Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.
We here deal with the controversial doctrine of automobile tort law generally known as joint enterprise or joint venture -- a rule apparently not the subject of discussion in any reported New Jersey case since Fisch v. Waters , 136 N.J.L. 651 (Sup. Ct. 1948).*fn1 The occasion is an appropriate one for clarification and evaluation -- at least in relation to the issue of imputing the negligence of an automobile driver to a passenger to bar the latter's action against a negligent third person.
On February 2, 1961 plaintiff Martha D. Clemens was a passenger in the front seat of an automobile owned and driven by her husband, plaintiff Harold O. Clemens, when that automobile and one operated by defendant collided at a T-intersection. Mrs. Clemens was injured as a result, and she here appeals a judgment entered for defendant on a jury's verdict.
We need not detail the circumstances of the accident except to say that in our judgment a jury could have found either or both of the drivers negligent. At the time of the accident plaintiff and her husband were en route to his place of employment; it was their intention, upon getting there, for her to take the car and drive to her own place of employment. At the end of the day she would pick him up with the car for the homeward journey. This was their daily routine.
The action was originally instituted in the Superior Court but was transferred to the Morris County District Court pursuant
to R.R. 4:3-4. At the end of the entire case the trial court denied a motion submitted on Mrs. Clemens' behalf to strike the defense of her contributory negligence as a matter of law. There was evidence in the case from which, as we see it, the plaintiff could arguably have been found contributorily negligent in failing to warn the driver of the oncoming vehicle of the defendant.
The court's general charge to the jury included an instruction "that if the plaintiff Harold Clemens [he does not appeal], was determined * * * to be guilty of contributory negligence, that act of contributory negligence was to be imputed to Mrs. Martha D. Clemens as a matter of law." The asserted error in the quoted portion of the charge is the gravamen of this appeal. The court had already charged the jury generally on negligence, contributory negligence and other subjects appropriate to the case. While the Agreed Statement of Proceedings before us does not so indicate, the parties advised us at the argument that the purported basis for the court's quoted instruction was the "joint enterprise" rule and that the subject arose for the first time in the trial in the course of argument of plaintiff's motion to relieve the jury of the issue of plaintiff's contributory negligence. Plaintiff did not formally object to the charge when made. She later, however, made a timely motion for a judgment notwithstanding the verdict or for a new trial on damages alone or alternatively on liability and damages. The motion was denied.
Because of our conclusion on the merits, we are passing plaintiff's preliminary argument that joint enterprise should not have been charged because not encompassed by defendant's plea of contributory negligence. But we think the better practice would have been specifically to plead the defense, as joint enterprise involves imputed negligence while contributory negligence signifies actual negligence. Defendant, for his part, urges that the alleged error in the charge should not be taken cognizance of on this appeal because not objected to below. However, we gather from the oral argument that plaintiff's counsel expressed his disagreement with
the applicability of the doctrine of joint enterprise as a defense here when the matter arose in the course of argument below on plaintiff's motion to eliminate the issue of contributory negligence; and so the trial court was presumably aware of plaintiff's position on the point when the charge was delivered. In any event, we are clear that the charge of the trial court was plain error, having manifest capacity for injustice to plaintiff, and should be dealt with on this appeal. See Conroy v. Purcaro , 42 N.J. 120, 123 (1964); cf. Kreis v. Owens , 38 N.J. Super. 148 (App. Div. 1955). Airing the important legal issue presented, will, moreover, be of benefit to the bench and bar.
While there are multifarious judicial variations on the general theme, a common statement of the joint enterprise or joint venture rule in automobile negligence law is that where two or more persons are riding in a car in the course of prosecution of a common purpose or object and the passenger or passengers have an equal right to be heard as to the manner in which the car is operated (sometimes stated as "an equal right to direct and govern the movement and conduct of each other" in relation to the journey and the operation of the vehicle) there is a mutual agency and the driver's negligence will be imputed to the passengers to bar their recovery from a negligent third person where the negligence of both drivers concurred to cause the accident. 8 Am. Jur. 2 d, Automobiles and Highway Traffic , § 679, p. 230; Prosser, Law of Torts , § 65, pp. 363-366 (1955); 2 Harper and James, The Law of Torts , § 23.2, at p. 1268 et seq. (1956); Weintraub,*fn2 "The Joint Enterprise Doctrine in Automobile Law," 16 Cornell L.Q. 320, 325 (1931).
Implicit in the decisions applying the joint enterprise doctrine as a separate and distinct concept is that it adds something to the independent, subsisting principles that the negligence of an ...