Opinion
Submitted February 14, 1936 —
Decided May 14, 1936.
In a suit arising by reason of a collision between an automobile owned and operated by the plaintiff and another owned and operated by a defendant, other defendants who were occupants of the car were alleged to have been engaged in a joint enterprise at the time of the collision, and were therefore responsible with the defendant driver of the car for his negligent operation. Two of the defendants moved to strike the complaint as to them as sham. Affidavits were used by both sides at the hearing upon the motion, and those on behalf of the plaintiff merely contained statements that the defendants were engaged in a joint enterprise, with no facts or circumstances being given which would be received at the trial and as to which the witness would be permitted to testify, while the affidavits of the moving defendants disclosed that they were mere occupants, or passengers, at the invitation of the driver, without any authority or control over the driver of the car, or any interest in the car or its control or management. Held, that the complaint was rightly struck by the Supreme Court commissioner as to the moving defendants because it was sham.
On appeal from a judgment of the Supreme Court entered upon the order of Judge Lawrence, sitting as Supreme Court commissioner, striking the complaint as to certain defendants. The Supreme Court commissioner filed the following opinion:
"This suit arises by reason of a collision between an automobile owned and operated by plaintiff and another owned and driven by defendant Lewis Butler. The other defendants were occupants of the latter's car at the time. Plaintiff was injured and his vehicle damaged. His complaint rests on the negligent operation in stated particulars of the automobile owned and driven by Butler. The occupants are brought in as party defendants on the theory that they were engaged in a joint or common enterprise with him at that time, which accounted for their presence in his car, and were under a duty to cause him to drive his car in a careful and prudent manner, under proper control and with due care and regard for others on the highway, which duty they owed to plaintiff; the pleading also alleges authority and control over Butler, but not that they had any proprietary interest in his automobile at the time, or that the relation of principal and agent existed between him and such occupants, nor are any particulars pleaded upon which the allegation of joint or common enterprises is based as justifying the allegation that they had authority or control in the operation of the car by Butler within the definition of joint enterprise as given in McGinley v. Winters, 110 N.J.L. 540 .
"Motion is now made to strike the complaint as to the defendants Alma Frazier and Letha Muttrie on the ground that it is sham, that is to say, that it is not true that they were engaged in a joint enterprise with Butler at the time; that they exercised any domination or control over him in directing and controlling the course of travel and operation of his automobile or the manner in which it should have been driven. The affidavits submitted by them on the motion, which included that of Butler, disclose that they were mere occupants or passengers and without any authority or control over him in driving his car and had no interest in the car and without voice or right to be heard in its control and management, but were merely being taken to a given destination as passengers on the invitation of Butler. The reply affidavits are those of the plaintiff and Joseph Elia, an occupant of the Butler automobile, and a named defendant. That of the plaintiff states that that part of defendants' affidavits stating that no one but Lewis Butler had anything to do with the operation of the automobile and that Alma Frazier and Letha Muttrie, did not control the operation of it or exercise dominion over it is untrue. The source of his knowledge is not given nor are any facts or circumstances within his knowledge given which would justify his statement. The concluding paragraph of his affidavit is as follows: `Deponent further states that to the best of his knowledge and belief the said Alma Frazier, Lewis Butler and Letha Muttrie on the night in question were engaged in a joint enterprise.' Again no facts or circumstances are given which would be received in evidence at the trial and as to which he would be permitted to testify. Elia's affidavit refers to the circumstances in which he and the others were in Butler's car at the time of the accident, but nothing to indicate that they were engaged in a joint enterprise with a voice and right to be heard in the control and management of the Butler car, beyond the mere fact that they were occupants of the automobile in order that he — Elia — might be taken to his home and the young women to some place where they intended to apply for employment as public entertainers. There is nothing in any of the affidavits to support the charge in the complaint that the defendants Alma Frazier and Letha Muttrie were engaged in a joint enterprise with Butler, the owner and operator of the automobile in question, so as to make them jointly, or indeed severally, responsible with him for its negligent driving, within the definition given in McGinley v. Winters, supra, or in such cases as Harber v. Graham, 105 N.J.L. 213 ; Yanco v. Thon, 108 Id. 235 , 238, or Loeb v. Cook, 110 Id. 417 .
"The gravamen of the complaint so far as it refers to these defendants is that they were engaged in a joint enterprise with Butler at the time and that they therefore became responsible with him for the negligent operation of the car. There appears to be no basis in fact for any such allegation and the complaint must be held sham as to them. The motion to strike it as to the defendants Alma Frazier and Letha Muttrie on that ground will be granted."
For the appellant, Arthur J. Connelly.
For the respondents, Harry Cohn.
The judgment under review herein will be affirmed, for the reasons expressed in the opinion of Circuit Court Judge Lawrence, sitting as Supreme Court commissioner.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 13.
For reversal — None.