Clemens v. O'BRIENClemens v. O'BRIEN
We here deal with the controversial doctrine of automobile tort law generally known as joint enterprise or joint venture — a rule apparently not the subject of discussion in any reported New Jersey case since Fisch v. Waters, 136 N.J.L. 651 (Sup. Ct. 1948).1 The occasion is an appropriate one for clarification and evaluation — at least in relation to the issue of imputing the negligence of an automobile driver to a passenger to bar the latter‘s action against a negligent third person.
On February 2, 1961 plaintiff Martha D. Clemеns was a passenger in the front seat of an automobile owned and driven by her husband, plaintiff Harold O. Clemens, when that automobile and one operated by defendant collided at a T-intersection. Mrs. Clemens was injured as a result, and she here appeals a judgment entered for defendant on a jury‘s verdict.
We need not detail the circumstances оf the accident except to say that in our judgment a jury could have found either or both of the drivers negligent. At the time of the accident plaintiff and her husband were en route to his place of employment; it was their intention, upon getting there, for her to take the car and drive to her own place of employment. At the end of the day she would pick him up with thе car for the homeward journey. This was their daily routine.
The action was originally instituted in the Superior Court but was transferred to the Morris County District Court pursuant
The court‘s general charge to the jury included an instruction “that if the plaintiff Harold Clemens [he does not appeal], was determined * * * to be guilty of contributory negligence, that act of contributory negligence was to be imputed to Mrs. Martha D. Clemens as a matter of law.” The asserted error in the quoted portion of the charge is the gravamen of this appeal. The court had already charged the jury generally on negligence, contributory negligence and other subjects appropriate to the case. While the Agreed Statement of Proceedings before us does not so indicate, the parties advised us at the argument that the purported basis for the court‘s quoted instruction was the “joint enterprise” rule and that the subject arose for the first time in the trial in the course of argument of plaintiff‘s motion to relieve the jury of the issue of plaintiff‘s contributory negligence. Plaintiff did not formally objеct to the charge when made. She later, however, made a timely motion for a judgment notwithstanding the verdict or for a new trial on damages alone or alternatively on liability and damages. The motion was denied.
Because of our conclusion on the merits, we are passing plaintiff‘s preliminary argument that joint enterprise should not have been сharged because not encompassed by defendant‘s plea of contributory negligence. But we think the better practice would have been specifically to plead the defense, as joint enterprise involves imputed negligence while contributory negligence signifies actual negligence. Defendant, for his part, urges that the allegеd error in the charge should not be taken cognizance of on this appeal because not objected to below. However, we gather from the oral argument that plaintiff‘s counsel expressed his disagreement with
While there are multifarious judicial variations on the general theme, a common statement of the joint enterprise or joint venture rule in automobile negligence law is that where two or more persons are riding in a car in the course of prosecution of a common purpose or object and the passenger or passengers have an equal right to be heard as to the manner in which the car is operated (sometimes stated as “an equal right to direct and govern the movement and conduct of each other” in relation to the journey аnd the operation of the vehicle) there is a mutual agency and the driver‘s negligence will be imputed to the passengers to bar their recovery from a negligent third person where the negligence of both drivers concurred to cause the accident. 8 Am. Jur.2d, Automobiles and Highway Traffic, § 679, p. 230; Prosser, Law of Torts, § 65, pp. 363-366 (1955); 2 Harper and James, The Law of Torts, § 23.2, at p. 1268 et seq. (1956); Weintraub,2 “The Joint Enterprise Doctrine in Automobile Law,” 16 Cornell L.Q. 320, 325 (1931).
Implicit in the decisions applying the joint enterprise doctrine as a separatе and distinct concept is that it adds something to the independent, subsisting principles that the negligence of an agent is imputable to his principal, that of
The narrow issue presented on the present appeal is easily disposable within the conventional formulation of the joint enterprise doctrine. The trial court was wrong in charging the jury as it did because there was here proof of neither a common purpose or object in the trip nor of an equal right to control the method of operation of the car.
As to the requisite of common purpose, the marital relationship of the driver and passenger, standing alone, is irrelevаnt. 8 Am. Jur.2d, op. cit., supra, § 680, p. 233; Virginia Transit Co. v. Simmons, 198 Va. 122, 92 S.E.2d 291 (Sup. Ct. App. 1956); Brubaker v. Iowa County, 174 Wis. 574, 183 N.W. 690 (Sup. Ct. 1921); cf. Peskowitz v. Lawrence F. Kramer, Inc., 105 N.J.L. 415 (E. & A. 1929). Apart from the natural interest which any spouse has in the activities of the other, plaintiff and her husband were not engaged in this journey for any common purpose or pursuit within the contemplation of the joint enterprise rule. She was going to her job; he to his. See Buss v. Robison, 255 S.W.2d 339 (Tex. Civ. App. 1952); Van Glidden v. Gugel, 220 Wis. 612, 265 N.W. 706 (Sup. Ct. 1936); Allen v. Clark, 148 Neb. 627, 28 N.W.2d 439 (Sup. Ct. 1947) (members of car pool).
Insofar as the conventionally essential factor of right of control in the plaintiff ovеr the car is concerned, there is an utter absence of proof here. See Tischler v. W.J. & S.R.R. Co., 110 N.J.L. 473 (E. & A. 1933); McGinley v. Winters, 110 N.J.L. 540 (E. & A. 1933); Ceccomancino v. D‘Onofrio, 111 N.J.L. 494, 500 (E. & A. 1933). Here the husband owned the car. During the portion of the trip then in progress, so far as anything to the contrary here appears, the husband was the sole repository of control of the car or of the right of control or operation. Compare Fisch v. Waters, supra (136 N.J.L. 651), whеre the wife-passenger owned the car, and the barring of her action appears to have been rested ambivalently on conventional agency as well as on joint enterprise; but see infra.
It is plain, then, that on these facts and the common understanding of the application of the doctrine of joint enterprise, it was not only erroneous to hold plaintiff barred as a matter of law by her husband‘s contributory negligence, if any, but there was an absence of any evidentiary basis to submit the issue to the jury. The error in the charge was clearly prejudicial, as it may well have been the determinative reason for the jury‘s adverse verdict.
However, we think it advisable to lay a broader basis for our determination. It is manifest that the development of negligence law by our highest courts in recent years points in the direction of a salutary spread and broadening of the social burden of accident-caused loss. See Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29, 47-48 (1958); Taylor v. N.J. Highway Authority, 22 N.J. 454, 470 (1956); Pangborn v. Central Railroad Co. of N.J., 18 N.J. 84, 100-103 (1955); Long v. Landy, 35 N.J. 44 (1961); McAndrew v. Mularchuk, 33 N.J. 172 (1960); Bozza v. Vornado, Inc., 42 N.J. 355 (1964); Faber v. Creswick, 31 N.J. 234 (1959); Smith v. Brennan, 31 N.J. 353 (1960); Duffy v. Bill, 32 N.J. 278, 291-293 (1960); cf. dissent in Koplik v. C.P. Trucking Corp., 27 N.J. 1, 13 (1958). Furtherance of that public policy makes desirable the elimination of imputed contributory negligence as a bar against recovery by an innocent passenger against the operator of another car whose negligence has concurred in causing injury to the passenger and consequent loss and damage unless there is a sound reason not
The joint enterprise rule was never the common law of England. Its rise in this country was based on the notion of a special kind of mutual agency arising from a “pro hac vice” partnership (see Yanco v. Thon, 108 N.J.L. 235, 238 (Sup. Ct. 1931)) between fellow-travellers when the attendant circumstances and the common purpose of their trip were thought to justify the inference of an equal voice in the сontrol and direction of the conveyance being used. Prosser, op. cit., supra, § 65, p. 366. But the artificiality of the idea of mutual agency when it is postulated on nothing more than the setting of an automobile journey by persons with a common social purpose in making the trip, is starkly exposed when
Further demonstrating the ideological infirmity of the rule as generally articulated is the irrelevance of the purportedly essential prerequisite of equal right of control and direction in the passenger. As was pointed out by Weintraub in the article сited above, the passenger‘s so-called right of control is almost never discussed in the joint enterprise cases in terms of a duty of control or breach thereof, and the fact that the exercise or refusal to exercise the right of control does not bear any causal relationship to the accident or injury does not affect imрutation of the driver‘s negligence under the aegis of joint enterprise. Op. cit., supra, at p. 334. Thus, a control criterion appropriately relevant only in the assessment of the existence of a master-servant relationship is curiously made the fulcrum of imputed negligence even where that relationship is not found to exist. Id., at pp. 335-336. Compare Porter v. Wilson, 357 P.2d 309 (Wyo. Sup. Ct. 1960), inveighing against imputation of negligence where ”actual control” (emphasis by the court) of the vehicle is solely in
The law of joint adventure or joint venture is not soundly applicable to raise a mutual agency between persons making a trip for mutual social purposes, since a joint adventure is by dеfinition an association for commercial or profit-making purposes, not social purposes. It was so held in Edlebeck v. Hooten, supra, and imputation to the passenger of the driver‘s negligence was there denied on that ground. In New Jersey, too, a joint venture is defined as a “special combination of two or more persons where in some specific venture, a profit is jointly sought without any actual partnership or corporate designation.” Wittner v. Metzger, supra (72 N.J. Super., at p. 444). The legal concept of a true joint adventure is thus a spurious basis for the “mutual agency” generally theorized to support imputed negligence in the automobile joint enterprise cases.
The New Jersey decisions appear to recognize оr give lip service to the joint enterprise rule as conventionally stated, but, with the exception of the former Supreme Court case of Fisch v. Waters, supra, we find none the actual result of which was to bar an automobile passenger‘s action for the imputed negligence of his driver in a social “common-purpose” situation. The rule was held inapplicаble for failure of the facts to show a right of control or direction in the plaintiff-passenger in Ceccomancino v. D‘Onofrio, Tischler v. W.J. & S.R.R. Co. and McGinley v. Winters, all supra. It does not obtain as between coemployees en route from one place of work to another. Gifford v. Pennsylvania R.R. Co., 119 N.J.L. 397 (E. & A. 1938). The references to the rule in such cases as Harber v. Graham, 105 N.J.L. 213 (E. & A. 1928), and Yanco v. Thon, supra, were merely to deny its pertinence in actions by the passenger against the driver. There are other passing allusions to the rule in some of our reported cases which do not actually apply it in bar of a passenger‘s action. See, for еxample, Loeb v. Cook, 110 N.J.L. 417 (E. & A. 1933). In Petrilla v. Public Service Co-ordinated Transport, 9 N.J. Misc. 1178, 157 A. 89 (Sup. Ct. 1931), affirmed o.b. 109 N.J.L. 350 (E. & A. 1932), and Consolidated Traction Co. v. Hoimark, 60 N.J.L. 456 (E. & A. 1897), the facts suggested a possible business relationship of the passenger and driver, and the courts sustained charges to the jury which conditioned imputation of the driver‘s negligence to the passenger on the actual existence of a mutual business purpose being prosecuted at the time of the accident.
As indicated above, thе doctrine of joint enterprise was apparently one of the bases for appellate sanction of a trial ruling against a passenger in Fisch v. Waters, supra (136 N.J.L. 651). The plaintiff was riding in a car owned by her and driven by her husband. They were en route to an office in Newark for the purpose of arranging to bring their European relatives to this country when their car collided with that of the defendant. The trial judge found both drivers negligent and denied plaintiff recovery by imputing her husband‘s negligence to her on the joint enterprise doctrine. In affirming, the former Supreme Court distinguished such earlier cases as the McGinley and Ceccomancino decisions, cited above, on the ground that there the “passenger was not the owner of the car and there was no question of agenсy” (at p. 652). In the case before it, the Fisch court mentioned the standard procedural rule as to the presumption of operation of a car on the business of its owner, but without alluding to the counter-vailing effect of the proof there adduced that the driver-husband had a personal objective in making the journey.
We cannot subscribe to the reasoning or result in the Fisch case, even were we to assume acceptance of the jоint enterprise rule generally. First, the ownership of the vehicle by the wife did not per se establish or even tend to establish her control or right of control of its operation and direction at a time when her husband was actually driving it. Johnson v. Los Angeles-Seattle Motor Express, Inc., 222 Or. 377, 352 P.2d 1091, 1094 (Sup. Ct. 1960); Porter v. Wilson, supra. Of
In summary, we find no comрelling basis for a determination that this State is bound to any rule barring a faultless automobile passenger‘s action against a negligent third person on the basis of imputation of the driver‘s negligence, by mere reason of their common interest in the purpose of their trip or any supposed shared right of control of the vehicle by the passenger, absent true agency of the driver for the passenger either on ordinary principles of agency or employment or arising out of a partnership or business joint adventure between the passenger and driver, and the trip‘s being taken in the course of the business. Being convinced that the Supreme Court of this State would not today apply any such rule of imputеd negligence we reject it for purposes of determination of this case, now or on the remand. Compare State v. Chiarello, 69 N.J. Super. 479, 496-502 (App. Div. 1961), certification denied 36 N.J. 301 (1962).
Reversed and remanded for a new trial.