Coleman v. Bent

Beach, J. The only valid reason of appeal by the defendant is that the court erred in setting aside the directed verdicts for the defendant. The second and third reasons of appeal, which question the validity of the reasons given by the court for setting the verdicts aside, are of no avail. Error cannot be predicated on an expression of opinion contained in a memorandum of decision as to the facts or the law of the cause, unless such memorandum be made a part of the finding on appeal. The defendant’s claim is that the evidence shows that the occupants of the defendant’s automobile were returning from a fishing excursion when the collision occurred, and that after the party had reached their destination in Vermont, it was agreed that all current expenses of the trip, including gasolene, oil and garage bills should be shared equally. Other facts claimed are, that the defendant drove his car all the way to Vermont, and back again as far as West Springfield, *530 where he announced that he was tired of driving and that the headlights of passing automobiles affected his eyes; that Mr. Webb and Mr. Coleman volunteered to relieve him, and Mr. Webb took the wheel with some understanding, not carried out, that he should drive as far as. Springfield and that Mr. Coleman should drive the rest of the way; and that the collision occurred between Springfield and Hartford. These are substantially the facts on which the defendant relies as the basis of his claim that the undisputed evidence showed that the defendant was not liable in damages, at the suit of other occupants of the automobile, for injuries due to the negligence of Mr. Webb in operating it. What sort of an arrangement will make the parties to it joint adventurers in the operation of the vehicle in which all are riding, is well settled. The typical case is where two or more jointly hire a vehicle for their common purpose and agree that one of their number shall drive it. In such a case the possession of the vehicle is joint and each has an equal right to control its operation. The better considered cases hold that such common possession, and common right of control, resulting in common responsibility for negligent failure to control, are the ear-marks of the legal relation of a joint adventure in the operation of the vehicle. Cunningham v. Thief River Falls, 84 Minn. 21, 27, 86 N. W. 763; Cotton v. Willmar & Sioux Falls Ry. Co., 99 Minn. 366, 109 N. W. 835; Atwood v. Utah Light & Ry. Co., 44 Utah, 366, 372, 140 Pac. 137; St. Louis & S. F. R. Co. v. Bell, 58 Okl. 84, 159 Pac. 336; Bryant v. Pacific Electric Ry. Co., 174 Cal. 737, 164 Pac. 385; Meyers v. Southern Pac. Co. (Cal.), 218 Pac. Rep. 284; Boyden v. Fitchburg R. Co., 72 Vt. 89,47 Atl. 409. See also Huddy on Automobiles (6th Ed.) § 682; Berry on Automobiles (3d Ed.) § 514; 2 R. C. L., p. 1208, and the elaborate note on imputed negligence in 8 L. R. A. (N. S.) at page *531 628. In the case nearest in point, Derrick v. Salt Lake & Ogden Ry. Co., 50 Utah, 573, 168 Pac. 335, several traveling salesmen, engaged in the course of their business, were riding in an automobile owned by one of them, when one of the party was injured in a collision due, in part, to the contributory negligence of the driver and owner of the car. The undisputed evidence was that all had agreed to share the expenses of the trip including gasolene, oil, tires and wear and tear on the car; and it was held as matter of law that they were joint adventurers and the injured party could not recover. In that case the entire cost of transportation was shared, to the same extent as if they had jointly hired the car. Here, only the cost of gasolene, oil and garage bills, if any, were agreed to be shared. It is still true that the defendant bore the cost of transportation to the extent of furnishing the automobile, and that fact is significant in its bearing upon the question whether the defendant reserved his possession and right to control operation of his car, and upon his correlative responsibility for damage done by its- negligent operation. It is not clear that under the agreement to share current expenses, a majority of the party could have compelled the defendant to entrust the operation of his car to a driver of their own selection; or that if the collision had resulted in nothing more serious than damage to the defendant’s automobile, either of the decedents could have been compelled to contribute toward the cost of repairing it. The fact that the defendant owner drove his car himself, until he felt that it was no longer prudent to do so, is suggestive. Also the fact, which he testified to, that he offered his car for the trip because it was new and he desired to try it out. There was also evidence from which the jury might have found that he invited the decedents to travel in it as his guests, and that the agreement for *532 sharing current expense was an afterthought. Finally, the common purpose of these gentlemen was social rather than economic, and was not necessarily inconsistent with the retention by the defendant of his rights and obligations as owner of his car. We are of opinion that the doctrine of joint adventure, as applied to the operation of a vehicle owned by one of the occupants, ought to be restricted to cases where the common right to control its operation, and the correlative common responsibility for negligence in its operation, is either clearly apparent from the agreement of the parties, or is a logical conclusion from the facts found by the trier. We say this because it appears to us that in some of the cases cited by the defendant the doctrine has been loosely applied. For example, Pinchara v. Pease, 115 Wash. 282, 197 Pac. 49, and Masterson v. Leonard, 116 Wash. 551, 200 Pac. 320, seem to be cases of the assumption of known special risks; and Wentworth v. Waterbury, 90 Vt. 60, 96 Atl. 334, was in fact decided on another ground. For the reasons indicated we hold that the Superior Court did not err in setting aside the directed verdicts for the defendant. In view of this conclusion it is unnecessary to discuss the plaintiff’s bill of exceptions. There is no error. In this opinion the other judges concurred.