Schwartz v. Johnson

• Decision Date: 13 February 1926
• Docket Number: (No. 22.)
• Citation: 280 S.W. 32
• Parties: SCHWARTZ v. JOHNSON.
• Court: Tennessee Supreme Court

Page 32

280 S.W. 32

SCHWARTZ v. JOHNSON.

(No. 22.)

Supreme Court of Tennessee.

February 13, 1926.

Certiorari to Court of Civil Appeals.

Action by G. Schwartz, as administrator, against Jeff D. Johnson, Sr. Judgment for defendant was affirmed by the Court of Appeals, and plaintiff petitions for certiorari to review that judgment. Certiorari denied.

Walter S. Dugger, of Memphis, for plaintiff.

W. P. Armstrong, of Memphis, for defendant.

GREEN, C. J.

The defendant Jeff D. Johnson, a citizen of Memphis, was the owner of an automobile which he permitted his son Jeff D. Johnson, Jr., to use. The younger Johnson, a boy about 20 years old, was out in the car with Edward Schwartz, another boy about the same age. The Johnson boy was driving the car, and there was a collision between this car and a truck, by which the Schwartz boy was killed. This suit was brought by the administrator of Edward Schwartz, seeking to hold the elder Johnson liable for negligence of the younger Johnson in the operation of the automobile resulting in the death of young Schwartz.

The trial judge submitted the case to the jury, and there was a verdict for defendant. From a judgment founded on this verdict, the plaintiff took the case to the Court of Appeals and assigned several errors on the charge. The Court of Appeals found it unnecessary to consider these errors. That court was of opinion that a directed verdict should have been ordered for the defendant below, that plaintiff was not entitled to recover on any theory of the case, and that therefore any errors in the charge were immaterial. Plaintiff has filed a petition for certiorari to review the action of the Court of Appeals.

The two young men, Edward Schwartz and Jeff D. Johnson, Jr., got together in the afternoon about 4 o'clock. They were riding around in the car, drinking whisky, visiting picture shows, and otherwise enjoying themselves until about 10 o'clock at night. At that time, while driving along a street not very well lighted, at a high rate of speed, the Johnson boy operating the car, it ran into a truck. The Johnson car was overturned, young Schwartz killed, and young Johnson injured. There is no dispute about the facts. Young Johnson testifies that he and the Schwartz boy had taken about twelve drinks of white corn whisky each during the time they were together on the day of the accident, and the testimony of others is that both boys were intoxicated to a considerable extent.

The Court of Appeals was of opinion that the boys were engaged in a joint adventure, and that for this reason, as well as the contributory negligence of the Schwartz boy in getting into an automobile operated by a drunken man, there could be no recovery, and that there should have been a directed verdict for defendant.

We doubt if this is a case of joint enterprise in which the negligence of the driver of the car in respect to its operation could be imputed to his companion. The car belonged to the elder Johnson, who allowed it to be used by his son, and the son was running the car. It does not appear that the Schwartz boy was undertaking to direct the operation of the car, or had any authority so to do. A witness who saw the car just before the collision said that Schwartz was sitting at the side of young Johnson, not interfering with the driving of the latter. Other circumstances appear in the proof, which it is useless to detail, and from all of this we are not able to conclude that young Schwartz was anything more than the guest of young Johnson, riding in a car of which the latter had full control.

Under such proof, there is no joint adventure. In a joint enterprise, in order to impute the negligence of one of the parties to the other, each must have authority to control the means or agencies employed to execute the common purpose. Nesbit v. Town of Garner, 39 N. W. 516, 75 Iowa, 314, 1 L. R. A. 152, 9 Am. St. Rep. 486; Koplitz v. St. Paul, 90 N. W. 794, 86 Minn. 373, 58 L. R. A. 74.

"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. Each must have some voice and right to be heard in its control and management." Cunningham v. City of Thief River Falls, 86 N. W. 763, 84 Minn. 21.

The foregoing from the Supreme Court of Minnesota has been frequently cited and carried into the text-books, and is, in our opinion, a sound statement of law.

Tested by these rules, the two boys were not joint entrepreneurs. It does appear that, on a previous trip the boys had made, young Schwartz drove the car part of the time. On this occasion, however, we cannot see that...