Wessling

In addition to the errors noted in the foregoing decision (Civ. No. 7869, ante, p. 447 [ 3 Pac. (2d) 22 ]) the appellant in this case complains of the application to him of the rule of imputed negligence.

The facts upon which this defense rested are simple. This appellant and his deceased brother were ministers, the appellant located in the city of Lodi and the deceased in the city of Richmond. While appellant was a guest in his brother’s house the two prepared some tracts to be used at a forthcoming convention of Sunday school teachers. They left the brother’s house together, entered an automobile owned jointly by the brother and his mother, and were on their way to the Richmond postoffice to mail the tracts when the collision occurred. The deceased brother drove the car throughout the journey, and selected the route traveled. There is no evidence that this appellant had any control or right of control over his brother’s operation of the car at any stage of the journey to the postoffice. The theory of joint adventure rests solely on the fact that they were both riding together to the postoffice to place these tracts in the mail.

The trial court instructed the jury that if they…