Ray v. Kennedy

24 Cal.App.2d 583 (1938) ROBERT H. RAY, Appellant,

v.

JOHN R. KENNEDY et al., Respondents.

Civ. No. 11657. California Court of Appeals. Second Appellate District, Division Two.

January 27, 1938. H. E. Allport for Appellant.

Nourse, Betts & Jones for Respondents. [584]

Crail, P. J.

[1] This is an appeal from a judgment in favor of defendants in an automobile collision case, and the sole question presented by the plaintiff is this: "Is the negligence of the driver of one of two automobiles involved in a collision to be imputed to his passenger on the theory of joint enterprise in a case where the only facts tending to prove joint enterprise were as follows: Both the driver and passenger were employed in the same public garage; the former as a foreman, the latter as helper or mechanic. The foreman, in the course of his employment, received a call to go out and start a stalled car and he told the helper or mechanic to go with him to start the car. They got in the foreman's own car with the foreman driving, and were en route to said job when the collision occurred."

The reply of the defendants is that before the first witness was sworn and throughout the trial the plaintiff took the position and tried the case on the theory that the testimony relating to the question of joint enterprise was such as to present a question of fact to the jury, by handing to the court the following instruction, which the court gave to the jury: "Defendants have alleged that the plaintiffs Ybarra and Ray were engaged in a joint or common enterprise. To constitute a joint or common enterprise such as would bar plaintiff Ray's recovery for his damages, if any, if you find by a preponderance of the evidence that the driver with whom plaintiff Ray was riding was negligent there must be more than a common desire and common method of transportation. There must be a community of interest in the objects or purposes of the undertaking and an equal right 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 and management."