Churchill v. Briggs
| Decision Date | 22 November 1938 |
| Docket Number | 44417. |
| Citation | 282 N.W. 280,225 Iowa 1187 |
| Parties | CHURCHILL v. BRIGGS. |
| Court | Iowa Supreme Court |
Appeal from District Court, Union County; Homer A. Fuller, Judge.
Action at law for damages for personal injuries alleged to have been caused by defendant's negligence in the operation of an automobile. From a verdict and judgment in favor of the plaintiff, the defendant appeals.
Affirmed.
E. L Carroll and Kenneth H. Davenport, both of Creston, for appellant.
Ed Fackler, Jr., of Corning, and Thos. E. Mullin, of Creston for appellee.
The plaintiff, W. H. Churchill, lived at Gravity, in Taylor County, was engaged in buying and selling horses, and had bought from and sold to one L. A. NaLean of Corning, Iowa. On October 17, 1936, he attended a horse sale in Des Moines and while there met NaLean. While some mules were being sold at the sale, NaLean said he would like to have a pair of mules and Churchill replied that he knew where he could buy a much better pair of mules than the team which was on sale. Churchill and NaLean left Des Moines after the sale was over and proceeded toward Corning, where Churchill had left his car. It appears that the mules to which Churchill had referred were some distance south of the paved road between Afton and Creston, and that it was the intention of Churchill and NaLean to look at these mules on their way home. NaLean was driving the car in which he had gone to Des Moines and Churchill was seated in the front seat with him. After stopping at Winterset for lunch and making two or three brief stops, they left the paved road and Churchill, who knew the general neighborhood but not the exact place where the team of mules was to be found, directed NaLean as to the roads to follow. As they were proceeding eastward on a dirt road and crossing a north and south intersecting dirt road, the car in which they were riding was struck by a car driven by the defendant, and the plaintiff received injuries for which he sued. The trial of the case resulted in a verdict and judgment for plaintiff, and the defendant has appealed.
The first alleged error relied on for reversal has to do with the court's refusal to submit to the jury the question of the contributory negligence of the driver of the car in which plaintiff was riding, and is raised by exceptions to an instruction given and an instruction refused, and also by motion for new trial. After telling the jury that, if the negligence of L. A. NaLean was the proximate cause of the damage suffered by the plaintiff, he could not recover from the defendant, and that the plaintiff could recover from the defendant only by proving that the defendant was negligent, that plaintiff was damaged thereby, and that he was free from contributory negligence, the trial court gave this instruction:
" Under the circumstances proven on the trial of this case the negligence of L. A. NaLean would not be imputed to the plaintiff, and even though you find that the said L. A. NaLean was guilty of some negligence which contributed to plaintiff's injury, yet if you further find that the negligence, if any, on the part of the defendant was the proximate cause of plaintiff's injury, such contributing negligence, if any, on the part of L. A. NaLean would not bar the plaintiff from recovering from the defendant in this case."
The trial court also refused to give an instruction requested by the defendant in regard to joint adventure or enterprise, and it is the claim of appellant that the giving of the instruction set out above and the refusal to give the requested instruction constitute reversible error.
For the purpose of considering the proposition here presented, it may be conceded that the evidence was such that the jury could have found therefrom that the defendant was guilty of negligence which was the proximate cause of the collision and resulting injury, and that NaLean, the driver of the car in which plaintiff was riding, was also guilty of negligence which contributed to the accident and injuries. Appellant's contention is based upon his claim that the evidence was such that the jury could have found therefrom that plaintiff and NaLean were engaged in a joint enterprise, and that, therefore, the plaintiff is bound by the contributory negligence of NaLean. Appellant cites many cases and in argument relies particularly on Wagner v. Kloster, 188 Iowa 174, 175 N.W. 840; Wiley v. Dobbins, 204 Iowa 174, 214 N.W. 529, 62 A.L.R. 432; Lindquist v. Thierman, 216 Iowa 170, 248 N.W. 504, 87 A.L.R. 893; Stingley v. Crawford, 219 Iowa 509, 258 N.W. 316; Carpenter v. Wolfe, Iowa, 273 N.W. 169.
An examination of these cases, however, shows that the facts in each of them were entirely different from the facts in the case at bar. The evidence upon which the appellant relies, as tending to show a joint enterprise or adventure, is that Churchill had previously bought horses from and sold horses to NaLean; that he had told NaLean of a team of mules which he could buy for him and which were better than the mules which NaLean was looking at while at the sale; that the trip was taken for the purpose of locating this team of mules; that one or more other stops had been made upon the suggestion of the plaintiff for the purpose of looking at some horses or mules other than the team for which they were searching; and that Churchill was directing NaLean as to where he should turn from one road to another when trying to locate this team of mules. The evidence also showed, however, that Churchill and NaLean met at Des Moines without any previous appointment, and failed to show that there was any agreement by which Churchill was to purchase the mules and sell them to NaLean, or that he was to do anything more than direct and accompany NaLean to the place where the mules would be found. The car in which they were riding was the one in which NaLean had gone from Corning to Des Moines, and Churchill neither drove it at any time nor exercised any control over its operation. That such facts are not sufficient to establish a joint enterprise is well established by the holdings of this court. In Stingley v. Crawford, 219 Iowa 509, at page 512, 258 N.W. 316, at page 318, we said:
" The fundamental doctrine controlling this question of joint adventure or common enterprise is not controlled by the fact that the parties are going to the same place on the same mission, but by whether or not the complaining party bore such relation to his associate as that he had the right of control in some manner over the means of locomotion."
In Cram v. City of Des Moines, 185 Iowa 1292, 172 N.W. 23, we used this language [page 26]:
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