Brody v. Harris

• Decision Date: 24 February 1944
• Docket Number: No. 41.,41.
• Citation: 308 Mich. 234,13 N.W.2d 273
• Parties: BRODY v. HARRIS.
• Court: Michigan Supreme Court

308 Mich. 234

13 N.W.2d 273

BRODY

v.HARRIS.

No. 41.

Supreme Court of Michigan.

Feb. 24, 1944.

Action by Jennie Brody against Sara C. Harris to recover for injuries sustained in an automobile accident. From a judgment for defendant, based on a directed verdict, the plaintiff appeals.

Affirmed.Appeal from Circuit Court, Washtenaw County; George W. sample, judge.

Before the Entire Bench.

Hooper & Hooper, of Ann Arbor (Rubenstein & Becker, of Chicago, Ill., of counsel), for plaintiff and appellant.

Frank B. DeVine, of Ann Arbor (Burke & Burke, of Ann Arbor, of counsel), for defendant and appellee.

BUTZEL, Justice.

Defendant, while visiting her former home in Des Moines, Iowa, met plaintiff at a social function. They and their families were old friends. A conversation arose in which defendant stated that she contemplated an automobile trip with her two daughters to New York to visit the World's Fair. She invited plaintiff to accompany them and told her she could help with the driving. The latter stated that her mother was not well, and also, that she did not feel that she could afford to go. Defendant told her that there would be no expense and, as they were going anyhow, plaintiff might as well have the pleasure of riding with them, since there was an extra seat in the car. Plaintiff testified that she replied that, while she would be glad to help in the driving, she would not go unless she could pay her way; she would not take a vacation trip unless she could afford it. Very shortly thereafter plaintiff telephoned to defendant that she had decided to accompany her on the trip and said, ‘You remember I won't go unless I pay my share of the expenses.'

The parties traveled in defendant's automobile to New York. Plaintiff drove part of the time. She paid for her own individual hotel accommodations and other expenses and did pay toward the cost of gas and oil. She made some payments to defendant, others to her daughters, for her share of such cost. Some kind of record was made in a small book of the gas and oil purchased. The mileage and places where the parties rested at night were entered in the book. Evidently a very strict account was not kept of all of the expenses so as to enable plaintiff to share in them. Defendant had a credit card from an oil company and this was used from time to time at the company's stations. Plaintiff did try to keep up her end of the expenses but she did not, nor was she asked to pay her share of all of them. Her recollection of such payments is not clear. She admits that she paid nothing toward the cost of transportation of the car by boat from Buffalo to Detroit when the entire party made the return trip by boat.

On the return trip west, as they were approaching Saline, Michigan, defendant, who was driving, drove on to the south lane of the road in order to pass a truck. After passing the truck, the car did not immediately return to the north lane but continued on the concrete pavement of the south lane for a short distance and then left the road, traveled on to the gravel to the south of the road for 60 to 75 feet, and then it went over an embankment. It was stopped in the ditch by a telegraph pole which it struck with tremendous force. Plaintiff evidently was asleep when the accident occurred. Defendant also had no memory of what occurred. The only witness of the accident, who was able to tell what occurred, was the driver of the truck which was passed by the car. He stated that it looked as if an attempt had been made to drive the car back on to the road after it left the concrete. The car was driven at a speed in excess of 45 miles per hour. Plaintiff who was seated in the back seat suffered injuries of the severest nature. Some of them are permanent.

There does not seem to be much dispute about the facts in regard to the accident, but we find as a matter of law...