Wagner v. Kloster

• Decision Date: 20 January 1920
• Docket Number: 32958
• Parties: JOSEPH WAGNER, Appellee, v. THORVALD KLOSTER, Appellant
• Court: Iowa Supreme Court

175 N.W. 840

188 Iowa 174

JOSEPH WAGNER, Appellee, v. THORVALD KLOSTER, Appellant

No. 32958

Supreme Court of Iowa, Des Moines

January 20, 1920

Appeal from Plymouth District Court.--WILLIAM HUTCHINSON, Judge.

ACTION for damages consequent on a collision of automobiles resulted in a verdict for plaintiff and judgment thereon. The defendant appeals.

Affirmed.

Nelson Miller, for appellant.

Kass Bros. & Sievers, for appellee.

LADD J. WEAVER, C. J., GAYNOR and STEVENS, JJ., concur.

OPINION

LADD, J.

I.

At about 5 o'clock in the afternoon of July 22, 1917, Joseph Collins was returning from a picnic on the Floyd River near Carnes. In the back seat of his automobile sat his wife and two daughters. The plaintiff, a brother of Mrs. Collins' rode with him in the front seat; and, as they reached the crest of a hill, in going east, plaintiff remarked to Collins, "there comes a car from the south;" and both observed the defendant's automobile at the top of a knoll on the north and south road, some 15 or 20 rods south of the intersection. With defendant were his son, two daughters, and a friend. As Collins' automobile was passing near the center of the intersecting highways, the right wheel of defendant's car struck the back wheel of Collins' automobile, throwing plaintiff through the windshield, and causing serious injuries to his person. Recovery for damages sustained thereby is sought in this action. The grounds of negligence alleged are that the defendant operated his car at an excessive and careless rate of speed, and that, knowing plaintiff to be in peril, he failed to exercise ordinary care to avoid the collision. The sufficiency of the evidence to carry to the jury the issues as to whether the defendant was negligent in the respects alleged, and plaintiff free from contributory negligence, is challenged. The evidence, without dispute, indicates that plaintiff was the guest of Collins. He was employed by one Bogh as a farm hand, and in the evening previous, both Collins and his wife told him of the picnic, and asked if he would like to go. Upon being assured that he would, they invited him to accompany them home, and ride to the picnic with them. All understood that he was accompanying them gratuitously, as their guest. He neither exercised, nor had the right to exercise, any control over the car, and there is no ground whatever for holding him responsible for the negligence, if any, of Collins. In a sense, they were pursuing a common purpose,--that is, returning from the picnic,--and plaintiff was to be let out at his employer's home. This was merely incidental to the trip, and, as he had no voice in what was done, he cannot be said to have engaged in a common enterprise. As said in Nisbet v. Garner, 75 Iowa 314:

"The law will not create or presume the relation [of principal and agent] from the mere fact that he accepted the invitation of another to ride in his carriage. If he is but the guest of the other, and neither has nor assumes the right to direct or control the conduct of the driver, neither he nor the owner can be regarded as his servant. In such a case, he would not be answerable to a third person for an injury caused by the negligence of the driver, and it seems to us that there is no principle of law upon which such negligence can be imputed to him when it contributes to his own injury."

To defeat the plaintiff's recovery, his relations to Collins, the driver, must have been such as to render the plaintiff in some manner responsible for the acts or omissions of Collins, and these must have been negligent, and have contributed to the injury. In other words, they must have been engaged in a joint venture or common enterprise, in the management of which each was possessed with some authority to control, at least in the respect in question, and to the extent that each, in what he may have done, can be said to have acted for the other. Parties cannot be said to be engaged in a joint venture or common enterprise, within the meaning of the law, unless there be a community of interest in the objects or purposes of the undertaking, and an equal right in each 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. See St. Louis & S. F. R. Co. v. Bell, 58 Okla. 84 (L. R. A. 1917A 543, 159 P. 336). In Withey v. Fowler Co., 164 Iowa 377, 145 N.W. 923, it was said that, to impute the driver's negligence to another occupant of the carriage, the relation between them must be shown to be something more than host and guest. See Cram v. City of Des Moines, 185 Iowa 1292, 172 N.W. 23, for review of decisions on the doctrine of imputed negligence. In Shultz v. Old Colony St. R. Co., 193 Mass. 309 (8 L. R. A. [N. S.] 597, 79 N.E. 873), the court reviewed a great number of decisions from the different states, and reached the conclusion that the rule fairly deducible therefrom is that:

"Where an adult person, possessing all his faculties and personally in the exercise of that decree of care which common prudence requires under all the surrounding circumstances is injured through the negligence of some third person and the concurring negligence of one with whom the plaintiff is riding as a guest or companion, between whom and the plaintiff the relation of master and servant, or principal and agent, or mutual responsibility in a common enterprise, does not in fact exist, the plaintiff being at the time in no position to exercise authority or control over the driver, then the negligence of the driver is not imputable to the injured person, but the latter is entitled to recover against the one but for whose wrong his injuries would not have been sustained. Disregarding the passenger's own due care, the test whether the negligence of the driver is to be imputed to the one riding depends upon the latter's control, or right of control, of the actions of the driver, so as to constitute in fact the relation of principal and agent or master and servant, or his voluntary, unconstrained, noncontractual surrender of all care for himself to the caution of the driver."

In Anthony v. Kiefner, 96 Kan. 194 (L. R. A. 1915 F, 876, 150 P. 524), one Kiefner, who had recently purchased an automobile, invited his mother to ride with him, and, in accepting, she took her place at the wheel, and drove the car for about three blocks. The son then resumed his place, and drove thereafter. Owing to negligence, as was found, on the part of the son, the car collided with another, and caused the death of Mrs. Anthony, and judgment for damages was recovered against the mother, as well as her son. She had informed her son of her desire to stop to get a cake which Mrs. Norris had made for her, and, on the strength of this, the jury found, in response to a special interrogatory, that she had participated in the management of the car by "directing its destination." The court, in disapproving this ruling, said:

"If they had set out on a business errand, to collect cakes or the like, instead of a pleasure ride, or if in executing any common purpose in which both were exercising control, or in any case where one might be said to be the agent of the other, it might be held that there was a joint adventure and joint liability. The call proposed to be made on the trip was a mere incident of the ride and created no more responsibility for the driver's act than if he had been operating a taxicab or some other public conveyance. In no sense did her request create the relation of principal and agent or master and servant between them, nor give the journey the character of a joint enterprise. The fact that an owner of an automobile who has invited a guest to ride with him takes a particular course at the request and for the pleasure or convenience of the...