Bushouse v. Brom ( 1941 )

I am not in accord in holding that the judgment entered in the circuit court should be affirmed. This is an automobile case, tried before the court without a jury. Defendant was found liable and judgment entered accordingly. This appeal by defendant followed. The trial judge based decision upon his holding that, under the law of Virginia, where the accident happened, plaintiff was a passenger for hire, and not a guest passenger. This controlling holding was erroneous.

The parties agree that the so-called guest passenger statute of Virginia, so far as its application to the instant case is concerned, is in effect the same as the Michigan statute. 1 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446). But the trial court was of the opinion that, under the Virginia statute as construed by the supreme court of Virginia, plaintiff was not a guest passenger; and he held that notwithstanding defendant was guilty of only ordinary negligence, not of gross negligence or wilful and wanton misconduct, plaintiff, being a passenger for hire, was entitled to recover.

The circumstances surrounding the arrangement which resulted in these parties making the automobile trip together sufficiently appear from Mr. Justice CHANDLER'S opinion and in the following quoted from plaintiff's brief:

"The defendant suggested to plaintiff that they [defendant and her mother] were going and if she [plaintiff] wanted to go along she could. The plaintiff in accepting the invitation agreed to pay one-half of all the expenses. This offer of the plaintiff was not refused by the defendant. The defendant claimed that she only intended that plaintiff should pay a third; but nevertheless the trip was undertaken without defendant refusing plaintiff's offer to pay one-half of the expenses. The defendant admits that the plaintiff paid more than a third. The record is not any too clear on the question of the exact amount paid by defendant [plaintiff]."

The Virginia decisions relied upon by plaintiff, "the clear reasoning" of which the circuit judge held controlling in the instant case, are Gale v. Wilber, 163 Va. 211 (175 S.E. 739);Poole v. Kelley, 162 Va. 279 (173 S.E. 537). As stated by Mr. Justice CHANDLER, "As far as facts are concerned, neither case is in point with the one before us." The brief excerpts from these cases upon which plaintiff herein relies are to some extent mere dicta or, at most, general statements of law which, if applied to an appropriate state of facts, would be entirely accurate.

From the Gale Case plaintiff stresses the following: "The term 'passenger,' in its legal sense, imports some contractual relation between the parties." There is little, if any, room for controversy concerning the quoted proposition; but it would be applicable only when a legally binding contractual relation was established. In general terms it may be said of the Michigan statute that if there is a contract to transport one by automobile and if the owner or driver of the automobile receives a pecuniary benefit as the consideration for such transportation, then the one so transported is not a guest passenger. That, we think, is the extent of the pertinent portion of the holding in the Gale Case.

The excerpt from the Poole Case relied upon by plaintiff reads (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)." An examination of the court's opinion in the Poole Case reveals that it was of no consequence whether the plaintiff's decedent was a passenger for hire or a guest of the defendant, because the court held defendant, if guilty at all, was guilty of gross negligence. We quote the comment of the supreme court relating to a portion of the trial court's charge to the jury of which defendant complained (p. 294): "There was no direction to find and there was no question as to grades of negligence [whether ordinary negligence or gross negligence]. If the defendant was guilty at all his offense was gross." Since defendant's liability was adjudicated on a finding of gross negligence, whether plaintiff's decedent was a guest or a passenger for hire was immaterial. That was not the issue in the Poole Case.

After a careful consideration of the opinions of the Virginia supreme court in the two cases noted, we conclude that there is nothing in either of these decisions which at all convincingly discloses that the guest passenger statute in that State has been construed differently than we have construed the Michigan statute. Under such circumstances, in applying to the instant case the provisions of the Virginia statute which, in effect, are the same as those in the Michigan statute, we should interpret and enforce the law as has already been done in this State. Edison v. Keene, 262 Mich. 611;Perkins v. Great Central Transport Corp., 262 Mich. 616, 623. This is so because our attention has not been called to any decision by the supreme court of Virginia, nor do we know of any, which construes and applies the so-called guest statute in a manner different than has been done by our own decisions. And further, we are of the opinion that the supreme court of Virginia has construed its statute in like manner as we have construed the Michigan statute. See Brown v. Branch, 175 Va. 382 (9 S.E. [2d] 285).

We are not in accord with the circuit judge's findings that, under the facts in this case: "Plaintiff entered upon the trip under the express legal obligation to pay a fixed portion of all expenses of all three." On the contrary, we are of the opinion that the record clearly discloses there was never any definite understanding between these parties which resulted in an "express legal obligation to pay." It is true, after plaintiff had been invited to accompany defendant and her mother, plaintiff volunteered that she would pay one-half of the expenses, but as indicated by the record and the above quotation from plaintiff's brief, such a proposition or proposal was not accepted by defendant. Instead defendant was under the impression it would perhaps be fairer if plaintiff paid only one-third of the expenses. As a matter of fact at the time the trip was interrupted plaintiff had paid something in excess of one-third but had not paid one-half of the expenses. In other words there was no attempt, apparently, to conform literally either to the suggestion of plaintiff or the tacit assumption of defendant. There never was a definite meeting of minds between these parties which resulted either in an implied or express legal obligation on the part of plaintiff to pay defendant. Had there been such an agreement and thereafter defendant had neglected or refused to take plaintiff on the trip, it would follow plaintiff would have had an action at law for breach of the contract; but under the facts of the instant case it would surely be farfetched to conclude that plaintiff would have had such a cause of action if defendant had failed to take plaintiff on the trip. The indefinite contemplated arrangement that plaintiff would contribute something towards the expense of this mutual pleasure trip, possibly one-third or one-half of such expenses, did not establish plaintiff's legal status as a passenger for hire.

"The great weight of authority is to the effect that the sharing of the cost of gasoline and oil consumed on a trip, when that trip is taken for pleasure or social purposes, is nothing more than the exchange of social amenities and does not transform into a passenger one who without such exchange would be a guest, and consequently is not payment for the transportation." McCann v. Hoffman, 9 Cal. (2d) 279, 285 (70 Pac. [2d] 909).

We do not hold herein that under a given state of facts an express agreement to pay a given proportion of the expenses of operating an automobile may not constitute the one transported a passenger for hire. But each case must be decided in the light of its own facts; and we think it is always important to ascertain, if possible, what it was that primarily motivated the undertaking. In the instant case it was clearly the friendship and social relation of these parties which resulted in plaintiff going on the trip with defendant. It was not a commercial arrangement or one in which the owner or driver of the automobile was induced to transport a passenger for an agreed consideration.

In McCann v. Hoffman, supra, 286, the court said:

"Therefore, where a special tangible benefit to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given. But it is not given where the main purpose of the trip is the joint pleasure of the participants. The payment of a portion of the expense, as for gasoline and oil consumed on the trip, is merely incidental and does not constitute the moving influence for the transportation. The provocation for the offer of transportation remains the joint social one of reciprocal hospitality or pleasure."

In passing upon the same phase of the law in Re Harper'sEstate, 294 Mich. 453, 456, we said:

"The offer [of plaintiff to defendant] to help drive was not intended as a reward for the ride. * * * The proffer of assistance in driving was only a friendly gesture, and the sociability element was the dominant, if not sole, thought. Mr. Harper was a 'host' and plaintiff was his 'guest' in the full and complete sense of the words."

See, also, Fuller v. Tucker, 4 Wn.2d 426 (103 Pac. [2d] 1086); 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); Hale v. Hale, 219 N.C. 191 (13 S.E. [2d] 221). In the last cited case the North Carolina supreme court had under consideration a suit which arose out of an automobile accident that occurred in Virginia; and it construed the Virginia statute applicable to that case (and which is similarly applicable to the instant case) as held herein.

In accord with our holding in Re Harper's Estate, supra, and the cases therein cited, and also the other decisions hereinbefore noted, we hold that plaintiff was not a passenger for hire, but instead was a guest of defendant; and it follows that plaintiff cannot recover. In view of the above holding it is not necessary to pass upon other contentions presented in appellant's brief.

The judgment entered in the circuit court is reversed, with direction to enter judgment in accord herewith. Costs of both courts to appellant.

BUSHNELL, BOYLES, WIEST, and BUTZEL, JJ., concurred with NORTH, J.