## Facts

- Buford Zimmerman, a minor, and his friend Orville Higbee regularly borrowed an automobile from Zimmerman’s father to take girls on pleasure rides.
- On a Sunday evening, Zimmerman and Higbee agreed to ask Zimmerman’s father for a car so they could take two girls riding; permission was granted, and the four drove to Hutchinson, Kansas.
- Zimmerman and Higbee alternated driving during the outing: Zimmerman drove part of the trip, and Higbee drove other segments, including the segment when the collision occurred.
- On the return trip, while Higbee was driving and Zimmerman was seated in the rear seat, the car approached a horse-drawn buggy on a paved road near Nickerson, Kansas.
- Joseph M. Howard, his wife, and their young son were returning from church in the buggy; when Howard saw headlights from behind, he pulled as far to the right as he could without entering the ditch, with the right wheels off the pavement.
- The automobile struck the buggy, demolishing it, killing Howard’s wife, and injuring the child.
- Howard sued Zimmerman for wrongful death, relying on the theory that Higbee’s wanton operation of the automobile could be charged to Zimmerman because the two boys were engaged in a joint enterprise.
- The trial court entered judgment for Howard, and Zimmerman appealed.

## Issues

1. Whether Zimmerman and Higbee were engaged in a joint enterprise for their pleasure trip such that each had an equal right to control the automobile’s operation.
2. If a joint enterprise existed, whether Higbee’s wanton driving that caused the fatal collision could be imputed to Zimmerman even though Zimmerman was riding in the rear seat at the time.

## Decision

- The Kansas Supreme Court affirmed the judgment for Howard.
- The court held the facts showed Zimmerman and Higbee were engaged in a joint enterprise with an equal right of control over the vehicle during the trip.
- The court held that, because of the joint enterprise, Higbee’s wanton conduct in operating the automobile was imputable to Zimmerman, despite Zimmerman’s status as a rear-seat passenger at the moment of impact.

## Legal Principles

- A joint enterprise in automobile cases may be found when parties share a common purpose in using the vehicle and each has an equal right to direct and control its operation.
- Evidence that companions jointly obtained the vehicle for a shared outing and alternated driving can support an inference of equal control.
- When a joint enterprise with equal control exists, the driver’s tortious conduct committed in the course of that enterprise—including wanton or reckless operation—may be imputed to the other participant.
- A participant’s seating position or the fact that the participant was not driving at the instant of the collision does not, by itself, defeat imputation when the equal-right-of-control relationship continues throughout the trip.

## Conclusion

In *Howard v. Zimmerman*, the Kansas Supreme Court affirmed a wrongful-death judgment against Zimmerman because he and Higbee jointly secured and used the automobile for a shared pleasure trip and alternated driving, supporting a finding of joint enterprise with equal control; therefore, Higbee’s wanton driving that killed Howard’s wife was treated as legally attributable to Zimmerman even though Zimmerman was in the rear seat when the collision occurred.


Howard v. Zimmerman, 242 P. 131 (1926)