Crook v. Eckhardt

• Decision Date: 10 November 1937
• Docket Number: June Term, 1937.,No. 41,41
• Citation: 281 Mich. 703,275 N.W. 739
• Parties: CROOK v. ECKHARDT et al.
• Court: Michigan Supreme Court

281 Mich. 703

275 N.W. 739

CROOK

v.ECKHARDT et al.

No. 41, June Term, 1937.

Supreme Court of Michigan.

Nov. 10, 1937.

Suit by Francis Crook, administrator of the estate of Viola Crook, deceased, against Margaret Eckhardt and another. From a judgment for plaintiff, defendants appeal.

Affirmed.Appeal from Circuit Court, Wayne County; Arthur Webster, judge.

Argued before the Entire Bench.

Rodgers & Dunn, of Grand Rapids, for appellant Grand Papids Bedding Co.

Kerr, Lacey & Scroggie, of Detroit, for appellant Margaret Eckhardt.

Dohany & Dohany, of Detroit (George A. Porter, of Detroit, of counsel), for appellee.

BUSHNELL, Justice.

Plaintiff's wife, Viola Crook, came to her death while riding in a Buick coupé driven by defendant, Margaret Eckhardt, which collided with defendant Grand Rapids Bedding Company's 3-ton G.M.C. truck at the intersection of Holly and Baldwin roads in Genesee county, about 11:30 a. m. June 24, 1932. These 20-foot gravel roads cross each other at right angles; neither being a through highway. The truck driver did not see the coupé until he reached the intersection, but Miss Eckhardt saw the truck when it was five or six hundred feet away from the corner; a hill near the southwest corner obstructed the view of both drivers within 50 feet of the intersection.

Margaret Eckhardt, a supervisor of a 4 H Club Camp located near Flint, was on her way to Detroit, traveling easterly on Baldwin road. Three children, who had been at the camp, were riding in the front seat with Miss Eckhardt; Mrs. Crook and two other women were occupying the rumble seat. The truck, which was going northerly on the easterly side of Holly road, hit the right rear wheel of the Buick coupé after it had passed the center of the intersection, and turned it upside down.

After the collision, Mrs. Crook was found lying in a field about 40 or 50 feet from the road. A deputy sheriff, who arrived at the scene shortly after the accident, found the Buick car about 20 or 25 feet east of Holly road on the north side of Baldwin road facing the west and the truck on Holly road about 100 feet beyond Baldwin road, facing north.

The 4 H Club is an unincorporated, voluntary organization which promotes activities for boys and girls and sponsors better methods of agriculture and home economics for those in the rural sections; the 4 H refers to the head, hand, heart, and health. The work of these clubs is financed jointly by the federal, state and county governments, and is controlled by the United States Department of Agriculture. Defendant Eckhardt, employed through Michigan State College, was responsible for 4 H Club work in Wayne county, receiving a salary for this service and an allowance for the use of her car. Mrs. Crook, a school teacher and housewife, had been one of the instructors at a 4 H camp conducted under the supervision of Miss Eckhardt at a Y. M. C. A. camp at Lake Kopankomack near Flint; she was described by witness Eckhardt as a voluntary helper. A charge of $6 was made for each child during a five days' stay at the camp. The cabin leaders or volunteer helpers were not paid any salaries, but were furnished with accommodations and board during their stay at the camp. Mrs. Crook had been driven to the comp some days previously by her husband, and Miss Eckhardt testified: ‘Her husband called and said that he could not come after her. * * * I merely drove her back to Wayne county as an accommodation.’

Mr. Crook said that he was present when Miss Eckhardt engaged his wife to go to the camp as a leader. He testified: ‘Miss Eckhardt came to our home and she said to my wife that she would like to have her go up to camp again this year as an instructor for the 4 H boys and girls, and if she would go she would furnish her with board and room and transportation up and back, and my wife said under those conditions that she would go.’

He said he took his wife to camp on Sunday, but she ‘always came home on a week day and I was not supposed to go and get her.’

Plaintiff, as administrator of the estate of Viola Crook, deceased, brought suit under the so-called Death Act (3 Comp.Laws 1929, §§ 14061, 14062), and did not include a survival count in his declaration. He averred that his decedent was at the time of her death in the employ of the 4 H Club whose ‘superintendent’ and ‘alter ego,’ Margaret Eckhardt, ‘was engaged in transporting Viola Crook * * * in keeping with the contract of hire theretofore entered into between the 4 H Club through said Margaret Eckhardt and plaintiff's intestate.’ Damages were claimed by plaintiff, in his declaration, for funeral expenses, ‘services, fellowship, companionship, society, assistance and everything incident to the marriage relation.’

Defendant Grand Rapids Bedding Company filed an answer amounting to a general denial of plaintiff's declaration. Defendant Eckhardt added, to her general denial, the averment that the accident was caused by the negligence of the Grand Rapids Bedding Company, and that Viola Crook ‘was a guest of this defendant who is not guilty of any gross negligence or wilful and wanton misconduct, nor of any negligence whatsoever.’

Motions for a directed verdict in favor of defendants were denied, and the matter was submitted to the jury, who rendered a verdict for plaintiff in the sum of $6,558.90. The jury answered three special questions submitted to them by the court as follows:

‘Was the deceased, Viola Crook, killed instantly as a result of injuries received in this accident? * * * Yes.

‘Did the deceased, Viola Crook, live for any period of time after the accident? * * * No.

‘Did the defendant, Margaret Eckhardt, as a part of the consideration of hiring Viola Crook agree to furnish transportation to and from the summer camp? * * * Yes.’

Motions, by defendants, for a judgment non obstante veredicto and for a new trial were denied.

Appellant Eckhardt claims the testimony shows that Mrs. Crook was a guest and not a passenger for hire; that her death was not instantaneous; that an administrator cannot recover damages under the Death Act for the husband's loss of his wife's services, etc.; that the record does not contain any proof of the pecuniary loss suffered by the husband; that the charge on the elements of the instantaneous death was erroneous; and that the verdict of the jury was contrary to the great and over-whelming weight of the evidence; and its award of damages was excessive.

The foregoing questions are also raised by appellant Grand Rapids Bedding Company, to which it added that the court erred in instructing the jury as to recovery against it without regard to the negligence of Margaret Eckhardt and with respect to the speed of both vehicles.

If plaintiff's decedent was a guest passenger, the negligence of the defendant Eckhardt is imputed to Viola Crook, but not if she was a passenger for hire.

Lachow v. Kimmich, 263 Mich. 1, 248 N.W. 531, 90 A.L.R. 626;Johnson v. Mack, 263 Mich. 10, 248 N.W. 534;Wojewoda v. City of Detroit, 264 Mich. 277, 249 N.W. 850. See, also, Caswell v. New York Central R. Co., 263 Mich. 18, 248 N.W. 641.

In McGuire v. Armstrong, 268 Mich. 152, 255 N.W. 745, defendant Armstrong, a county nurse, was taking Mrs. McGuire, a county or township patient, to Grand Rapids for the purpose of having glasses fitted for her eyes, and neither Mrs. McGuire nor her husband was paying for the treatment or transportation. We said, ‘The word ‘guest’ connotes both a social relationship and the existence of a host. Neither situation is present in this case,' and we held that Mrs. McGuire was not a guest passenger.

In the recent case of Cardinal v. Reinecke, 280 Mich. 15, 273 N.W. 330,274 N.W. 379 (quoting the syllabus): ‘Teacher in school of beauty culture who, at request of defendant, accompanied her and her two daughters on a trip to investigate possible opening for one of the daughters, a former pupil, as an operator in a beauty parlor held, not a mere guest passenger, hence entry of judgment for defendant on ground plaintiff was a guest passenger was error (1 Comp.Laws 1929, § 4648).’

Defendant Eckhardt's testimony that she was transporting Mrs. Crook ‘as an accommodation’ is in direct conflict with the testimony of Francis Crook that the transportation was a part of the consideration of the contract of hire. The nature of the relationship was a question of fact for the jury, to whom the question was given by the court under a charge of which no complaint is made, in this particular, by either appellant. See McGuire v. Armstrong, supra, and authorities quoted and cited therein.

The testimony as to whether or not Viola Crook's death was instantaneous was also conflicting. Dr. Colwell, the coroner, upon examination of the body, found a fracture of the third cervical vertebra, fracture of the left kidney, fracture of the spleen, a massive hemorrhage, and the spinal cord mutilated and badly damaged. In his opinion these injuries would have caused instant death. No objection was made to his testimony. Deputy...