## Facts

- C. Kirk Scott was a passenger in an автомобobile driven by Dennis McClure when their car collided with a vehicle driven by Leon L. McGaugh.
- Scott and McClure were trainee insurance salesmen for the same company, paid salary plus commission.
- The employer required trainees to provide their own transportation, did not reimburse vehicle use, supplied a prospect list, and encouraged trainees to work in pairs.
- When two trainees jointly made a sale, the commission was typically split between them.
- On the day of the collision, Scott and McClure were calling on prospects together in McClure’s car.
- Scott did not own McClure’s vehicle, and the record did not show Scott had a legal right to direct or control McClure’s driving.
- At trial, the court instructed the jury that, as a matter of law, Scott and McClure were engaged in a joint venture and that any negligence by McClure would be imputed to Scott.
- The jury returned a defense verdict for McGaugh, and Scott appealed.

## Issues

1. Whether the evidence established, as a matter of law, that Scott and McClure were engaged in a joint venture so that McClure’s negligence could be imputed to Scott.
2. Whether the trial court erred by giving a binding instruction removing the joint-venture question from the jury.

## Decision

- The Kansas Supreme Court reversed the judgment for McGaugh and remanded for a new trial.
- The court held the evidence did not establish a joint venture as a matter of law.
- The court ruled the trial court erred by instructing the jury that a joint venture existed and that McClure’s negligence must be imputed to Scott.

## Legal Principles

- A joint venture in the automobile context generally requires both (1) a community of interest in the trip’s purpose and (2) a mutual right to direct and control the vehicle’s operation.
- A shared business purpose or economic benefit (including working together and splitting commissions) does not, without evidence of mutual control, justify imputing a driver’s negligence to a passenger.
- When the evidence does not conclusively establish the elements of joint venture—especially mutual control—the issue cannot be decided by the court as a matter of law through a binding instruction and must be left for the factfinder.

## Conclusion

Because the record showed, at most, a shared work purpose but did not compel a finding that Scott had a mutual right to control McClure’s driving, the trial court’s conclusive joint-venture instruction improperly imputed negligence to Scott and required reversal for a new trial.


Scott v. McGaugh, 506 P.2d 1155 (Kan. 1973)