Ryan v. Snyder , 29 Wyo. 146 ( 1923 )

RineR, District Judge.

This is an action for negligence based upon the claim that the defendants, who were operating an automobile on a trip from Glenroek, Wyoming, to Lusk, Wyoming, were negligent in such operation, which negligence eansed injuries to the plaintiff. An amended petition was filed in the canse, and a general demurrer interposed thereto. This being overruled the issues in the case were made up, trial was had to a jury, and a verdict was rendered in favor of the plaintiff, defendant in error here. Upon this verdict the judgment was duly entered, review of which by this court is sought in this proceeding.

No bill of exceptions presenting the testimony and evidence taken in the cause appears, in the record, and the sole question to be determined here, under the assignments set out in the petition in error, is whether the amended petition states facts sufficient to constitute a cause of action as against the defendants.

The following situation is disclosed by the amended petition ; On May 18th, 1918, an agreement was entered into between the defendant in error, hereinafter referred to as the plaintiff, and the plaintiff in error D. W. Ryan, one of the defendants below, that the plaintiff should rent from the said Ryan certain property situated in Lusk, Wyoming, on certain terms in the amended petition set out. It is then alleged in the amended petition:

“that said defendant promised to go to Lusk, Wyoming, on May 20, 1918 and turn said property over to the plaintiff, and invited plaintiff and her two daughters to accompany him, which invitation was accepted by them. That thereafter on May 20, 1918, acting upon said arrangement between plaintiff and the defendant Ryan whereby plaintiff was to occupy said property in Lusk, Wyoming, and the said invitation of the defendant Ryan for plaintiff and her daughters to accompany him to Lusk, Wyoming, the plaintiff and her two daughters and each of the defendants aforesaid started from Glenrock, Wyoming, to Lusk, Wyoming,, in a five-passenger Ford automobile furnished by the defendants or one of them, over a public highway used for travel between said places, which automobile was driven at, all times on said trip by the defendant R. E. Dea.”

Following these allegations, it is charged that during the course of the journey the automobile was negligently and carelessly driven by the defendant, Dea, through driving the same at a speed “in reckless disregard for the life and limb of the occupants of said automobile,” and generally that the driving was handled in' such a negligent, careless and reckless manner, which is described in some extended detail, that the automobile was overturned, plaintiff was thrown out, and suffered injury. The extent of the injuries and sundry damages are then pleaded, as well as the duty of the defendants and each of them to operate and manage the automobile so as not to injure the plaintiff.

The ground on which it is claimed that the petition fails to state a cause of action, and because of which the judgment should be reversed, is that the amended petition discloses a joint enterprise on the part of the plaintiff and the defendants. The rule of law is then invoked that where parties are engaged in a joint enterprise each is acting as the agent for the other, and the negligence of one is imputed to the other. Consequently it is urged that neither of the parties could recover damages for injuries incurred through the negligence of any of the others. A number of cases are cited in support of this contention, most of which will be found upon examination to be actions against third parties, and the question of whether the plaintiff was at the time of the accident complained of engaged in a joint enterprise was important only as it affected the liability of the plaintiff for the negligence of his companion or companions; that is, the case turned upon the question of imputed contributory negligence.

The clear weight of authority as to what constitutes a joint enterprise in a negligence ease of this character has been well set out by the Supreme Court of California in the case of Bryant v. Pacific Electric Ry. Co., 174 Cal. 737, 164 Pac. 385, where the following language was used at page 386:

“But in order that there he such a joint undertaking it is not sufficient merely that the passenger or occupant of the machine indicate to the driver or chauffeur the route he may wish to travel, or the places to which he wishes to go, even though in this respect there exists between them a common enterprise of riding together. The circumstances must be such as to show that the occupant and the driver together had such control and direction over the automobile as to be practically in the joint or common possession of it. ’ ’

The Supreme Court of Minnesota has announced the rule in substantially similar language as follows:

“Parties cannot be said to be engaged in a joint enterprise within the meaning of the law of negligence, unless there be a community of interest in the objects or purposes of the undertaking and an equal right to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control and management. ’ ’

(Cunningham v. City of Thief River Falls, 84 Minn, 21, 86 N. W. 763.)

To the same effect is St. Louis, etc. Company v. Bell, 58 Okla. 84, 159 Pac. 336, and cases cited therein.

Cyc. declares the rule to be:

“To constitute a common or joint purpose within the rule as to imputed negligence, there should-be a joint interest or community of interest in the object or purposes of the undertaking and a clear right to direct and govern the movements and conduct of each other in respect thereto. Each must have some voice and right to be heard in its control and management.” (29 Cyc. 543, and eases there cited.)

Applying the rule thus well stated -by the different authorities it is quite apparent that the amended petition falls far short of making a case within the rule.

We have quoted verbatim that portion of the amended petition which throws any light whatsoever upon whether or not this was a joint enterprise undertaken by the parties to this suit. It is quite plain that there is no allegation in the pleading attacked which in any way shows that there was an equal right on the part of the plaintiff with the defendants to direct and govern the movements and conduct of the automobile or the person who was driving it. It merely -appears that the plaintiffs in error furnished an automobile, the plaintiff was invited to accompany them to Lusk, and that one of the defendants recklessly drove the ear and that the injuries resulted therefrom.

Such a state of facts established a liability, so far as the statement of a cause of action is concerned, on the part of those who were in charge of the automobile to the plaintiff who was injured, the rule governing that subject being that one who uses an automobile is liable for injury through the operation of the car by him to an invited guest, if he fails to exercise care reasonably commensurate with the nature and hazard attending such mode of travel, he being under a duty not to unreasonably expose the guest to danger and injury by increasing such hazard. (Perkins v. Galloway, 194 Ala. 265, 69 So. 875, and extensive list of cases cited.)

Mention has been made that most of the cases cited in the brief of plaintiffs in error are cases where the action was against a third person. While it is not necessary to decide in this case whether there might be liability when the action is sought to be maintained by one against another of associates engaged in a common enterprise of this kind, it is interesting to observe the following language used in a case in many ways similar to the facts of the case at bar, entitled Wilmes v. Fournier, 180 N. Y. S. 860:

• “The fact whether there is a joint enterprise is one of importance in the class of- cases cited, when the action is against a third person; tnit, as between themselves, I know of no rule of law that throws a mantle of protection over the tortious acts of an associate in a joint enterprise or in a partnership. Suppose one person assaults his copartner; is the wrongdoer immune from liability because they were engaged at the time of the assault in a partnership business ?

Suppose that, while engaged in the partnership business, one partner conducts himself so carelessly as, except for such partnership relations, would give a right of action; is the wrongdoer not liable to the injured partner ? True, they are in a sense each acting as agent for the other; but does not an agent owe the duty of care towards his principal, and a principal towards his agent? (Citing cases.)

A joint enterprise or partnership is not for the purpose of permitting one of the parties thereto to commit a -tort upon his associates. ’ ’

It results from what has been said that the judgment should be affirmed.

Blume, J., and Metz, District Judge, concur. Potter, C. J., being ill, and Kimball, J., being disqualified, did not sit, and District Judges P. W. Metz and William A. Riner were called in to sit in their stead.