Bond v. Sharp

• Decision Date: 08 September 1949
• Docket Number: No. 77.,77.
• Citation: 39 N.W.2d 37,325 Mich. 460
• Parties: BOND v. SHARP.
• Court: Michigan Supreme Court

325 Mich. 460

39 N.W.2d 37

BOND

v.SHARP.

No. 77.

Supreme Court of Michigan.

Sept. 8, 1949.

LeRoy Bond, sued Neil Frank Sharp, for injuries sustained in a collision while a passenger in the defendant's automobile.

The Circuit Court, Bay County, Karl K. Leibrand, J., granted the defendant's motion for a judgment on the ground that plaintiff was a guest passenger and was barred from recovery.

The Supreme Court, Sharpe, C. J., reversed the judgment on the ground that plaintiff was a passenger for hire under the terms of the agreement between the plaintiff and the defendant and remanded the cause for further proceedings.Before the Entire Bench.

Oscar W. Baker, Jr., Bay City, for plaintiff and appellant.

Heilman & Purcell, Saginaw, for defendant and appellee.

SHARPE, Chief Justice.

Plaintiff began an action for injuries claimed to have been received in an automobile accident on July 18, 1947. The essential facts are not in dispute. Prior to and at the time of the accident, plaintiff and defendant were living in Bay City and worked for the same employer in Saginaw, a distance of approximately 15 miles from their home.

About a week after plaintiff began working in Saginaw, the parties entered into an agreement relative to transportation to and from work. It was agreed that each party would drive his automobile for one week alternately, that the other would be a passenger receiving rides from his home to his place of employment and return and if the driver failed to carry the other party as passenger, as required by the agreement, then the party so required to drive would pay $5.00 for the week to the opposite party or $1.00 for each day that he failed to drive. The agreement was to operate during the time the parties were employed at their present employment. The bus fare for the round trip between Saginaw and Bay City was 55 cents, but as the driver was picking his passenger up at his home and taking him directly to the job, the parties agreed upon $1.00 per day in the event the passenger failed to get his ride.

Plaintiff drove his car for a full week in accordance with the agreement and defendant had started driving on the second week when his car broke down and had to be taken to the garage for repairs. Defendant then informed plaintiff that because of the expense necessary for the repair of his car and because of his wife's physical condition, he was unable to pay the $1.00 per day as agreed. It was then agreed that defendant would not be required to pay the $1.00 per day for that week, that plaintiff would finish out the week, and that thereafter defendant would drive for two consecutive weeks in order to equalize the period that plaintiff drove his car.

On July 18, 1947, defendant was driving his car on the second week, after having had it returned to him from the garage. On the date in question and while defendant was driving on the return trip from Saginaw to Bay City, defendant's car came into a collision with another car resulting in severe injuries to plaintiff.

The cause came on for trial before the judge without a jury. Upon the conclusion of plaintiff's proofs, defendant made a motion for judgment for defendant on the theory that plaintiff, being a guest passenger, is barred from recovery by the provisions of the guest passenger act. C.L.1948, § 256.29, Stat.Ann. § 9.1446.

In granting the motion the trial court stated:

‘In the instant case, in the opinion of the court, the original agreement between plaintiff and defendant, made in June, 1947, possessed several of the incidents held in the Ohio case of Miller v. Fairley [141 Ohio St. 327, 48 N.E.2d 217] to establish plaintiff's status as a passenger for hire. But, in the instant case, whatever may have been the legal effect of the original agreement, the element of sociability appears to have become the dominant factor in the relationship as the parties became better acquainted. Plaintiff waived his right to compensation for his second successive week's driving and accepted in lieu thereof defendant's promise to drive for the next two successive weeks. It was during this latter period, while the original agreement stood modified or suspended, that the collision and the injuries occurred. Neither the terms of the original agreement nor the possibility of a return thereto control. On the day and at the time of the collision in question, plaintiff was riding, and defendant was driving, under an arrangement identical with that involved in Everett v. Burg [301 Mich. 734, 4 N.W.2d 63, 146 A.L.R. 639], except that the period of alternation of cars in the instant case was two weeks rather than the one week alternation period found in Everett v. Burg.

‘It follows, in the opinion of the court, that under the holding in Everett v. Burg, plaintiff was defendant's guest passenger at the time of the collision, and is precluded from recovery by the specific provisions of the Guest Passenger Act. Under this view of the case, it is unnecessary to pass on defendant's negligence, if any. Verdict and judgment of no cause of action may be entered in favor of the defendant, with defendant to have costs to be taxed.’

Plaintiff appeals and urges that in making the agreement to share rides the parties entered into an agreement whereby each was to use his own automobile on alternate weeks in driving the other party directly from his home to the job and return on each of the five working day of the week, that failure to abide by the agreement and to drive when required imposed a liability upon the driver so failing to pay...