Farthing v. Hepinstall

Decision Date24 July 1928
Docket NumberNo. 114.,114.
Citation220 N.W. 708,243 Mich. 380
PartiesFARTHING v. HEPINSTALL.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, Saginaw County; William H. Martin, Judge.

Action by Ora S. Farthing against Elbertina S. Hepinstall. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before the Entire Bench.

Beach & Beach, of Saginaw, for appellant.

A. Elwood Snow, of Saginaw, for appellee.

McDONALD, J.

This suit was brought to recover damages for personal injuries received in an automobile accident. The defendant reviews by writ of error a verdict and judgment for the plaintiff.

The plaintiff is the defendant's daughter. With her brothers, Thayer Hepinstall and Ralph Hepinstall, and others, she lived in her parents' home in the city of Saginaw, Mich. The defendant owned an automobile. On the evening of the accident, the plaintiff and other members of the family were invited to attend a church fair at Bay City. Thayer and Ralph received permission from the defendant to drive her automobile. The plaintiff claims that she did not desire to go with the party, but was urged to do so by her brothers and her mother. On the way home from Bay City, it is claimed that Ralph, who was driving the car, drove so recklessly that it left the road and turned over in the ditch. The plaintiff was pinned under the car. Her back was broken and she suffered other serious injuries, as a result of which she is permanently paralyzed from the waist down.

At the close of the plaintiff's case, and again at the close of all the proof, the defendant moved for a directed verdict on various grounds, the principal one of which was that, at the time of the accident, the plaintiff and the driver were engaged in a joint enterprise, and that therefore his negligence was imputable to her. The motion was denied, and the question was submitted to the jury. After verdict, the court refused to enter judgment for the defendant non obstante veredicto, and also denied a motion for a new trial.

Aside from error alleged in the exclusion of certain testimony, the only question involved is whether the court erred in refusing to hold as a matter of law that the plaintiff and her brother, Ralph, who was driving the car at the time of the accident, were engaged in a joint enterprise. It is conceded that, if they were so engaged, the plaintiff is chargeable with the driver's negligence and cannot recover in this action.

To constitute a joint enterprise between a passenger and the driver of an automobile, within the meaning of the law of negligence, there must be such a community of interest in its operation as to give each an equal right of control. There must be a common responsibility for its negligent operation, and there can be no common responsibility unless there is a common right of control. It must be held that the driver is acting as the agent of the other members of the enterprise. 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. Being parties to the same enterprise, they are assumed to have common control and possession of the machine. Otherwise, each could not be charged with the negligence of the other. It is not necessary to review the cases in which this question is considered. The subject is discussed, and many cases are cited, in the annotation to Keiswetter v. Rubenstein et al., 48 A. L. R. 1049.

In the instant case, the plaintiff claims that at the time of the accident she was riding as a mere guest of the owner and driver of the...

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38 cases
  • Bostrom v. Jennings, 13.
    • United States
    • Supreme Court of Michigan
    • 7 d3 Dezembro d3 1949
    ...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......
  • Bostrom v. Jennings, 13
    • United States
    • Supreme Court of Michigan
    • 7 d3 Dezembro d3 1949
    ...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......
  • WW Clyde & Co. v. Dyess, 2378.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 27 d1 Abril d1 1942
    ...A. 646; Bloom v. Leech, 120 Ohio St. 239, 166 N.E. 137; Kokesh v. Price, 136 Minn. 304 161 N.W. 715, 23 A.L.R. 643; Farthing v. Hepinstall, 243 Mich. 380, 220 N.W. 708; Churchill v. Briggs, 225 Iowa 1187, 282 N.W. 280; Scheuring v. Northern States Power Co., S.D., 294 N.W. 175; Meyers v. So......
  • Naudzius v. Lahr
    • United States
    • Supreme Court of Michigan
    • 23 d5 Janeiro d5 1931
    ...its way to this court. Harvey v. Harvey, 239 Mich. 142, 214 N. W. 305; Riser v. Riser, 240 Mich. 402, 215 N. W. 290;Farthing v. Hepinstall, 243 Mich. 380, 220 N. W. 708. In many, probably most, of the cases between relatives or friends the real defendant is an insurance company. Ordinary ne......
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