Dias v. Kamalani

• Decision Date: 16 July 1952
• Docket Number: NO. 2849.,2849.
• Parties: RICHARD L. DIAS v. CLARA KAMALANI.
• Court: Hawaii Supreme Court

39 Haw. 474

RICHARD L. DIAS

v.CLARA KAMALANI.

NO. 2849.

Supreme Court of the Territory of Hawai‘i.

Argued June 5, 1952.

Decided July 16, 1952.

ERROR TO CIRCUIT JUDGE FIRST CIRCUIT, HON. J. E. PARKS, JUDGE.

Syllabus by the Court

The creation and existence of a relationship of common or joint enterprise in the operation of an automobile depends upon the intent of the parties in making the contract of joint enterprise, the relationship not being a status created or imposed by law but one voluntarily assumed and arising wholly ex contractu.

The contract to engage in a joint enterprise of operating an automobile must manifest a community of interests in the objects and purposes of the enterprise and give to each party an equal right, express or implied, to direct and control the conduct of the others in the operation of the automobile when it is employed as a means of common transportation and as a subject of common command.

In connection with the operation of automobiles, the doctrine of joint enterprise, whereby the negligence of the driver as the contributing cause of injury to third persons is imputable to the other occupants of the automobile, rests upon the relationship of agency of one for the other, the test of mutual agency being the existence in each of an equal right, express or implied, to direct and control the conduct of the others in the operation of the automobile at the time of injury and not merely a joint interest in the object and purpose of the trip.

H. W. Conroy ( M. B. Henshaw with him on the briefs) for plaintiff in error.

A. K. Trask (also on the brief) for defendant in error.

TOWSE, C. J., LE BARON AND STAINBACK, JJ.

OPINION OF THE COURT BY LE BARON, J.

This is an action in tort brought by the plaintiff against the defendant for damages suffered by the plaintiff in a collision between his automobile and the automobile of the defendant while it was being negligently driven by a third party in the absence of the defendant. The theory of the amended complaint on which any liability of the defendant depends is predicated on the doctrine of common or joint enterprise whereby the negligence of one joint adventurer is imputable to the others. At the close of trial the defendant made a motion for a directed verdict which was denied. After the cause was submitted on the issue of common or joint enterprise the jury returned a verdict against the defendant. Defendant then made a motion for judgment non obstante veredicto which was denied. Like disposition was made of her subsequent motion for a new trial. Judgment was entered in accordance with the verdict and from that judgment the instant writ of error is sued.

Of the defendant's thirty-six assignments of error and specification of thirteen errors only those challenging the denials of her motions for a directed verdict and for judgment non obstante veredicto need be considered for the purpose of this opinion. They present but one question of law. That question is whether there is sufficient evidence to have justified submission of the case to the jury on the issue of common or joint enterprise, or whether on that issue the evidence is sufficient to support the verdict.

The pertinent facts of the case are not in dispute. The defendant, the third party, three other adults and two minor children rode in the defendant's automobile to the beach for a pleasure trip and outing at the suggestion of one of the other adults who, as a licensed driver of the defendant's choice, drove the automobile with the defendant's consent and, without prearrangement, purchased oil and gas for it on the way. Neither the defendant nor the third party was a licensed driver. When the party arrived at the beach, the defendant and one of the adults left the automobile and dispersed along the beach to gather seaweed. The same adult who had driven the automobile to the beach then drove it with the rest of the group further along the beach and parked it. He left the automobile and went fishing with a net. The third party left with him to watch him fish. The other adult remained in the automobile with the children. While fishing, the adult who had driven the automobile requested and prevailed upon the third party to drive it back and pick up the defendant and the other adult who were gathering seaweed. On being so requested and prevailed upon, the third party drove the automobile but before he reached his destination the collision with the plaintiff's automobile occurred. At the time of the collision the defendant obviously was not an occupant of the automobile. Nor did she even know that the third party was driving her automobile until it approached her and she saw him in it immediately before the collision.

The rights and liabilities of members of a joint enterprise are governed, in general, by rules which are similar or analogous to those which govern the corresponding rights and liabilities of members of a partnership, except as they are limited by the fact that the scope of a joint enterprise is narrower than that of the ordinary partnership. (Eastern Iron and Metal Co. v. Patterson, 39 Haw. 346.) The scope of a joint enterprise in connection with the operation of automobiles is usually confined to a motor trip and no broader than the common objects and purposes being subserved by that trip. Within the meaning of the law of negligence as it affects the liabilities of joint adventurers and the rights of third persons, the doctrine of joint enterprise whereby the negligence of one member is imputable to the others rests upon the relationship of agency of one for the other. The test of mutual agency as the basis of imputed negligence under the doctrine in such a situation is whether there was a joint enterprise in controlling, directing and governing the operation of the automobile and not merely a joint interest in the objects and purposes of the trip. (See Parker v. Ullom, 84 Colo. 433, 271 Pac. 187; Carboneau v. Petersen, 1 Wash. [2d] 347, 95 P. [2d] 1043.) The creation and existence of a relationship of common or joint enterprise in the operation of an automobile, however, depends upon the intent of the parties in making the contract or agreement, for there must be a contract no matter how informal it may be. (See Manos v. James, 7 Wash. [2d] 695, 110 P. [2d] 887, 890; Rosenstrom v. North Bend Stage Line, 154 Wash. 57, 280 Pac. 932.) Hence, a joint enterprise is...