Boyd v. McKeever, 8

• Citation: 185 N.W.2d 344,384 Mich. 501
• Decision Date: 05 April 1971
• Docket Number: No. 8,8
• Parties: Darlene BOYD, a Minor, by her Next Friend, Steave Boyd, and Steave Boyd, Plaintiffs-Appellants, v. Francis H. McKEEVER and Denise McKeever, Defendants-Appellees.
• Court: Supreme Court of Michigan

Page 344

185 N.W.2d 344

384 Mich. 501

Darlene BOYD, a Minor, by her Next Friend, Steave Boyd, and Steave Boyd, Plaintiffs-Appellants, v. Francis H. McKEEVER and Denise McKeever, Defendants-Appellees.

No. 8.

Supreme Court of Michigan.

April 5, 1971.

Moss, Williams & Smith, Southfield, for plaintiffs-appellants.

Davidson, Gotshall, Kohl, Nelson, Secrest, Wardle & Lynch, Detroit, for defendants-appellees.

Before The Entire Bench.

ADAMS, Justice.

On February 5, 1966, Darlene Boyd and Dianne Weinand were picked up after work about 9:00 p.m. and driven by Denise McKeever in her father's car to Luigi's Restaurant, a local teenage hangout in Mt. Clemens. While there, two boys with whom they were acquainted entered the restaurant and sat at their table. The five young people decided to go out together just to drive around. It was suggested that Denise take defendant's automobile because the boy's car was low on gasoline Denise, an inexperienced driver, had been licensed for less than two weeks. Various members of the group told her where they wanted her to drive. However, she testified she did not feel bound by the group's suggestions. Anyone could have continued on the ride or gotten out as he pleased. The gas in the car had begun to run low. The group decided to return to the restaurant.

At approximately 10:50 p.m., the McKeever car went out of control and struck a bridge abutment, causing injury to plaintiff, Darlene Boyd. Plaintiffs claim the accident resulted from ordinary negligence on the part of the driver of the car and, further, that all of the occupants of the car were engaged in a joint enterprise.

The trial court directed a verdict for defendants, deciding as a matter of law that the facts failed to establish the existence of a joint enterprise. The Court of Appeals affirmed per curiam (16 Mich.App. 686, 168 N.W.2d 641), relying on Emons v. Shiraef (1960), 359 Mich. 526, 102 N.W.2d 490.

We granted leave (382 Mich. 785) to examine the question as to what constitutes a 'joint enterprise,' 'joint venture,' or 'common enterprise' in motor vehicle passenger cases involving a claim of negligence.

At one time the theory of a joint enterprise was used to bar recovery in automobile negligence cases involving a passenger-driver relationship by imputing the negligence of the driver to the passenger by reasoning that each had an equal right of control. In Farthing v. Hepinstall (1928), 243 Mich. 380, 382--383, 220 N.W. 708, 709, it was 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.'

In Frisorger v. Shepse (1930), 251 Mich. 121, 123, 230 N.W. 926, 927, the Court said:

'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 very important matter to be considered in determining whether it was a joint enterprise. * * *

'The undisputed evidence shows that no such relationship as host and guest existed. They were engaged in a common enterprise.'

In the above case, it should be noted that the occupants of the car had all agreed to go to a dance and had shared equally in the expense.

In Schneider v. Draper (1936), 276 Mich. 259, 266, 267 N.W. 831, 834, two boys jumped on the running board of a car to ride to football practice. This 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, 230 N.W. 926.'

In In re Harper's Estate (1940), 294 Mich. 453, 456, 293 N.W. 715, 716, this Court said:

'A friend invited another to attend a football game, and the latter put off his trip a day so that they and their wives might be together for the weekend to enjoy their mutual company and thus combine pleasure and business. The offer to help drive was not intended as a reward for the ride, and at the time the parties themselves would have resented any suggestion that their relation was other than social. The subsequent intervention of plaintiff's self-interest should not be permitted to alter the result. 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.'

In Bond v. Sharp (1949), 325 Mich. 460, 464, 39 N.W.2d 37, 39, this Court said:

'It has been held that where the arrangements between the parties are so indefinite and casual that sociability is the dominant element, then a guest relationship exists. See In re Harper's Estate, 294 Mich. 453, 293 N.W. 715; Guiney v. Osborn, 295 Mich. 559, 295 N.W. 264; Brody v. Harris, 308 Mich. 234, 13 N.W.2d 273, 155 A.L.R. 573.'

In Bostrom v. Jennings (1949), 326 Mich. 146, 157, 40 N.W.2d 97, 102, this Court overruled the doctrine of imputed negligence as applied to joint enterprise cases, saying:

'We, therefore, hold that the negligence of an agent is not imputable to his principal nor that of a member of a joint enterprise to his fellow member in an action by the latter against the former. The contrary rule, given effect but not considered, in Hopkins v. Golden * * * ((1937), 281 Mich. 389, 275 N.W. 184); Frisorger v. Shepse * * * ((1930), 251 Mich. 121, 230 N.W. 926); Johnson v. Fischer * * * ((1940), 292 Mich. 78, 290 N.W. 334, and reconsideration denied (1951), 330 Mich. 491, 47 N.W.2d 706), and referred to in Bushie v. Johnson * * * ((1941), 296 Mich. 8, 295 N.W. 538) is overruled.'

Until Bostrom, the defense in an action by a passenger against the driver of a car for negligence was (1) that the passenger was a guest and no negligence was shown other than ordinary negligence, or (2) that the parties were engaged in a joint enterprise or joint venture so that the negligence of the driver, if any, would be imputed to the passenger thereby barring recovery. With Bostrom, facts which would theretofore bar recovery from the driver by establishing a joint venture became all that were needed to take the case out from under the so-called guest passenger act, C.L.S.1961 § 257.401 (Stat.Ann.1968 Rev. § 9.2101). Consequently, it is not surprising now to find plaintiffs contending for as watered-down a version of the requisites for a...