Bostrom v. Jennings

40 N.W.2d 97, 326 Mich. 146, 1949 Mich. LEXIS 276

• Court: Michigan Supreme Court
• Decided: December 7, 1949
• Docket: Docket 13, Calendar 44,402
• Status: Published

Opinions

Dethmers, J.

Plaintiff, in one action, sues in his own right and as administrator of the estate of his deceased wife to recover for property damage and personal injuries sustained by him and for personal injuries suffered by his wife resulting in her death. His declaration alleges that plaintiff and wife had desired to visit a church in Iowa to which plaintiff, a minister of the Gospel, was considering a call; that plaintiff was to conduct a Sunday preaching service and that he and his wife were to give a mid-week musical concert in the church, proceeds from admission charges to go to plaintiff,- that defendant, who lived in the same Michigan town as plaintiff and wife, desired to visit a college in Illinois.with a view to enrolling as a student; that it was agreed that defendant should ride with plaintiff and wife in plaintiff’s automobile to the college town and thereafter return with them to Michigan and that plaintiff would help defendant gain admission into the college; that plaintiff and defendant alternated in driving the automobile on the trip; that at a certain stage of the journey it was agreed that defendant should drive and that plaintiff then got into the back seat and went to sleep and that thereafter defendant negligently operated the automobile, causing it to become involved in an accident resulting in said injuries and damages.

Defendant moved to dismiss for misjoinder of parties plaintiff. The trial court denied the motion, finding “that the joinder of parties was proper to promote the convenient administration of justice.” CL 1948, § 608.1 (Stat Ann § 27.591). Defendant filed a second motion to dismiss, alleging, among other grounds, misjoinder of parties plaintiff and failure of the declaration to state a cause of action. On the last-mentioned ground the court dismissed plaintiff’s declaration, finding “that the allegations of plaintiff’s declaration disclose a joint-enterprise, principal-and-agent, relationship between plaintiff and plaintiff’s decedent and defendant” and that “by reason thereof no cause of action known to either statutory or common law is stated in said declaration.” The basis of the court’s holding was, of course, that the negligence of.defendant was imputable to plaintiff and his wife as fellow members with defendant of a joint enterprise, barring plaintiff’s right to recovery. Plaintiff appealed.

The accident happened in Illinois. Matters relating to the right of action are governed by Illinois laws. Edison v. Keene, 262 Mich 611; Perkins v. Great Central Transport Corp., 262 Mich 616; Eskovits v. Berger, 276 Mich 536. We take judicial notice of the common law and the books of reports of cases adjudged by the courts of another State which purport to be published under the authority of that State. Slayton v. Boesch, 315 Mich 1.

The statement of questions involved and argument in plaintiff-appellant’s brief do not question, nor does either party brief, the correctness of the trial court’s holding that “the allegations of plaintiff’s declaration disclose a joint-enterprise, principal-and-agent, relationship.” The only reference to this holding in plaintiff’s briefs is as follows:

“We wish to make it clear that we make no claim of error and do not appeal from this holding.”

“The only issue before the court is: Does the relationship of principal and agent, arising from a joint enterprise or otherwise, bar a recovery in an action between the parties? The lower court confined its decision to this point alone and the appeal was taken on this issue alone. It is the only issue properly before this court.”

Under such circumstances is it for this Court to pass on the correctness of the holding? The latter being a procedural question, we seek the answer in Michigan law. See, therefore, Michigan Court Rule No 67, § 1 (1945) ; Strong v. Kittenger, 300 Mich 126; Lakeside Resort, Corp. v. Sprague, 274 Mich 426, Eberts v. Detroit, Mt. Clemens & Marine City Railway, 151 Mich 260; People, for use of Cook, v. Cole, 139 Mich 312. Assume, however, that the question of whether a joint-enterprise, principal-and-agent, relationship existed between the parties is properly before ns. This question relates to the right of action, the substantive rights of the parties, and is governed by Illinois law. Citation of Michigan cases as to what does or does not constitute a joint enterprise is, therefore, to no purpose when applicable Illinois law has been announced by its courts. The declaration in the instant case discloses a joint enterprise within the meaning' of the decision in Brooks v. Snyder, 302 Ill App 432 (24 NE2d 55), in which it was held, when the owner, occupying his car while driven by another, retained the right to exercise control thereof and the ride was for his benefit or the mutual benefit of himself and driver, that they were engaged in a joint enterprise and that the negligence of the driver was imputable to the owner rendering the latter liable to third parties. Be that as it may. Inasmuch as plaintiff, while a passenger, possessed the right of control over his automobile and over defendant as driver thereof and the ride was for the mutual benefit of them both, can the conclusion be escaped that defendant was, at least, acting as plaintiff’s agent in driving the car and that defendant’s negligence would, therefore, be imputed to plaintiff if he were involved in an action by or against a third party? We cannot read the opinions and decisions in Graham v. Page, 300 Ill 40 (132 NE 817), and Gates v. Mader, 316 Ill 313 (147 NE 241), to mean anything other than precisely that. This Court upheld an instruction to that same effect in Parks v. Pere Marquette Railway Co., 315 Mich 38, under facts very similar to those at bar. In Farthing v. Hepinstall, 243 Mich 380, we said, “The rule of joint enterprise in negligence cases is founded on the law of principal and agent. On no other theory could the negligence of the driver be imputable to a passenger.” Consequently, whether we hold that a joint enterprise existed or not, in either event we are confronted with a principal-and-agent relationship and it is of no consequence whether it arose out of joint enterprise or otherwise. It follows that cases applying the so-called joint-enterprise doctrine of imputed negligence are equally in point whether we conclude that the relationship between the parties was that of joint enterprise or ordinary agency. In either event, we are confronted with the question of whether- the negligence of the agent-driver, imputable to his principal, the owner-passenger, in actions by or against third parties, is likewise to be imputed to him in this, his suit against his agent. Was the triál court correct in holding that the acknowledged relationship between the parties bars plaintiff’s right to recover?

What is the Illinois law applicable to this question? Plaintiff cites Chicago P. & St. L. Railway Co. v. Condon, 121 Ill App 440, as controlling. Language in the opinion in that case lends support to plaintiff’s contention that in Illinois the doctrine of imputed negligence has been exploded and that a member of a joint enterprise may recover from a fellow member for damages caused by the latter’s negligence in furthering the objects of the joint enterprise. The facts in that case do not squarely present that question, however, inasmuch as the action was not between members of a joint enterprise, but, rather, by a member against a third party. In the later case of Brooks v. Snyder, supra, the negligence of the driver member of a joint enterprise was imputed to a passenger member, rendering the latter liable to a third party not a member of the joint enterprise. Defendant, in turn, relies on Barnett v. Levy, 213 Ill App 129. In that case the action was between members of a joint enterprise. While reference is made to the rule that the negligence of a member of a joint enterprise is imputable to another member, barring his right of recovery against third parties (citing Beatocage v. Mercer, 206 Mass 492 [92 NE 774, 138 Am St Rep 401]), it is not at all clear from the opinion that the court held that the negligence of a member of a joint enterprise is imputable to another member in actions between them. Bather, the court seems to have affirmed judgment for defendant on the ground that the record contained evidence to support a jury finding that the defendant had not been guilty of negligence and also because of a fatal variance between plaintiff’s pleadings and proofs as to the relationship existing between plaintiff and defendant at the time of the accident, plaintiff having pleaded- a host-guest relationship and proved a joint enterprise.

We are unable to discover that the courts of Illinois have definitely passed on the question before us. The laws of one State do not, of their own force, have effect beyond the limits of that State. The doctrine that all matters relating to the right of action in tort cases are governed by the lex loci delicti depends on comity. When the tort upon which suit is brought in this State occurred in another State and the cause of action arises out of a statute of that State, we have said that, in the absence of the construction of such statute by the courts of that State, we will construe it as we would a like statute of this State. Edison v. Keene, supra; Perkins v. Great Central Transport Corp., supra. Comparably, when a tort action brought in this State is governed by the common or unwritten law of another State and the latter has not been declared by its courts of last resort with absolute certainty, we determine the rights of the parties according to the lex fori. 14 Am Jur, Courts, § 88.

At this juncture plaintiff urges upon us Bricker v. Green, 313 Mich 218 (163 ALR 697), and defendant counters with Parks v. Pere Marquette Railway Co., supra. The Bricker Case did not hold that the negligence of a driver is not imputable to his passenger while they are acting in furtherance of a joint-enterprise or principai-and-agent relationship existing between them. In the Parks Case we said, “The holding in the Brisker Case did not renounce the so-called rule of imputed negligence in cases where the driver of the car was under file control of the injured passenger.” That very theory of control obtains in the joint-enterprise or principal-and-agent relationship. However, the Parks Case is not conclusive of the question now before us because it did not involve a suit between members of a joint enterprise or by a principal against his agent.

Were the question one of first impression in Michigan, we should exámine with interest the decisions of other States which disclose the general rule existing in the country, outside of Michigan, that in actions between members of a joint enterprise the negligence of the defendant member is not imputed to the plaintiff member to bar the latter’s right to recover against the former. For list of cases from other States see annotations in 62 ALR 442 et seq., and 85 ALR 632, 633. The question has been decided in this State, however, contrary to that general rule, in Hopkins v. Golden, 281 Mich 389. It is of interest to note the antecedents to and the course by which this Court arrived at a position at variance with the general rule. In such cases as Farthing v. Hepinstall, supra, and Hanser v. Youngs, 212 Mich 508, we held, as generally held in other jurisdictions, that the contributory negligence of the driver member of a joint enterprise is imputable to a passenger member so as to bar the latter’s right to recover against a third party. Then came Frisorger v. Shepse, 251 Mich 121. in which the plaintiff was the passenger member of a joint enterprise with the defendant driver of an automobile. Suit was against the driver and against his father, who owned the automobile and with whose knowledge and consent it was being driven but who was not a member of the joint enterprise. We there affirmed a judgment on directed verdict for defendants, citing as authority the cases of Hanser v. Youngs, supra, and Farthing v. Hepinstall, supra. No consideration was given by the parties, the court below, or this Court to the question of whether a distinction should have been made between the positions of the defendant father, who was not a member of the joint enterprise, and of the defendant son who was. The Eanser and Farthing Cases were authority for a directed verdict for the former defendant but not for the latter. Thus, the question of liability between members of a joint enterprise, involved in the Frisorger Case, was decided without being considered. This same situation obtained in Johnson v. Fischer, 292 Mich 78, and Bushie v. Johnson, 296 Mich 8. In Eoplcins v. Golden, supra, our opinion was directed chiefly to a consideration of whether plaintiff and defendant actually were engaged in a joint enterprise. Whether a distinction should be made between an action brought by a member of a joint enterprise against a fellow member and an action brought by him against a third party was neither considered nor discussed in our opinion. We appear to have assumed that in the Frisorger Case we had already considered and decided the proposition that the negligence of a member of a joint enterprise is imputable to a fellow member so as to bar recovery by the latter from the former. Thus, in the Frisorger, Johnson, Bushie, and Hopkins Cases we gave effect, by our decisions, to a rule which we had neither considered nor definitely determined.

When a question necessarily involved in a case and answered by our holding was neither considered by the Court no.r discussed in our opinion, the answer thus arrived at is not binding as a precedent. Atwood v. Mayor and Common Council of Sault Ste. Marie, 141 Mich 295; Moinet v. Burnham, Stoepel & Co., 143 Mich 489; Miller v. Village of Birmingham, 145 Mich 470.

As previously noted, in Farthing v. Hepinstall, supra, we said, “The rule of joint enterprise in neg-' ligence cases is founded on the law of principal and agent. On no other theory could the negligence of the driver be imputable to a passenger.” In Grusiecki v. Jaglay, 260 Mich 9, we held an agent liable to his principal for damages resulting to the principal from the agent’s negligent performance of his duties as such. This is in accord with the general rule in this country under which the agent is held liable not only for damages for negligent injury done directly to the person or property of the principal but also for damages to the principal arising from his payment of compensation to third persons for injuries sustained by them as the result of the agent’s negligence. It is to be observed in the latter instance that while the negligence of the agent is imputable to the principal making him liable to third parties, it is not imputable to him so as to bar his right to recover from the agent what he has been required to pay as compensation to such third parties. In this connection see 110 ALR 826 et seq.; 2 Am Jur, Agency, § 274. We, therefore, hold that the negligence of an' agent is not imputable to his principal nor that of, a member of a joint enterprise to his fellow member in an action by the latter against the former. The. contrary rule, given effect but not considered, in Hopkins v. Golden, supra; Frisorger v. Shepse, supra; and Johnson v. Fischer, supra, and referred to in Bushie v. Johnson, supra, is overruled.

Although the trial court adopted a reason erroneous in point of law for ordering dismissal of plaintiff’s declaration, the order will be affirmed if dismissal would have been proper on some other ground advanced by defendant but rejected by the trial court, even though the defendant took no appeal or cross appeal. Township of Pontiac v. Featherstone, 319 Mich 382; Leith v. Citizens Commercial & Savings Bank, 304 Mich 508. Consequently, defendant may properly urge at this time the misjoinder of parties plaintiff as a ground for affirmance of the trial court’s order dismissing. The mentioned statute relied upon by the trial court does not authorize joinder of plural plaintiffs unless their causes of action be joint nor “permit plaintiff to join causes of action in more than one distinct right or capacity.” Jones v. City of Detroit, 277 Mich 272. Plaintiff sued in 2 capacities. His individual cause of action and that in his representative capacity constituted 2 distinct causes of action in no wise joint. Gumienny v. Hess, 285 Mich 411. As such the joinder was improper. See, also, Boman v. Wolverine Power Co., 268 Mich 59. Where there is a misjoinder of parties plaintiff it is proper to permit one plaintiff to be dropped at any stage and thereupon to proceed with the cause. CL 1948, § 612.13 (Stat Ann § 27.665); McPeake v. Grand Trunk Western Railway Co., 242 Mich 676; Dickman v. Endert, 247 Mich 551.

The cause is remanded to the trial court with directions to modify the order dismissing to provide for dismissal of plaintiff’s cause, on the ground of misjoinder of parties plaintiff, unless plaintiff shall, within 30 davs after entry of such modified order, discontinue the case in one of his capacities, either individually or as administrator of the estate of Clara B. Bostrom, deceased, without prejudice to his right to bring a separate and distinct suit in such capacity against the defendant, in which event this cause may proceed and be prosecuted by plaintiff in the capacity as to which he has not discontinued. No costs, neither party having prevailed in full.

Sharpe, C. J., and Bitshnell, Reid, Butzel, and Carr, JJ., concurred with Dethmers, J.