Plaintiff passenger brought an action against defendant driver to recover for injuries arising from the latter's negligence in operating an automobile while the parties were engaged in a joint enterprise. Defendant contended that his own negligence should be imputed to the plaintiff to bar recovery. Defendant offered as authority a previous decision by the same court in which a passenger, a joint enterpriser with the driver, sued both the driver and the absentee owner of the automobile. There the court dismissed the action against both defendants on the ground of imputed negligence. But the reasoning and authority offered by the court were appropriate only to the cause of action against the absentee owner. Without any indication that the issue had been considered, this prior case had decided that the negligence of a driver is imputable to a passenger, where the two were engaged in a joint enterprise, so as to bar recovery by the passenger against the driver. On appeal from a dismissal of the plaintiff's declaration, held, reversed. When a question necessarily involved in a case was neither considered by the court nor discussed in the opinion, the case is not binding as a precedent. Bostrom v. Jennings, 326 Mich. 146, 40 N.W. (2d) 97 (1949).
Charles Myneder S.Ed.,
JURISPRUDENCE-STARE DECISIS - VARYING FORCE OF PRECEDENT,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol48/iss8/24