Murphy v. Keating
| Decision Date | 13 January 1939 |
| Docket Number | No. 31877.,No. 31878.,31877.,31878. |
| Citation | 283 N.W. 389,204 Minn. 269 |
| Parties | MURPHY v. KEATING. O'HARA v. SAME. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; Edward Freeman, Judge.
Actions by Grace Murphy and Grace O'Hara against Agnes Keating to recover for injuries sustained in an automobile accident. From judgments in favor of the defendant, the plaintiffs appeal.
Judgments affirmed.
John M. Gannon, of Hibbing, for appellants.
H. A. Frankson, of Hibbing, and Hunt and Palmer, of Duluth, for respondent.
The two negligence cases here for review arose out of an automobile accident that took place in North Dakota, August 15, 1937, on state highway No. 21 between Hettinger and Bismarck. Plaintiff Grace Murphy recovered a verdict for $210, and Miss O'Hara one for $2200. Defendant's motions for judgment notwithstanding the verdicts were granted, and judgments in conformity therewith entered. Each plaintiff appeals therefrom. Miss O'Hara moved for a new trial on the ground of inadequacy of verdict. That motion was denied, and she appeals also from that order. Of course, if the court was right in granting judgment notwithstanding, her motion for new trial need not be considered.
The complaints as originally drawn were in the form usually employed in cases where the guest sues his host for negligently operating an automobile. Defendant pleaded the general issue, alleged contributory negligence, and also pleaded the North Dakota guest statute (Laws North Dakota 1931, c. 184) which provides that there must be gross negligence on the part of the host before liability attached unless the guest pays compensation for the ride. Section 3 of the act defines "guest" as follows: "For the purpose of this Act the term `guest' is hereby defined as being a person who accepts a ride in any vehicle without giving compensation therefor." To meet the effect of the statutory provision relied upon by defendant, plaintiffs amended their respective complaints by alleging that each plaintiff "gave compensation to defendant for plaintiff's right and privilege of riding" in the automobile. When the testimony for plaintiffs was closed defendant asked leave, and the court granted her request, to amend her answers so as to plead joint enterprise, her position being that plaintiffs in seeking to avoid the guest statute had irretrievably established the fact that all parties here involved were engaged in a joint enterprise. The court submitted that issue and the other fact questions involved to the jury, with the result already indicated. So the cases hinge upon the single question of whether the evidence established as a matter of law that there was a joint enterprise.
Taking the testimony of plaintiffs themselves, that being the most favorable to them, we have these facts: Defendant, Miss Keating, plaintiffs, Grace Murphy and Grace O'Hara, and one Frances Tripp were teachers in the public schools of Hibbing. They were long-time and intimate friends. Over a considerable period of time they had conferred together in respect to making a trip to the west coast during the summer for the double purpose of spending their vacation there, also to earn and thereby secure more educational travel credits. The Hibbing school system had theretofore established a rule, operative at the time here material, that where teachers travel, or otherwise gain educational advantages by school attendance, they thereby gain "educational credits"; and as "you go on and gain both educational and travel credits then you are changed in classification * * *" so that when a change of class is made effective "you can also get a raise" in salary. Miss O'Hara testified: "It means every time you can change your class if they are giving raises you can also get a raise." To accomplish the common ends and dual purposes stated, these ladies pooled their interests. They agreed that Miss Keating was to furnish her car, a 1936 Chevrolet (almost new as it had only been run a little over 7000 miles and was in first-class condition). She was also to pay the cost of minor repairs of the car and its accessories such as tires, etc., and was to bear the burden of general wear and tear of the car on the trip. The other three ladies were to share equally the gasoline and oil expense and garage rent. Plaintiff O'Hara, Miss Tripp, and defendant were experienced and competent drivers. Miss Murphy was not. So, to equalize amongst themselves the burdens and duties incident to the trip, Miss Murphy was to keep track of baggage and finances. She was the bookkeeper and treasurer, and to all appearances did her work in excellent shape. Each paid her own share of hotel bills, meals, and the like. The driving of the car was originally planned to limit each driver to 100 miles when another would take her place. Later that plan was changed so that instead of driving 100 miles per shift each was to drive an hour and was then to be relieved by one of the other ladies.
As we have seen, the parties were anxious to secure a change of scenery and to get relaxation and rest, as well as to acquire educational values and definite credits in the school system by reason of this trip. Everything ran along smoothly and agreeably. Each had and freely exercised a voice in the driving arrangement; in making and completing the plans for the trip, and in making changes as to route, places to stop and to visit during the trip itself. Their purposes, route, places to visit, and final destination were common. There was no conflict amongst them; nor was any one of them placed in a position of superiority over another. They were democratically governed in fact if not in name.
Miss Tripp was driving at the time of the accident, which occurred on the graveled highway hereinbefore mentioned. While going down a six per cent grade, there being some rather loose gravel and a flat tire having developed, Miss Tripp lost control of the car and it turned over. The two plaintiffs and defendant as well were injured, Miss Tripp so badly that she died later.
The present actions are predicated upon the negligence of Miss Tripp; that her negligence was chargeable to defendant as the owner of the car; and that her liability exists under the doctrine of respondeat superior. For defendant it is urged, and the court by its order determined as a matter of law, that upon the facts related the parties were engaged in a joint enterprise; hence that Miss Tripp's negligence was as much attributable to and chargeable against plaintiffs, the other occupants of the car, as to defendant.
1. There are two elements customarily required by the courts to establish joint enterprise, namely, (1) a mutual undertaking for a common purpose, and (2) a right to some voice in the direction and control of the means used to carry out the common purpose. This is well illustrated in Cunningham v. City of Thief River Falls, 84 Minn. 21, 27, 86 N.W. 763, 765: (Citing authorities.) And this rule has been followed in our subsequent cases. The same rule prevails elsewhere, as in Stearns v. Lindow, 63 App.D.C. 134, 70 F.2d 738, 740, where the court used this language: "To constitute joint enterprise in such a case there must be not only joint or community interest, but also an equal right express or implied to direct and control the management and movement of the car." Also in point are Noel v. Lapointe, 86 N.H. 162, 164 A. 769; 5 Am.Jur., Automobiles, § 501. In Restatement, Torts, § 491, Comment g, p. 1277, the rule is stated thus:
2. It is generally held that the control required is the legal right to exercise such control. It does not necessarily require that there be actual physical control. Crescent Motor Co. v. Stone, 211 Ala. 516, 101 So. 49; Howard v. Zimmerman, 120 Kan. 77, 242 P. 131. Hence it has been held that it makes no difference that a passenger did not know how to drive and as such had no opportunity to exercise actual physical control. See Miles v. Rose 162 Va. 572, 585, 175 S.E. 230, 235, where the court said:
3. While ownership of the car is an important circumstance and leads to a strong inference that the passenger has been invited...
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