Clark v. Janss

BARNARD, P. J. The plaintiffs were injured in a collision between an automobile in which they were riding, and which was driven by Marie Clark, and another car owned by the defendant. In this action for damages the court found that the collision occurred as a result of negligence on the part of the defendant and contributory negligence on the part of Marie Clark. From a judgment for $1139.50 in favor of the plaintiff Marjorie Clark, the defendant has appealed.

[525]The sole ground of appeal is that, as a matter of law, the negligence of Marie Clark must be imputed to Marjorie Clark since the undisputed evidence conclusively shows that the two plaintiffs were engaged in a joint enterprise.

It is well settled in this state that in order to constitute a joint enterprise in such a case as this it is not sufficient that the parties in question have a common purpose and a common destination, but the one to whom negligence is sought to be imputed must have exercised control over, or have had the legal right to control, the actions of the other in the driving of the car. (Pope v. Halpern, 193 Cal. 168 [223 Pac. 470]; Kelley v. Hodge Trans. System, 197 Cal. 598 [242 Pac. 76]; Wessling v. Southern Pac. Co., 116 Cal. App. 455 [3 Pac. (2d) 25]; Rogers v. Goodrich, 131 Cal. App. 245 [21 Pac. (2d) 122]; Collins v. Graves, 17 Cal. App. (2d) 288 [61 Pac. (2d) 1198]; Moore v. Franchetti, 22 Cal. App. (2d) 75 [70 Pac. (2d) 492]; Peccolo v. City of Los Angeles, 8 Cal. (2d) 532 [66 Pac. (2d) 651].) In Wessling v. Southern Pac. Co., supra, the court said: “The true rule in this state, as we understand it, is that where there is nothing in common between the passenger and the driver of the vehicle except a common destination and a common purpose in going there the negligence of the driver is not to be imputed to the passenger but the passenger must control or have some legal right to control the actions of the driver in the operation of the vehicle.” In Collins v. Graves, supra, in discussing this rule, it is said:

“The circumstances must be such as to show that the occupant and the driver together had such control and direction over the automobile as to be practically in the joint or common possession of it. ‘Parties cannot be said to be engaged in a joint enterprise, within the meaning of the law of negligence, unless there 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.' ”