*1 Michigan Reports. [Dee. 326 BOSTROM JENNINGS. as; Controlling
1. Conflict
of Laws —Automobile
Law
Accident —
Right
of Action.
relating
damages
Matters
injuries
action
resulting
occurring
from an automobile accident
out of the-
governed by
State are
laws of the State where the accident
occurred.
Reports;
2. Evidence —Judicial
Notice —Common Law —Official
Adjudicated
Cases.
Judicial notice is
taken
this State of the common law and
reports
the books of
adjudged by
of cases
the courts of an-
other
purport
published
State which
authority
to be
under the
of that State.
3. Conflict
of Laws —Procedural
Matters —Lex Fori.
Whether
Supreme
or not the
pass upon
Court will
question
appeal
is procedural question
ques-
answer to the
sought
tion is
(Court
of this
67,
law
State
Rule No
1§
[1945]).
[10]
[5]
[6,
[8]
[9]
[1]
[2]
[4]
[5]
[11]
[12]
[15]
[16]
[18]
[11]
7]
When
20 Am
11 Am
14 Am
11 Am
5 Am
ALR
11 Am
38 Am
27 Am
Negligence of driver
Am39
14 Am
3 Am
11 Am
Am Jur,
1077;
Jur,
occupants
Jur, Appeal
Jur,
Jur,
Jur, Courts,
Jur,
Jur,
Jur, Parties,
Jur,
enterprise.
Jur,
Jur, Costs,
Jur,
References
Automobiles,
so
Automobiles,
Evidence,
Conflict of
63 ALR
Conflict of
Conflict of
Negligence,
Husband and Wife,
Conflict of
§
automobile deemed to
§§
tween the to the relates the substantive rights governed parties, by of the and is Illinois law such has been declared thereon. Enterprise 5. Automobiles —Joint — Illinois. joint enterprise Under Illinois law plaintiff between existed minister and plaintiff, car, defendant student where owner of defendant, alternating driver when car became involved in accident parties in Illinois while were en route from plaintiff’s defendant’s destination in Illinois destination, a church in Iowa. 6. States — Territorial Jurisdiction. not, The laws of force, one State do of their own have effect beyond the limits of that State. Comity. 7. Conflict Laws —Torts—Lex Loci Delicti — relating The doctrine that matters all to the of action in tort governed by eases are depends lex loci delicti on com- ity. 8. Courts —Precedents. question necessarily When a involved in by a ease and answered holding Supreme of the Court was neither by considered the Court opinion, nor in its discussed the answer thus arrived precedent. binding is not as a Eights —-Lex Loci Delicti— n 9. Conflict of Laws —Substantive Lex Pori. controlling the lex rights While is not as to substantive fori declared, delicti when lex loci has been the lex fori applied in the of such when it absence declaration is a mat- ter of common the State in law of which the cause of action arose. Negligence Enterprise Principal Agent Imput- 10. —Joint — — Negligence. ed joint enterprise negligence rule cases is founded on agent by the law against and in actions imputed a third pas- driver to the senger relationship. because of such Michigan Reports. [Dec. Enterprise Imputed Negligence
11. Automobiles —Joint — —Over- Decisions. ruled joint enterprise against an- by member of a In an action one agent damages 'when defendant as other member for sustained car, negligence of de- operating latter’s recovery by so as to 'bar imputed is not fendant contrary rule was latter; overruling previous cases in which a given but not considered. effect Appeal 12. Erroneous and Error —Affirmance—Trial Court’s Basis for Correct Result. dismissing plaintiff’s will be af- Trial court’s order declaration notwithstanding adopted reason errone- firmed, trial court doing, where would have point of law for so dismissal ous ground by proper another advanced defendant but re- been though appeal jected by appeal even no or cross the trial court defendant. taken Misjoinder 13. Reviewable — of Parties. Questions Same — ' individually In action husband and as administrator of es- *3 property damage personal of his deceased wife for tate injuries wife, injuries by him for fatal to sus- sustained accident, sought where defendant tained in Illinois automobile misjoinder plaintiff’s of declaration because of of dismissal parties plaintiff declaration failed to state and because of action and trial court dismissed declaration on latter cause ground, plaintiff appealed appeal took no or and defendant appeal from failure to dismiss declaration on former cross may urge misjoinder ground, properly appeal on defendant ground parties plaintiff as for affirmance of order of dis- missal. Joinder—Differing Capacities Single
14. Parties — Plaintiff. joinder not authorize the The statute relative to does joinder plural plaintiffs unless their causes of action be join permit nor to causes of action in more right capacity (CL 1948, 608.1). or than one distinct § 15. Action —Individual—Administrators—Joinder of Causes. arising accident, out of an automobile the husband’s In an action property damage personal injuries of action for cause of action as administrator of his deceased and his cause wife’s injuries for received in the accident are two dis- estate fatal joint (CL 1948, 608.1). in nowise tinct causes of action § Bostrom Misjoinder. Parties — 16. misjoinder parties plaintiff, proper to Where there is a it dropped any stage thereupon to be permit one 612.13). (CL 1948, cause proeeed with the § Preju- Appeal and Error —Discontinuance without 17. Same — dice. Order misjoinder permitting capacities, after tinct aetion estate, dismissing plaintiff’s entry without him to either of modified order in discontinued parties plaintiff prejudice to individually proceed cause is affirmed capacity against discontinue- ease as to one of his capacity unless as administrator bring he not discontinued. shall, on separate within defendant ground of wife’s and dis- days Party Fully of Either Prevail. 18. uosts —Failure appeal where on in aetion neither are allowed No costs fully prevailed. has (Joseph F.), Muskegon; Appeal J. Sanford from (Docket No. 8, 1949. Calendar 13, June Submitted 44,402.) Rehear- December 1949. Decided No. January ing 9,1950. denied ana own Bostrom, Rev. D. his Carl
Case Bostrom, B. of the estate of Clara administrator against Jennings and another for Robert deceased, injuries Discon- in automobile accident. sustained party. Action the other dismissed tinued as to appeals. Plaintiff and remanded. Modified motion. plaintiff. Sorensen, Street & *4 Cochran, R. Burr for defendant. Plaintiff, in in his action, J. one sues Dethmers, as his
own and administrator of estate of property damage wife to recover deceased injuries personal personal sustained him and for injuries resulting wife suffered his her death. alleges plaintiff that His declaration and wife had plaintiff, a visit church to which desired to Iowa [Dec. Michigan Reports. considering Gospel, that call; of the minister Sunday preaching plaintiff service was to conduct a give to a mid-week that he and his wife were proceeds from admis- concert the church, musical charges go plaintiff,- who defendant, to that sion to Michigan plaintiff town and wife, lived in the same college view to en- desired to in Illinois.with a visit agreed rolling defend- student; as a that it was that plaintiff plaintiff’s ride with and wife ant should college town and thereafter return automobile to help plaintiff and that would with them to college; plain- gain defendant into the that admission driving the tiff and auto- defendant alternated stage trip; mobile on the journey that at a certain agreed it was that defendant should drive plaintiff got and that the back then into seat and sleep neg- went to thereafter defendant ligently operated causing automobile, it to be- resulting come in an accident involved in said in- juries damages. misjoinder par
Defendant moved dismiss for plaintiff. ties ing The trial court denied motion, find joinder proper pro
“that the justice.” mote the convenient administration of CL (Stat 27.591). § 1948, 608.1 §Ann Defendant filed alleging, among a second motion to dismiss, other grounds, misjoinder parties and failure of the declaration to state a cause of action. the On ground plaintiff’s last-mentioned declaration, the court dismissed finding allegations plain “that joint-enterprise, tiff’s declaration princi disclose a pal-and-agent, between plaintiff’s decedent “by and defendant” and that rea son thereof no cause action known to either stat utory or common law is stated in said declaration.” holding basis of was, course, court’s plain of.defendant was tiff and his wife as fellow members with defendant *5 v. 151 joint enterprise, barring plaintiff’s right a re- of covery. appealed.
Plaintiff
happened
accident
The
Illinois. Matters re-
lating
governed
of action are
Illinois
Keene,
611;
262 Mich
v.
Edison
Perkins
laws.
Transport Corp.,
616;
Central
262 Mich
Great
Berger,
judicial
Mich
Eskovits v.
276
536. We take
reports
common
notice of the
law and
books
adjudged
the courts of another
which
cases
State
authority
purport
published
to be
under the
of that
Slayton v.
The statement of involved and plaintiff-appellant’s question, brief do not nor does brief, either correctness of the court’s trial holding allegations plaintiff’s that “the declara- joint-enterprise, principal-and-agent, tion disclose only relationship.” holding The reference to this plaintiff’s briefs is as follows: “We wish to it clear make that we make no claim appeal holding.” of error and do not from this only
“The issue before the court is: Does the re- lationship agent, arising from a joint enterprise recovery bar a otherwise, in an parties? action between the lower court con- point appeal fined its decision to this alone only was taken on this issue It alone. is the issue properly before court.” this
Under such
is it
circumstances
for this
Court
pass
holding?
correctness of
The latter
procedural question,
being we seek the answer in
Michigan
See, therefore,
law.
Court Rule
(1945) Strong Kittenger,
§ 67, 1
;
No
126;
300 Mich
Resort, Corp.
Sprague,
Lakeside
274 Mich City
Detroit, Mt.
Eberts v.
& Marine
Clemens
Rail-
way,
People,
before ns. relates This rights parties, is the substantive of the and tion, by governed cases Illinois law. Citation joint or enter to what does does not constitute a as applicable prise purpose no when therefore, to is, by law has been announced Illinois its courts. joint the instant enter declaration in case discloses a prise meaning' within the of the decision in Brooks v. Snyder, App (24 55), 302 Ill in which NE2d occupying car held, it was when the his while owner, by driven another, retained to exercise con trol thereof and the ride was for his benefit or they mutual benefit himself and that driver, joint engaged enterprise neg were that ligence imputable the driver was owner rendering parties. the latter liable to third Be may. plaintiff, passenger, as it Inasmuch as while a possessed of control over his automobile and over defendant as driver thereof and the ride for the mutual benefit both, of them can the con escaped clusion be that defendant was, at act least, plaintiff’s agent ing driving the car negligence imputed defendant’s would, therefore, be if he were involved in an action or against party? opinions a third We cannot read the Page, (132 and decisions in Graham v. 300 Ill 40 NE 817), (147 241), Mader, Gates v. 316 Ill NE anything precisely to mean other than that. This upheld Court an instruction to that same effect in Marquette Railway Parks v. Pere Co., 315 Mich 38, very under facts Farthing similar to those at bar. In Hepinstall, 243 Mich we said, “The rule of joint enterprise negligence cases is founded on the agent. theory law of On no other could negligence pas be driver to a senger.” Consequently, whether we hold that a enterprise existed or in either not, event we are con- relationship principal-and-agent awith fronted consequence it arose out of whether no it is of apply- enterprise It that cases otherwise. follows or imputed joint-enterprise ing doctrine the so-called point equally negligence conclude whether we are relationship parties that of between that the joint ordinary agency. event, In either or with the of whether- are confronted we prin- agent-driver, imputable his against owner-passenger, cipal, the in actions imputed parties, in this, likewise to be to him third against agent. the triál court cor- his Was his suit acknowledged holding that the rect plaintiff’s right to recover? bars between *7 applicable ques the Illinois law to this isWhat Chicago Railway P. & L. tion? Plaintiff cites St. Co. App Language controlling. Condon, 121Ill as 440, opinion support plain in that the case lends in that in the of im tiff’s contention Illinois doctrine negligence exploded puted has been and that a mem may joint enterprise of a recover ber from a fellow damages by negli member for caused the latter’s objects gence furthering joint the enter of prise. squarely present The in that facts case do question, that inasmuch however, as action was joint enterprise, not between members of a but, against party. a member rather, a third In the Snyder, supra, negligence later case of Brooks v. joint enterprise member of the driver of a was im passenger puted rendering to a member, the latter liable to a third not a member of the enterprise. Defendant, relies on Barnett turn, Levy, App 213 Ill 129. In that case the action was joint enterprise. between members of a While refer negligence ence is made to the rule that the of a mem joint enterprise a ber of is to another against barring recovery member, his third Beatocage parties (citing Mercer, 206 Mass 492 [Dee. Michigan Beports. Rep 401]), [92 NE 138 Am St it at all is not opinion from the that the clear court held that negligence a im of a member of putable to another member them. actions between judgment have the court seems to affirmed Bather, for ground con on that record defendant support jury finding evidence to a that the tained guilty had defendant not been also plead plaintiff’s a because of ings fatal variance between proofs existing to the as be tween accident, tionship and defendant the time pleaded- host-guest
plaintiff having rela enterprise. proved joint We are unable to discover courts definitely passed have Illinois on the before us. The laws of one do their not, force, State own beyond have effect trine the limits of that State. doc- relating all that matters to the of action governed by in tort cases loci are lex delicti de- pends comity. upon When the tort which suit is brought in this State occurred another State and the cause of action out arises of a statute we have State, said the absence of the con- that, struction of such statute the courts of that State, we it will construe we would a like statute this supra; Edison v. Keene, State. Perkins v. Great Transport Corp., supra. Comparably, Central when brought governed by tort action in this State is *8 common or unwritten law of another State and the latter has not been declared its courts of last re- certainty, rights sort with absolute we determine the parties according Am of the the lex to Jur, fori. Courts, § 88. juncture urges upon At this us Bricker (163 697), Green, v. 313Mich 218 ALR and defendant Marquette Railway with Co., Parks v. Pere counters supra. negli The Bricker did Case not hold that the gence imputable passenger of a driver is not to his , ,1949] v. -155 are in while furtherance they acting joint-en- or terprise principai-and-agent existing In the Parks them. “The Case between we hold- said, in the Brisker Case the ing did renounce so- imputed negligence called rule cases where the of the car under file control the injured driver That of control obtains very theory passenger.” or rela- principal-and-agent joint-enterprise Case is not conclusive Parks tionship. However, in- now before because it did not question us volve a between of a joint enterprise suit members his against agent.
Were the
one of
question
impression
first
Michi
we
with
should exámine
interest
gan,
decisions
other States which disclose the
rule exist
general
in the
outside of
that
ac
ing
country,
Michigan,
tions between members of a
neg
enterprise
ligence of
defendant member
is not
to
imputed
member
to bar the latter’s
re
to
cover
the former.
For
list
against
of cases from
see
et seq.,
other
annotations
in
automobile it being was not a member driven but who judgment joint enterprise. there affirmed a We citing as au for defendants, verdict directed Youngs, supra, thority the of Hanser v. cases Farthing supra. Hepinstall, No consideration by parties, given or this below, court question should of whether a distinction Court to positions have made between the of the defend been joint en ant who was not a member father, terprise, the defendant and of son who was. The Farthing authority were Eanser and Cases a di rected verdict for former defendant but not for liability the latter. Thus, between joint enterprise, of a members involved the Frisor ger being Case, was decided without considered. Fischer, same situation obtained in This Johnson v. 292 Mich Bushie v. 8. Johnson, 296 Mich In Eoplcins supra, opinion Golden, our was directed chiefly to a of whether consideration actually engaged defendant prise. were in a enter Whether distinction should be made be brought by tween an action a member of en terprise against a fellow member and an action by brought against him a third was neither opinion. appear considered nor in our discussed We Frisorger to have assumed that in the we Case had already proposition considered and decided the joint aof member recovery to a fellow member so as to bar by the latter Thus, from the former. in the Fris orger, Hopkins gave Bushie, Johnson, Cases we by decisions, our effect, a rule which we had definitely neither considered nor determined. question necessarily aWhen in a involved case holding answered our was neither considered opinion, in our Court discussed the answer no.r 157- *10 thus arrived at not as Atwood binding precedent. Mayor Marie, v. and Common Council Sault Ste. of 295; Co., 141 Mich Moinet & Burnham, Stoepel v. 489; Village Birmingham, 143 Mich Miller 145 v. Mich 470. previously noted,
As Hepinstall, Farthing we “The rule supra, said, joint enterprise neg-' cases is founded ligence law of principal On no other agent. could the theory negligence of driver be to a In passenger.” Grusiecki 260 Mich Jaglay, we held an his agent liable to for principal to the damages from resulting principal the agent’s negligent performance of his duties as such. This is in with accord rule this general country under which the agent is held liable not only for damages negligent injury done directly to person property of the but also for damages to the principal from his arising payment of compensation to third persons for sus injuries by tained them as the result of the agent’s negligence. It is to be observed in the latter instance that while agent the negligence of the is imputable to the prin cipal him liable making to third parties, it is not imputable to him so as to bar his right to recover from the what he agent has been required to pay as compensation to such third In parties. this con nection see 110 ALR 826 et seq.; Am Jur, Agency, 274. therefore, We, hold that the § an' of, agent is not imputable to his principal nor that a member of a joint enterprise to his fellow member in an action by latter against the former. The. contrary rule, given effect but not considered, Hopkins Golden, supra; Frisorger v. su Shepse, pra; and Johnson v. Fischer, supra, and referred to v. Johnson, Bushie supra, is overruled. trial
Although the court adopted reason errone- in point ous of law for dismissal of ordering plain- [Dec. Michigan Reports. if dis affirmed the order will be declaration,
tiff’s
ground
proper
have
on some other
missal would
been
rejected
the trial
defendant but
advanced
though
appeal or
even
took no
court,
defendant
Township
appeal.
Featherstone,
Pontiac v.
cross
319 Mich
&
382;
Leith v.
Commercial
Sav
Citizens
ings
Consequently, defendant
Bank,
Sharpe, Reid, C. Bitshnell, Butzel, JJ., concurred J. Dethmers, with Carr, (concurring). J. I concur in the result Boyles, but reached Mr. Justice Dethmers do not sub- some scribe to conclusions. allegations joint- of the declaration, show principal-and-agent relationship, are or a sufficiently opinion. set Mr. out Justice Dethmers’ they
I with the am not accord conclusion joint enterprise prin- or the disclose cipal agent between defendant. governing
In en- this the rules law State, terprise are the laws cases founded on agent partnership. The circum- which stances enterprise, must be shown, to establish responsibility and to establish the of one joint enterprise of a member acts of another have been settled member, former decisions. joint enterprise “To constitute a pas- between a senger and the driver anof automobile within the
meaning negligence, law there must be community operation such a of interest in its as to *12 give equal each an of control. There must be responsibility negligent operation, a common for its responsibility and there can no be common unless there a is common of control. It must be held acting agent that the driver is as the of the other enterprise. members of the The rule of enter- prise negligence cases is founded on the law of agent. theory On no other could negligence passenger. of the driver be to a parties Being enterprise, they the same to are as- possession sumed to have common control and charged the machine. each Otherwise, could not be [Dec. Reports. 326 160 with, negligence necessary the to review the of the other. It is not in which this is cases consid subject many ered. The is cases are discussed and cited in the annotation Keiswetter v. Rubenstein, (235 36).” Hepin Farthing ALR 48 1049 Mich v. Mich stall, 243 380. foregoing upon is based conclusions by
reached
Court in an action
one who was
damages
personal
not a member
for
in-
to recover
jury
joint enterprise.
In
from
members of
holding
liable,
each member
said:
Court
‘joint
“A
adventure’
defined
‘an
association
carry
single
persons
more
of two or
out a
busi-
enterprise
profit.’
Fletcher,
ness
Fletcher v.
206
Mich 153.
Alderton
139 Mich
See, also,
Williams,
present
296.
While, under
state of
law,
not
adventure
courts do
spects
treat a
as in all re-
partnership,
identical with a
contractual
relations of the
tion are so similar and
and nature
their associa-
closely
partnership
akin to a
commonly
rights
that it is
held their
and liabilities
govern part-
are to be tested
the same
that
rules
nerships.”
Rubenstein,
Keiswetter
“The this branch of the grows however, out case, contention de- plaintiff, counsel Mr. Kinsler fendant’s engaged enterprise, in a Mr. Michaels were that ply common bringing getting sup- home their winter’s potatoes; it was violation of the statute light burning, constituting neg- the tail have *13 imputable ligence matter of that, law, pre- and as all, contributory negligence negligence was such ’ * * * recovery. plaintiff’s right cluding undisputed Kinsler and The testimony that Mr. Michaels, shows Mr. day question the were on enterprise, purchasing engaged and that of in a common supply potatoes. bringing winter’s home their accomplished purpose had it nor Its had not been Under when accident occurred. been abandoned negligence Mr. Michaels 'the such circumstances light burning having was tail Beaucage plaintiff. 206 Mass Mercer, In Rep 401), (92 had a that court NE 138 Am St was and it said: it, somewhat similar before “ proceeded ‘The to have trial, however, seems theory engaged upon a common plaintiffs that were enterprise, it in force still joint long the time the accident. So as contributory negligence enterprise was in force the recovery provided either, one would bar a al- scope ways in a matter within the regarded joint agreement; if that is to be meaning then it was cor- the instruction as ” rect.’ there decisions indicate that has been The later requirements determining wavering what the no joint enterprise. In to establish a John- are, order discussing Mich Mach, 10, 16, Court, son the above said: decisions, plaintiff, claimed, however, Mack, “It is engaged passengers joint were in a two other they using fellow were workmen,
venture;
that,
transport
place
them their
tó
of work,
car to
Mack’s
again. There much
home
confusion in
then
authority as what
a conflict of
con-
law
of an
in the use
automo-
stitutes
present- case,
in the
distinctly
however, are
The facts
bile.
that there was no
and show
clear,
belonged
enterprise..
car
to Mack. Plaintiff
*14
[Dec.
Reports.
ovQr
paid
liad no control
it whatever. He
for his
* * *
transportation.
Frisorger
Shepse
In
v.
(251
121), every
Mich
member
the
had
something
of the
management
to do 'with the
and control
enterprise.
parties
equally
All
shared
in the
expense,
agent,
the
rule of
as set
Farthing
Hepinstall,
in
forth
controlling.
v.
“The were not on a common venture or undertaking Draper liability, which relieved be- other, point he cause boys had sole control car and the had no to direct its movements. The clearly Frisorger Shepse, discussed in v. 251 Mich 121.” Laughlin Michigan Freight
In v. Motor Lines (syllabus), 276 Mich 545, Court held: arising
“In action out of accident in where- Ohio, in wife of driver of automobile sued common carrier injuries sustained collision with latter’s truck, engaged held, husband and wife ture adven- operation of automobile under record show- ing expense neither shared the she nor control Pennsylvania returning daughter the car in with Michigan.” from visit with relatives in Again, Hopkins v. Golden, 281 Mich 389, referring quoting after to and Court, from the Farthing, Laugh- Keiswetter, above-mentioned lin said: Cases,
' “Applying foregoing to the facts of the instant parties we that all the find case, go thereto wanted to Michigan. Hopkins, the ‘smelt run’ Beulah, expense Miss Boots his wife and contributed the operating automobile Gol Golden’s defendant of machine and bore the use his contributed den engaged parties depreciation a were All thereon. common benefit and for their mutual single
pleasure; lated transaction. iso venture related to a 206 Mich Fletcher,
Fletcher control and stated, the facts common 153. Under possession assumed. the automobile is to be supra.” Hepinstall, Farthing v. Fischer, Court, 292 Mich
In Johnson relying upon again cases, the above said: *15 each did not sustain to “It clear these is pas- injury the time the the relation of of other equally senger clear It is carrier for hire. guest passenger plaintiff Fischer Mae not a of defendant was guest any was a of more than defendant parties plaintiff were en- The Nettie W. Johnson. beer-drinking fishing enterprise, gaged in a not a profit, for venture, a contest. This was hope pro- pleasure recreation with a of but acquiring spective in for the fish, reward undertaken par- each of the benefit and satisfaction of mutual many fishing It had of the usual incidents of ties. got trip. the It was unfortunate automobile out of injured, parties the were but control, that both of liability in the defendant Mae Fischer this the of liability plaintiff greater the the case no than of is trip. who induced her to take the Nettie W. Johnson undisputed the were evidence, the en- Under plaintiffs gaged in a venture or may not recover.” controlling opinion in The Bushie v. Johnson, foregoing line not out of with 8, Mich is decisions. The said: Court deciding,
“Assuming,
that the
but not
facts of the
joint enterprise,
holding
establish
would
case
su.ch.
'
plaintiff.”
,
the
not benefit
[Dec,
Michigan Reports.
tailing
trip
Ms
were
Iowa
to
Plaintiff'and
wife
purposes.
for their own
The
com
defendant had no
munity
purposes
of interest
in the
for which the
plaintiff
going
only
was
to Iowa. The
connection
trip
which the defendant
with the
he
had
was that
plaintiff
plaintiff’s
was
to ride with
auto
allowed
mobile
Island,
'as far
Rock
drive the
Illinois,
of,
part
automobile a
and that
was
time,
the
help
get
college.
to
fendant
him
admitted
the
expenses,
to
The de
Way
purpose
no
shared the
Ms
going
entirely foreign
Rock Island
the
to'
to
purpose
trip
making
the
Iowa,
the
had no
control
defendant
over the use
the
the
automobile,
route, direction, extent
plaintiff’s trip.
duration of
fact that
defendant was at
time of the accident in control
extent
he
automobile
then
“right
not establish the
In
driver, does
control.”
Marquette Railway Co.,
Parks v. Pere
Nor the fact that does had help get college defendant enrolled plus Rock the fact Island, that defendant was part to drive the automobile thé establish time, joint-adventure, partnership, pEncipal-and- a agent relationship. or á ques-
I think we are in accord that this case the tion whether the facts and circumstances establish joint-enterprise principal-and-agent. or relation; ship is us before for If there decision. was no such between the and the defendant joint enterprise, members of agent joint enterprise, defining as that term is used in our decisions imputing basis the defend- negligence to the ant’s is eliminated from the case. In this case there is no need to overrule involving former decisions Court enter- prise. proper In that connection, it is note ably analyzed, which have decisions been dis- cussed, and overruled Mr. Justice Dethmers were prior handed down our decision in Bricker supra, Green, at a time when this Court adhered imputing passenger to the doctrine of to the in an automobile the driver. When imputed negligence, generally arises, occasion controlling may element those earlier well cases, be
;166 [Dee. Reports. light
reviewed in the of Bricker Green, which case Court said: study
“As a result of our and observation we are long application that in convinced run the of the helpful more harmful than rule is results injustice prevents; than more it and that we should application not continue the invariable of the so- imputed negligence solely merely called rule ground injured person voluntary, that the was a gratuitous passenger in an the driver automobile, guilty which was which awas contribu- ting proximate injury cause anof accident and passenger.” such question The case facts this do involve the liability plaintiff of either the or the defendant party, charging to or either a third another, an action them, negligence. them, with Nor does this question liability case involve the of a third either or the defendant in the instant Case. an This is action owner and against passenger driver, defendant to recover damages alleged negligence for the of the defendant. third-party liability. It does not involve I hold that the facts and circumstances of this case do not es joint-enterprise principal-agent tablish or a rela tionship between the in the case. If that is defining a correct conclusion, our decisions enterprise, agent or the in the limited sense in which that term used in application joint 'enterprise, defining its liability joint of one member a to an damages point swer in to another member, are not in the case at bar. The answer to.the here e negligenc in the involved is Bricker Case. The imputed temporary the defendant driver is not to his passenger, plaintiff.' supra. Bricker v. Green, relationship between this plaintiffdef being endant not that of members of a enter- *18 v. 'Í67 prise, ly, agent, Apparent- or it? "whatis necessary incidents of a master-and-servant relationship lacking. are The do facts not establish employee plaintiff. that the defendant an was nearly relationship Their was more that of a'naked permit, license or where the automobile, owner of an riding while in the allows vehicle, another to' drive it. In the sense here a license used, means “to con- person right something fer on a to do which right he not have the otherwise would do.” 33 p§ Am Jur, “Licenses,” 2, 325. object
“The
a license
is
confer
does not exist without a license.”
v. Peo
Chilvers
ple,
given any permission to do or forbear act; to do something.” may Such a license be either oral or A written. the, example permit upon familiar is an oral to enter particular purpose. lands of another for a Marshall Coyle, Heselschwerdt, 664; 304 Mich Frank Mich 14. involving; indicated,
As before this is not a case liability between the owner of an automobile and Michigan Reports. . [Dec. for the negligence
a third of one who al lowed to drive automobile with owner’s and consent. 256.29 Ann knowledge (Stat CL § 9.1446). between these § beyond has no here the fact legal that, significance under our decision in B richer v. Green, supra, which here, controls of the defendant driver is not owner imputable to who was tem porarily a in his own automobile. passenger
Except herein, as indicated I am in accord with *19 the reached Mr. conclusion by Justice Dethmers the effect that there was of causes misjoinder of and a misjoinder action In parties plaintiff. this case his sues in individual capacity also as administrator of the estate of deceased his wife. There were causes of which were action, joint, joinder and the In improper. éffect, legal under the circumstances case, of this there were D. plaintiffs Bostrom in his own right, —Carl D. Carl Bostrom as administrator estate of Bostrom, Clara B. deceased. Under these circum- joinder is not stances, permitted.
“The plaintiff may in 1 join action, or in law he equity, many causes action as may have * * * against.the defendant, but when there is more than 1 plaintiff, causes of action joined joint.” fnustbe CL 608.1 (Stat Ann 1948, § 27.591). § theOn I stated grounds concur in herein, remand to the trial ing court, affirming .case the order of dismissal unless within 30 days enters a consent to the one dismissal said separate causes, which be" may without .prejudice to bringing a separate suit as to such cause. In the event of such dismissal the present action at law will not be by defeated misjoinder parties (CL 1948, 612.13 Ann 27.665]) [Stat trial § court §. will further, s jurisdiction over retain proceeding Bostrom party having prevailed only each case. No costs, part appeal. this with J., concurred J.
North, Boyles, In re PARKS’ ESTATE.
CLAIM OF CROWE. Family Presumption 1. Work and Labor — Relation — as to Gra- tuitous Services —Rebuttal. alleged implied nursing Where to an contract for care and occupy relation, family housework the presumption that furnishing such service done gratuitously is rebutted showing that when the were party services rendered rendering expected receive, them and the for whom they expected pay, wages rendered were therefor. Nursing Housekeeping Findings—Evi- 2. Same — Services — dence. ' presented in proceeding Under record niece of widower de- *20 nursing cedent’s former wife to recover for housekeeping services rendered decedent for some weeks after his wife finding of died, had trial court that expected deceased had held, pay plaintiff for such contrary services to the clear preponderance of the evidence. Nursing Housekeeping Implied 3. Same — Services — Contract n —Evidence. Niece of widower decedent’s former wife who predeceased had held, by upwards years him of 6 entitled to nursing recover for housekeeping services, where evidence shows that she payment expecting wages rendered such services therefor [1] [4] [5] [2, 58 Am 58 3 Am Jur, Am Am Jur, Jur, Jur, References Appeal Work Work and Work and Error, Labor, Labor, for Points Labor, §§ § § §§ 10. 1196. 13, in Headnotes 15. 27.