Bartholomew v. Oregonian Pub. Co.

• Decision Date: 21 March 1950
• Citation: 216 P.2d 257,188 Or. 407
• Parties: BARTHOLOMEW v. OREGONIAN PUB. CO. et al.
• Court: Oregon Supreme Court

216 P.2d 257

188 Or. 407

BARTHOLOMEW v. OREGONIAN PUB. CO. et al.

Supreme Court of Oregon.

March 21, 1950

Argued Jan. 26, 1950.

H. H. Phillips, of Portland, argued the cause for appellants. With him on the brief were Griffith, Peck Phillips & Coughlin and Norman L. Easley, of Portland.

Barnett H Goldstein, of Portland, argued the cause and filed a brief for respondent.

Before LUSK, C. J and BRAND, BELT, ROSSMAN and HAY, JJ.

HAY Justice.

This action was for damages for personal injuries resulting from a collision between two automobiles at a street intersection in the city of Portland. The complaint alleges as follows: Defendant Glenn R. Reymers, Jr., was employed by defendant Oregonian Publishing Company, as its district manager. On August 27, 1947, within the scope of his employment, he was driving an automobile easterly upon S. E. Clinton Street toward its intersection with S.E. 20th Avenue. At the same time, plaintiff, a city police officer, was riding in a police car driven by Floyd O. Hutchins, another city police officer, which car was being driven southerly on S.E. 20th Avenue toward the same intersection. The Reymers car, solely through his negligence (as detailed), collided with the car in which plaintiff was riding. Plaintiff suffered serious injuries as the result of the collision. He demanded $25,000 in general damages and $4,802.67 special damages.

The answer was a general denial, with affirmative pleas as follows: sole negligence of the driver of the police car; joint enterprise between plaintiff and such driver, whereby the driver's negligence was sought to be imputed to plaintiff; and contributory negligence of plaintiff.

Trial by jury resulted in verdict and judgment for defendants. On motion of plaintiff, the court set aside the judgment and granted him a new trial, upon the ground that it had misdirected the jury upon the question of joint enterprise. The defendants appeal.

The evidence showed that the collision occurred at about five o'clock in the afternoon on a clear summer day. As the car in which the police officers were riding was entering the intersection of S.E. 20th Avenue and S.E. Clinton Street, both officers observed the Reymers car on S.E. Clinton Street, approaching such intersection from their right, and distant 100 feet or more from the intersection. The view through the northwest corner of the intersection of the two streets was obstructed by trees and shrubbery. The police car entered the intersection at a speed of between 16 and 19 miles per hour. Both officers testified that the Reymers car approached at a speed of between 35 and 40 miles an hour, and continued forward in an undeviating course, without slowing down, until it collided with the police car. The point of impact was conceded to be 14 feet east of an extension of the west curb of S.E. 20th Avenue and 11 feet north of an extension of the south curb of S.E. Clinton Street. Each of the streets involved is 36 feet wide from curb to curb. When the collision appeared to be imminent, plaintiff said to the driver of his car: 'He is going to get us' or 'He is going to hit us'. Hutchins, the driver, accelerated in an endeavor to get out of the path of the Reymers car. Defendant Reymers stated orally to a traffic officer, who came upon the scene shortly after the accident, that he was driving at from 30 to 32 miles an hour, and that he did not see the police car until he was 'right on top of it'. He gave a written statement to the traffic officer, in which he admitted he was driving at approximately 30 miles an hour. Thereafter, in municipal court, he pleaded guilty to a charge of violating a city ordinance by driving an automobile on a city street at a speed of 30 miles per hour, the designated speed on said street being 25 miles per hour. He explained in his testimony herein that he pleaded guilty to such charge, because, having signed a statement saying that he had been driving at 30 miles per hour, he thought that 'there was no chance of pleading not guilty'. After the accident, officer Hutchins stated to the traffic officer in Reymers' presence that he, Hutchins, had been driving at about 15 miles an hour, and Reymers did not contradict such statement. Notwithstanding Reymers' statement to the traffic officer that he did not see the police car until he was 'right on top of it', he testified on the trial that he actually observed it at the time it entered the intersection.

As this court has said frequently, a trial court, in the interests of justice, is given wide latitude in granting new trials, and its actions in that regard will be upheld on appeal if supported by any tenable ground appearing in the record. Zeek v. Bicknell, 159 Or. 167, 169, 78 P.2d 620; Lyons v. Browning, 170 Or. 350, 354, 133 P.2d 599; Parmentier v. Ransom, 179 Or. 17, 23, 169 P.2d 883.

The trial court submitted to the jury the question of whether or not plaintiff and Hutchins, the driver of the police car, were engaged in a joint enterprise, and instructed them that, if they found that plaintiff and Hutchins were so engaged, then the negligence of Hutchins, if any, would be imputable to plaintiff. The motion for a new trial was based, in this connection, upon the ground that the evidence of joint enterprise was insufficient to make a jury question.

'If two or more persons unite in the joint prosecution of a common purpose under such circumstances that each has authority, express or implied, to act for all in respect of the control of the means or agencies employed to execute such common purpose, the negligence of one in the management thereof will be imputed to the others. Accordingly, if an occupant of an automobile is engaged in a joint enterprise with the driver and is injured by reason of the concurrent negligence of the driver and a third person, the driver's contributory negligence will be imputed to such occupant and will bar a recovery by him against the third person.' 5 Am.Jur., Automobiles, section 500.

The foregoing represents the weight of authority upon the question. Negligence is imputed in such cases upon the theory that the participants are partners in the enterprise, or occupy a relationship akin to partnership. Kokesh v. Price, 136 Minn. 304, 161 N.W. 715, 23 A.L.R. 643. There must be not only a community of interest in the objects and purposes of the undertaking, but also a right in each party to govern and control the movements and conduct of the others in respect thereto. Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32, 47 A.L.R. 323; 45 C.J., Negligence, section 574; 38 Am.Jur., Negligence, section 237. In order to impute the negligence, if any, of the driver Hutchins to the plaintiff, the defendants were required to prove (a) that plaintiff had complete or partial authority to control the operation of the automobile, or (b) that the driver was plaintiff's serviant or agent, or (c) that the driver and plaintiff were engaged in a joint enterprise in which the operation of the automobile was a factor. Robison v. Oregon-Washington R. & N. Co., 90 Or. 490, 507, 512, 176 P. 594.

It was suggested in argument that co-employment of the driver and the passenger--that is to say, employment of both by the same employer--was a factor tending to establish the right in the passenger to joint control of the car. There are indeed a few cases so holding. See Lacey v. Heisey, 53 Ohio App. 451, 5 N.E.2d 699; Collins v. Graves, 17 Cal.App.2d 288, 61 P.2d 1198; Petersen v. Ingersoll-Rand Co., 194 Wash. 584, 78 P.2d 1083; Donnelly v. Brooklyn City R. Co., 109 N.Y. 16, 15 N.E. 733; Alabama Great Southern R. Co. v. Hanbury, 161 Ala. 358, 49 So. 467. It would seem, however, that mere co-employment is an insufficient base upon which to rest the doctrine of imputation of the driver's negligence to the passenger.

'd. Fellow servants in vehicle. The fact that the plaintiff and the driver are fellow-servants of a common master and are both acting in the course of their master's employment and in furtherance of his business does not make them participants in a joint enterprise, and this is true irrespective of whether the vehicle is owned by the master, the fellow-servant driver or by the plaintiff himself.' Restatement, Torts, section 491, Comment d.

Of course, if the driver is recklessly or carelessly driving into danger, and the passenger has an opportunity to protest or to take other measures for his own safety, and fails to do so, then such failure may be contributory negligence on the part of the passenger, but it is not imputed negligence. This appears to have been the situation in Martin v. Puget Sound Electric Ry., 134 Wash. 663, 241 P. 360, and Kirkland v. Atchinson, T. & S. F. Ry. Co., 104 Kan. 388, 179 P. 362, cited by defendants to the co-employment point.

Commenting, inter alia, upon Donnelly v. Brooklyn City R. Co., supra, 109 N.Y. 16, 15 N.E. 733, and Alabama Great Southern R. Co. v. Hanbury, supra, 161 Ala. 358, 49 So. 467, this court said:

'In all these cases, however, there runs a vein of common financial interest, indicating a quasi partnership entailing the usual joint control. This would seem to furnish the ultimate distinguishing characteristic of joint venture in such cases which is none other than the right, either express or implied, to direct the movement of the vehicle employed in the transportation connected with the venture. This...