Maloy v. Taylor, 6459

• Decision Date: 02 December 1959
• Docket Number: No. 6459,6459
• Citation: 346 P.2d 1086,86 Ariz. 356
• Parties: Weldon S. MALOY, Appellant, v. Jess E. TAYLOR and Eva Taylor, his wife, Appellees.
• Court: Arizona Supreme Court

Page 1086

346 P.2d 1086

86 Ariz. 356

Weldon S. MALOY, Appellant, v. Jess E. TAYLOR and Eva Taylor, his wife, Appellees.

No. 6459.

Supreme Court of Arizona.

Dec. 2, 1959.

Rawlins, Davis, Christy, Kleinman & Burrus, and Chester J. Peterson, Phoenix, for appellant.

Anderson & Smith, Safford, for appellees.

ROBERT E. McGHEE, Judge.

The plaintiff below, Weldon S. Maloy, has appealed from the order of the Graham County Superior Court granting the defendants Jess E. Taylor and Eva Taylor, his wife, a summary judgment dismissing plaintiff's complaint for damages arising out of a one-car accident in which the plaintiff was a rider in the automobile of defendant Jess E. Taylor in the State of New Mexico. Since the defendant Eva Taylor is involved only as the wife of defendant Jess E. Taylor, the parties will be referred to as plaintiff and defendant, as in the Court below.

Briefly, the facts are that the parties, residents of Safford, Arizona, had gone to Alpine, Arizona, to purchase jointly a lot upon which to park their individual vacation trailers and construct a restroom. The trip to Alpine was made in defendant's pick-up, which also pulled defendant's house trailer. On part of the journey the road goes through the western part of New Mexico. On the return trip the defendant capsized the pick-up truck in a mountainous area where the road was prepared with gravel prior to paving, causing injury to the plaintiff. The complaint alleged that the defendant 'heedlessly and negligently operated the said pick-up truck in reckless disregard of the rights of the plaintiff * * *.'

The action of the Court was based upon the pleadings and deposition of the parties, which show they had been friends for some years. On occasional automobile trips together their habit had been that if the automobile of one was used, the other would pay for the gasoline. Apparently this was true with respect to this trip, the plaintiff having purchased gasoline and having shared other expenses, such as groceries.

The defendant moved for summary judgment on the ground that the defendant was a guest and that under the terms of the New Mexico Guest Statute the depositions show no cause of action. Defendant's memorandum in support of the motion for summary judgment contended that in New Mexico the owner and operator of an automobile was not civilly liable to the rider if he were a 'guest' within the term of the Act in the absence of heedless, reckless and wanton misconduct. Defendant further argued that the plaintiff did not come under a common exception to the guest acts which permits members of a joint enterprise to recover against each other without proof of the higher degree of negligence required under the guest statutes.

Plaintiff's sole assignment of error is that the Court erred in granting summary judgment because 'There is a genuine issue of fact, namely, whether or not plaintiff and defendant Jess E. Taylor were on a joint venture at the time of the accident.' Defendants in their answer brief set forth the following propositions of law '1. An appeal is limited to the issues and theory presented to the trial court.

'2. Joint venture is properly limited to cases of imputed negligence.

'3. Joint venture requires joint control of the operation and control of the vehicle.'

Although, with certain exceptions, this Court has held to the first proposition of law, we feel that the case should be decided on the third question of joint venture, as this issue was briefed to the Court on the summary judgment issue below, and was first raised by the plaintiff himself. Rubens v. Costello, 75 Ariz. 5, 251 P.2d 306; and cases there cited. We are at loss to understand why plaintiff did not ask to amend his complaint to state the issue formally. The Court below perhaps would have been authorized to grant the motion for judgment subject to the right to amend, if it did not in fact decide the case on the question of joint venture. Baxter v. Harrison, 83 Ariz. 354, 321 P.2d 1019.

The New Mexico Guest Statute, N.M. Stats.Ann. § 64-24-1 (1953), is taken verbatim from the guest statute of the state of Connecticut and reads as follows:

'No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner of operator or caused by his heedlessness or his reckless disregard of the rights of others.'

See, Smith v. Meadows, 56 N.W. 242, 242 P.2d 1006.

Since the accident happened in the State of New Mexico, the law of that State governs all aspects of the tort liability. 11 Am.Jur., Conflict of Laws, Sec. 182; 60 C.J.S. Motor Vehicles § 259, note 71(1). Also, American Law Institute, Restatement of the Law of Conflicts of Law, Sec. 378.

The term 'joint venture' or 'joint enterprise' in the law of negligence is synonymous with the term 'the prosecution of a common purpose,' Rodgers v. Saxton, 305 Pa. 479, 158 A. 166, 169, 80 A.L.R. 280, and connotes 'community of interests 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. Each must have some voice and right to be heard in its control or management.' 38 Am.Jur., Negligence, Sec. 237; Weller v. Fish Transport Co., 123 Conn. 49, 192 A. 317.

In West v. Soto, 85 Ariz. 255, 262, 336 P.2d 153, 157, this Court stated that, to constitute a joint venture or enterprise, each of the parties must have

'* * * authority to act for all in respect to the control fo the means or agencies employed to execute such common purpose.'

In the past some courts have held that if one party to a joint enterprise were injured through the negligence of another, the negligence of the party doing the harm was imputed to the other. The modern view seems to be well stated in the case of Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, at page 434, 44 A.L.R. 785:

'He who in the process of a joint enterprise is engaged in operating a vehicle represents, in so doing, all who are associated with him in the enterprise, and, if he is negligent, any of them may look to him for damages upon the same basis as that upon which a principal holds as agent liable for his negligent conduct.'

The New Mexico Supreme Court has followed the general rule that in order for drivers to be held participants in a joint enterprise there must be present the element of voice in the direction of the operation of the car or control over the driver, but has not clearly indicated how far it would go in a situation where there is an agreement to share expenses. Silva v. Waldie, 42 N.M. 514, 82 P.2d 282. The Connecticut Court has stated the essential elements to a joint enterprise:

'These include at least a common purpose, a community of interest in the object of the enterprise, joint possession of the vehicle, and an equal right and authority to control its operation.' Weller v. Fish Transport Co., 123 Conn. 49, 192 A. 317, at page 320.

In determining the legal relationship between the parties under the Guest Statute of New Mexico, we feel that we must keep in mind the purpose of such statutes, as outlined by the Ohio Court:

'The Ohio Guest Act and similar acts in other states were undoubtedly enacted to carry out a policy of social equity to the effect that the owner or operator of an automobile should not be made liable to a guest riding therein to whom the owner or operator is doing a favor or is extending a courtesy, except for wilful or wanton misconduct on his part, and that a guest should assume the risk of ordinary negligence or acts which are less culpable than wilful or wanton misconduct. That being the spirit of the enactment, the motorist should be accorded the status which incurs the lesser liability unless his status is clearly and definitely changed by express consent or by facts constituting acquiescence on his part to a status which entails the greater liability.

'Since the liability of the motorist host to a person riding with him depends pends on the status of the latter, he the latter, has the burden to establish such relationship as entitles him to recover for any injury to himself growing out of the operation of the motor vehicle by the motorist.' Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 89-90, 10 A.L.R.2d 1342.

Although the Ohio case dwells upon an attempt to construe certain contributions toward expense as 'payment' by a passenger to take the transaction out of the contemplation of the terms of the guest act, we feel that the reasoning is just as valid when applied to an attempt to construe the acts of the parties as a joint enterprise, unless it is clearly shown that the parties by their conduct or by mutual understanding had engaged in a joint enterprise.

Plaintiff in his deposition clearly stated that he did not have equal right with the defendant to control the operation of the vehicle, which testimony was affirmed by the defendant, who further stated that when the plaintiff drove his car, the defendant did not exercise control over the plaintiff.

In a California case cited by the plaintiff, Roberts v....