Bostrom v. Jennings, 13.

Decision Date07 December 1949
Docket NumberNo. 13.,13.
CourtMichigan Supreme Court

326 Mich. 146
40 N.W.2d 97


No. 13.

Supreme Court of Michigan.

Dec. 7, 1949.

Rev. Carl D. Bostrom, in his own right and as administrator of the estate of Clara B. Bostrom, deceased, sued Robert Jennings to recover for property damage and personal injuries sustained by him and for personal injuries suffered by wife resulting in her death from an automobile accident while defendant was driving plaintiff's automobile.

The Circuit Court for the County of Muskegon, Joseph F. Sanford, J., rendered judgment for the defendant, and plaintiff appealed.

The Supreme Court, Dethmers, J., remanded the cause, and held that the negligence of defendant was not imputable to the plaintiff and that there was a misjoinder of parties.

[40 N.W.2d 98]

Street and Sorensen, by Harold M. Street, Muskegon, for plaintiff and appellant.

R. Burr Cochran, Muskegon, for defendant and appellee.

Before the Entire Bench.

[40 N.W.2d 99]

DETHMERS, Justice.

Plaintiff, in one action, sues in his own right and as administrator of the estate of his deceased wife to recover for property damage and personal injuries sustained by him and for personal injuries suffered by his wife resulting in her death. His declaration alleges that plaintiff and wife had desired to visit a church in Iowa to which plaintiff, a minister of the gospel, was considering a call; that plaintiff was to conduct a Sunday preaching service and that he and his wife were to give a midweek musical concert in the church, proceeds from admission charges to go to plaintiff; that defendant, who lived in the same Michigan town as plaintiff and wife, desired to visit a college in Illinois with a view to enrolling as a student; that it was agreed that defendant should ride with plaintiff and wife in plaintiff's automobile to the college town and thereafter return with them to Michigan and that plaintiff would help defendant gain admission into the college; that plaintiff and defendant alternated in driving the automobile on the trip; that at a certain stage of the journey it was agreed that defendant should drive and that plaintiff then got into the back seat and went to sleep and that thereafter defendant negligently operated the automobile, causing it to become involved in an accident resulting in said injuries and damages.

Defendant moved to dismiss for misjoinder of parties plaintiff. The trial court denied the motion, finding ‘that the joinder of parties was proper to promote the convenient administration of justice.’ C.L.1948, § 608.1, Stat.Ann. § 27.591. Defendant filed a second motion to dismiss, alleging, among other grounds, misjoinder of parties plaintiff and failure of the declaration to state a cause of action. On the last mentioned ground the court dismissed plaintiff's declaration, finding ‘that the allegations of plaintiff's declaration disclose a joint enterprise, principal and agent, relationship between plaintiff and plaintiff's decedent and defendant’ and that ‘by reason thereof no cause of action known to either statutory or common law is stated in said declaration.’ The basis of the court's holding was, of course, that the negligence of defendant was imputable to plaintiff and his wife as fellow members with defendant of a joint enterprise barring plaintiff's right to recovery. Plaintiff appealed.

The accident happened in Illinois. Matters relating to the right of action are governed by Illinois laws. Edison v. Keene, 262 Mich. 611, 247 N.W. 757;Perkins v. Great Central Transport Co., 262 Mich. 616, 247 N.W. 759;Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883. We take judicial notice of the common law and the books of reports of cases adjudged by the courts of another state which purport to be published under the authority of that state. Slayton v. Boesch, 315 Mich. 1, 23 N.W.2d 134.

The statement of questions involved and argument in plaintiff-appellant's brief do not question, nor does either party brief, the correctness of the trial court's holding that ‘the allegations of plaintiff's declaration disclose a joint enterprise, principal and agent, relationship.’ The only reference to this holding in plaintiff's briefs is as follows:

‘We wish to make it clear that we make no claim of error and do not appeal from this holding.’

‘The only issue before the court is: Does the relationship of principal and agent, arising from a joint enterprise or otherwise, bar a recovery in an action between the parties? The lower court confined its decision to this point alone (18) and the appeal was taken on this issue alone. It is the only issue properly before this court.’

Under such circumstances is it for this court to pass on the correctness of the holding? The latter being a procedural question, we seek the answer in Michigan law. See, therefore, Michigan Court Rule No. 67, § 1; Strong v. Kittenger, 300 Mich. 126, 1 N.W.2d 479;Lakeside Resort Corp. v. Sprague, 274 Mich. 426, 264 N.W. 851;Eberts v. Detroit, Mt. Clemens & M. C. Ry., 151 Mich. 260, 115 N.W. 43;People, to Use of Cook v. Cole, 139 Mich. 312, 102 N.W. 856. Assume, however, that the question of whether a joint enterprise, principal and agent, relationship existed between

[40 N.W.2d 100]

the parties is properly before us. This question relates to the right of action, the substantive right of the parties, and is governed by Illinois law. Citation of Michigan cases as to what does or does not constitute a joint enterprise is, therefore, to no purpose when applicable Illinois law has been announced by its courts. The declaration in the instant case discloses a joint enterprise within the meaning of the decision in Brooks v. Snyder, 302 Ill.App. 432,24 N.W.2d 55, in which it was held, when the owner, occupying his car while driven by another, retained the right to exercise control thereof and the ride was for his benefit or the mutual benefit of himself and driver, that they were engaged in a joint enterprise and that the negligence of the driver was imputable to the owner rendering the latter liable to third parties. Be that as it may. Inasmuch as plaintiff, while a passenger, possessed the right of control over his automobile and over defendant as driver thereof and the ride was for the mutual benefit of them both, can the conclusion be escaped that defendant was, at least, acting as plaintiff's agent in driving the car and that defendant's negligence would, therefore, be imputed to plaintiff if he were involved in an action by or against a third party? We cannot read the opinions and decisions in Graham v. Page, 300 Ill. 40,132 N.W. 817, and Gates v. Mader, 316 Ill. 313, 147 N.E. 241, to mean anything other than precisely that. This court upheld an instruction to that same effect in Parks v. Pere Marquette Ry. Co., 315 Mich. 38, 23 N.W.2d 196, under facts very similar to those at bar. In Farthing v. Hepinstall, 243 Mich. 380, 220 N.W. 708, 709, we said, ‘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.’ Consequently, whether we hold that a joint enterprise existed or not, in either event we are confronted with a principal and agent relationship and it is of no consequence whether it arose out of joint enterprise or otherwise. It follows that cases applying the so-called joint enterprise doctrine of imputed negligence are equally in point whether we conclude that the relationship between the parties was that of joint enterprise of ordinary agency. In either event, we are confronted with the question of whether the negligence of the agent-driver, imputable to his principal, the owner-passenger, in actions by or against third parties, is likewise to be imputed to him in this, his suit against his agent. Was the trial court correct in holding that the acknowledged relationship between the parties bars plaintiff's right to recover?

What is the Illinois law applicable to this question? Plaintiff cites Chicago, P. & St. L. Ry. Co. v. Condon, 121 Ill.App. 440, as controlling. Language in the opinion in that case lends support to plaintiff's contention that in Illinois the doctrine of imputed negligence has been exploded and that a member for a joint enterprise may recover from a fellow member for damages caused by the latter's negligence in furthering the objects of the joint enterprise. The facts in that case do not squarely present that question, however, inasmuch as the action was not between members of a joint enterprise, but, rather, by a member against a third party. In the later case of Brooks v. Snyder, supra, the negligence of the driver member of a joint enterprise was imputed to a passenger member, rendering the latter liable to a third party not a member of the joint enterprise. Defendant, in turn, relies on Barnett v. Levy, 213 Ill.App. 129. In that case the action was between members of a joint enterprise. While reference is made to the rule that the negligence of a member of a joint enterprise is imputable to another member, barring his right of...

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