Mukasey v. Aaron

438 P.2d 702, 20 Utah 2d 383, 1968 Utah LEXIS 728

• Court: Utah Supreme Court
• Decided: March 15, 1968
• Docket: 11008
• Status: Published

Opinions

TUCKETT, Justice.

The plaintiff commenced this action to recover for personal injuries arising out of an automobile accident. At the time of the pretrial the lower court granted a summary judgment in favor of the defendant and against the plaintiff.

The plaintiff was a resident of the State of New York and the defendant was a resident of New Jersey. The parties were college students and friends. During the summer of 1963 they decided to travel together to the western part of the United States to seek employment and to see the West. After working at various jobs in the states of Utah and Colorado, the plaintiff and defendant decided to proceed to California to visit with defendant’s brother. They proceeded to the city of Denver where they contacted the Atlantic-Pacific Drive-Aways Company which had an automobile to be driven to Los Angeles, California. Mukasey signed a contract with the company and made a $25 deposit pursuant to the terms of the contract. The owner of the automobile was Felix Chevrolet Company of Los Angeles, California, and the Drive-Aways Company at Denver, Colorado, was the agent of the owner in securing a driver to take the automobile to California. One of the provisions of the contract entered into by the plaintiff was as follows:

I have agreed to drive the owner’s car alone, and that I will not pick up passengers, hitchhikers, etc., nor will I use said car for towing or trucking purposes.

The court at the time of the pretrial had before it the depositions of the plaintiff and the defendant which contained the testimony of the parties which would have been submitted to the court or to a jury upon trial of the case. The testimony of the parties is essentially without conflict.

After the plaintiff had taken possession of the automobile from the Drive-Aways Company, the plaintiff and the defendant proceeded on the way toward California. The plaintiff and the defendant agreed that they would share the expenses of the automobile and that they would share the driving of the automobile to Los Angeles. After leaving Denver they proceeded to a place near Huntington, Utah, where they slept in the car over night. The following morning the defendant drove the automobile as they proceeded on their way. The weather was clear and the day was sunny and warm. Visibility was good. As the defendant approached a curve to the left at a speed of approximately 50 miles per hour the automobile left the highway and overturned. Both the plaintiff and defendant were injured. It appears that the accident occurred because either the defendant failed to observe the sharpness of the curve or that he failed to slow the automobile sufficiently to permit the curve to be negotiated with safety.

The plaintiff claims that the defendant was guilty of willful misconduct in approaching the curve at a speed of 50 miles per hour without maintaining a proper lookout and in failing to observe that the curve could not be negotiated at that rate of speed.¹

The trial court was of the opinion that the evidence construed most favorably in support! of the plaintiff’s position would not show that the defendant was guilty of more than simple negligence, and further that there was no issue of willful misconduct to submit to a jury. With this we agree.

The plaintiff further contends that he and the defendant were engaged in a joint enterprise, and that negligence on the part of defendant in the operation of the motor vehicle entitles the plaintiff to recovery without a showing of willful misconduct. We are in accord with the general rule that if the parties were engaged in a joint enterprise that relationship would he sufficient to remove the case from the provisions of the guest statute. We are also in accord with the rule that where the existence of the relationship is an issue the question is one of fact to be determined by the court or the jury as finder of the fact. At the time of the pretrial the testimony of the witnesses was before the court.

The relationship of a joint enterprise generally arises by way of contract.² The restatement of law ³ sets forth the elements which are essential to the establishment of a joint enterprise as follows:

The elements which are essential to a joint enterprise are commonly stated to be four: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

We are of the opinion that the evidence of record viewed most favorably in behalf of the plaintiff would not show that the parties were engaged in a joint enterprise. The testimony would at most show that the parties had agreed to travel to California for the purpose of seeking employment; for the purpose of seeing the western states; and for the purpose of visiting friends and relatives. The evidence fails to show that the object of the journey involved a common business purpose or that a financial or pecuniary interest was involved which is essential to show that the parties were engaged in a joint venture or joint enterprise.⁴

We are of the opinion that the court was correct in ruling that the evidence before it failed to show that a relationship of joint adventure or joint enterprise existed and that there was nothing to submit to a jury. We perceive no errors in the rulings of the court below and its decision is affirmed. Costs to the defendant.

CROCKETT, C. J., and CALLlSTER .and HENRIOD, JJ., concur.

1 . In the trial court tlie plaintiff advanced two contentions which he claimed made Section 41-9-1, U.C.A.1953 (The Guest Statute), inapplicable, viz., (1) that the defendant was guilty of willful misconduct in the operation of the automobile; and (2) that the plaintiff and defendant were engaged in a joint enterprise. The plaintiff’s contentions on appeal are the same. That we do not consider matters not raised by the parties see Hamilton v. Salt Lake County Sewerage Imp. Dist. No. 1, 15 Utah 2d 216, 390 P.2d 235.

2 . Carboneau v. Peterson, 1 Wash.2d 347, 95 P.2d 1043.

3 . Restatement of the Law, Torts, 2d, Section 491.

4 . Hall v. Blackham, 18 Utah 2d 164, 417 P.2d 664; Brody v. Harris, 308 Mich. 234, 13 N.W.2d 273, 155 A.L.R. 573; Churchill v. Briggs, 225 Iowa 1187, 282 N.W. 280.