Bostrom v. Jennings

326 Mich. 146 (1950) 40 N.W.2d 97

BOSTROM
v.
JENNINGS.

Docket No. 13, Calendar No. 44,402.

Supreme Court of Michigan.

Decided December 7, 1949. Rehearing denied January 9, 1950.

Street & Sorensen, for plaintiff.

R. Burr Cochran, for defendant.

DETHMERS, J.

Plaintiff, in one action, sues in his own right and as administrator of the estate of his deceased wife to recover for property damage and personal injuries sustained by him and for personal injuries suffered by his wife resulting in her death. His declaration alleges that plaintiff and wife had desired to visit a church in Iowa to which plaintiff, a minister of the Gospel, was considering a call; that plaintiff was to conduct a Sunday preaching service and that he and his wife were to give a mid-week musical concert in the church, proceeds from admission charges to go to plaintiff; that defendant, who lived in the same Michigan town as plaintiff and wife, desired to visit a college in Illinois with a view to enrolling as a student; that it was agreed that defendant should ride with plaintiff and wife in plaintiff's automobile to the college town and thereafter return with them to Michigan and that plaintiff would help defendant gain admission into the college; that plaintiff and defendant alternated in driving the automobile on the trip; that at a certain stage of the journey it was agreed that defendant should drive and that plaintiff then got into the back seat and went to sleep and that thereafter defendant negligently operated the automobile, causing it to become involved in an accident resulting in said injuries and damages.

Defendant moved to dismiss for misjoinder of parties plaintiff. The trial court denied the motion, finding "that the joinder of parties was proper to promote the convenient administration of justice." CL 1948, § 608.1 (Stat Ann § 27.591). Defendant filed a second motion to dismiss, alleging, among other grounds, misjoinder of parties plaintiff and failure of the declaration to state a cause of action. On the last-mentioned ground the court dismissed plaintiff's declaration, finding "that the allegations of plaintiff's declaration disclose a joint-enterprise, principal-and-agent, relationship between plaintiff and plaintiff's decedent and defendant" and that "by reason thereof no cause of action known to either statutory or common law is stated in said declaration." The basis of the court's holding was, of course, that the negligence of defendant was imputable to plaintiff and his wife as fellow members with defendant of a joint enterprise, barring plaintiff's right to recovery. Plaintiff appealed.

The accident happened in Illinois. Matters relating to the right of action are governed by Illinois laws. Edison v. Keene, 262 Mich. 611; Perkins v. Great Central Transport Corp., 262 Mich. 616; Eskovitz v. Berger, 276 Mich. 536. We take judicial notice of the common law and the books of reports of cases adjudged by the courts of another State which purport to be published under the authority of that State. Slayton v. Boesch, 315 Mich. 1.

The statement of questions involved and argument in plaintiff-appellant's brief do not question, nor does either party brief, the correctness of the trial court's holding that "the allegations of plaintiff's declaration disclose a joint-enterprise, principal-and-agent, relationship." The only reference to this holding in plaintiff's briefs is as follows:

"We wish to make it clear that we make no claim of error and do not appeal from this holding."

"The only issue before the court is: Does the relationship of principal and agent, arising from a joint enterprise or otherwise, bar a recovery in an action between the parties? The lower court confined its decision to this point alone and the appeal was taken on this issue alone. It is the only issue properly before this court."

Under such circumstances is it for this Court to pass on the correctness of the holding? The latter being a procedural question, we seek the answer in Michigan law. See, therefore, Michigan Court Rule No 67, § 1 (1945); Strong v. Kittenger, 300 Mich. 126; Lakeside Resort Corp. v. Sprague, 274 Mich. 426, Eberts v. Detroit, Mt. Clemens & Marine City Railway, 151 Mich. 260; People, for use of Cook, v. Cole, 139 Mich. 312. Assume, however, that the question of whether a joint-enterprise, principal-and-agent, relationship existed between the parties is properly before us. This question relates to the right of action, the substantive rights of the parties, and is governed by Illinois law. Citation of Michigan cases as to what does or does not constitute a joint enterprise is, therefore, to no purpose when applicable Illinois law has been announced by its courts. The declaration in the instant case discloses a joint enterprise within the meaning of the decision in Brooks v. Snyder, 302 Ill App 432 (24 NE2d 55), in which it was held, when the owner, occupying his car while driven by another, retained the right to exercise control thereof and the ride was for his benefit or the mutual benefit of himself and driver, that they were engaged in a joint enterprise and that the negligence of the driver was imputable to the owner rendering the latter liable to third parties. Be that as it may. Inasmuch as plaintiff, while a passenger, possessed the right of control over his automobile and over defendant as driver thereof and the ride was for the mutual benefit of them both, can the conclusion be escaped that defendant was, at least, acting as plaintiff's agent in driving the car and that defendant's negligence would, therefore, be imputed to plaintiff if he were involved in an action by or against a third party? We cannot read the opinions and decisions in Graham v. Page, 300 Ill 40 (132 N.E. 817), and Gates v. Mader, 316 Ill 313 (147 N.E. 241), to mean anything other than precisely that. This Court upheld an instruction to that same effect in Parks v. Pere Marquette Railway Co., 315 Mich. 38, under facts very similar to those at bar. In Farthing v. Hepinstall, 243 Mich. 380, we said, "The rule of joint enterprise in negligence cases is founded on the law of principal and agent. On no other theory could the negligence of the driver be imputable to a passenger." Consequently, whether we hold that a joint enterprise existed or not, in either event we are confronted with a principal-and-agent relationship and it is of no consequence whether it arose out of joint enterprise or otherwise. It follows that cases applying the so-called joint-enterprise doctrine of imputed negligence are equally in point whether we conclude that the relationship between the parties was that of joint enterprise or ordinary agency. In either event, we are confronted with the question of whether the negligence of the agent-driver, imputable to his principal, the owner-passenger, in actions by or against third parties, is likewise to be imputed to him in this, his suit against his agent. Was the trial court correct in holding that the acknowledged relationship between the parties bars plaintiff's right to recover?

What is the Illinois law applicable to this question? Plaintiff cites Chicago P. & St. L. Railway Co. v. Condon, 121 Ill App 440, as controlling. Language in the opinion in that case lends support to plaintiff's contention that in Illinois the doctrine of imputed negligence has been exploded and that a member of a joint enterprise may recover from a fellow member for damages caused by the latter's negligence in furthering the objects of the joint enterprise. The facts in that case do not squarely present that question, however, inasmuch as the action was not between members of a joint enterprise, but, rather, by a member against a third party. In the later case of Brooks v. Snyder, supra, the negligence of the driver member of a joint enterprise was imputed to a passenger member, rendering the latter liable to a third party not a member of the joint enterprise. Defendant, in turn, relies on Barnett v. Levy, 213 Ill App 129. In that case the action was between members of a joint enterprise. While reference is made to the rule that the negligence of a member of a joint enterprise is imputable to another member, barring his right of recovery against third parties (citing Beaucage v. Mercer, 206 Mass 492 [92 N.E. 774, 138 Am St Rep 401]), it is not at all clear from the opinion that the court held that the negligence of a member of a joint enterprise is imputable to another member in actions between them. Rather, the court seems to have affirmed judgment for defendant, on the ground that the record contained evidence to support a jury finding that the defendant had not been guilty of negligence and also because of a fatal variance between plaintiff's pleadings and proofs as to the relationship existing between plaintiff and defendant at the time of the accident, plaintiff having pleaded a host-guest relationship and proved a joint enterprise.

We are unable to discover that the courts of Illinois have definitely passed on the question before us. The laws of one State do not, of their own force, have effect beyond the limits of that State. The doctrine that all matters relating to the right of action in tort cases are governed by the lex loci delicti depends on comity. When the tort upon which suit is brought in this State occurred in another State and the cause of action arises out of a statute of that State, we have said that, in the absence of the construction of such statute by the courts of that State, we will construe it as we would a like statute of this State. Edison v. Keene, supra; Perkins v. Great Central Transport Corp., supra. Comparably, when a tort action brought in this State is governed by the common or unwritten law of another State and the latter has not been declared by its courts of last resort with absolute certainty, we determine the rights of the parties according to the lex fori. 14 Am Jur, Courts, § 88.

At this juncture plaintiff urges upon us Bricker v. Green, 313 Mich. 218 (163 A.L.R. 697), and defendant counters with Parks v. Pere Marquette Railway Co., supra. The Bricker Case did not hold that the negligence of a driver is not imputable to his passenger while they are acting in furtherance of a joint-enterprise or principal-and-agent relationship existing between them. In the Parks Case we said, "The holding in the Bricker Case did not renounce the so-called rule of imputed negligence in cases where the driver of the car was under the control of the injured passenger." That very theory of control obtains in the joint-enterprise or principal-and-agent relationship. However, the Parks Case is not conclusive of the question now before us because it did not involve a suit between members of a joint enterprise or by a principal against his agent.

Were the question one of first impression in Michigan, we should examine with interest the decisions of other States which disclose the general rule existing in the country, outside of Michigan, that in actions between members of a joint enterprise the negligence of the defendant member is not imputed to the plaintiff member to bar the latter's right to recover against the former. For list of cases from other States see annotations in 62 A.L.R. 442 et seq., and 85 A.L.R. 632, 633. The question has been decided in this State, however, contrary to that general rule, in Hopkins v. Golden, 281 Mich. 389. It is of interest to note the antecedents to and the course by which this Court arrived at a position at variance with the general rule. In such cases as Farthing v. Hepinstall, supra, and Hanser v. Youngs, 212 Mich. 508, we held, as generally held in other jurisdictions, that the contributory negligence of the driver member of a joint enterprise is imputable to a passenger member so as to bar the latter's right to recover against a third party. Then came Frisorger v. Shepse, 251 Mich. 121, in which the plaintiff was the passenger member of a joint enterprise with the defendant driver of an automobile. Suit was against the driver and against his father, who owned the automobile and with whose knowledge and consent it was being driven but who was not a member of the joint enterprise. We there affirmed a judgment on directed verdict for defendants, citing as authority the cases of Hanser v. Youngs, supra, and Farthing v. Hepinstall, supra. No consideration was given by the parties, the court below, or this Court to the question of whether a distinction should have been made between the positions of the defendant father, who was not a member of the joint enterprise, and of the defendant son who was. The Hanser and Farthing Cases were authority for a directed verdict for the former defendant but not for the latter. Thus, the question of liability between members of a joint enterprise, involved in the Frisorger Case, was decided without being considered. This same situation obtained in Johnson v. Fischer, 292 Mich. 78, and Bushie v. Johnson, 296 Mich. 8. In Hopkins v. Golden, supra, our opinion was directed chiefly to a consideration of whether plaintiff and defendant actually were engaged in a joint enterprise. Whether a distinction should be made between an action brought by a member of a joint enterprise against a fellow member and an action brought by him against a third party was neither considered nor discussed in our opinion. We appear to have assumed that in the Frisorger Case we had already considered and decided the proposition that the negligence of a member of a joint enterprise is imputable to a fellow member so as to bar recovery by the latter from the former. Thus, in the Frisorger, Johnson, Bushie, and Hopkins Cases we gave effect, by our decisions, to a rule which we had neither considered nor definitely determined.

When a question necessarily involved in a case and answered by our holding was neither considered by the Court nor discussed in our opinion, the answer thus arrived at is not binding as a precedent. Atwood v. Mayor and Common Council of Sault Ste, Marie, 141 Mich. 295; Moinet v. Burnham, Stoepel & Co., 143 Mich. 489; Miller v. Village of Birmingham, 145 Mich. 470.

As previously noted, in Farthing v. Hepinstall, supra, we said, "The rule of joint enterprise in negligence cases is founded on the law of principal and agent. On no other theory could the negligence of the driver be imputable to a passenger." In Grusiecki v. Jaglay, 260 Mich. 9, we held an agent liable to his principal for damages resulting to the principal from the agent's negligent performance of his duties as such. This is in accord with the general rule in this country under which the agent is held liable not only for damages for negligent injury done directly to the person or property of the principal but also for damages to the principal arising from his payment of compensation to third persons for injuries sustained by them as the result of the agent's negligence. It is to be observed in the latter instance that while the negligence of the agent is imputable to the principal making him liable to third parties, it is not imputable to him so as to bar his right to recover from the agent what he has been required to pay as compensation to such third parties. In this connection see 110 A.L.R. 826 et seq.; 2 Am Jur, Agency, § 274. We, therefore, hold that the negligence of an agent is not imputable to his principal nor that of a member of a joint enterprise to his fellow member in an action by the latter against the former. The contrary rule, given effect but not considered, in Hopkins v. Golden, supra; Frisorger v. Shepse, supra; and Johnson v. Fischer, supra, and referred to in Bushie v. Johnson, supra, is overruled.

Although the trial court adopted a reason erroneous in point of law for ordering dismissal of plaintiff's declaration, the order will be affirmed if dismissal would have been proper on some other ground advanced by defendant but rejected by the trial court, even though the defendant took no appeal or cross appeal. Township of Pontiac v. Featherstone, 319 Mich. 382; Leith v. Citizens Commercial & Savings Bank, 304 Mich. 508. Consequently, defendant may properly urge at this time the misjoinder of parties plaintiff as a ground for affirmance of the trial court's order dismissing. The mentioned statute relied upon by the trial court does not authorize joinder of plural plaintiffs unless their causes of action be joint nor "permit plaintiff to join causes of action in more than one distinct right or capacity." Jones v. City of Detroit, 277 Mich. 272. Plaintiff sued in 2 capacities. His individual cause of action and that in his representative capacity constituted 2 distinct causes of action in no wise joint. Gumienny v. Hess, 285 Mich. 411. As such the joinder was improper. See, also, Boman v. Wolverine Power Co., 268 Mich. 59. Where there is a misjoinder of parties plaintiff it is proper to permit one plaintiff to be dropped at any stage and thereupon to proceed with the cause. CL 1948, § 612.13 (Stat Ann § 27.665); McPeake v. Grand Trunk Western Railway Co., 242 Mich. 676; Dickman v. Endert, 247 Mich. 551.

The cause is remanded to the trial court with directions to modify the order dismissing to provide for dismissal of plaintiff's cause, on the ground of misjoinder of parties plaintiff, unless plaintiff shall, within 30 days after entry of such modified order, discontinue the case in one of his capacities, either individually or as administrator of the estate of Clara B. Bostrom, deceased, without prejudice to his right to bring a separate and distinct suit in such capacity against the defendant, in which event this cause may proceed and be prosecuted by plaintiff in the capacity as to which he has not discontinued. No costs, neither party having prevailed in full.

SHARPE, C.J., and BUSHNELL, REID, BUTZEL, and CARR, JJ., concurred with DETHMERS, J.

BOYLES, J. (concurring).

I concur in the result reached by Mr. Justice DETHMERS but do not subscribe to some of the conclusions.

The allegations of the declaration, to show a joint-enterprise or a principal-and-agent relationship, are sufficiently set out in Mr. Justice DETHMERS' opinion. I am not in accord with the conclusion that they disclose a joint enterprise or the relationship of principal and agent between plaintiff and the defendant.

In this State, the rules of law governing joint enterprise in negligence cases are founded on the laws of principal and agent or partnership. The circumstances which must be shown, to establish a joint enterprise, and to establish the responsibility of one member of a joint enterprise for the acts of another member, have been settled by former decisions.

"To constitute a joint enterprise between a passenger and the driver of an automobile within the meaning of the law of negligence, there must be such a community of interest in its operation as to give each an equal right of control. There must be a common responsibility for its negligent operation, and there can be no common responsibility unless there is a common right of control. It must be held that the driver is acting as the agent of the other members of the enterprise. The rule of joint enterprise in negligence cases is founded on the law of principal and agent. On no other theory could the negligence of the driver be imputable to a passenger. Being parties to the same enterprise, they are assumed to have common control and possession of the machine. Otherwise, each could not be charged with the negligence of the other. It is not necessary to review the cases in which this question is considered. The subject is discussed and many cases are cited in the annotation to Keiswetter v. Rubenstein, 48 A.L.R. 1049 (235 Mich. 36)." Farthing v. Hepinstall, 243 Mich. 380.

The foregoing is based upon the conclusions reached by the Court in an action by one who was not a member to recover damages for personal injury from the members of a joint enterprise. In holding each member liable, the Court said:

"A `joint adventure' is defined as `an association of two or more persons to carry out a single business enterprise for profit.' Fletcher v. Fletcher, 206 Mich. 153. See, also, Alderton v. Williams, 139 Mich. 296. While, under the present state of the law, courts do not treat a joint adventure as in all respects identical with a partnership, the contractual relations of the parties and nature of their association are so similar and closely akin to a partnership that it is commonly held their rights and liabilities are to be tested by the same rules that govern partnerships." Keiswetter v. Rubenstein, 235 Mich. 36, 45 (48 A.L.R. 1049).

Prior to our decision in Bricker v. Green, 313 Mich. 218 (163 A.L.R. 697), the doctrine of so-called "imputed negligence" was given more general application in our decisions. The negligence of one member of a joint enterprise was "imputable" to the other members. In Hanser v. Youngs, 212 Mich. 508, the Court said:

"The important question upon this branch of the case, however, grows out of the contention of defendant's counsel that the plaintiff, Mr. Kinsler and Mr. Michaels were engaged in a common enterprise, that of getting and bringing home their winter's supply of potatoes; that it was a violation of the statute not to have the tail light burning, constituting negligence imputable to all, and that, as matter of law, such negligence was contributory negligence precluding plaintiff's right of recovery. * * * The undisputed testimony shows that Mr. Michaels, Mr. Kinsler and plaintiff were on the day in question engaged in a common enterprise, that of purchasing and bringing home their winter's supply of potatoes. Its purpose had not been accomplished nor had it been abandoned when the accident occurred. Under such circumstances the negligence of Mr. Michaels in not having the tail light burning was imputable to plaintiff. In Beaucage v. Mercer, 206 Mass 492 (92 N.E. 774, 138 Am St Rep 401), that court had a somewhat similar question before it, and it was said:

"The trial, however, seems to have proceeded upon the theory that the plaintiffs were engaged in a common enterprise, and that it still was in force at the time of the accident. So long as the joint enterprise was in force the contributory negligence of one would bar a recovery of either, provided always the negligence was in a matter within the scope of the joint agreement; and if that is to be regarded as the meaning of the instruction then it was correct.'"

The later decisions indicate that there has been no wavering in determining what the requirements are, in order to establish a joint enterprise. In Johnson v. Mack, 263 Mich. 10, 16, the Court, discussing the above decisions, said:

"It is claimed, however, that plaintiff, Mack, and the other two passengers were engaged in a joint venture; that, as fellow workmen, they were using Mack's car to transport them to their place of work, and then home again. There is much confusion in the law and a conflict of authority as to what constitutes a joint enterprise in the use of an automobile. The facts in the present case, however, are clear, and show distinctly that there was no joint enterprise. The car belonged to Mack. Plaintiff had no control over it whatever. He paid for his transportation. * * * In Frisorger v. Shepse (251 Mich. 121), every member of the party had something to do with the management and control of the enterprise. All parties shared equally in the expense, and the rule of principal and agent, as set forth in Farthing v. Hepinstall, 243 Mich. 380, was controlling. In the present case, plaintiff had absolutely nothing to do with the management or control of Mack's car, but on the contrary, Mack, the owner of the car, had exclusive control over it."

In Schneider v. Draper, 276 Mich. 259, 266, the Court said:

"The boys were not on a common venture or joint undertaking which relieved Draper of liability, because he had sole control of the car and the other boys had no right to direct its movements. The point is clearly discussed in Frisorger v. Shepse, 251 Mich. 121."

In Laughlin v. Michigan Motor Freight Lines (syllabus), 276 Mich. 545, the Court held:

"In action arising out of accident in Ohio, wherein wife of driver of automobile sued common carrier for injuries sustained in collision with latter's truck, husband and wife held, not engaged in joint adventure in operation of automobile under record showing she neither shared the expense nor control of the car in returning to Pennsylvania with daughter from visit with relatives in Michigan."

Again, in Hopkins v. Golden, 281 Mich. 389, the Court, after referring to and quoting from the above-mentioned Keiswetter, Farthing, and Laughlin Cases, said:

"Applying the foregoing to the facts of the instant case, we find that all the parties thereto wanted to go to the `smelt run' at Beulah, Michigan. Hopkins, his wife and Miss Boots contributed the expense of operating defendant Golden's automobile and Golden contributed the use of his machine and bore the depreciation thereon. All parties were engaged in a common enterprise for their mutual benefit and pleasure; the joint venture related to a single isolated transaction. Fletcher v. Fletcher, 206 Mich. 153. Under the facts stated, the common control and possession of the automobile is to be assumed. Farthing v. Hepinstall, supra."

In Johnson v. Fischer, 292 Mich. 78, the Court, again relying upon the above cases, said:

"It is clear these parties did not sustain to each other at the time of the injury the relation of passenger and carrier for hire. It is equally clear plaintiff was not a guest passenger of defendant Mae Fischer any more than defendant was a guest of plaintiff Nettie W. Johnson. The parties were engaged in a fishing enterprise, not a beer-drinking contest. This was a joint venture, not for profit, but for pleasure and recreation with a hope of prospective reward in acquiring fish, undertaken for the mutual benefit and satisfaction of each of the parties. It had many of the usual incidents of a fishing trip. It was unfortunate the automobile got out of control, that both of the parties were injured, but the liability of the defendant Mae Fischer in this case is no greater than the liability of the plaintiff Nettie W. Johnson who induced her to take the trip. Under the undisputed evidence, the parties were engaged in a joint venture or enterprise and plaintiffs may not recover."

The controlling opinion in Bushie v. Johnson, 296 Mich. 8, is not out of line with foregoing decisions. The Court said:

"Assuming, but not deciding, that the facts of the case establish a joint enterprise, such holding would not benefit the plaintiff."

Plaintiff and his wife were taking a trip to Iowa for their own purposes. The defendant had no community of interest in the purposes for which the plaintiff was going to Iowa. The only connection which the defendant had with the trip was that he was allowed to ride with plaintiff in plaintiff's automobile as far as Rock Island, Illinois, drive the automobile a part of the time, and that plaintiff was to help him get admitted to the college. The defendant in no way shared the expenses, his purpose in going to Rock Island was entirely foreign to the purpose of plaintiff in making the trip to Iowa, and the defendant had no right of control over the use of the automobile, the route, direction, extent or duration of the plaintiff's trip. The fact that the defendant was at the time of the accident in control of the automobile to the extent that he was then the driver, does not establish the "right of control." In Parks v. Pere Marquette Railway Co., 315 Mich. 38, the Court said:

"In connection with appellant's discussion of the foregoing phase of the instant case, it is contended that the burden of proof is upon the defendant to show `that the passenger-owner has retained the right and power to control the automobile in which he is riding in order that contributory negligence may be imputed from the driver to the passenger-owner.' We are not in accord with this contention. This issue of control would be involved in the question of whether a plaintiff was free from contributory negligence, and the burden of so showing rests on a plaintiff. Pulford v. Mouw, 279 Mich. 376. Further, the undisputed record in this case is wholly inconsistent with any other conclusion except that plaintiff's decedent up to and including the instant of the accident at all times had the right of control.

"`The plaintiff, because of her ownership of the automobile and her presence therein, was prima facie in control of its operation on the occasion in question. The mere fact that the plaintiff did not actually exercise control did not warrant a finding that she had abandoned her right to control.' Guy v. Railway Co. (syllabus), 289 Mass 225 (193 N.E. 740).

"`As respects imputed negligence, when owner of automobile is riding in it while another is driving, inference is warranted that owner retained right to control its operation, in the absence of controlling evidence to the contrary.' Foley v. Hurley, 288 Mass 354 (headnote, 193 N.E. 2)."

Nor does the fact that plaintiff had promised to help the defendant get enrolled in the college at Rock Island, plus the fact that the defendant was to drive the automobile part of the time, establish a joint-adventure, a partnership, or a principal-and-agent relationship.

I think we are in accord that in this case the question whether the facts and circumstances establish a joint-enterprise or principal-and-agent relationship is before us for decision. If there was no such relationship between the plaintiff and the defendant as members of a joint enterprise, or principal and agent as that term is used in our decisions defining joint enterprise, that basis for imputing the defendant's negligence to the plaintiff is eliminated from the case. In this case there is no need to overrule former decisions of the Court involving joint enterprise. In that connection, it is proper to note that the decisions which have been ably analyzed, discussed, and overruled by Mr. Justice DETHMERS were handed down prior to our decision in Bricker v. Green, supra, and at a time when this Court adhered to the doctrine of imputing to the passenger in an automobile the negligence of the driver. When the occasion arises, imputed negligence, generally the controlling element in those earlier cases, may well be reviewed in the light of Bricker v. Green, in which case the Court said:

"As a result of our study and observation we are convinced that in the long run the application of the rule is more harmful than helpful and results in more injustice than it prevents; and that we should not continue the invariable application of the so-called imputed negligence rule merely and solely on the ground that the injured person was a voluntary, gratuitous passenger in an automobile, the driver of which was guilty of negligence which was a contributing proximate cause of an accident and injury to such passenger."

The facts in this case do not involve the question of the liability of either the plaintiff or the defendant to another, a third party, in an action charging them, or either of them, with negligence. Nor does this case involve the question of liability of a third party to either the plaintiff or the defendant in the instant case. This is an action by the plaintiff owner and passenger against the defendant driver, to recover damages for the alleged negligence of the defendant. It does not involve third-party liability. I hold that the facts and circumstances of this case do not establish a joint-enterprise or a principal-agent relationship between the parties in the case. If that is a correct conclusion, our decisions defining joint enterprise, or the relationship of principal and agent in the limited sense in which that term is used in its application to joint enterprise, and defining the liability of one member of a joint enterprise to answer in damages to another member, are not in point in the case at bar. The answer to the question here involved is in the Bricker Case. The negligence of the defendant driver is not imputed to his temporary passenger, the plaintiff. Bricker v. Green, supra.

The relationship between this plaintiff and defendant not being that of members of a joint enterprise, or principal and agent, what is it? Apparently, the necessary incidents of a master-and-servant relationship are lacking. The facts do not establish that the defendant was an employee of the plaintiff. Their relationship was more nearly that of a naked license or permit, where the owner of an automobile, while riding in the vehicle, allows another to drive it. In the sense here used, a license means "to confer on a person the right to do something which otherwise he would not have the right to do." 33 Am Jur, "Licenses," § 2, p 325.

"The object of a license is to confer a right that does not exist without a license." Chilvers v. People, 11 Mich. 43, 49.

"The popular understanding of the word license undoubtedly is, a permission to do something which without the license would not be allowable. This we are to suppose was the sense in which it was made use of in the Constitution. But this is also the legal meaning. `The object of a license,' says Mr. Justice MANNING, `is to confer a right that does not exist without a license.' — Chilvers v. People, 11 Mich. 43, 49." Youngblood v. Sexton, 32 Mich. 406, 419 (20 Am Rep 654).

The general understanding of a license is stated in Webster's New International Dictionary (2d ed), p 1425, as follows:

"License, license, n * * * Authority or liberty given to do or forbear any act; permission to do something."

Such a license may be either oral or written. A familiar example is an oral permit to enter upon the lands of another for a particular purpose. Marshall v. Heselschwerdt, 304 Mich. 664; Frank v. Coyle, 310 Mich. 14.

As before indicated, this is not a case involving liability between the owner of an automobile and a third party for the negligence of one who was allowed to drive the automobile with the owner's knowledge and consent. CL 1948, § 256.29 (Stat Ann § 9.1446). The relationship between these parties has no legal significance here beyond the fact that, under our decision in Bricker v. Green, supra, which controls here, the negligence of the defendant driver is not imputable to the plaintiff owner who was temporarily a passenger in his own automobile.

Except as indicated herein, I am in accord with the conclusion reached by Mr. Justice DETHMERS to the effect that there was a misjoinder of causes of action and a misjoinder of parties plaintiff. In this case the plaintiff sues in his individual capacity and also as administrator of the estate of his deceased wife. There were 2 causes of action, which were not joint, and the joinder was improper. In legal effect, under the circumstances of this case, there were 2 plaintiffs — Carl D. Bostrom in his own right, and Carl D. Bostrom as administrator of the estate of Clara B. Bostrom, deceased. Under these circumstances, joinder is not permitted.

"The plaintiff may join in 1 action, at law or in equity, as many causes of action as he may have against the defendant, * * * but when there is more than 1 plaintiff, the causes of action joined must be joint." CL 1948, § 608.1 (Stat Ann § 27.591).

On the grounds stated herein, I concur in remanding the case to the trial court, affirming the order of dismissal unless the plaintiff within 30 days enters a consent to the dismissal of one of said separate causes, which may be without prejudice to bringing a separate suit as to such cause. In the event of such dismissal the present action at law will not be defeated by the misjoinder of parties (CL 1948, § 612.13 [Stat Ann § 27.665]) and the trial court will retain jurisdiction over further proceedings in the case. No costs, each party having prevailed only in part on this appeal.

NORTH, J., concurred with BOYLES, J.