Bloom v. Leech

• Decision Date: 03 April 1929
• Docket Number: 21412
• Parties: Bloom v. Leech, Admr.
• Court: Ohio Supreme Court

166 N.E. 137

120 Ohio St. 239

Bloom v. Leech, Admr.

No. 21412

Supreme Court of Ohio

April 3, 1929

Negligence - Imputed negligence inapplicable except in joint enterprise - "Joint enterprise" defined - Imputed negligence inapplicable in action between members of joint enterprise.

1.

The doctrine of imputed negligence does not ordinarily apply in Ohio, an exception being when parties are engaged in a joint enterprise.

2.

A "joint enterprise" within the law of imputed negligence is the joint prosecution of a common purpose under such circumstances that each member of such enterprise has the authority to act for all in respect to the control of the agencies employed to execute such common purpose.

3.

While in actions between a third party and any or all of the members of a joint enterprise, the doctrine of imputed negligence on the part of such members of the joint adventure may be invoked, the rule does not apply, however, to an action by one member of the enterprise against another.

This case comes into this court on error to the Court of Appeals of Huron county. The record discloses that Thomas J. Bloom and one U. E. Snyder were riding in the latter's automobile on March 5, 1927, at about 11 o'clock in the morning, on what is known as Market Road No. 20, at a point just west of the halfway road between Norwalk and Monroeville; that in attempting to cross the tracks of the Lake Shore Electric Railway the machine was struck by a west-bound interurban car. Snyder was killed, and the plaintiff in error, Thomas J. Bloom, sustained serious personal injuries. Bloom subsequently brought an action in damages against the estate of U. E Snyder, upon the ground that he was a passenger in Snyder's automobile and that Snyder was careless and negligent in driving upon the street car track immediately in front of the approaching street car, without keeping a lookout, and without keeping his machine under control, and without giving any warning to Bloom of his intention to do so; that although Snyder could have seen the interurban car, or should have seen it, in the exercise of ordinary care, in time to have avoided the collision, he failed to exercise ordinary care, but drove upon the track immediately in front of the interurban car; that Snyder failed to look or listen as he approached and came upon the grade crossing where the accident took place; and that as a result of this careless and negligent act upon the part of Snyder, the plaintiff in error, Bloom, sustained the injuries of which he complains.

The answer contained two defenses: The first was in the nature of a general denial, after having made certain admissions; and for a second defense the administrator of the estate of U. E. Snyder, deceased, averred that his decedent, Snyder, and Bloom, the plaintiff in error, were engaged in a joint enterprise; that, at the request of Snyder, Bloom attempted to look for the approach of a street car and informed the driver, Snyder, that there was no car approaching; that thereupon Snyder started to cross the street car track and the collision took place. The administrator avers that the injuries of which the plaintiff complains were due to his own negligence and want of care, and that his own negligence contributed to any injuries he received.

A reply was filed by Bloom, denying the averments of the answer which did not admit the truth of the petition.

Upon the issues tendered by the pleadings, the parties went to trial, resulting in a verdict in favor of Bloom for $3,000. Motion for new trial was filed, which was overruled, and judgment entered on the verdict. Error was prosecuted to the Court of Appeals, in which court the judgment was reversed, and error is now prosecuted to this court to reverse such judgment.

Messrs. Young & Young, for plaintiff in error.

Messrs. King, Ramsey & Flynn, for defendant in error.

DAY, J.

The journal entry from the Court of Appeals recites that the judgment of the court of common pleas was reversed "for the reason that the trial judge should have submitted the question of whether the parties at the time of the injury complained of by the plaintiff below were engaged in a joint enterprise, under appropriate instructions, and that the withdrawal of this question from consideration by the jury was prejudicial error." So that the sole question for consideration by this court is whether or not the common pleas judge erred in refusing to submit to the jury the question of joint enterprise.

This record discloses that Bloom desired to purchase some live stock from Snyder, for which he was to give Snyder a promissory note for a portion of the purchase price. Snyder was willing to accept the note provided a satisfactory surety was obtained. The owner of the farm upon which Bloom was a tenant was proposed as a surety by Bloom and Snyder was willing to accept him as such, provided, after inquiry, the owner of the farm, Roeder, proved to be good for the amount. To this end, on the day in question, Snyder took his own automobile, and Bloom occupied the seat with him, telling Snyder that Roeder lived on the road that runs south from the "halfway place." Snyder said he knew where that was. They stopped at Monroeville and Snyder got out and made inquiry at the Farmers' & Citizens' Bank in that city, concerning Roeder`s financial status, which was found to be satisfactory. Bloom does not appear to have done more than tell Snyder where Roeder lived. At no time does he appear to have had any control over the automobile or any voice in its management. As the machine approached the interurban street car crossing of the highway, Bloom testifies that Snyder said to him, "Look back and see if there is a car and see if it is clear or not." He testifies that he kept looking back and did not look in the other direction; that he saw no street cars on the street car track. This would direct Bloom's attention to the west. He did not look to the east, from which direction the interurban car came which caused the accident. There is testimony in the record that Bloom said to Snyder, "It is all right, go ahead." Bloom denied saying this, however.

Under such facts, were Snyder and Bloom engaged in such a joint enterprise that the negligence of Snyder, the driver, could be imputed to Bloom, the passenger or guest?

The doctrine of imputed negligence does not ordinarily apply in Ohio. Pennsylvania Rd. Co. v. Lindahl, Admr., 111 Ohio St. 502, 505,511, 146 N.E. , 71; Cincinnati St. Ry. Co. v. Wright, Admr., 54 Ohio St. 181, 43 N.E. , 688, 32 L.R.A. 340; Davis v. Guarnieri, 45 Ohio St. 470, 15 N E., 350, 4 Am.St. 548; St. Clair St. Ry. Co. v. Eadie, 43 Ohio St. 91, 1 N.E. , 519; Covington Transfer Co. v. Kelly, 36 Ohio St. 86; C., C., C. & I. Rd. Co. v. Manson, 30 Ohio St. 451; Bellefontaine & Ind. Rd. Co. v. Snyder, 18 Ohio St. 399, 98 Am.Dec. 175.

The leading case in Ohio recognizing the exception to the rule is N.Y., C. & St. L. Rd. Co. v. Kistler, 66 Ohio St. 326, at page 343, 64 N.E. , 130, 135. In the opinion it is said:

"The father, being nearly deaf, took the daughter along to hear for him, and as they came to the west side of the piece of woods, he told her to look and listen for trains, and she did so by raising the rear curtain and looking in the direction of the railroad.

"If it be true that she was to do the listening, and also to assist in the looking while he was doing the driving, they were engaged in a joint enterprise, and each would in such case be chargeable with the negligence of the other."

It is apparent that in the above case the duty to listen was upon the daughter, and to assist in the looking, and the control of the enterprise was therefore with the daughter as to the obligation to listen before going upon the track. She had the right to control to this extent.

The principle of joint enterprise is based on partnership or mutual agency. In crossing accidents of this character, the test in determining the question is whether the parties were jointly operating or controlling the movements of the vehicle in which they were riding. There must be a right of mutual control. Where the guest has no voice in directing and governing the movements of the automobile, he cannot be said to be engaged in a joint venture with the driver, within the meaning of the law of negligence.

A good statement of the rule, and one recognized in many states, is as follows: "Parties cannot be said to be engaged in a joint enterprise, within the meaning of the law of negligence, unless there be a community of interests in the objects or purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control or management." St. Louis & Sante Fe Rd. Co. v. Bell, 58 Okl. 84, 159 P. 336, L.R.A., 1917A, 543; Landry v. Hubert, 100 Vt. 268, 137 A. 97; Jessup, Admx., v. Davis, 115 Neb. 1, 211 N.W. 190, 56 A.L.R. 1403.

This seems to be the general rule, and a number of authorities may be cited in support of this doctrine of the right of mutual control of the vehicle in which the parties are riding. Barrett, Trustee, v. Chicago, M. & St. P. Ry. Co., 190 Iowa 509, 175 N.W. 950, 180 N.W. 670; Clark v. Missouri Pac. Rd Co., 115 Kan. 823, 224 P. 920; Hines v. Welch (Tex. Civ. App.), 229 S. W., 681; Alperdt v. Paige, 292 Pa. 1, 140 A. 555; Fuller v. Mills, 36 Ga. App., 357, 136 S. E., 807; State, ex rel. Chairs, v. N. & W. Ry. Co., 151 Md. 679, ...