Berryman v. Dilworth , 178 Tenn. 566 ( 1942 )

In my opinion, the petition to rehear should be granted and the judgment of the Court of Appeals reversing the trial judge should be affirmed.

The trial judge, among other things, charged the jury as follows: "Now, it is my opinion, and I so charge you, that the plaintiffs in this case were guests in the automobile in which they were riding, guests of the driver."

The Court of Appeals said in its opinion:

"Under the proof in this case we cannot say as a matter of law that the plaintiffs were the guests of Burkhart, or that they and the other occupants of the car were not engaged in a joint enterprise within the meaning of that term as applicable to the law of negligence, so that the contributory negligence of Burkhart, if any, was imputable to the plaintiffs and the other occupants of the car. We think these questions should have been submitted to the jury."

The trial judge was without constitutional power to instruct the jury that plaintiffs were guests riding in the car of Burkhart, if there was any material evidence on which the jury could have found that they, together with Burkhart, were engaged in a joint enterprise. As to the status of plaintiffs on the facts proven on the trial, reasonable minds might differ. The question of whether persons riding in an automobile are engaged in a joint enterprise so that the negligence of the driver will be imputed to the occupants, is a question for the jury, where there exists a conflict in the evidence on the question of whether the occupants were guests, or were engaged in a common enterprise, or where, from the undisputed evidence, different conclusions might be drawn from the evidence on this question.

There is evidence that the occupants of the Burkhart car assembled at the Catholic Club, by prior agreement, for the purpose of eating, dancing and drinking whisky; that the party left the Catholic Club at about 1:00 or 1:30 o'clock in the morning in the car of Burkhart, by agreement, to go to other places of amusement to eat and dance; that the party thereafter visited several roadhouses, and about four or five o'clock in the morning, the party went to a roadhouse south of Memphis, for breakfast; that while traveling at a high rate of speed over a four-lane highway, just after this breakfast, the collision with defendant's car occurred. Burkhart admits having had two drinks of whisky earlier in the night, the other members of the party say that all of them had taken as many as four or five drinks of whisky.

The jury might have concluded from the evidence that all of the occupants of the car, under the circumstances shown in the evidence, were equally interested in the object and purpose of the meanderings from night club to night club and the trip south of Memphis for breakfast, and that all had a right to a voice in the selection of the places to which the party would go and the route and speed of travel.

It is true that Burkhart was the owner of the car and the member of the party actually driving it, but in so doing the jury could have found that he was merely acting as agent for all the other occupants of the car. The fortuitous circumstance that Burkhart was driving the car was not sufficient of itself to change the status of the other occupants of the car into that of guests, if other material evidence showed that their status was that of persons engaged in a common enterprise.

The jury might have found from the evidence that the plaintiffs and the other occupants of the car had confederated together for the purpose of engaging in a night of revelry and thus that a community of interest existed in the objects and purposes of their traveling to and fro over the highways during the hours of the night.

It is uniformly held that a mere guest having no voice indirecting and governing the movements of the automobile cannot be said to be engaged in a joint adventure with the driver within the meaning of the law of negligence, so as to bar recovery from a third party for injuries sustained on account of the latter's negligence, though the one with whom the guest was riding was guilty of contributory negligence. Schwartz v. Johnson,152 Tenn. 586, 280 S.W. 32, 47 A.L.R., 323; Annotation, 48 A.L.R., 1077, 1078.

A different rule applies, however, where the occupants are engaged in a common purpose with right to direct the movements of the car. In 5 Am. Jur., p. 788, it is stated:

"Again, where all the occupants of the car are engaged in the common purpose of a pleasure drive and each might direct themovements or operation of the car, the negligence of the driver is imputed to them in an action to recover damages for injuries against the owner of another car which collided with the one in which they were riding." (Italics ours.)

In the light of the evidence and the applicable law, it was error for the trial judge to charge the jury that plaintiffs were guests in the car of Burkhart. The status of the plaintiffs should have been left for the decision of the jury.