Bushouse v. Brom , 297 Mich. 616 ( 1941 )

In the spring of 1938, defendant and her mother contemplated an automobile trip to Florida and invited plaintiff, a friend of many years, to accompany them. Plaintiff accepted and stated that if she went she would pay half of the expenses. However, nothing definite was decided as to the percentage she would contribute. Defendant testified that she intended that plaintiff would pay "about a third."

In the State of Virginia and on their return from the trip, an accident occurred in which plaintiff was injured, resulting in this suit for damages. As to the facts surrounding the happening of the event, it appears that defendant became drowsy after driving for many hours and that it had been suggested to her that she stop and refresh herself, but she refused to do so. The car left the pavement, which, at the point in question, was four inches above the level of the shoulder of the road. In attempting to return to the traveled portion of the road, defendant lost control of the car, which went to the left side of the center line, struck an approaching vehicle and later overturned. The trial court found that defendant was negligent, which finding is fully supported by the record.

The trial court further found that plaintiff was not a gratuitous guest and that, therefore, she was entitled to recover upon a showing of ordinary negligence. Upon appeal, it is claimed by defendant that plaintiff was not a "passenger" in the sense that she was a passenger for hire but that she was a gratuitous guest, not entitled to recover for injuries received as a result of ordinary negligence.

It has long been the common-law rule of the State of Virginia that a gratuitous guest could not recover damages from the driver of the vehicle in which he was riding for the latter's ordinary negligence, the doctrine recently having been incorporated in the statutes of that State. See Virginia Code of 1930, Michie, 1938 Supp. § 2154(232)^*; Wright v. Osborne, 175 Va. 442 (9 S.E. [2d] 452). The Virginia statute is substantially the same as that in effect in this State. See 1 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446).

During the trip, plaintiff, defendant, and her mother, each placed money in a purse which they referred to as the "company's purse." Therefrom, the expenses of the trip were paid as demanded. To the time of the accident, it appears that approximately $80 had been placed in the purse, of which amount plaintiff had contributed about $30. A few dollars remained therein when the accident occurred.

In finding that plaintiff was not a gratuitous guest but a passenger for hire, the trial court relied on and stated that the case was controlled by Poole v. Kelley, 162 Va. 279 (173 S.E. 537); and Gale v. Wilber, 163 Va. 211 (175 S.E. 739).

As far as facts are concerned, neither case is in point with the one before us. In the Gale Case, the court said that a higher degree of care was required if plaintiff therein was a "passenger," which indicated that a contractual relationship existed. However, upon the particular facts, the plaintiff was held to have been a gratuitous guest. In the Poole Case, without finding it necessary to decide the status of the plaintiff, the Virginia court said (p. 295):

"Whenever transportation is for the pecuniary benefit of the defendant, this fact, when established, takes the case out of the category of gratuitous transactions. Foley v. McDonald,283 Mass. 96 (185 N.E. 926)."

The point at issue is controlled by the law of the State where the tort occurred. Eskovitz v. Berger, 276 Mich. 536;Meyer v. Weimaster, 278 Mich. 370; Kaiser v. North, 292 Mich. 49 . However, no case has been found wherein the Virginia law has been developed on facts in point with the instant case. Many such cases have been decided by the courts of other jurisdictions, with varying results, the outcome of some apparently being based upon a construction of a particular "guest" statute, and the others controlled by a consideration of the relationship of the parties and the occasion which gave rise to the furnishing of the transportation. We do not purport in this opinion to give an extensive review of the authorities.

As a guide, we do have the expression of the Virginia court that a contractual relationship resulting in a pecuniary benefit to the defendant will remove the plaintiff from the category of a gratuitous guest and permit recovery for injuries sustained as a result of the defendant's ordinary negligence.Poole v. Kelley, supra, and Gale v. Wilber, supra.

In McCann v. Hoffman, 9 Cal. (2d) 279 (70 Pac. [2d] 909), there was no specific agreement that the plaintiff should share the expenses of the trip but a tacit understanding was present that a contribution would be made. The court stated that where the trip was for no other purpose than the exchange of social amenities the plaintiff was a gratuitous guest, despite the tacit agreement to contribute to the expense. Other California cases wherein the plaintiff was denied recovery are Rogers v.Vreeland, 16 Cal.App. (2d) 364 (60 Pac. [2d] 585);Starkweather v. Hession, 23 Cal.App. (2d) 336 (73 Pac. [2d] 247); Stephen v. Spaulding, 32 Cal.App. (2d) 326 (89 Pac. [2d] 683).

In Smith v. Clute, 277 N.Y. 407, 413, 414 (14 N.E. [2d] 455), the court said:

"The question whether sharing expenses of an automobile trip results in such benefit to the owner or operator as to take a passenger out of the purview of a guest statute has been before the courts in a number of cases. Where there is no fixed understanding or agreement for sharing expenses, but merely a likelihood or a general statement by the passenger that he will pay his share, it is not sufficient, * * * and this court has so held in affirming a dismissal of a complaint where the Connecticut guest statute was involved (Master v. Horowitz,237 App. Div. 237 [261 N.Y. Supp. 722], affirmed 262 N.Y. 609 [188 N.E. 86]). On the other hand, where there is a definite agreement, as in the case at bar, a number of States have permitted recovery for ordinary negligence, holding the passenger who contributed toward the expenses was not a guest within the purview of the statute. * * * As Mr. Justice Stern of the Pennsylvania supreme court pointed out,

" 'Had plaintiffs not made their agreement to share the expenses, defendant himself would have been obliged to pay for all the gasoline and oil consumed, and since the presence of plaintiffs in the automobile did not add in any way to the cost of operation of the car, the money furnished by plaintiffs was a clear contribution, a net saving, to defendant, reducing the amount which he would have been required to expend had he been transporting plaintiffs gratuitously.' "^*

A similar position has been assumed by the Massachusetts court in Haines v. Chereskie, 301 Mass. 112 (16 N.E. [2d] 680), which is distinguishable from Askowith v. Massell,260 Mass. 202 (156 N.E. 875), on the ground that a definite agreement in advance existed in regard to the sharing of expenses.

We do not apprehend that a further discussion of authorities would be of assistance in resolving this question. The Virginia court has definitely indicated that a passenger for hire indicates the existence of a contractual relationship and the conferring of a pecuniary benefit upon the defendant. We believe the elements necessary to place plaintiff in that status were present in this case.

Defendant furnished the car, and all expenses, including gas, oil, rooms and meals, were paid from the "company purse." Although the exact percentage plaintiff was to contribute was not specifically agreed upon in advance, it is clear that it was understood that she was to pay either one-half or one-third of the expenses. As a matter of fact, she had contributed in excess of one-third to the fund at the time of the accident. We believe that the necessary contractual relationship existed, and it is apparent that defendant received a pecuniary benefit. Plaintiff was not a gratuitous guest and defendant's negligence was sufficient to create liability.

Defendant relies on Morgan v. Tourangeau, 259 Mich. 598, but in that case there was no agreement in advance relative to the sharing of expenses.

We do not intend in holding as we have on this point to adopt a rule that would make every person a passenger for hire who had agreed to buy some gasoline or oil, no matter how small the amount might be, and thus open the door for wholesale evasion of the so-called "guest acts." Consideration must be given in each case to determine if the defendant sought to be charged did receive an actual pecuniary benefit based upon an agreement entered into in good faith.

It is also urged that the parties were engaged in a joint adventure and that this bars recovery. To have a joint adventure, there must exist an express or implied agreement for joint control and operation of the vehicle. Miles v. Rose, 162 Va. 572 (175 S.E. 230). The trial court found that this element was missing and his finding has ample support in the record.

No other questions of importance are raised which it is necessary that we discuss.

The judgment should be affirmed, with costs to appellee.

SHARPE, C.J., and McALLISTER, J., concurred with CHANDLER, J.

^* Chap. 285, 1938 Acts of Assembly. — REPORTER.

^* From Kerstetter v. Elfman, 327 Pa. 17, 20 (192 A. 663). — REPORTER.