Bushie v. Johnson , 296 Mich. 8 ( 1941 )

I am of the opinion that the verdict of the jury should be sustained.

The evidence on behalf of plaintiff shows that on several occasions during the ride, Gallagher, the driver of the car, was requested by Strom to drive more slowly; that he complied with such requests, although thereafter, he would increase the speed, until he was again asked to slow down; that, on the last occasion, when Strom asked him to drive more slowly, he exclaimed to the person in the front seat with him, "Watch me give them a real scare;" that he started driving faster until he reached a speed of 70 miles an hour, and "zigzagged" down the road, while Strom and plaintiff's decedent both "ducked for the floor;" that Gallagher lost control of the car, and crashed into a tree, causing the death of plaintiff's decedent. The foregoing presented a question of fact for the jury as to whether Gallagher was guilty of gross negligence. If the jury believed the testimony, they could conclude that the driver had deliberately imperilled the safety and lives of the passengers in order to scare them, and could find that Gallagher had thus acted in reckless, wanton and wilful disregard of the safety and life of plaintiff's decedent. This would be gross negligence. To hold otherwise would be to lay down a rule that as a matter of law, such a deliberate and perilous threat carried into execution was not in wilful and wanton disregard of the safety of the man who was killed as a result of such conduct.

In Schneider v. Draper, 276 Mich. 259, evidence for the plaintiff disclosed that defendant had driven his car at more than twice the legal rate of speed on a city street; that he had dodged close to a parked car; that he zigzagged back and forth across the street and ran directly toward a pole, 19 inches from the curb before he attempted to make a turn; that he struck the pole, with the result that a passenger standing on the running board was thrown from the car and killed. It was held that the question of defendant's gross negligence was for the jury. In deciding the case, the court said:

"While Draper's actual intention, whether to dislodge or frighten the boys on the running board or otherwise, would bear upon his intention and its wantonness, plaintiff was not obliged to point out what was actually in his mind. One may not claim freedom from a charge of wilful and wanton misconduct, as a matter of law, and on a plea of innocent intention, if he voluntarily misdrives an automobile into a place of obvious danger if others are within the range of injury from it."

The question of defendant's gross negligence was one of fact.

Contributory negligence is usually a question for the jury. But in no case is a party's contributory negligence a defense to a charge of gross negligence.

There is no evidence that would sustain the claim that plaintiff's decedent, Gallagher, the driver, and the others were engaged in a joint adventure at the time of the accident. In this case, there was no agreement to embark upon any venture. Evidence on behalf of plaintiff disclosed that when Bushie was at the Hillside Tavern, one of the group said they were going to the Pine Acre Tavern, and that they would be backright away; that he might as well "take a short ride out there." Defendant Johnson states that Bushie asked to go along on the trip. In either case there was no joint undertaking. There was no entertainment or program planned. There was no agreement to assume any expense. Bushie either went along as an invited guest, or was taken as a favor, which was granted on his request. He had no control over the direction taken, or the route. He had nothing to say about the control of the car. There is no implication in any of the evidence that his directions were to be taken, or that he had anything to say about the trip. He was not expected to contribute to or share in any plan or program or expense. If, under these facts, he is to be held a joint adventurer, any man who accepts a ride in an automobile to go to some particular place is a joint adventurer with the driver. This is not the law.

In Frisorger v. Shepse, 251 Mich. 121, this court, in remarking upon the incidents of such a joint venture, said:

"The principal issue on the trial was whether, at the time of the accident, the decedent was a guest of the defendant, or whether they were engaged in a common enterprise. If they were engaged in a joint enterprise, the negligence of the defendant would be imputable to the decedent, and would bar a recovery.Hanser v. Youngs, 212 Mich. 508; Farthing v. Hepinstall,243 Mich. 380.

"The undisputed facts in the instant case leave no doubt that the parties were engaged in a joint enterprise. They had agreed on a joint pleasure party. Every member of the party had to do with the management and control of the enterprise. They shared equally in the expense. The fact that the defendant was driving the car is material, but not controlling of the question. As driver, he was acting as agent for the other members of the party. They had as much right to direct its movements and speed as he had. Each had a right to be heard in carrying out the details of the trip. This equal right of control is a veryimportant matter to be considered in determining whether it wasa joint enterprise."

In Farthing v. Hepinstall, 243 Mich. 380, it is said:

"To constitute a joint enterprise between a passenger and the driver of an automobile within the meaning of the law of negligence, there must be such a community of interest in its operation as to give each an equal right of control. There must be a common responsibility for its negligent operation, and there can be no common responsibility unless there is a common right of control. It must be held that the driver is acting as the agent of the other members of the enterprise. The rule of joint enterprise in negligence cases is founded on the law of principal and agent. On no other theory could the negligence of the driver be imputable to a passenger. Being parties to the same enterprise, they are assumed to have common control and possession of the machine. Otherwise, each could not be charged with the negligence of the other. It is not necessary to review the cases in which this question is considered. The subject is discussed and many cases are cited in the annotation toKeiswetter v. Rubenstein, 48 A.L.R. 1049 (235 Mich. 36).

"In the instant case, the plaintiff claims that at the time of the accident she was riding as a mere guest of the owner and driver of the car; that the control and possession of the car had been intrusted to her brothers by the defendant; that Thayer drove going to Bay City, and Ralph drove going home; that she had no control over the car or over the driver, and that, just before the accident, she remonstrated with Ralph as to the speed, and vainly endeavored to persuade him to reduce it.

"The defendant claims that the plaintiff with her brothers, Ralph and Thayer, were in equal control of the car; that it had been loaned to the three of them equally for a common purpose,viz., driving to Bay City to attend a church fair. Whether the car was loaned to the three of them or to the two boys only was important as bearing on the plaintiff's equal right of control. It was a disputed question and was controlling of the claim of joint enterprise. It was therefore for the jury."

In the above case, there was conflicting evidence as to whether plaintiff was participating in a joint adventure and, there being a dispute on the facts, the question was one for the jury. In the instant case, there is no evidence whatever that plaintiff's decedent was taking part in a joint enterprise. It was error to hold as a matter of law that the decedent was taking part in a joint adventure at the time of the accident. It would have been error to submit such question to the determination of the jury in view of the absence of any evidence to sustain such a claim.

In Schneider v. Draper, supra, in holding that a plaintiff's decedent was a guest, and was not engaged on a common venture, the court said:

"The boys were not on a common venture or joint undertaking which relieved Draper of liability, because he had sole control of the car and the other boys had no right to direct its movements. The point is clearly discussed in Frisorger v.Shepse, 251 Mich. 121."

There was no evidence of joint adventure or common enterprise.

The owner of the car was liable for defendant Gallagher's negligence. Whether the car was being driven with the consent of such owner was left to the jury by the trial court. An owner is liable for the negligence of one who drives with his consent. 1 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446).

Plaintiff's decedent was only a guest. Inasmuch as the alleged gross negligence of the driver was a question of fact, the verdict of the jury should be sustained.

The judgment entered notwithstanding the verdict should be set aside, and a judgment on the verdict should be entered, with costs to the plaintiff.

BUSHNELL and CHANDLER, JJ., concurred with McALLISTER, J.