Belen v. Dawson

• Decision Date: 29 April 1974
• Docket Number: Docket No. 15911,No. 5,No. 1,I,5,1
• Citation: 52 Mich.App. 670,217 N.W.2d 910
• Parties: Lucius BELEN, Plaintiff-Appellant, v. Francis DAWSON, Defendant, Russell R. Hoover, Defendant-Appellee, and Jax Kar Washnc., a Michigan corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 910

217 N.W.2d 910

52 Mich.App. 670

Lucius BELEN, Plaintiff-Appellant, v.Francis DAWSON, DefendantRussell R. Hoover, Defendant-Appellee and Jax Kar Wash No. 5, Inc., a Michigan corporation, Defendant-Appellee.

Docket No. 15911.

Court of Appeals of Michigan, Division No. 1.

April 29, 1974.

Released for Publication on May 24, 1974.

Rehearing Denied June 6, 1974.

Paul B. Newman, Southfield, for plaintiff-appellant.

Alvin B. Lynn, Detroit, for Dawson.

Thomas A. Brandt, Detroit, for Hoover.

Morton H. Collins, Southfield, for Jax.

Before DANHOF, P.J., and BRONSON and BOYLE,* JJ.

DANHOF, Presiding Judge.

This action arises out of multiple collisions which occurred on January 6, 1969 involving 3 motor vehicles.Plaintiff was a passenger in a van-type truck, owned by defendantJax Kar WashNo. 5, Inc.(hereinafter Jax'sNo. 5) and operated by one Sterling Lester who is not a party to this action.The other vehicles involved were a Ford automobile owned and operated by defendantFrancis Dawson and a Comet automobile owned by defendantRussell Hoover.The principal question presented on appeal is whether the guest passenger proviso of M.C.L.A. § 257.401,M.S.A. § 9.2101 bars recovery by plaintiff from Jax'sNo. 5 for injuries incurred in the accident.There is no dispute regarding the nonexistence of gross negligence or willful and wanton conduct on the part of Lester.

On the date of the accident, plaintiff was an employee of Jax Kar WashNo. 8, Inc.(hereinafter Jax'sNo. 8).Jax'sNo. 5andJax'sNo. 8 have common management and common ownership, but are separate corporations.It has been admitted that, on the date of the accident, Lester was operating the vehicle of Jax'sNo. 5 with the owner's knowledge, consent and permission.Lester, plaintiff's foreman and co-employee, was using the vehicle to drive plaintiff to their mutual place of employment, Jax'sNo. 8, from yet another Jax Kar Wash(the number being irrelevant, it not being No. 5).

The trial court failed to find 'any benefit flowing to Jax'sNo. 5' for plaintiff's transportation.The trial court found the guest passenger proviso applicable and directed a verdict of no cause of action in favor of Jax'sNo. 5.Thereafter, the jury found in plaintiff's favor on his claim against defendantFrancis Dawson and against plaintiff on his claim against defendantRussell Hoover.Plaintiff appeals the judgment on the jury's verdict of no cause of action as to defendant Hoover and the directed verdict in favor of Jax'sNo. 5.

M.C.L.A. § 257.401, Supra, reads in part as follows:

'The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle * * *.The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge.'

Assuming that plaintiff's injuries arose out of and in the course of his employment, plaintiff is barred by the provisions of the Workmen's Compensation Act¹ from recovering in a tort action against his co-employee Lester.However, Lester's immunity does not extend to Jax'sNo. 5, the owner of the vehicle, since it is neither a fellow employee nor an employer.Ladner v. Vander Band, 376 Mich. 321, 136 N.W.2d 916(1965).See alsoAbrams v. Sinon, 44 Mich.App. 166, 205 N.W.2d 295(1972).

The guest passenger proviso in M.C.L.A. § 257.401, Supra, reads:

'Provided, however That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.'

It is the contention of Jax'sNo. 5 that, for plaintiff to escape the above quoted proviso, it was incumbent upon plaintiff to prove a benefit running to the owner, as opposed to the operator, of the motor vehicle and that plaintiff produced insufficient evidence of benefit to the owner to have the issue considered by the jury.Jax'sNo. 5 argues that since both plaintiff and Lester were employees of Jax'sNo. 8, only the latter corporation derived benefit from the transportation provided to plaintiff.

We will assume that Jax'sNo. 5 derived no benefit from plaintiff's transportation to Jax'sNo. 8, even though the 2 corporations have common management and common ownership.In Pokriefka v. Mazur, 379 Mich. 348, 151 N.W.2d 806(1967), an action was brought on behalf of a minor plaintiff against the defendant as owner of an automobile in which plaintiff was a passenger.The automobile, while being operated by defendant's minor daughter, was involved in an accident.The minor driver had agreed to transport the minor passenger to and from college for $2 per week.There is no indication from the facts of the case that defendant owner benefited from the agreement.Nevertheless, the Supreme Court held that the executed contract was sufficient to preclude application of the guest passenger proviso.

In the case at bar, the context in which plaintiff was being transported was not social.Under such circumstances, the test to be applied is whether the transportation was furnished gratuitously.McGuire v. Armstrong, 268 Mich. 152, 255 N.W. 745(1934).Thomas v. Currier Lumber Co., 283 Mich. 134, 277 N.W. 857(1938).Under these decisions, it is immaterial whether the passenger or another paid for the transportation.Since most cases involving an arguable application of the guest passenger proviso are Sui generis in their factual circumstances, the status of the passenger is jury submissible.Pence v. Deaton, 354 Mich. 547, 93 N.W.2d 246(1958);Hall v. Kimball, 355 Mich. 333, 94 N.W.2d 817(195...