Campanella v. Zajic

• Decision Date: 08 August 1978
• Docket Number: No. 77-276,77-276
• Citation: 62 Ill.App.3d 886,379 N.E.2d 866,20 Ill.Dec. 33
• Parties: , 20 Ill.Dec. 33 Marian A. CAMPANELLA, Plaintiff-Appellant, v. Edward ZAJIC, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 866

379 N.E.2d 866

62 Ill.App.3d 886, 20 Ill.Dec. 33

Marian A. CAMPANELLA, Plaintiff-Appellant, v. Edward ZAJIC, Defendant-Appellee.

No. 77-276.

Appellate Court of Illinois, Second District.

Aug. 8, 1978.

DeFrees & Fiske, John M. Cregor, Jr., Chicago, for plaintiff-appellant.

Rathje, Woodward, Dyer & Burt, Robert E. Dyer, Wheaton, for defendant-appellee.

NASH, Justice.

Plaintiff, Marian A. Campanella, brought this action in the Circuit Court of DuPage County against defendant, Edward Zajic, for personal injuries sustained by her in an automobile accident. The case was tried before a jury and resulted in a verdict and judgment in favor of defendant from which plaintiff appeals.

The evidence is that at about 7:00 a.m. on August 20, 1973, plaintiff was riding as a passenger in an automobile owned and being driven by her husband, James J. Campanella. She and her husband were on route from their home in Lombard, Illinois, to a nearby train station where they intended to board a commuter train for transportation to their respective places of employment in Chicago. Although plaintiff and her husband worked in the same building, they were separately employed; plaintiff in a retail store and her husband in his own business. At the intersection of Butterfield Road and Lloyd Avenue in Lombard the car in which plaintiff was riding collided with one being driven by defendant and plaintiff sustained personal injuries.

The trial court ruled, as a matter of law, that plaintiff and her husband were engaged in a joint enterprise at the time of the collision and instructed the jury that any negligence on the part of the driver, Mr. Campanella, would be imputed to the plaintiff and bar her recovery of damages from defendant. The jury responded affirmatively to a special interrogatory directed to whether Mr. Campanella was negligent at the time of the collision and returned its verdict in favor of defendant.

Plaintiff contends the trial court erred when it determined she and her husband were engaged in a joint enterprise and erroneously instructed the jury that any negligence on his part must be imputed to her. We agree.

The general rule is that negligence of a driver of an automobile may not be imputed to his passenger. Recognized exceptions to the rule are seen where the relationship of respondeat superior between driver and passenger is present or the driver and passenger are engaged in a joint enterprise. (Staken v. Shanle (1959), 23 Ill.App.2d 269, 277, 162 N.E.2d 604, 608; Summers v. Summers (1968), 40 Ill.2d 338, 343, 239 N.E.2d 795, 799.) To establish the existence of a joint enterprise of a nature which would cause negligence of the driver to be chargeable to his passenger it is necessary that the evidence show that the automobile they occupied was being used as a part of a common Business enterprise and the occupants were mutually engaged in the trip itself as a part of such enterprise. (Smith v. Bishop (1965), 32 Ill.2d 380, 385, 205 N.E.2d 461, 464; Grubb v. Illinois Terminal Co. (1937), 366 Ill. 330, 339, 8 N.E.2d 934, 938; Babington v. Bogdanovic (1972), 7 Ill.App.3d 593, 288 N.E.2d 40; Bridgewater v. Wagoner (1960), 28 Ill.App.2d 201, 208, 170 N.E.2d 785, 788-89.) This requirement is, of course, not affected by the fact that the driver and passenger of a vehicle may share the relation of husband and wife which of itself cannot require that the negligence of one be imputed to the other. See Wonaitis v. Kustak (1974), 18 Ill.App.3d 17, 309 N.E.2d 300.

Defendant argues that the automobile in this case was being used as a part of a common business enterprise and the occupants were mutually interested in the trip itself as a part of such enterprise because plaintiff and her husband were on route to work where they would each earn funds which would be applied towards the payment of their family expenses.

The Illinois cases which come the closest to being on point with that before us appear to be Fisher v. Johnson (1925), 238 Ill.App. 25, and Bridgewater v. Wagoner (2d Dist. 1960), 28 Ill.App.2d 201, 170 N.E.2d 785. In Fisher the plaintiff-passenger and the driver of the car in which he was riding took turns driving their respective cars back and forth to the plant where they were both employed and it was contended that any negligence on the part of the driver in causing the collision in which they were involved should have been imputed to plaintiff on a joint enterprise theory. The court held the relationship could not be regarded as a joint enterprise stating:

"To be sure it was one for their mutual accommodation, a day to day affair, but it involved no common financial interest, no partnership, no relation of master and servant, or principal and agent, and no right of either to direct or control the other in the management of his car. The parties being neighbors and social friends, engaged at the same place of business, evidently regarded it unnecessary because of such relations to drive two automobiles to their place of business and leave them there all day unused, when one would suffice, and the other could be left for the use of the owner's family. Such a scheme of mutual accommodation did not clothe the arrangement with any characteristic of a joint enterprise, to which the doctrine of imputable negligence may be applied." (Fisher at 30.)

In Bridgewater the plaintiff and two others took turns driving their respective vehicles to and from their common place of employment. On the day they were involved in a collision with the defendant, plaintiff was riding as a...