LIABILITY FOR INJURY TO PASSENGER IN AUTOMOBILE.

Court of Appeals for Marion County.

#### Charles F. Moore v. Fred W. Almendinger.

Decided, February 21, 1922.

*Negligence*— Passenger *Injured in Collision Between Automobiles— Joint Enterprise*— Imputed *Negligence*— Proximate *Cause*— Charge *of Court.*

The owner of an automobile and a number of other persons arranged to go together to a certain point, for the purpose of hunting frogs. Pursuant to the arrangement they began iheir journey, uhe owner of the car exclusively driving and controlling the latter. While on the way, one of the occupants who was sitting !n the front seat with the driver, received an injury by reason of collision with another automobile. There was no understanding that any of the occupants of the car other than the owner and driver, should have any control over the car, or over the owner of the car in driving it. The occupant so injured brought suit against the owner of the automobile for injuries resulting from the collision. One of the defenses was contributory negligence.

*Held:*That the facts recited concerning plaintiff’s relationship to the automobile in "which he v/as riding and to the owner and driver thereof, have no tendency to prove that at the time plaintiff was injured, he and the owner and driver of the car were engaged in a joint enterprise in the driving of the car, and that it was prejudicial error for the trial court to charge the jury that plaitiff was guilty of contributory negligence, if the negligence of the driver of the car was a proximate and concurring cause of plaintiff’s injuries.

*Justice, Young & Mouser,*for plaintiff in error.

*William P. Maloney,*for defendant in error.

Crow, J.

This is a proceeding in error to reverse a judgment entered on a verdict in favor of defendant in the court of common pleas of Marion county, Ohio.

The petition alleged, and the evidence introduced in behalf of plaintiff tended to prove that plaintiff, his brother and another man arranged to go from the city of Marion, Ohio, several miles distant, in an automobile owned by plaintiff’s brother, to a certain point, for the purpose of hunting frogs. The three *300men entered the automobile and commenced their said journey. Plaintiff’s brother continuously and exclusively drove the automobile from the time it started on the journey until it collided with an automobile owned by defendant and operated by the agent of the latter. Plaintiff was injured as a result of the collision due to alleged negligence of the driver of defendant’s automobile.

There was no understanding that any of the occupants of the automobile in which plaintiff was riding, other than the owner, should or could have any control or right of control over the automobile or over the owner in driving the same, and none of such occupants at any time participated or attempted to participate in the control of the automobile or of the owner in driving the automobile. Two men in addition to the three above referred to, also rode a part of the distance covered by the journey, but their presence is of no moment.

Defendant’s answer was originally a general denial, but during the trial an amended answer was filed, containing admissions of agency of the driver of defendant’s automobile, and a denial of the other averments of the petition, and setting forth that at the time plaintiff sustained his injuries, he and the driver of the automobile in which he was riding, were engaged in a joint enterprise, and that plaintiff’s injuries were caused by the negligence of the driver of the automobile in which plaintiff was riding, directly contributing to the infliction of plaintiff’s injuries.

The trial court charged that if it was proved that plaintiff was engaged in a joint enterprise while riding with the owner and driver of the automobile, when the collision occurred, plaintiff would be bound by the acts of negligence on the part of said owner and operator, and that the negligent acts of the owner and operator of the machine in which plaintiff was riding, would be imputed to plaintiff. But that if plaintiff was not so engaged in a joint enterprise, and was a guest or passenger of the owner and operator of the automobile at the time plaintiff’s injuries were received, then plaintiff was bound only to exercise ordinary care for his own safety.

■Whatever the rule may be in other states, it is settled in Ohio, *301by repeated decisions of tbe Supreme Court, that the independent negligence of one person is not imputable to another person.

Facts may exist which show such a connection as will impose upon a person the consequences of the negligence of another person, but such a result rests on the relation of express or implied agency in the eommittér.

When it is claimed that contributory negligence depends on the agency which -arises out of, or because of, a joint enterprise, the negligence must be directly connected with the subject of the joint enterprise.

If plaintiff in the case before us was, with the driver of the machine in which he was riding, engaged in a joint enterprise, such joint enterprise did not at any time relate to the driving of the automobile, for he merely *rvde*with the driver and other oecup-ants, of the automobile.

Such joint enterprise, if that be a correct designation, was so remote from any negligence of the driver in driving the car, that it could not by any process of reasoning, be lawfully attributable to plaintiff, because, as already stated, the doctrine of imputed negligence does not prevail in Ohio.

There is no conflict between the views here .expressed, and the doctrine of the Kistler case at 66 O. S., 327, syllabus 8, for in that ease, as appears at -page 343, the joint enterprise was in looking and listening for approaching trains. 13 O. C. (N. S.), 125; 25 C. C. (N. S.), 49.

The charge further recites that plaintiff could not recover unless the negligence of the driver of defendant’s automobile was the proximate cause of plaintiff’s injury.

That is clearly erroneous, for the reason that if the driver of the car in which plaintiff was riding, was negligent, and such negligence was, with the negligence of the driver of defendant’s car, the proximate cause of plaintiff’s injury, then plaintiff would be entitled to recover, unless barred by reason of contributory negligence.. It is elementary that two or more persons may be guilty of actionable negligence for which the liability is joint and several, and, of course, it m-akes no difference, that the driver of the car in which plaintiff was riding was not sued herein with defendant.

*302The prejudice of the error of the trial court in this particular, becomes readily apparent when it is borne in mind that plaintiff was thus denied the right to recover if the evidence proved his injuries to have been proximately caused by the concurrent negligence of both the drivers of the two vehicles, forasmuch as defendant by amendment to his answer, and] in offering proof thereunder, made the negligence of the driver of the ear in which plaintiff was riding an issue.

The judgment must be reversed and a new trial awarded for error in charging the matter of joint enterprise, andl in restricting the right of recovery to the negligence of defendant only.

Warden, J., and Chittenden, J. (of the Sixth District sitting in place of Hughes, J.), concur.