Jessup v. Davis, No. 24265.

CourtSupreme Court of Nebraska
Writing for the CourtEBERLY
Citation211 N.W. 190,115 Neb. 1
Docket NumberNo. 24265.
Decision Date19 November 1926
PartiesJESSUP v. DAVIS.

115 Neb. 1
211 N.W. 190

JESSUP
v.
DAVIS.

No. 24265.

Supreme Court of Nebraska.

Nov. 19, 1926.



Syllabus by the Court.

In jury trials, plaintiff and defendant, alike, are entitled to have the issues of fact, presented by the pleadings, submitted to the jury without the introduction of extraneous evidence that may mislead them or divert their minds from a consideration of evidence pertinent to the real issues.

Where the owner of a private motor vehicle gratuitously carries another person therein as a passenger, he owes such passenger the duty of exercising ordinary care in the operation of the vehicle, and will be liable in damages if his failure to exercise such care is the proximate cause of injury to his passenger.

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 and purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other in respect thereto.

Instructions to a jury that are inapplicable to the proved facts, and which are calculated to, and probably do, mislead the jury, will, ordinarily, constitute reversible error.

Ordinarily, it is error for the court in its instruction to assume the existence of a material fact as to which there is a conflict in the evidence.

“Where a plaintiff in a personal injury action seeks by appropriate interrogatories on the cross-examination to discover whether the defendant is indemnified from loss by an insurance company, it is error for the court to sustain an objection to interrogatories which tend to develop the fact on that question.” Miller v. Central Taxi Co., 110 Neb. 306, 193 N. W. 919, reaffirmed and promulgated as a rule of practice.


Appeal from District Court, Adams County; Dilworth, Judge.

Action by Esther M. Jessup, administratrix of the estate of Ursa S. Jessup, deceased, against Joseph M. Davis. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Good, Rose, and Day, JJ., dissenting.

[211 N.W. 190]

I. E. Montgomery and James & Danly, all of Hastings, for appellant.

Hall, Cline & Willimas, of Lincoln, W. C. Fraser, Hird Stryker, and Brogan, Ellick & Raymond, all of Omaha, amici curiæ.


Dressler & Neely, of Omaha, and Stiner & Boslaugh, of Hastings, for appellee.

Heard before MORRISSEY, C. J., and ROSE, DEAN, DAY, GOOD, THOMPSON, and EBERLY, JJ.

EBERLY, J.

[1][2] 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.

[211 N.W. 191]

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 joint

[211 N.W. 192]

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...

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53 practice notes
  • FW Woolworth Co. v. Davis, No. 187.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 6, 1930
    ...contrary, see Robinson v. Woolworth Co., 80 Mont. 431, 261 P. 253; Howard v. Marshall Motor Co., 106 Kan. 775, 190 P. 11; Jessup v. Davis, 115 Neb. 1, 211 N. W. 190, 56 A. L. R. 1403; Wells v. Morrison, 121 Or. 604, 256 P. 641, where the facts came before the jury incidentally, but contrary......
  • Curtis v. Ficken, 5850
    • United States
    • United States State Supreme Court of Idaho
    • November 30, 1932
    ...facts may be developed by such cross-examination tending to show that the defendant is protected by insurance. (Jessup v. Davis, 115 Neb. 1, 211 N.W. 190, 56 A. L. R. 1403, and note, pp. 1439-1543; Skoug v. Minton, 145 Wash. 119, 259 P. 15; Cozad v. Raisch Improvement Co., 175 Cal. 619, 166......
  • Fielding v. Publix Cars, Inc., No. 29514.
    • United States
    • Supreme Court of Nebraska
    • March 13, 1936
    ...where such proffered evidence is not relevant to any material issue in the case. 2. The rule of practice promulgated in Jessup v. Davis, 115 Neb. 1, 211 N.W. 190, 56 A.L.R. 1403, and heretofore followed by this court, to the effect that plaintiff may, in a personal injury action, by appropr......
  • Atlanta Coach Co v. Cobb, No. 9660.
    • United States
    • Supreme Court of Georgia
    • February 20, 1934
    ...request made In this case may collide with decisions by some other courts, it is supported by the weight of authority. Jessup v. Davis, 115 Neb. 1, 211 N. W. 190, 56 A. L. R. 1403. This question is fully annotated in 56 A. L. R. 1418 et seq. See, also, 35 c. J. 394, and case notes in L. R. ......
  • Request a trial to view additional results
53 cases
  • FW Woolworth Co. v. Davis, No. 187.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 6, 1930
    ...contrary, see Robinson v. Woolworth Co., 80 Mont. 431, 261 P. 253; Howard v. Marshall Motor Co., 106 Kan. 775, 190 P. 11; Jessup v. Davis, 115 Neb. 1, 211 N. W. 190, 56 A. L. R. 1403; Wells v. Morrison, 121 Or. 604, 256 P. 641, where the facts came before the jury incidentally, but contrary......
  • Curtis v. Ficken, 5850
    • United States
    • United States State Supreme Court of Idaho
    • November 30, 1932
    ...facts may be developed by such cross-examination tending to show that the defendant is protected by insurance. (Jessup v. Davis, 115 Neb. 1, 211 N.W. 190, 56 A. L. R. 1403, and note, pp. 1439-1543; Skoug v. Minton, 145 Wash. 119, 259 P. 15; Cozad v. Raisch Improvement Co., 175 Cal. 619, 166......
  • Fielding v. Publix Cars, Inc., No. 29514.
    • United States
    • Supreme Court of Nebraska
    • March 13, 1936
    ...where such proffered evidence is not relevant to any material issue in the case. 2. The rule of practice promulgated in Jessup v. Davis, 115 Neb. 1, 211 N.W. 190, 56 A.L.R. 1403, and heretofore followed by this court, to the effect that plaintiff may, in a personal injury action, by appropr......
  • Atlanta Coach Co v. Cobb, No. 9660.
    • United States
    • Supreme Court of Georgia
    • February 20, 1934
    ...request made In this case may collide with decisions by some other courts, it is supported by the weight of authority. Jessup v. Davis, 115 Neb. 1, 211 N. W. 190, 56 A. L. R. 1403. This question is fully annotated in 56 A. L. R. 1418 et seq. See, also, 35 c. J. 394, and case notes in L. R. ......
  • Request a trial to view additional results

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