Isabella Campbell v. John K. Campbell

• Decision Date: 18 October 1932
• Parties: ISABELLA CAMPBELL v. JOHN K. CAMPBELL
• Court: Vermont Supreme Court

162 A. 379

104 Vt. 468

ISABELLA CAMPBELL v. JOHN K. CAMPBELL

Supreme Court of Vermont

October 18, 1932

May Term, 1932.

Joint Enterprise---Doctrine Inapplicable to Parties to Enterprise---Automobiles---Gross Negligence Need Not Be Alleged or Proven by Passenger for Hire---Contract of Hiring---Question Not Raised Below.

1. To constitute joint enterprise within meaning of law, parties must have community of interest in object and purpose of undertaking, and equal right to direct and govern movements and conduct of each other in respect thereto.

2. In ACTION OF TORT for personal injuries sustained by plaintiff in automobile accident, motion for directed verdict on ground that evidence showed that plaintiff and defendant were engaged in joint enterprise, held properly overruled, evidence failing to show that plaintiff had right to direct movements and conduct of defendant, but tending to show that plaintiff was passenger for hire.

3. Doctrine of joint enterprise does not apply in actions between parties to joint undertaking or venture, since theory upon which doctrine is founded is that associates in enterprise are partners, or each is agent for others, in either view one being liable for his torts committed against another associate.

4. In action of tort for personal injuries sustained by plaintiff in automobile accident, where plaintiff was passenger for hire, it was not necessary to allege or prove gross negligence.

5. Where it appeared from evidence that plaintiff engaged defendant to transport plaintiff and husband in automobile to certain place, plaintiff to furnish sufficient money to cover all expenses incident to trip, and paying him $20 thereon before starting, it could not be held as matter of law that defendant had not contracted to receive pay for such transportation.

6. Question not shown by record to have been raised below will not be considered by Supreme Court, though briefed by party seeking to reverse judgment of lower court.

ACTION OF TORT for personal injuries sustained by plaintiff in automobile accident. Plea, general issue. Trial by jury at the September Term, 1931, Washington County, Sturtevant, J presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Marcell Conway for the defendant.

C O. Granai for the plaintiff.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

SLACK

This action is to recover for personal injuries sustained by plaintiff in an automobile accident. She had a verdict and judgment below, and the case is here on defendant's exceptions.

The plaintiff is the mother of the defendant. Both reside in the town of Barre, Vermont, but not in the same family. She has other children who reside in Hartford, Connecticut. The declaration alleges, in substance, that she desired to visit the latter children, and to that end made an arrangement with defendant to take her and her husband, by automobile, to Hartford and return and for so doing agreed to pay him the expenses incident to the trip, and that she paid him twenty dollars toward such expenses before they left Barre. The undisputed evidence established these allegations. Both the allegations in the declaration and the proof are sufficient to support a recovery for ordinary negligence, but neither would support a recovery for gross negligence.

At the close of the plaintiff's evidence, and again at the close of all the evidence, the defendant moved for a directed verdict on the grounds that the evidence showed that plaintiff and defendant were engaged in a joint enterprise and therefore plaintiff could not recover; that there was no evidence from which the jury could find gross negligence on his part; and that the declaration did not allege such negligence. The motion was overruled, and defendant excepted.

The first ground of the motion cannot avail defendant. To constitute a joint enterprise within the meaning of the law, the parties must have a community of interest in the object and purpose of the undertaking, and an equal right to direct and govern the movements and conduct of each other in respect thereto. Round v. Pike, 102 Vt. 324, 148 A. 283; Loomis et al. v. Abelson, 101 Vt. 459, 144 A. 378; Landry v. Hubert, 100 Vt. 268, 137 A. 97; McAndrews v. Leonard, 99 Vt. 512, 134 A. 710. The evidence failed to show that plaintiff had the right to direct the movements and conduct of defendant in any particular. Moreover, the evidence tended to show that she was a passenger for hire, and, if so, she was not engaged in a joint enterprise with defendant. Bancroft's Admx. v. Cote, 90 Vt. 358, 98 A. 915. Furthermore, the plaintiff claims that the doctrine of joint enterprise does not apply in actions between parties to a joint undertaking or venture. This is the first time that this question has been before this Court. In most of our cases involving the application of this doctrine, including Boyden v. Fitchburg R. R. Co., 72 Vt. 89, 47 A. 409, and Loomis et al. v. Abelson, supra, the action was by one of the parties to the enterprise against a third party. In Round v. Pike, supra, the question of joint enterprise was not raised, and in Landry v. Hubert, supra, McAndrews v. Leonard, supra, and Robinson v. Leonard, 100 Vt. 1, 134 A. 706, the question was not whether the doctrine was applicable in the circumstances, but whether the evidence showed a joint enterprise, and it was held that it did not.

Among the cases from other jurisdictions that support plaintiff's claim are Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 434, 44 A. L. R. 785; Harber v. Graham, 105 N.J.L. 213, 143 A. 340, 342, 61 A. L. R. 1232; Pepper v. Morrill, 24 F.2d 320; O'Brien v. Woldson, 149 Wash. 192, 270 P. 304, 62 A. L. R. 436; Collins v. Anderson, 37 Wyo. 275, 260 P. 1089; Wilmes v. Fournier, 111 Misc. 9, 180 N.Y.S. 860, affirmed 194 A.D. 950, 185 N.Y.S. 958; Bloom v. Leech, 120 Ohio St. 239, 166 N.E. 137.

Bushnell v. Bushnell was an action by a woman against her husband for injuries received in an automobile accident. The court there said: "However, it might have been were the plaintiff suing a third party for injuries due to his negligence in concurrence with that of her husband, here, where she was charging him directly with responsibility for injuries due to his own failure in duty, there was no place for any imputation of his want of care to her, and the sole issues were those having to do with his negligence and her own contributory negligence. The doctrine of joint enterprise was wholly inapplicable to such a situation." This is in line with the law laid down in Shearman & Redfield on Negligence, Vol. I, (6th ed.) par. 65a, where it is said: "The doctrine of imputed negligence is that in certain relations there shall be visited upon the plaintiff the negligence of another concurring with that of the defendant so as to defeat the action. It is peculiar to contributory negligence and can be invoked only where the negligence of another, for which the plaintiff is responsible, besides that of the defendant, proximately contributes to the injury."

In Harber v. Graham the court said ...