39 Haw. 474 | Haw. | 1952
This is an action in tort brought by the plaintiff against the defendant for damages suffered by the plaintiff in a collision between his automobile and the automobile of the defendant while it was being negligently driven by a third party in the absence of the defendant. The theory of the amended complaint on which any liability of the defendant depends is predicated on the doctrine of common or joint enterprise whereby the negligence of one joint adventurer is imputable to the others. At the close of trial the defendant made a motion for a directed verdict which was denied. After the cause was submitted on the issue of common or joint enterprise the jury returned a verdict against the defendant. Defendant then made a motion for judgment nonobstante veredicto which was denied. Like disposition was made of her subsequent motion for a new trial. Judgment was entered in accordance with the verdict and from that judgment the instant writ of error is sued.
Of the defendant's thirty-six assignments of error and specification of thirteen errors only those challenging the denials of her motions for a directed verdict and for judgmentnon obstante veredicto need be considered for the purpose of this opinion. They present but one question of law. That question is whether there is sufficient evidence to have justified submission of the case to the jury on the issue of common or joint enterprise, or whether on that issue the evidence is sufficient to support the verdict. *476
The pertinent facts of the case are not in dispute. The defendant, the third party, three other adults and two minor children rode in the defendant's automobile to the beach for a pleasure trip and outing at the suggestion of one of the other adults who, as a licensed driver of the defendant's choice, drove the automobile with the defendant's consent and, without prearrangement, purchased oil and gas for it on the way. Neither the defendant nor the third party was a licensed driver. When the party arrived at the beach, the defendant and one of the adults left the automobile and dispersed along the beach to gather seaweed. The same adult who had driven the automobile to the beach then drove it with the rest of the group further along the beach and parked it. He left the automobile and went fishing with a net. The third party left with him to watch him fish. The other adult remained in the automobile with the children. While fishing, the adult who had driven the automobile requested and prevailed upon the third party to drive it back and pick up the defendant and the other adult who were gathering seaweed. On being so requested and prevailed upon, the third party drove the automobile but before he reached his destination the collision with the plaintiff's automobile occurred. At the time of the collision the defendant obviously was not an occupant of the automobile. Nor did she even know that the third party was driving her automobile until it approached her and she saw him in it immediately before the collision.
The rights and liabilities of members of a joint enterprise are governed, in general, by rules which are similar or analogous to those which govern the corresponding rights and liabilities of members of a partnership, except as they are limited by the fact that the scope of a joint enterprise is narrower than that of the ordinary partnership. (Eastern Iron and Metal Co. v.Patterson,
In applying these principles to the facts of this case, it is apparent that the relation of common or joint enterprise at no time existed between the defendant and the third party from the inception of the trip to the beach up to and including the accident in which the plaintiff was injured on the third party's side trip at the beach. During the trip to the beach the defendant, the third party and three other occupants sat in the back seat and the other two occupants sat in the front seat. Neither the defendant nor the third party was in any position to assume control of the operation of the automobile or to act for the other in controlling, directing and governing its operation while it was being driven by a qualified driver of the defendant's choice, as it was throughout the trip. Consistent with these circumstances, the evidence is undisputed that the third party merely went for the ride as a guest of the defendant. Nor were their activities and association anything more than social or above the level of a host and guest relationship. No reasonable inference arises from any fact or circumstance or from any combination of facts and circumstances *480 in this case that the defendant and the third party undertook any contractual obligation to be chargeable for the negligence of each other. Nor is there the remotest suggestion of the existence of any contract which gave an equal right to direct and control each other's conduct in respect to the operation of the automobile on the trip to the beach. Obviously, there is even less indication of such a contract with respect to the side trip at the beach when the third party, in the absence of the defendant and without her knowledge, drove the automobile and negligently caused the injury to the plaintiff.
At the crucial time of collision and injury the automobile of the defendant was not a subject of common command, in so far as the defendant was concerned. She and the third party were entirely disassociated from each other's company and their separate activities obviously were not those of joint adventurers. Each was acting independently of the other, one walking along the beach and the other driving the automobile in exclusive control of its operation. No mutual agency or other basis exists for the rule of joint enterprise in negligent cases. Thus the essential, and perhaps the primary, element of joint control is completely lacking under the facts of this case, there being not even a scintilla of evidence reasonably tending to present an issue of, much less to prove, a common or joint enterprise between the defendant and the third party in controlling, directing and governing the operation of her automobile at the time of the collision or at any other time. In correlation, a mere joint interest in the objects and purposes of the trip to the beach does not suffice to invoke the doctrine of common or joint enterprise. Nor does a mere common purpose to enjoy the varied advantages of a pleasure outing at the beach, including the ordinary ones of fishing, gathering seaweed and swimming. The question as to the sufficiency of the evidence is answered in the negative. *481
Judgment reversed and cause remanded below with instructions to enter a new judgment against the plaintiff and in favor of the defendant consistent with this opinion.