Dutcher v. Rees

331 Mich. 215 (1951)

49 N.W.2d 146

DUTCHER v. REES.

Docket No. 66, Calendar No. 45,152.

Supreme Court of Michigan.

Decided September 5, 1951.

Ralph B. Hoschner, for plaintiff.

Michael Carland, for defendant.

BUSHNELL, J.

Plaintiff Harvey Dutcher and Eugene Rees spent an entire evening together in various bars and taverns in Owosso, Michigan. During the course of the evening Eugene introduced Dutcher to his brother, defendant Orin Rees. Sometime during the evening Eugene, who was employed by the city of Owosso, borrowed Orin's car in order to place lights around some construction work. After midnight the 2 again met Orin in a restaurant and Eugene asked Orin to take him and Dutcher home to Corunna, because by that time the buses *217 from Owosso to Corunna had stopped running. Orin replied: "I am busy now. I will a little later on."

Dutcher testified that after Eugene had told him that Orin would drive them home, he gave 50 cents to Eugene, saying, "give this to Orin to help him pay for the gas." Eugene replied: "It is a good idea. I'll pay a dollar for gasoline for me using the car." About a half hour later, Orin said: "I am ready to go if you are ready to go, let's get out of here." Eugene testified that as they walked across the street to Orin's car, he put a dollar bill into Orin's coat pocket, but said nothing to him about it. The accident out of which Dutcher's injuries arose occurred just inside the westerly city limits of Corunna, about 3 miles from Owosso.

At the trial when plaintiff concluded his proofs, defendant moved for a directed verdict on the grounds of absence of any proof that plaintiff was a passenger for hire, and his failure to show gross negligence. The trial judge reserved decision saying, in effect, that the existence of a guest-passenger relationship in this case was a question of fact for the jury.

Defendant made an opening statement and then rested. The court then ruled that defendant was not guilty of gross negligence as a matter of law and removed that question from the consideration of the jury. After the trial judge charged the jury, he submitted the following special question at the request of the defendant:

"Do you find from the evidence that the plaintiff was a passenger for hire as the result of an express contract between himself and the defendant whereby the defendant agreed to transport the plaintiff from Owosso to Corunna in consideration of the payment of money by the plaintiff to the defendant?"

*218 The record does not show the jury's answer to the question, but merely states:

"The jury returned a verdict in favor of the plaintiff in the amount of $2,938.10."

The judgment as entered in the journal recites that the jury found "that the said defendant was guilty in manner and form as the plaintiff has in his declaration in this cause alleged."

Defendant's brief is confined to the single question of whether plaintiff was a "guest passenger as a matter of law."

Plaintiff says the real question involved is:

"Were there sufficient facts and circumstances to justify a determination by a jury of whether plaintiff and appellee was a guest passenger or a passenger for hire?"

The record discloses merely a social relationship comparable to that in Bushouse v. Brom, 297 Mich 616. Although that case was decided under the law of Virginia, this Court pointed out that the law of that State is the same as that in Michigan. There, as here "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."

The applicable rule is well stated in 10 ALR2d, at page 1354:

"The courts generally concur in holding that a mere incidental benefit resulting to the driver from the transportation is not sufficient to enlarge his liability, but that the benefit must have been given as consideration for the transportation and, in some degree at least, have induced the defendant to extend the offer. So, benefits which may be regarded *219 as merely gratuitous gestures of reciprocal hospitality, or social amenities extended without thought of bargaining, have been held not to be payment or compensation."

See, also, In re Harper's Estate, 294 Mich 453, 456; Brody v. Harris, 308 Mich 234 (155 ALR 573); and Herman v. Metal Office Furniture Co., 317 Mich 185.

The fact that Dutcher and Orin Rees had not met each other until the evening in question does not in itself make the tender of a ride a commercial transaction. There is no testimony to indicate that Orin knew that Dutcher was paying him for the short ride home with his brother Eugene. Furthermore, Orin agreed to give Dutcher and Eugene a ride before any offer of compensation was made by Dutcher to Eugene.

As a matter of law, Dutcher was clearly the guest of Orin Rees. The trial court, having held that Rees was not guilty of gross negligence as a matter of law,[*] the judgment against him cannot stand.

The judgment is vacated and the cause is remanded for the entry of a judgment of no cause of action in favor of defendant. Costs to appellant.

REID, C.J., and BOYLES, NORTH, DETHMERS, BUTZEL, CARR, and SHARPE, JJ., concurred.

[*] See CL 1948, § 256.29 (Stat Ann § 9.1446). REPORTER.