issue of negligence оf Lewis Stover in the operation of plaintiffs’ automobile and that as a result plaintiffs should not have a new trial.
The verdict returned by the jury on defendant’s counterclaim was as follows: “We, the jury, find the issues in favor of the defendant on her counterclaim against the plaintiff Lewis Francis Stover and assess defendant’s damages at none.” Actually, that form of verdict had been included in Instruction No. 17, given by the court at plaintiffs’ request, which set out forms of verdict for use in deciding the two counts of plaintiffs’ petition and defendant’s counterclaim. With reference to possible verdiсts on the counterclaim, Instruction No. 17 had informed the jury as follows:
“If all of you agree upon a verdict for defendant on her counterclaim against the plaintiff Lewis Francis Stover, it may be in the following form:
“ ‘We, the jury, find the issues in favor of the defendant on her counterclaim against the plaintiff Lewis Francis Sto-ver and assess defendant’s damages at $- (here insert the amount or if none write the word “none”).
_F oreman.’
“If all of you agree upon a verdict in favor of the plaintiff Lewis Francis Stover and against the defendant upon the defendant’s counterclaim, it may be in the following form:
“ ‘Wе, the jury, find the issues in favor of the plaintiff Lewis Francis Sto-ver and against the defendant upon the defendant’s counterclaim.
_Foreman.’ ”
We do not understand why plaintiffs chose to provide that particular form of verdict if the jury found for defendant on her counterclaim as that is not the form prescribed in the MAI 36.00 series (then MAI 32.00) for a verdict for defendant on the counterclaim, but in any event that was the form which was given at plaintiffs’ request. When the verdict was returned, no objection thereto was made and no attack was made by a motion for new trial. No appeal involving the counterclaim was taken. Under those circumstances, plaintiffs have waived any right to attack the verdict. Bunch v. Crader, Mo.App.,
Necessarily, the jury, in reaching its verdict on the counterclaim, decided that Lewis Stover was negligent and that his negligence contributed to cause the collision ; hence that verdict is res judicata of that issue. Reis v. La Presto, Mo.,
Finally, says defendant, plaintiff Ruby Stover also cannot recover because the negligence of Lewis Stover is imputed to her. This contention is made on the basis
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that title to the automobile in which they were riding to visit friends and to “stand up” at their wedding was in their joint names. Cases relied upon as so holding are Roddy v. Francis, Mo.App.,
An examination of the three cases cited above discloses that although reference is made to the existence of a joint enterprise for pleasure, actually joint ownership was the primary basis upon which the court concluded that the negligence of the driver-spouse should be imputed to the рassenger-spouse. This is particularly true of Roddy v. Francis and Hamilton v. Slover. In the latter case, Mr. and Mrs. Hamilton went in their jointly owned car to visit and aid her parents, Mr. and Mrs. Farmer. While there, they went to a grocery store to buy supplies for the Farmers. Mr. Hamilton drove and Mr. Farmer rode with him in the front seat. Mrs. Hamilton and her mother rode in the rear seat. An accident occurred and in a subsequent suit by Mrs. Hamilton against the driver of the other car, it was held that the negligence of Mr. Hamilton should be imputed to his wife, the court saying,
“The law in Missouri is that negligence of the driver of an automobilе is imputable to an occupant and bars his recovery against third persons where the driver and occupant are joint owners engaged in a joint enterprise, either of business or pleasure, because neither has any more, nor any less, right of control than the other. Tannehill v. Kansas City C. & S. R. Co., Mo.,
279 Mo.
158,
213
S.W. 818,
821-822[3].
The rule has been applied to a husband and wife who jointly owned an automobile on a pleasure trip with friends and to visit a nursery to inspect planting stock for their home, Roddy v. Francis, Mo.App.,
It would appear to be a fair inference in both Roddy and Hamilton that the husband’s negligence would not have been imputed to the wife if the automobile had not been jointly owned.
Certainly in the case now under consideration the record before us would not justify imputing negligence of Lewis Stover to his wife if we eliminate the factor of joint title to the automobile. Mere existence of the husband and wife relationship does not cause negligence of one spouse to be imputed to the other. Moon v. St. Louis Transit Co.,
Our research involving cases from other states on this question discloses a considerable split of authority on the subject. Some states hold that negligence of the owner-driver is imputеd to the passenger-owner, based upon the joint ownership. However, cases from other states hold to the contrary. In that connection, we note that Professor Fleming James, Jr., writing in 28 Tulane Law Review 161, at 214 says: “The case in which driver and passenger have joint or common ownership or possession of the vehicle has sometimes been giv *399 en as the classic example of the nonbusiness joint enterprise. Yet here again where husband and wife are co-owners, there is a growing judicial reluctance to find the requisite control from that fact alone.” Under such circumstances, we have concluded, as requested by plaintiffs, to re-examine this question.
As indicated in the foregoing quotation from Hamilton v. Slover, the basis in most cases for imputing negligence of the owner-driver to the passenger co-owner is the existence of an alleged equal right of possession and control. The question we must decide is whether such presumed right is actually realistic. Plaintiffs’ brief states it thus: “How much true control, or right of control, did she have as she sat in the front seat of that car and the Patrick car came into view? From a praсtical standpoint, she had none. Her husband’s hands steered the course of the car, shifted gears and turned off the ignition. It was his foot which applied the brakes. She gave him no direction, and if she had, it would have been unavailing.”
In the recent case of Parker v. McCartney,
“Defendant acknowledges that a co-owner of nonfungible personаl property in possession may usually exclude his co-owner from asserting the right to immediate seizure of possession. 4 Am.Jur., Cotenancy, 93, § 23. He says the rule does not apply in this instance when both owners were present in the car and that plaintiff’s co-ownership entitled him to assert immediate control. Whatever may be the property right generally of one co-owner of property to seize possession from another co-owner we believe it ignores the realities of life to apply such a theory to a motor vehicle in operation uрon a street or highway.
“No one could sensibly contend that co-ownership entitled a nondriving co-owner to directly interfere with the actual manipulations of driving. Such hazardous conduct could not be tolerated for obvious reasons. Nor does such relationship, in and of itself, permit that type of control which creates the unequivocal right to designate destination, route, course, or manner of operation, speed and other factors indicating control in the more remote sense. We can conceive of situations in which other factors would establish one co-owner as the managing owner. * * * But in the absence of any evidence establishing such a right of control, either by status or agreement, we cannot say that a nondriving co-owner has the unquestioned right to assert authority over the driving co-owner. In this instance it is conceded that plaintiff did not even know how to drive a car. It would seem, therefore, sheer mockery to say that nonetheless this man had the right to direct the operation of the car.” 4
In Sherman v. Korff,
Subsequently, in speaking further on the matter of control and while discussing the relationship between the husband and wife who were there involved, the court said,
“Putting from our minds for the moment the seductions of easy fictions, whаt is the realistic legal situation of the parties here before us? Among several thoughtful analyses that have come to our attention, that of the Minnesota court in Christensen v. Hennepin Transportation Company, Inc.,
“ ‘In the instant case, plaintiff and her husband apparently were co-owners of the automobile in question. They were regarded as such throughout the case. The husband apparently was in possession of the car and exercising dominion over it, for he invited his wife to ride with him the same as one in possession might invite a person bearing him no relationship. At least, the inference was permissible that he was in possession and had control at the time.
“ ‘Ownership of an automobile in which the owner is riding, but which is being driven by another, does not establish as a matter of law right of control in the owner. Right of control may be surrendered, as it often is, where the owner parts with the possession of his car to another. In that situation the parties stand in the relationship of bailor and bailee. The negligence of a bailee in operating an automobile is not imputable to the bailor. Mogle v. A. W. Scott Co.,
A similar view was expressed in Rodgers v. Saxton,
In Parker v. McCartney, supra, the defendant not only assertеd that co-ownership entitled the passenger-owner to exercise control over the vehicle, but also that such right of control established an agency relationship, the result of which would cause negligence of the driver to be imputed to the passenger. That contention also was rejected, the Oregon court saying,
“Defendant overlooks the simple fact that co-ownership itself refutes agency. In the absence of some additional status, such as that of partners, we find nothing in the law that imposes agency, ipso facto, upon cоmmon owners of property. In fact it is held that the relationship of cotenants between different owners of undivided interest in property does not create the relationship of principal and agent between them. Earp v. Mid-Continent Petroleum Corp.,
Another rather recent case holding that the negligеnce of the driver-husband was not imputable to the passenger-wife, even
*401
though she was a co-owner of the vehicle, is Porter v. Wilson, Wyo.,
“It seems to us that the cases in which the negligence of the driver has been held to be imputable to the spouse-owner-passenger are much more summary in nature than those in which the negligence has not been held to be imputed. In other words, the imputation has been dependent upon a formula which because of its adoption by a number of courts is being perpetuated without inquiry. It is significant that opinions on this subject have seldom stated with any clarity whether or not the presumption of control of the owner-spouse-passenger over the driver is one of law or fact. If the presumption in this situation is one of fact, we immediately recall the words of Greenleaf, Evidence, 1852, p. 55, quoted with favor in 9 Wigmore, Evidence, 3d ed., p. 288: Presumptions of fact ‘are in truth but mere arguments * * *. They depend upon their own natural force and efficacy in generating belief or conviction in the mind * * *.’
“The lack of unanimity аmong the courts and the numerous bases for holding that a driver’s negligence is imputable to the spouse-owner-passenger in themselves tend to generate uncertainty rather than the ‘belief or conviction in the mind’ mentioned by Greenleaf. On the other hand, those courts which have been reluctant to impute a driver’s negligence to the spouse-owner-passenger have inquired quite carefully into the realities of motor vehicle experience and have sought to have a rational basis for their holdings. They have presented reasoning which seems to have gone unanswered either by court or counsel, and we are inclined to think there is merit in their views.”
We are impressed by the reasoning in these cases holding that co-ownership of an automobile does not give a realistic right of control over its movement to a passenger-owner and that absent evidence of other facts which establish a basis for imposing liability on the passenger-wife for acts of her driver-husband, the negligence of the latter should not be imputed to the former, merely because of joint ownership of the vehicle. Automobiles are frequently jointly titled for various reasons, such as minimizing inheritance taxes, or avoiding the necessity of probate to transfer title to the automobile on death, or to facilitate financing, or for other reasons, none of which have anything to do with a right of control in the operation of the vehicle at the time it is being operated on the highway by the co-owner spouse. Such joint ownership is not a sufficient basis of imputing negligence of a driver-spouse to a passenger-spouse.
Accordingly, we hold that the negligence of Lewis Stover was not imputed tо Ruby Stover, and hence the action of the trial court in granting her a new trial based on error in Instruction No. 8 should be affirmed. This necessarily means that on retrial Instruction No. 5, which was a contributory negligence instruction based on negligence of Lewis Stover, should not be given.
We affirm as to the new trial ordered for Ruby Stover on Count I, but we reverse and remand as to Count II, with directions to reinstate the verdict against Lewis Francis Stover and in favor of defendant on that count.
PER CURIAM.
The foregoing opinion by FINCH, J., written in Division Two, is adopted as the opinion of the Court. The cases of Hamilton v. Slover, Mo.,
Notes
. Same as MAI 29.01, First Edition,
. It was so argued to the jury by counsel for defendant when he stated: “But then you come around to one little instruction, and please remember No. 8, No. 8, a little four-line instruction. After all that other is out of the way, it simply says in the commonest words: if the car being driven by Mrs. Patrick skidded across the center line, then your verdict under the law of the state of Missouri applied to this case must be for Mrs. Patrick, if her car skidded. Just read that No. 8, a little four-line instruction. Now that is the law.
“Now let’s examine the evidence in this сase under that law which binds all of us. These people, of course, want you to believe that there was no skidding out there that day because they know they cannot recover if there is skidding, if the car skidded, so the first thing they try to convince you of is that the road was free of any substance on top of it, ice or snow, with the exception of a little loose snow blowing back and forth.”
. Girratono v. Kansas City Public Service Co.,
. See also the later cases of Blevins v. Phillips,