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."
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.
"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 * * * [(1937), 281 Mich. 389] ; Frisorger v. Shepse * * * [(1930), 251 Mich. 121]; Johnson v. Fischer * * * [(1940), 292 Mich. 78, and reconsideration denied (1951), 330 Mich. 491], and referred to in Bushie v. Johnson * * * [(1941), 296 Mich. 8] is overruled."
Plaintiff appeals. The mentioned finding of the trial judge finds support in Hopkins v. Golden, 281 Mich. 389; and Johnson v. Fischer, 292 Mich. 78, in which persons travelling together in 1 automobile on a noncommercial fishing trip were held, as a matter of law, to be engaged in a joint venture for pleasure and recreation with the hope of prospective reward in the acquiring of fish and, in consequence, barred from recovery because the contributory negligence of their coventurer-driver was imputable to them. In Hanser v. Youngs, 212 Mich. 508, the plaintiff, together with the owner of a truck and its driver, went in the truck to get their winter's supply of potatoes.
ified to by them, that they operated an office supply business in the village of Middleville, Barry county, Michigan, and that at the time of the collision between the 2 automobiles said plaintiffs were on a business trip in connection with their operation of this joint business. You are therefore instructed that the 2 plaintiffs in these actions, Jorgen C. Jorgensen and George H. Jorgensen, were in law engaged in a joint venture, and that any negligence of which Jorgen C. Jorgensen was guilty is chargeable to the other plaintiff, George H. Jorgensen. If you find from the evidence in this case that plaintiff Jorgen C. Jorgensen was guilty of any acts of negligence which contributed to this collision in any manner, neither of the plaintiffs can recover in their respective actions and it would be your duty to return a verdict of no cause of action in both of their actions. 5 Berry on Automobiles (7th ed), p 206; Farthing v. Hepinstall, 243 Mich. 380; Frisorger v. Shepse, 251 Mich. 121; Hopkins v. Golden, 281 Mich. 389. "II
Under the undisputed evidence, the parties were engaged in a joint venture or enterprise and plaintiffs may not recover. Hanser v. Youngs, 212 Mich. 508; Farthing v. Hepinstall, 243 Mich. 380; Frisorger v. Shepse, 251 Mich. 121; Schneider v. Draper, 276 Mich. 259; Hopkins v. Golden, 281 Mich. 389. As this disposes of the case, it is unnecessary to pass upon the other errors assigned.
Loux v. Harris, 226 Mich. 315; Rabaut v. Ford Motor Sales Co., 285 Mich. 111. And, as we have seen, the question as to whether Sayen was transporting passengers for hire was one to be submitted to the jury and was determined adversely to appellant, which finding we are not at liberty to disturb. Appellant disclaims liability on the additional ground that the parties were engaged in a joint enterprise, citing several cases including Hopkins v. Golden, 281 Mich. 389. Obviously, this rule is inapplicable in view of the claims and testimony produced by plaintiff to establish a contract of hire between Mosher and Sayen. Based upon that evidence, there was no common control and possession of the machine and community of interest so as to make Sayen the agent of all the other occupants of the car and his negligence imputable to them. Appellant also urges that there was no evidence of negligence on the part of Sayen. Appellant, as a common carrier, owed a duty to plaintiff to exercise a high standard of care. Trent v. Pontiac Transportation Co., Inc., 281 Mich. 586 (2 N.C.C.A. [N. S.] 485).