Long v. Carolina Baking Co.

• Decision Date: 23 May 1939
• Docket Number: 14880.
• Parties: LONG v. CAROLINA BAKING CO., Inc., et al.
• Court: South Carolina Supreme Court

3 S.E.2d 46

190 S.C. 367

LONG v. CAROLINA BAKING CO., Inc., et al.

No. 14880.

Supreme Court of South Carolina

May 23, 1939

Hicks & Johnston, of Greenville, for appellants.

Price & Poag and W. A. Bull, all of Greenville, for respondent.

L. D LIDE, Acting Associate Justice.

This is an appeal from a judgment upon a verdict in favor of the plaintiff against the defendants for personal injuries alleged to have been sustained by the plaintiff as the result of a collision between an automobile in which the plaintiff was riding, the same being driven by her husband, Tom Long and a motor truck alleged to have been owned by the corporate defendant and which was being driven by the defendant Haskell Killgore. The case came on for trial before Hon. G. Dewey Oxner, Presiding Judge, and a jury, in the Court of Common Pleas for Greenville County, the trial having been begun on June 30, 1938.

The motion of the defendants for a nonsuit was overruled, as was the motion of the defendant Carolina Baking Company for a directed verdict. The Presiding Judge, however, charged the jury that it was conceded by counsel in the cause that the law with reference to joint enterprise or imputed negligence is controlled by the law of the State of North Carolina wherein the collision occurred, and that hence the negligence, if any, on the part of the driver of the car in which the plaintiff was riding would not be imputed to or chargeable to her. The charge of the Court on this point is the basis of one of the two exceptions on this appeal, it being alleged that under the evidence the question of imputed negligence was one of fact for the jury. There were no other exceptions to the charge, nor was there any exception relating to the admission or exclusion of evidence.

The question thus presented for our decision is Was there any evidence from which the jury could reasonably conclude that the negligence, if any, on the part of the driver of the car in which the plaintiff was riding should be imputed to her?

Since the collision occurred in North Carolina the law of that State is admittedly controlling. The plaintiff submitted to the trial court and introduced in the record the North Carolina cases of York v. York, 1938, 212 N.C. 695 194 S.E. 486, Jernigan v. Jernigan, 1935, 207 N.C. 831, 178 S.E. 587, and Butner v. Whitlow, 1931, 201 N.C. 749, 161 S.E. 389; and although it was agreed that either party might hand up other North Carolina cases, if they wished to do so, there were no other cases submitted, and hence it is conceded that the North Carolina law is to be found in the three decisions submitted. We have, therefore, very carefully considered all of these cases, and in our opinion they establish the following principles:

In order to constitute what is termed in the law a joint enterprise between a passenger in an automobile and the driver, the passenger must have some control or right of control over the vehicle. "A common enterprise in riding is not enough; the circumstances must be such as to show that the passenger and the driver had such control over the car as to be substantially in the joint possession of it."

Perhaps some of the confusion arising on this subject is due to the use of the phrase joint enterprise, which standing alone might indicate that merely because the passenger and the driver were taking the trip with the same end in view, a joint enterprise, in the meaning of the law of negligence, would thus result. "The test of a joint enterprise, however, between the driver of an automobile and another occupant is whether they were jointly operating and controlling the movements of the vehicle. In other words, the passenger as well as the driver must be entitled to a voice in the control and direction of the car. Each must have the control of the means or agencies employed to prosecute the common purpose."

The North Carolina Court in the case of Jernigan v. Jernigan, supra, quotes with approval the following [207 N.C. 831, 178 S.E. 590]: "'*** In order to fix responsibility on a passenger as a joint adventurer, not only must there exist between the passenger and the participant alleged to be responsible for the accident, a common purpose to be served in the use of the car, but there must also be evidence that would warrant a finding that the passenger had the same right as the other to a voice in the management or direction of the vehicle."'

It is, indeed, apparent from the foregoing statement of the law, as we deduce it from these North Carolina decisions, that the Supreme Court of that State is committed to substantially the same general rule which obtains in our own State, and in other jurisdictions. We think it will be found clearly expressed in our case of Funderburk v. Powell, 181 S.C. 412, 187 S.E. 742, 750, where the Court, speaking through Mr. Justice Fishburne, says:

"The general rule was early established that if two or more persons unite in the joint prosecution of a common purpose under such circumstances that each has authority, express or implied, to act for all in respect to the control of the means and the agencies employed to execute such common purpose, the negligence of one in the management thereof will be imputed to the others. Nesbit v. Town of Garner, 75 Iowa 314, 39 N.W. 516, 1 L.R.A. 152, 9 Am.St.Rep. 486. But it does not follow that, because several persons are occupants of the same vehicle, they are necessarily engaged in a joint venture within the rule.

"The first element that must be found to be present before two parties can be said to be engaged in a joint enterprise is, as the very name of the relationship necessitates, that they must have some common purpose of pleasure or profit, and must be acting toward the accomplishment of this purpose at the time when the relationship is sought to be established.

"The cases on the question of joint enterprise are numerous. They are almost wholly concerned with whether, admitting that the driver of an automobile and a person riding with him have a common purpose in making the trip, further conditions exist from which it can be said to appear that the negligence of the driver should be imputed to the passenger. The legal theory upon which such imputation is allowed is that if two parties are engaged in a joint enterprise each is the agent of the other, and each the principal of the other, so as to bring into force the fixed precepts of the law of agency." (Italics added).

The evidence in the case at bar relating to this question is wholly undisputed. The plaintiff's mother and sister resided at Oteen, N. C. On January 3, 1937, Tom Long took his brother Nelson Long and his wife, Mrs. Nell Long, the plaintiff herein, from their home near Anderson, S. C., to Oteen on a visit to Mrs. Long's mother and sister. They also took along with them a colored servant girl. The collision in question occurred on January 4, 1937, upon their return trip.

Mrs. Long testified that they went to Oteen to take the servant girl to her mother and sister and to visit these relatives. These relatives of Mrs. Long wanted to get a servant, and Mrs. Long was naturally interested in helping them in this respect. They had written Mrs. Long and the prospective servant. It further appears that the servant came to see Mrs. Long at her home to get Mr. Long to carry her to Oteen, and that she talked the matter over with Mr. and Mrs. Long, and it was thereupon agreed that they would take her up to Oteen the next day, which was Sunday. And pursuant to this arrangement the trip was made. The car belonged to Mr. Long and was driven by him throughout the entire trip, and Mrs. Long had nothing whatever to do with the driving. She did however, testify that Mr. Long kept this car for his family and that she drove it at times; and any time she wanted it her husband had no objection to her use thereof.

It is quite clear that the only reasonable inference that can be drawn from the evidence is that Mr. Long was taking the trip for the purpose of carrying the servant girl to his wife's relatives, out of his consideration for them, and that his wife...