Lawrason v. Richard , 172 La. 696 ( 1931 )

The facts of this case are stated fully in the original opinion herein handed down, and still more fully in the opinion of the Court of Appeal (129 So. 250), and it would serve no good purpose to state them again for a third time. Suffice it to say that plaintiff was riding in defendant's car at his (defendant's) express or implied invitation, and that plaintiff had no control whatsoever over the manner in which defendant drove the car. In fact, plaintiff could not, even if he would, have communicated with the driver. That defendant was driving at an excessive rate of speed over an unknown road on a dark and rainy night, and continued at the reckless speed even though warned by other occupants of the car. And it was not negligence on the part of the plaintiff to accept defendant's invitation or offer of transportation, since plaintiff was ignorant of the dangerous character of the road and had no reason to suppose that defendant would drive at other than a safe rate of speed and in a careful manner.

On the facts of the case the judgment of the Court of Appeal is correct. And of that this court had no doubt from the beginning.

The case, however, was ordered up on the hypothesis that plaintiff and defendant were engaged in a joint enterprise, and that the acts of the one party were the acts of all, of which none could complain.

In this we were in error; there is no joint adventure, in the sense that the occupant of an automobile is equally liable with the driver unless there be also equal right to control the operation of the automobile. 42 C.J. 1179, § 957; Berry on Automobiles (6th Ed.) § 644.

Moreover, the doctrine of joint liability because of joint adventure has no application between the parties but only as concerns third parties, the theory of joint liability being based on supposed agency. And there can be no doubt that a negligent agent is liable to his principal unless the latter be also at fault. Cf. Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785; Collins v. Anderson, 37 Wyo. 275, 260 P. 1089; Wilmes v. Fournier, 111 Misc. Rep. 9, 180 N.Y.S. 860.

Decree. Our former decree is therefore set aside, and it is now ordered that the judgment of the Court of Appeal be affirmed, at defendant's cost in all courts.

BRUNOT and ODOM, JJ., dissent.