Dashiell v. KEAUHOU-KONA COMPANY

• Citation: 487 F.2d 957
• Decision Date: 09 November 1973
• Docket Number: No. 72-1645.,72-1645.
• Parties: Beatrice and Douglas DASHIELL, Plaintiffs-Appellants, v. KEAUHOU-KONA COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

487 F.2d 957 (1973)

Beatrice and Douglas DASHIELL, Plaintiffs-Appellants, v. KEAUHOU-KONA COMPANY et al., Defendants-Appellees.

No. 72-1645.

United States Court of Appeals, Ninth Circuit.

November 9, 1973.

Helen B. Ryan (argued), Honolulu, Hawaii, for plaintiffs-appellants.

Alexander Marrack (argued), Honolulu, Hawaii, for defendants-appellees.

Before KOELSCH, WRIGHT and TRASK, Circuit Judges.

TRASK, Circuit Judge:

This is an appeal from a judgment of the district court, pursuant to a special verdict by a six-member jury, that the contributory negligence of Mrs. Dashiell barred both herself and her husband from recovering for injuries received when the golf cart which Mrs. Dashiell was driving and in which Mr. Dashiell was riding, collided with a truck following a ride down an incline during which Mrs. Dashiell lost control of the cart.

On October 25, 1968, appellants Mr. and Mrs. Dashiell, residents of California, rented a golf cart from the Keauhou Golf Course on the Island of Hawaii. Only Mr. Dashiell played golf, and from the second hole on, Mrs. Dashiell drove the cart. Following the first nine holes of golf and lunch, appellants attempted to go to the tenth tee to join their friends with whom they had played the first nine holes and complete the round. However, appellants made a wrong turn. Upon realizing their mistake, they headed back toward the tenth tee along a maintenance road. As the golf cart went down an incline, Mrs. Dashiell lost control, failed to make the tenth tee turn-off, sped into a parking area and collided with a truck which was backing out of the area.

The golf cart involved was a three-wheel cart that operated by means of a T-shaped pedal in the middle of the floorboard. The cart accelerates by pressing forward on the pedal; when the foot is lifted off the pedal, the cart coasts to a stop. If braking is desired, the back portion of the pedal can be pressed down.

For trial, on the issue of liability only, the defendants were designated as the golf course defendants (consisting of the Keauhou-Kona Company, a partnership composed of Troy Post and Kamehameha Development Corporation, a Hawaiian corporation; and James Parish, the resident manager) and the golf cart defendants (consisting of the distributor, Henry Mizumoto, dba Oahu Battery Sales & Service; and the manufacturer, Viking Golf Cart Company, an Indiana corporation). The owner and the operator of the truck involved in the collision were dismissed from the suit, and no appeal has been taken from that dismissal.

The theories of liability pleaded against the golf course defendants centered around negligent construction of and directions on the cart paths; negligence in supplying a cart that was dangerous to use on steep inclines and in failing to warn of that danger; and negligence in failing to warn of the defects alleged in the braking system and steering mechanism of the cart. Against the golf cart defendants appellants alleged negligence in the instructions on operating the cart and an unsafe braking system.

The jury found in the form of a special verdict that (1) the golf course defendants were negligent, and their negligence was a proximate cause of the accident; (2) the golf cart defendants were not negligent; (3) Mr. Dashiell was not contributorily negligent; (4) Mrs. Dashiell was contributorily negligent, and her negligence was a proximate cause of the accident; (5) the golf cart was not unreasonably dangerous for use on the Keauhou course at the time it was delivered; (6) nor was it unreasonably dangerous for use on the day of rental to appellants; and (7) the golf cart had a defect in the steering mechanism, which risk appellants assumed by continued use of the cart; however, the assumption of this risk was not the proximate cause of the accident.

The trial court found as a matter of law that because the Dashiells were engaged in a joint enterprise, the negligence of Mrs. Dashiell that contributed to the accident so as to bar her recovery must be imputed to her husband so as to bar his recovery.

Appellants raise several issues on this appeal which can be conveniently grouped as follows: the imputation of contributory negligence; trial by six jurors; the use by the jury in their deliberations of exhibits which had not been admitted into evidence; limited rebuttal of an expert in accident reconstruction; alleged errors in the instructions; and alleged prejudicial comment by the trial court.

The appellants argue that the facts of this case do not support a finding of a joint enterprise or venture, and that even if they did, this theory of tort law is so discredited that the Hawaiian courts would not today apply the rule of imputed contributory negligence. Appellants urge that no court in Hawaii has, in any reported decision, applied the theory of joint enterprise to impute contributory negligence; however, the discussion of the theory in at least two cases shows that all of the elements required to prove a joint enterprise in a contract case must be shown to prove a joint enterprise in a negligence case. Further, appellants argue that if the joint enterprise issue was properly raised in this case, the issue should have been submitted to the jury.

Appellees contend that Mrs. Dashiell was acting as agent for her husband while driving the golf cart, and that the Supreme Court of Hawaii in Wong v. McCandless, 31 Haw. 750, 761-762 (1931), has at least by way of dictum adopted the imputed contributory negligence theory.

We find that on the facts of this case, at no time did the relationship of joint enterprise or joint venture exist between Mr. and Mrs. Dashiell within the meaning of imputed negligence. This is not a typical case of a business venture of a character similar to a partnership where two or more parties undertake, for some pecuniary purpose, a contractual obligation resulting in the liability of each for the negligence of the other. Because the evidence was insufficient to allow the issue of joint enterprise to go to the jury where a husband and wife were merely enjoying a round of golf, the trial court should have ruled as a matter of law that any contributory negligence of Mrs. Dashiell could not be imputed to her husband. Cf. Burgen v. Smith, 337 F.Supp. 197 (D.Kan.1970), affirmed 454 F.2d 1175 (10th Cir. 1972); McClure v. Price, 300 F.2d 538, 546 (4th Cir. 1962).

The concept of imputed contributory negligence developed on the basis of a fictitious agency applied to defeat the recovery of an injured plaintiff by imputing the negligence of another to him, even though the plaintiff would not have been liable for that negligence had he been sued as a defendant. It had its beginnings in England where it was followed for a relatively short period of time before being overruled.¹ It has been severely criticized by both courts and commentators in this country.² Prosser notes that

"except for vestigial remnants which are at most moribund historical survivals, `imputed contributory negligence\' in its own right has now disappeared." W. Prosser, Law of Torts § 74 at 488 (4th ed. 1971).

In Babington v. Bogdanovic, 7 Ill.App.3d 593, 288 N.E.2d 40, 43 (1972), the court states,

"historically, the doctrine of imputed negligence has been repudiated by most courts in this country, except in limited classes of cases, one being the `joint enterprise\' situation."

The Supreme Court of Hawaii, in Wong v. McCandless, 31 Haw. 750 (1931), and in Dias v. Kamalani, 39 Haw. 474 (1952), has apparently recognized that the theory exists whereby negligence may be imputed in a joint enterprise situation in connection with the operation of an automobile. However, both cases limited the circumstances under which contributory negligence may be imputed to one engaged in a joint enterprise, and no case has been called to our attention in which a Hawaiian court has ever applied this legal fiction to any set of facts before it.

Several reasons persuade us to reject the imputation of Mrs. Dashiell's negligence to Mr. Dashiell. The Restatement of Torts (Second) § 491 at 548, comment c, states the law to be:

"The elements which are essential to a joint enterprise are commonly stated to be four: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right to control. . . ."

In Dias v. Kamalani, supra, 39 Haw. at 477-479, the Supreme Court of Hawaii stated that among other considerations, a joint enterprise is "voluntarily assumed and arising wholly ex contractu," and that the factor of joint control "is more readily inferable where the trip is for a business venture than where it is for a pleasure venture." There is no suggestion in the present case that appellants' activities were anything more than social, nor can there by any reasonable inference by reason of the marital relationship alone that appellants undertook any contractual obligation which should cause each to be chargeable for the negligence of the other. ". . . The great weight of modern authority finds no basis for imputing the negligence of one spouse to another merely because of the marital relationship itself." Harper & James, The Law of Torts ¶ 23.4 at 1271 (1956). See also W. Prosser, The Law of Torts, 490 (4th ed. 1971); Wright v. Standard Oil Company, Inc., 470 F.2d 1280, 1290 (5th Cir. 1972); Stam v. Cannon, 176 N.W.2d 794, 797 (Iowa 1970); Clemens v. O'Brien, 85 N.J.Super. 404, 204 A.2d 895 (1964).

The only exception is found in the law of some community property states to prevent the negligent spouse from profiting from his own wrongdoing, as a result of his community ownership of a part of the recovery by the non-negligent spouse. Tinker v. Hobbs, 80 Ariz. 166, 294 P.2d 659 (1956); Clark v. Foster, 87 Idaho 134, 391 P.2d 853,...