Jessup v. Davis
| Decision Date | 19 November 1926 |
| Docket Number | 24265 |
| Citation | 211 N.W. 190,115 Neb. 1 |
| Parties | ESTHER M. JESSUP, ADMINISTRATRIX, APPELLANT, v. JOSEPH M. DAVIS, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Adams county: WILLIAM A DILWORTH, JUDGE. Reversed.
REVERSED.
I. E Montgomery and James & Danly, for appellant.
Stiner & Boslaugh and Dressler & Neely, contra.
Hall Cline & Williams, W. C. Fraser, F. Hird Stryker and Brogan, Ellick & Raymond, amici curiae.
Heard before MORRISSEY, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ. GOOD, J., ROSE and DAY, JJ., dissenting.
This action was brought by Esther M. Jessup, as administratrix of the estate of her deceased husband, Ursa S. Jessup, to recover damages for his death, alleged to have been caused by the negligence of defendant in so operating his automobile, while her husband was riding therein as an invited guest, as to cause the car to skid and overturn, thereby inflicting fatal injuries on Mr. Jessup.
In the answer it is admitted that while Mr. Jessup was riding with defendant in his car it overturned, and that Mr. Jessup received injuries which caused his death. Defendant denies that he was negligent, and alleges that the accident and resulting injuries were caused by the negligence of Mr. Jessup in grasping the steering wheel of the car and suddenly changing its course, thereby causing it to overturn. It is further alleged in the answer that plaintiff and defendant were both engaged in a joint enterprise at the time, and that because of such fact plaintiff is not entitled to recover. The issues of fact were submitted to a jury. Defendant had the verdict and judgment. Plaintiff appeals.
The pertinent facts out of which this controversy arises may be summarized as follows:
On June 26, 1922, Mr. Jessup and defendant, in the latter's Cadillac touring car, left Hastings, Nebraska, over the D. L. D. highway, intending to go to Clay Center, Nebraska. While driving eastward at a speed of from 30 to 40 miles an hour, defendant, on nearing an intersecting highway, observed another automobile traveling south at a moderate rate of speed, somewhat nearer to the intersection than the defendant. When defendant first observed the other automobile he was driving on the south or right-hand side of the traveled highway. In order to avoid a collision, he turned slightly to the left, applied his brakes, and passed to the rear of the south-bound car. The course of defendant's car was then changed slightly so as to head directly east and on the north or left-hand side of the traveled portion of the road. After having safely passed the intersection a distance of 25 or 30 feet, his car seems to have turned abruptly to the south, almost at right angles, and to have overturned, and Mr. Jessup received injuries from which he shortly afterwards died.
The acts of negligence complained of are that defendant was driving at an unlawful and reckless speed, particularly at the intersection of the highway, so that he lost control of his car; that he jumped from his car, leaving it without a driver and without any one to control it, and that, as a consequence, the car skidded and turned over. The evidence as to whether defendant jumped from the car at the intersection and before it overturned is in conflict. Defendant testified that he remained in the car until it overturned; that Mr. Jessup, sitting on the right-hand side of the car, without warning, suddenly grasped the steering wheel and turned it so as to turn the car abruptly to the right, thereby causing it to overturn. After the accident Mr. Jessup was unable to talk and died the next day without making any statement as to how the accident occurred. One C. J. Moger, who was on the highway about 300 yards north of the intersection and driving toward it at the time of the accident, testified that defendant jumped from the car at or near the northeast corner of the intersection. A number of witnesses, who examined the scene of the accident immediately after it occurred, testified that the tracks made by defendant's car showed that just before it entered the intersection it was traveling in a northeasterly direction; that the brakes had been applied so as to cause the wheels to lock and drag for a distance of from 50 to 65 feet; that this dragging mark extended about two-thirds across the intersection and did not thereafter appear, which would indicate that the brakes had been released. The highway was graded and there was a wide, shallow ditch on either side of the highway. Defendant's car at no time left the graded portion of the road, but as it passed over the intersection in going east it was very close to the north edge of the graded portion of the road, and only a few inches from the shoulder of the grade.
It is further disclosed that the defendant was the cashier of the Exchange National Bank of Hastings; that for a year or more Mr. Jessup had from time to time been collecting bad paper for the bank; that immediately prior to the accident he had been endeavoring to make collection on a note, secured by a chattel mortgage, and had ascertained that the maker of the note had disposed of the mortgaged property. Apparently, the maker of the note lived in Clay county. Mr. Jessup and defendant, at the time of the accident, were en route to Clay Center for the purpose of instituting a criminal action against the maker of the note for disposing of the mortgaged property. It appears that Mr. Jessup suggested this course as a means of enforcing collection on the note. It is also disclosed that Mr. Jessup had planned, prior to this time, to go to Clay Center, and had arranged with defendant, cashier of the bank, to accompany him, for the purpose of swearing to a criminal complaint. On previous trips Mr. Jessup had used his own automobile, but on the morning in question he stated to defendant that he did not have his car with him, that his wife was using it, and asked defendant if he could take his automobile to which defendant assented.
Plaintiff complains of the court's fifth and seventh instructions to the jury, wherein they were informed that, if the drive to Clay county was made at the request of Jessup, and if Jessup and defendant had joint control over the movements of the automobile and were engaged in a joint enterprise, in which each had a financial interest, then any negligence of defendant would be imputed to Jessup and preclude any recovery by plaintiff. The instructions may be correct as abstract propositions of law. The facts, however, do not warrant the inference that defendant and Jessup had a joint financial interest in the drive, or that they had a joint control over the movements of the car. It is true, both were desirous of going to Clay Center. Jessup was a gratuitous passenger. Both, in a sense, may have had some interest in the object of the trip, but it was not a joint financial interest. If the bank's note had been collected, Jessup would have received a commission; the bank would have received the benefit by the collection of its note, and defendant, as a stockholder, might have received an indirect benefit, but this does not constitute a joint enterprise in driving the car, within the meaning of the law of negligence. Defendant, not Jessup, was in control of the car. Jessup had no authority over defendant and no authority to direct the movements of the automobile. Defendant was a private, gratuitous carrier and, as such, owed Jessup the duty to exercise ordinary care in the operation of the automobile, and would be liable in damages if his failure to exercise such care was the proximate cause of injury to his passenger. From the evidence, the jury might have found that defendant jumped from the car while it was in motion, and that because the car was left without any one to control its movements it overturned and inflicted the injuries which caused the death of Mr. Jessup. We do not doubt that these facts would warrant a finding of actionable negligence.
There is a marked discord in the reported decisions as to what is necessary to constitute a joint enterprise, as applied to the law of negligence, and also as to what is essential to impute to a person riding in an automobile the negligence of the driver in the operation of the machine.
In Lochhead v. Jensen, 42 Utah 99, 129 P. 347, plaintiff was riding in the rear seat of an automobile as an invited guest. The car was overturned, and the passenger met her death. In an action brought against the owner and driver, it was held that, since the passenger was exercising no control over or direction of the operation or handling of the machine prior to the time it was overturned, defendant's negligence in the operation of the machine could not be imputed to the decedent.
In Crescent Motor Co. v. Stone, 211 Ala. 516, 101 So. 49, it was held: "Parties are not engaged in a joint enterprise within the law of negligence, unless there is a community of interest in the objects or purposes of the undertaking and an equal right to direct and govern the movements and conduct of each other in respect thereto.
"Driver's negligence cannot be visited on a passenger, whether for reward or not, unless passenger has charge or control of vehicle or driver."
In Cunningham v. City of Thief River Falls, 84 Minn. 21, 86 N.W. 763, it was said: "Parties cannot be said to be engaged in a joint enterprise, within the meaning of the law of negligence, unless there be a community of interest in the objects or purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other with respect thereto."
This court, in Kepler v. Chicago, St. P., M. & O. R. Co., 111 Neb. 273, 196 N.W. 161, held: "One who is injured in a railroad crossing...
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