Garrotto v. Butera

• Citation: 243 N.W. 879,123 Neb. 682
• Decision Date: 29 July 1932
• Docket Number: 28148
• Parties: ALFIO GARROTTO, APPELLANT, v. SAM BUTERA, APPELLEE
• Court: Nebraska Supreme Court

243 N.W. 879

123 Neb. 682

ALFIO GARROTTO, APPELLANT, v. SAM BUTERA, APPELLEE

No. 28148

Supreme Court of Nebraska

July 29, 1932

APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. Prior to the adoption of chapter 105, Laws 1931, the personal negligence of the driver of an automobile was not imputed to a passenger riding with him whether such passenger be a mere guest or a member of a joint enterprise.

2. The driver of an automobile with whom others are riding owes his passengers the duty of exercising ordinary care, in the operation of the automobile, for their safety whether they are invited guests or proceeding on a trip for a purpose common and beneficial to all.

Appeal from District Court, Douglas County; Fitzgerald, Judge.

Action by Alfio Garrotto against Sam Butera. Judgment for the defendant, and the plaintiff appeals.

Reversed and cause remanded.

Rosewater, Mecham, Burton, Hasselquist & Chew, for appellant.

Gaines, McGilton, McLaughlin & Gaines, contra.

Heard before GOSS, C. J., DEAN and PAINE, JJ., and BROADY and RHOADES, District Judges.

OPINION

BROADY, District Judge.

This is an action for damages for personal injuries resulting from an automobile accident. The plaintiff and defendant had arranged for a rabbit shooting outing on a Sunday, and together with others drove to the shooting grounds in the defendant's automobile with the defendant driving. Upon the return trip, when the plaintiff was riding in the front seat with the defendant, the car struck a bump at the point where the pavement stops and the graveled highway begins. The car was swerved to one side and ran for some distance in a swerving manner and then ran off the pavement into the side ditch and embankment, when the plaintiff received the injuries complained of. The jury returned a verdict in favor of the defendant, and plaintiff appeals and assigns as error, among other grounds, that the court erred in giving instruction No. 5, which in effect told the jury that if they found the parties were engaged in a joint enterprise there could be no recovery. Instruction No. 5 is as follows:

"The defendant has pleaded in his answer that he and the plaintiff were engaged in an joint enterprise at the time and place of the accident. In this regard you are instructed that, if there be a community of interest in the objects and purposes of the undertaking and an equal right to govern the movements and conduct of each other in respect thereto, then the enterprise would be a joint enterprise under the law. If you find from a preponderance of all the evidence in the trial that plaintiff and defendant were engaged in a joint enterprise, then plaintiff cannot recover and your verdict will be for the defendant."

In instruction No. 4 the court told the jury if they found plaintiff was merely the invited guest of the defendant then in that case the defendant "was bound to exercise due and reasonable care in the operation of said automobile for the safety of the plaintiff, and not to do any act that would increase or create any unnecessary danger; and if you find * * * the defendant was negligent and careless in the operation of the car, * * * your verdict shall be for the plaintiff."

From these two instructions it is plain that the jury were told that the plaintiff could recover if he were merely an invited guest of the defendant, but that he could not recover if he and the defendant were engaged in a joint enterprise.

The defendant pleaded and now insists that the plaintiff and the defendant were, at the time, engaged in a joint enterprise or common undertaking, and that any negligence of the defendant would be imputed to the plaintiff and therefore preclude a recovery in this action.

This case arose before the adoption of chapter 105, Laws 1931, and our decision herein must be controlled by the law existing prior to that act. This act, however, precludes the recovery by a passenger from the driver of an automobile unless the latter was guilty of gross negligence or was intoxicated. Prior to the adoption of the act of 1931, above referred to, it was well settled in this state that a mere guest, at least, may recover against his driver for injuries resulting from such driver's negligence. Judge v. Wallen, 98 Neb. 154, 152 N.W. 318; Jessup v. Davis, 115 Neb. 1, 211 N.W. 190; Toliver v. Rostin, 120 Neb. 363, 232 N.W. 616. "Whether a person riding in the automobile of another is engaged in a common enterprise with the latter is a question for the jury, where it is an issuable fact." Judge v. Wallen, 98 Neb. 154, 152 N.W. 318. And, too, this court has said: "Except with respect to the relation of partnership, or of principal and agent, or of master and servant, or the like, the doctrine of imputed negligence is not in vogue in this state." Andersen v. Omaha & C. B. Street R. Co., 116 Neb. 487, 218 N.W. 135, and cases cited therein.

We think the case of Jessup v. Davis, 115 Neb. 1, 211 N.W. 190, directly controls this case. In the Jessup case the plaintiff's husband was riding with Davis in the latter's car making a business trip for the purpose of making collections for a bank of which the defendant was cashier, and Jessup had, from time to time, been collecting bad paper for the bank, and at the time they were going to an adjoining county for the purpose of instituting criminal action against the maker of the note owing to the bank. It seems that Jessup had suggested this course and requested that they go in Davis' car. The plaintiff claims that while on this trip defendant Davis lost control of the car and jumped from the car which thereafter overturned resulting in the death of Jessup. Davis, among other things, claimed as in this case, that the plaintiff was, at the time, engaged in a joint enterprise and therefore could not recover. The court gave an instruction to the jury to the same effect as is set forth in instruction No. 5 in the instant case, that is, if the jury found that the parties were engaged in a joint enterprise, "in which each had a financial interest," then...