Summary
In Farthing v. Hepinstall, 243 Mich. 380, Frisorger v. Shepse, 251 Mich. 121; and Hopkins v. Golden, supra, it was held that the equal right of control of a vehicle, as distinguished from actual physical control, was the badge of a joint venture.
Summary of this case from Sherman v. KorffOpinion
Docket No. 114, Calendar No. 33,532.
Submitted April 11, 1928.
Decided July 24, 1928.
Error to Saginaw; Martin (William H.), J. Submitted April 11, 1928. (Docket No. 114, Calendar No. 33,532.) Decided July 24, 1928.
Case by Ora S. Farthing against Elbertina S. Hepinstall for personal injuries. Judgment for plaintiff. Defendant brings error. Affirmed.
Beach Beach, for appellant.
A. Elwood Snow, for appellee.
This suit was brought to recover damages for personal injuries received in an automobile accident. The defendant reviews by writ of error a verdict and judgment for the plaintiff. The plaintiff is the defendant's daughter. With her brothers, Thayer Hepinstall and Ralph Hepinstall, and others, she lived in her patents' home in the city of Saginaw, Michigan. The defendant owned an automobile. On the evening of the accident, the plaintiff and other members of the family were invited to attend a church fair at Bay City. Thayer and Ralph received permission from the defendant to drive her automobile. The plaintiff claims that she did not desire to go with the party but was urged to do so by her brothers and her mother. On the way home from Bay City, it is claimed that Ralph who was driving the car drove so recklessly that it left the road and turned over in the ditch. The plaintiff was pinned under the car. Her back was broken and she suffered other serious injuries as a result of which she is permanently paralyzed from the waist down.
At the close of the plaintiff's case and again at the close of all the proof, the defendant moved for a directed verdict on various grounds, the principal one of which was that, at the time of the accident, the plaintiff and the driver were engaged in a joint enterprise and that therefore his negligence was imputable to her. The motion was denied and the question was submitted to the jury. After verdict, the court refused to enter judgment for the defendant non obstante veredicto, and also denied a motion for a new trial.
Aside from error alleged in the exclusion of certain testimony, the only question involved is whether the court erred in refusing to hold as a matter of law that the plaintiff and her brother, Ralph, who was driving the car at the time of the accident, were engaged in a joint enterprise. It is conceded that if they were so engaged the plaintiff is chargeable with the driver's negligence and cannot recover in this action.
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).
In the instant case, the plaintiff claims that at the time of the accident she was riding as a mere guest of the owner and driver of the car; that the control and possession of the car had been intrusted to her brothers by the defendant; that Thayer drove going to Bay City, and Ralph drove going home; that she had no control over the car or over the driver, and that, just before the accident, she remonstrated with Ralph as to the speed, and vainly endeavored to persuade him to reduce it.
The defendant claims that the plaintiff with her brothers, Ralph and Thayer, were in equal control of the car; that it had been loaned to the three of them equally for a common purpose, viz., driving to Bay City to attend a church fair. Whether the car was loaned to the three of them or to the two boys only was important as bearing on the plaintiff's equal right of control. It was a disputed question and was controlling of the claim of joint enterprise. It was therefore for the jury. In submitting it, the court correctly instructed the jury as to the applicable law. No complaint is made of his charge. He did not err in refusing to direct a verdict for the defendant.
Following the accident, an agent of the insurance company secured sworn statements from Ralph Hepinstall, Thayer Hepinstall, and Helen White, who also was an occupant of the car. In making proof of her case, the plaintiff did not call Ralph Hepinstall or Helen White. They were later called and sworn on behalf of the defendant. To impeach their testimony, the defendant offered in evidence their prior sworn statements. The court refused to receive them. In this there was no error. A party will not be permitted to impeach his own witness by showing prior contradictory statements.
Thayer Hepinstall was a witness for the plaintiff. He testified as to the manner and cause of the accident. It was proper for the defendant to show that he had made prior contradictory statements. She sought to do so by offering Ralph's affidavit, to which was attached a sworn statement by Thayer, to the effect that he had read Ralph's affidavit and knew "the facts therein stated to be true;" and that "he was driving carefully at the time, and the car was in ordinarily good condition, and no objection was made to his driving, and the accident was due solely to the condition of the road."
The court excluded Ralph's affidavit but permitted to be read in evidence the balance of the statement made by Thayer. The court erred, but we are of the opinion that the error was without prejudice to the defendant, for the reason that the portion received substantially included all that was contained in Ralph's affidavit.
No other question presented merits discussion.
The judgment is affirmed, with costs to the plaintiff.
FEAD, C.J., and NORTH, FELLOWS, WIEST, CLARK, POTTER, and SHARPE, JJ., concurred.