Fox v. Lavender , 89 Utah 115 ( 1936 )

I am not so much disposed to battle the result reached by the prevailing opinion as I am what seems to be a concession that produces the result. Once the rule of law is determined, the matter of applying the evidence thereto is a matter about which we may and often do honestly differ. Notwithstanding the fact that different results have been arrived at, at different times during the consideration of this case, and that sometimes the result has, by a majority, at least tentatively, been one way and at times another, there never has been unanimity. I compliment my brethren of the court upon the various analyses made, the diligence in the struggle for a satisfactory result, and the resourcefulness and skill with which precedent is marshalled. The arguments generally, barring one, present a good cause.

I am, notwithstanding a desire to agree with my associates, unable to harmonize with the following statement made in the course of the opinion:

"In the case of Derrick v. Salt Lake Ogden Ry. Co.,50 Utah 573, 168 P. 335, 337, Merritt owned and was driving the car. The plaintiff and another, passengers therein, were salesmen representing different companies all bound for the same destination. The expenses of the trip were to be prorated between them. This court held that the automobile trip was a joint affair and that ``their rights to direct and govern the conduct of each other in relation thereto were coextensive. Each had a voice and the right to be heard in regard to the details of the trip.' The negligence of Merritt was held to be imputable to the plaintiff. If Merritt had taken a fixed sum from each to take them to Ogden, it being his car and he the driver, would there have been a joint right of control? If so, it is difficult to see why a passenger would not be liable for the negligence of a taxi driver. If, instead of a fixed sum from each party, would the proration of expenses make each liable for the negligence of the driver? The Derrick Case answers in the affirmative. Certainly, if the joint sharing of expenses of a trip in which all are bound for a common destination but for separate purposes makes each the agent for the other in controlling the car, a fortiori, a joint possession of the car would make each liable. This principle seems to be recognized in one of the ``illustrations' of a joint enterprise contained in Restatement of the Law of Torts, vol. 2, § 491, Illustration f, where it is stated:

"``The fact that the driver and another riding with him are in joint possession of the vehicle is sufficient to make any journey taken by them therein, a joint enterprise irrespective of whether the journey is or is not made for a common business purpose. This is so not only when the joint possession arises from a joint hiring, but also when it results from a joint ownership.'

"It should be noted that the fact of joint possession makes the trip itself a joint enterprise without more, as distinguished from the effect of a joint business enterprise for which the journey is taken which would also make the joint participants in the trip mutual agents regardless of joint possession or ownership."

If the prevailing opinion indorsed fully the doctrine of the Derrick Case, I could feel more at ease about the situation, though not satisfied. But to cite the Derrick Case as authority and then by a pointed thrust have a taxi driver commit mayhem thereon, and then send the wounded victim careening down the corridors of legal precedent to wander as a hybrid, uncertain and discredited, into the precincts of righteous causes until it either dies of infected wounds or until the magic hand of healing indorsement again revives it and gives it life and vitality among its associates, makes one wonder why the mutilated victim were not killed outright, or, if not, why it should be consigned to a long lingering punishment. Were it not for the Derrick Case and the "illustration" quoted from the Restatement of the Law, the prevailing opinion, judging from the argument and cases cited, would have ended differently.

If the Derrick Case was rightly decided, it should stand as a precedent. If it was wrongly decided, it should not be indorsed and then discredited, or discredited and then approved. Personally, and in the present instance, I am riding with the taxi driver.

I presume no one questions the joint enterprise doctrine as found in the Restatement of the Law of Torts, vol. 2, § 491, p. 1273, as follows:

"Any one of several persons engaged in an enterprise isbarred from recovery against a negligent defendant by thecontributory negligence of any other of them if the enterprise isso far joint that each member of the group is responsible tothird persons injured by the negligence of a fellow member."

The introductory statement in the volumes of the Restatement of the Law says:

"The accuracy of the statements of law made rests upon the authority of the Institute. They may be regarded both as the product of expert opinion and as the expression of the law by the legal profession."

Introduction, Restatement, Law of Torts, vol. 2, p. ix. The Restatement of the Law carries and should carry great weight.

Following the above italicized quotation, which appears in blackfaced type in the Restatement, there are "comments'" and "illustrations." Among the illustrations is the quoted paragraph in the prevailing opinion from section 491, page 1277, Restatement of the Law of Torts, supra, as follows:

"f. Joint possession of vehicle. The fact that the driver and another riding with him are in joint possession of the vehicle is sufficient to make any journey taken by them thereina joint enterprise irrespective of whether the journey is or is not made for a common business purpose. This is so not only when the joint possession arises from a joint hiring but also when it results from joint ownership." (Italics added.)

Whether or not the quoted illustrative comment is applicable or is still a matter in the unsettled field of the law is a matter about which we have the right to differ. But applied, as I understand the prevailing opinion, proof that the driver of an automobile and another riding with him are "in joint possession" or in "joint ownership" on a journey creates a "joint enterprise" and is therefore sufficient to take a case to the jury irrespective of the purpose, destination, or control of the route taken. Whether or not the italicized phrases "in joint possession," "a joint enterprise," "a common business purpose," "the joint possession," and "from joint ownership," are intended coupled with a journey to have the carrying power of a "prima facie" case, a conclusion of law, a conclusion of fact, or an inference of fact, or whether they need further definition before we are at liberty to treat them as facts, or conclusions from facts, or conclusions of law, or a statement of the law, to say the least, to my mind, creates a disturbing situation.

Partially and briefly indicating the difficulty I have in harmonizing the Derrick Case and the illustrative statement above quoted with that field of the law of torts relating to negligence is: That it is fundamental that liability grows out of an act or a failure to act when it is one's duty to act. Negligence arises out of an unintentional injury. The liability for such injuries usually find their foundation in personal responsibility for an act where the party either controls the act or had the right to control, or where the responsibility imposes the duty to act and the party either fails to act or to have others act, whose acts or failure to act in the premises it is his right or duty to control.

"Negligent conduct may be either: (a) an act which the actor as a reasonable man should realize as involving an unreasonable risk of causing an invasion of an interest of another, or (b) a failure to do an act which is necessary for the protection or assistance of another and which the actor is under duty to do." 2 Restatement of the Law of Torts, § 284.

No definite meaning is attached to the terminology, "joint possession" or "joint ownership" as related to a vehicle in use when the relation to be established is that of a "joint enterprise."

As illustrating the difficulty arising out of the use of such phrases without a terminology understanding, the following quotations are submitted:

"A most difficult question of terminology was presented in connection with the word ``interest.' In common and legal use, besides indicating the rate of return for the hire of money, it is employed to designate two important and distinct things. When we speak of a person having an interest in something as land or chattels, we may mean on the one hand that he has a certain desire in respect to it, as, ``I have an interest in having a good house on the lot adjoining mine,' or on the other, that the law recognizes that he has in respect to it one or more of varying aggregates of rights, privileges, powers and immunities, as ``He acquires an interest in Blackacre.' In the first sense it is a factual expression; in the second, a statement of legal relation. In the Restatement of the law of Contracts, Property and other subjects, except Torts, it is rarely necessary to use the word in its factual sense and when the necessity arises it is comparatively easy to have the context clearly indicate the particular sense in which the word is employed. On the other hand, with the Restatement of Torts it is constantly necessary to use the word ``interest' in its factual sense. To use any other word but ``interest' would necessitate considerable circumlocution or the invention of a new word." 1 Restatement of the Law of Torts, p. xvi.

"The use of the word ``presumption' by so many of the courts in speaking of the effect of evidence of possession of a deed by the grantee or the recording thereof, is perhaps somewhat misleading. ``No word in the legal parlance' says the author in 1 Jones Comm. Evidence (2d Ed.) 49, ``is used in a greater variety of senses, or more frequently misused, than the word "presumption." Confusion of use extends, in fact, beyond that term and includes as well the companion words "assumption" and "inference."' On page 71, the author, speaking of ``presumptions of law and of fact,' further says that ``the authorities which have considered the question as to the distinction between a presumption of law and a presumption of fact are far from clear and it is difficult to deduce from them any rule or well defined distinction.'

"The author draws the distinction that ``a presumption of law is in reality a rule in some particular branch of the substantive law, a general maxim of jurisprudence, or an assumption by the court of the existence of a fact not proven in order to facilitate and expedite judicial action.'

"So in this jurisdiction (Ryan v. Union P.R. Co., 46 Utah 530,151 P. 71; State v. Green, 78 Utah 580, 6 P.2d 177;In re Newell's Estate, 78 Utah 463, 5 P.2d 230) a ``presumption of law' is a rule of law, casting the burden of proof on him against whom the presumption operates, but when the facts and circumstances are shown concerning which the presumption is indulged, the presumption ceases and the controversy is to be decided by the weight of the evidence adduced. A ``presumption of fact' says the author referred to, ``is, in reality nothing more than an inference demanded by logic from facts and circumstances in evidence,' and usually is a question of fact, and thus different from a ``presumption of law' has evidentiary value. The proposition is well put by Professor Thayer in his treatise on Evidence (p. 334):

"``It must be remembered always that many widely different things are called "presumptions,"' and while a presumption arising in the absence of evidence is never to be weighed as evidence, yet ``where, on the other hand, the "presumption" raised by law embodies within it because of the particular set of facts to which it applies, or comes into being at the same time as, a logical inference or conclusion deducible from the evidence so far introduced, it is not the rule that such accompanying inference is not to be weighed and considered by the jury. No court would so contend, for to deny the effect of the inference would be to deny any efficacy whatever to circumstantial evidence in the face of the most trifling rebuttal. But it is the inference which stands and the evidence upon which such inference rests which is to be weighed, and not that merely incidental rule of law termed a "presumption" which came into being and operated at that point in the trial only to shift the burden of going forward with the evidence.' Jones Comm. on Ev. (2d Ed.) § 32."Chamberlain v. Larsen, 83 Utah 420, 436, 29 P.2d 355, 362.

The use of the phrases "joint possession" and "joint ownership" as related to a "joint enterprise" by two or more riding in a vehicle, "without more," causes one to hesitate as to whether such negligence as makes one liable rests in facts or in presumptions. Are these words used in their factual sense or as a statement of a legal relation?

Or whether the negligence of a driver of an automobile being conceded, that the fact of another riding with him who jointly owns the automobile without more proof furnishes facts sufficient from which the court is required to instruct the jury that the journey constitutes a joint enterprise, and being a joint enterprise, the court is required to instruct that the only question for the jury is the measure of damages. Further, if the matter goes to the jury, may the jury infer that B is the agent of A because A and B are riding in an automobile together, which automobile is either jointly owned or jointly possessed by them? The fact A and B are riding together is not a fact from which alone the inference of a legal relation of agency may arise. Add to the fact that A and B are riding in the same automobile — the further fact, which is really a legal relation, that they jointly own, or jointly possess, the automobile — may the jury, "without more," infer from the fact of riding and the factor of mixed fact and law, that of "joint possession," or "joint ownership," and draw the further inference of fact if it is a jury matter, or find the legal relation that the driver of the vehicle is the agent of the joint owner riding with him? If so, this matter of joint enterprise is easily established, and it is a risk to hire or lend one's automobile to another and then ride with him, or to jointly own an automobile and ride in it with the joint owner, or with one to whom the other joint owner may have loaned or rented it. It is difficult to see how the matter of "joint possession" or "joint ownership" as related to a "joint enterprise" may be distinguished from an expense sharing of an automobile journey as also given in 2 Restatement of the Law of Torts, § 491, illustrating, p. 1277:

"The fact that two or more persons who do not jointly hire or own a car, agree that each shall pay a substantial share of the expenses of a particular trip does not of itself make the trip a joint enterprise. When, however, there are one or more of the following additional factors the determination whether there is a joint enterprise is a question for the jury subject to the power of the court to see to it that the jury reaches a reasonable conclusion. These factors are: (1) A common destination; (2) a power to determine or change the route from time to time by mutual agreement, and, (3) the fact the trip is for a common but non-business purpose."

In a matter of joint possession or joint ownership, it being an unescapable fact that only one person at a time may have actual physical control of the driving of an automobile, it is difficult to see why a "common destination," "power to determine or change the route," and "purpose" of the trip are not factors involved in determining a joint enterprise.

For the reasons stated I cannot concur in that part of the opinion indicated.