dissenting.
I respectfully dissent.
In order to demonstrate the enormity of the tragedy directly resulting from the concerted criminal conduct and unlawful activities of Edwards and Hardin, I quote the graphic description contained in the opinion of the Court of Appeals:
The deceased was riding his bicycle on Walnut Grove Road, evidently near the curb, when he was struck by the Edwards vehicle, which according to a witness, was being driven in an erratic manner. The head of the deceased struck the right corner of the windshield, which collision drove the deceased’s head through the windshield, severed the great artery in the throat and sprayed blood and left flesh clinging to the interior of the vehicle and on the clothing of the defendants. The bicycle was dragged beneath the car for over 100 feet. Edwards drove on up to a stop light and stopped and then continued on for some miles just driving around the neighborhood, stopping at a girlfriend’s house, and then continuing on until he went over onto the wrong side of the road, crashed into a utility pole and was apprehended by the police. Both Hardin and Edwards testified they were not aware that they had hit someone, but in their stupor were only aware that the windshield had somehow broken and wondered how it was going to be paid for.
There can be no legitimate basis for reaching any conclusion but that these two defendants acted in concert and with a common and fixed intent to violate the criminal laws of the State. They combined and confederated on an expedition of drinking, drugging and driving, culminating in the wrongful death of an innocent eighteen year old boy. They were joint tortfeasors in every sense of the word and I am unable to separate their conduct, one from the other. The fortuitous fact that Edwards was driving is irrelevant, given the circumstances of this case.
Further, I view Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32 (1925) as being irrelevant to this controversy. I have no quarrel with the Schwartz holding with respect to the general requirement that in order to make out a case of joint enterprise each of the parties “must have authority to control the means or agencies employed to execute the common purpose.” 152 Tenn. at 590, 280 S.W. at 33. I must confess, however, that I am more comfortable with this theory in a suit between two culprits (as in Schwartz) than in the instant suit between the representatives of the deceased victim and two characters engaged in a binge of drunken and drugged revelry.
Further, I find it incongruous to speak in terms of control in a situation where its very absence was the cause of the injury. How much control was exercised in a case where a boy on a bicycle was struck with such force that his head was driven through the windshield, the bicycle dragged more than a hundred feet with the driver and passenger so stupified that they were unaware that they had hit anyone or anything?
In my view this is not a joint enterprise situation and the criteria of such an activity are not applicable.
The rules relating to joint tortfeasors are discussed in detail in 74 Am.Jur.2d, Torts, § 61 et seq. In the opening section the general rule is set forth:
*274[T]he rule of joint and several liability of tortfeasors prevails where the tortfeasors act in concert or unity of action. The rule applies to tortfeasors who intentionally unite in the wrongful act, or who are present and assist or participate therein, actively and with common intent, so that the injury results from the joint wrongful act of the wrongdoers.
This treatise accurately reflects Tennessee decisional law. In Hale v. City of Knoxville, 189 Tenn. 491, 226 S.W.2d 265 (1950) this Court, speaking through Justice Gailor, said:
The Tennessee definition of joint tort-feasors, which has been frequently quoted and often applied is: “When a tort is committed by two or more persons jointly, by force directly applied, or in the pursuit of a common purpose or design, or by concert, or in the advancement of a common interest, or as the result and effect of joint concurrent negligence, there is no doubt but that all the tort-fea-sors are jointly and severally liable for all the damages done the injured party, and that these damages may be recovered in joint or several actions, although the wrongful conduct or negligence of some may have contributed less than that of others to the injury done.” Swain v. Tenn. Copper Co., 111 Tenn. 430, 438, 78 S.W. 93, 94. (Emphasis supplied) 189 Tenn. at 502 226 S.W.2d at 269-70.
In Blalock v. Temple, 38 Tenn.App. 463, 276 S.W.2d 493 (1955) the Court of Appeals correctly and succinctly stated the rule:
. that where two or more persons engage in an unlawful act and one of them commits a serious, civil injury upon a person not engaged therein, all are equally liable for damages to the injured party. 276 S.W.2d at 496.
In my view this case is controlled by our recent decision in Huckeby v. Spangler, 521 S.W.2d 568 (Tenn.1975), which the majority cites for the proposition that:
[A]n individual who participates in an unlawful activity in concert with others is liable for any damages resulting from acts committed by his compatriots in the course of that activity.
And then in one fell swoop attempts to devitalize the holding by saying that:
[t]o impose such liability, the jury must find that the defendant knew that his companions’ conduct constituted a breach of duty, and that he gave substantial assistance or encouragement to them in their acts.
Assuming arguendo that this language may be read into, or fairly inferred, from our holding in Huckeby, the result reached by the majority totally ignores the fact that at all times Hardin was a planner, a participant, and a principal with his cohort, Edwards, in a night featuring dangerous, deadly and unlawful conduct. He therefore “gave substantial assistance or encouragement” justifying the imposition of liability under this revised interpretation of Hucke-by-
In Huckeby we held simply and pointedly that:
There is no question but that when two or more persons engage in an unlawful act and one of them commits a serious civil injury upon a person not engaged therein, all are equally liable for damages to the injured party. 521 S.W.2d at 573.
It is the phrase not engaged therein that differentiates this factual situation from that of Schwartz v. Johnson and its progeny. In this case, had Hardin, a participant, sued Edwards, a coparticipant, he would have been barred at the threshold by Schwartz in view of his participation. But not so where the suing plaintiff was an innocent bystander.
The majority does not even allude to the celebrated case of Eager v. State, 205 Tenn. 156, 325 S.W.2d 815 (1959), wherein this Court sustained a conviction for involuntary manslaughter against a “guest passenger” who was riding while drunk. The facts are very similar to the instant case. There the Court held:
[WJhen one sits by the side of another and permits him without protest to operate the vehicle on a highway in a state of intoxication . . . the one sitting by *275is as guilty as the man at the wheel. 205 Tenn. at 169, 325 S.W.2d at 821.
Chief Justice Neil, in a concurring opinion, brought the whole problem into focus:
[Liability of one who occupies an automobile with a drunken driver is dependent upon the degree of cooperation between them. The criminal negligence of the drunken driver is imputable to drunken occupants of the car when the evidence shows some degree of concert of action. (Emphasis supplied) 205 Tenn. at 172, 325 S.W.2d at 822.
Under Eager, Hardin is liable to prosecution and subject to conviction for at least involuntary manslaughter. To hold that one guilty of criminal misconduct is free of culpable negligence is contrary to reason and is an obvious distortion.
I would reverse and remand for trial.
I am authorized to state that Mr. Justice BROCK joins in this dissent.