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AMI 705 Agency—Owner a Passenger in Vehicle

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 705
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 7. Agency—Employment—Partnership—Joint Enterprise—Imputed Liability
AMI 705 Agency—Owner a Passenger in Vehicle
[The vehicle][One of the vehicles] involved in this case was driven by (driver) and was owned by (passenger-owner), who was a passenger in it at the time of the occurrence. You may consider this fact [along with any other evidence in the case] in deciding whether (driver), the driver, was acting as agent for (passenger-owner), the passenger.
NOTE ON USE
Use this instruction when a party seeks to impute the negligence of a driver to a passenger in the driver's vehicle who also owns the vehicle.
COMMENT
A spousal relationship is insufficient in and of itself to establish agency or a joint enterprise. The court in Rogers v. Crawford, 220 Ark. 385, 396, 247 S.W.2d 1005, 1011 (1952), held that “… some affirmative conduct must be shown other than the naked fact that husband and wife are driving in the same car.” See also Ingersoll v. Mason, 254 F.2d 899, 903 (8th Cir. 1958) (“no agency relationship or joint enterprise exists between married persons in the operation of an automobile, driven by one and ridden in by the other unless the passenger has a right to control the car from his ownership of it, or the owner-driver agrees to or acquiesces in the passenger's assumption of its control and direction”).
On the other hand, the court in Johnson v. Newman, 168 Ark. 836, 271 S.W. 705 (1925), held that the owner’s presence in the car, even in the absence of any family relationship, does create a jury issue as to agency.
The decision in McMahan v. Berry, 319 Ark. 88, 890 S.W.2d 242 (1994), emphasizes that this instruction is appropriate only when the owner is present in the vehicle.
Although an inference of agency may be drawn from the owner’s presence in the vehicle, it would be an improper comment on the evidence for the court to inform the jury that such an inference may be drawn. Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121 (1958).
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