Emons v. Shiraef, 87

• Decision Date: 12 April 1960
• Docket Number: No. 87,87
• Parties: Willard L. EMONS, Plaintiff and Appellant, v. William A. SHIRAEF, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 490

102 N.W.2d 490

359 Mich. 526

Willard L. EMONS, Plaintiff and Appellant, v. William A. SHIRAEF, Defendant and Appellee.

No. 87.

Supreme Court of Michigan.

April 12, 1960.

Burke, Burke & Ryan, Ann Arbor, for appellant.

McKone, Badgley, Domke & Kline, Jackson, for appellee.

Before the Entire Bench, except SMITH, J.

CARR, Justice.

This case has resulted from a traffic accident occurring in the city of Charlotte shorlty before midnight on May 28, 1955. The testimony taken on the trial in circuit court is not materially in dispute. On the evening in question a birthday party was being held at the home of the plaintiff. Defendant was one of the guests. The latter expressed a desire for potato chips of a certain kind and indicated his willingness to procure them. Plaintiff thereupon advised defendant that he would himself go downtown in Charlotte and purchase the desired chips. Defendant, who had parked his car in such position that it was convenient for use, offered to drive plaintiff on the errand. Plaintiff accepted the offer and the two men proceeded toward the business portion of the city.

The testimony taken on the trial indicates that plaintiff suggested to defendant that the purchase could be made at a certain shop located at the intersection of Main and Lawrence streets in Charlotte. However, defendant passed the shop referred to and as he went through the intersection began to accelerate his speed. It does not appear that plaintiff made any comment on defendant's failure to stop at the suggested shop to make the purchase, apparently concluding that defendant preferred to go to another place of business therefor. Plaintiff called defendant's attention to the fact that the speed limit in Charlotte was 25 miles per hour, which rate defendant was at the time exceeding.

Plaintiff also claimed that he admonished defendant to be careful in his driving because of the speed limit and the fact that there was a curve in the street ahead. Apparently another remark was made to defendant just as the car was proceeding into the curve at a rate of speed, as plaintiff claimed, of 70 miles an hour. Plaintiff testified that the warning at that time came too late, that defendant could not have prevented the car from leaving the road and running into a tree. As a result of the impact plaintiff was injured and apparently defendant also sustained injuries. On the trial of the case he was called as a witness in his own behalf but claimed that he had no recollection whatever of the party held at plaintiff's home, the trip downtown in Charlotte, or the accident in which the men were injured. Defendant's claim as to his inability to remember what had occurred was not challenged.

The details as to what occurred on the trip from plaintiff's home to downtown Charlotte rest wholly in the testimony of plaintiff. He stated in substance that during the first four blocks of the ride, which took them to the intersection of Main and Lawrence streets, defendant drove in a reasonable manner and did not in any way indicate that he was incapable of properly controlling the car, specifically stating that at the time the trip started defendant gave no indications of intoxication. It may be noted in this connection that another witness testified to the fact that defendant had been drinking. It further appears that the remarks made by plaintiff to defendant during the period of time after the car passed through the intersection mentioned to the place of the accident, some three or four blocks down the street, evoked no response from the driver who gave no indication that he heard the admonitions but remained wholly silent. It is not claimed that any argument occurred or that defendant exhibited any indication of being irritated or otherwise displayed ill will toward plaintiff. The record contains no explanation with reference to defendant's motive in driving at a high rate of speed. He was somewhat familiar with the streets of Charlotte, but there is no showing that he had knowledge of the location of the curve where the accident occurred.

It was plaintiff's claim on the trial of the case that the errand on which the parties were embarked at the time of the accident was, in fact, a joint enterprise, and that plaintiff was entitled to recover damages on the basis of ordinary negligence. Defendant disputed such claim, insisting that the plaintiff was a guest passenger and that there was no liability in the absence of a showing of willful and wanton misconduct of gross negligence within the meaning of section 401 of the motor vehicle code of 1949. ¹ Plaintiff further contended that if the relationship was that of driver and guest passenger liability should be predicated on the theory that defendant's driving at an excessive rate of speed constituted willful and wanton misconduct. At the conclusion of plaintiff's proofs the trial judge, who heard the case without a jury, determined that the parties were not engaged at the time of the accident in a joint enterprise and that plaintiff was, in fact, a guest passenger. Defendant's motion for directed verdict was denied at the time and further proofs were taken, the trial judge obviously considering the issue as to willful and wanton misconduct as one of fact. At the conclusion of the case he determined that the proofs did not entitle plaintiff to judgment and disposed of the case accordingly. Plaintiff has appealed.

The first question presented for consideration is whether the trial judge was in error in holding that plaintiff was a guest passenger and rejecting his claim that the parties were engaged in a joint enterprise. The term 'joint enterprise' has been considered by this Court in numerous cases, among which is Farthing v. Hepinstall, 243 Mich. 380, 220 N.W. 708, 709. It was there 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. It is not necessary to review the cases in which this question is considered. The subject is discussed and many cases are cited, in the annotation to Keiswetter v. Rubenstein, 48 A.L.R. 1049 [235 Mich. 36, 209 N.W. 154].'

In Laughlin v. Michigan Motor Freight Lines, 276 Mich. 545, 268 N.W. 887, 890, the plaintiff was riding with her husband at the time of the accident and resulting injuries for which she sought to recover damages. The accident occurred in the State of Ohio as the parties were returning to their home in Pennsylvania after visiting friends in Michigan. In discussing the situation, it was said:

'Plaintiff and her husband were not engaged in a joint enterprise according to this record. The earmarks of the legal relation of a joint adventure in the operation of a motor vehicle may be found in Farthing v. Hepinstall, 243 Mich. 380, 220 N.W. 708, and Frisorger v. Shepse, 251 Mich. 121, 230 N.W. 926. Mrs. Laughlin neither shared the expense nor the control of the car. See, also, Huddy on Automobiles [6th Ed.], § 682; Berry on Automobiles [3d Ed.], § 514; 2 R.C.L. 1208; * * * 8 L.R.A. (N.S.) 628; 32 Michigan Law Review, 274, and cases annotated in 48 A.L.R. 1077, 63 A.L.R. 921, and 80 A.L.R. 312. See, also, Bailey v. Parker, 34 Ohio App. 207, 170 N.E. 607.'

The general rule is summarized in 38 Am.Jur., pp. 924, 925, as follows:

'Parties cannot be said to be engaged in a joint enterprise, within the meaning of the law of negligence, unless there is a community of interests in the objects or purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control or management. No legal distinction exists between the phrases 'joint enterprise' and 'the prosecution of a common purpose.''

An interesting case that seems to be in accordance with the general rule on the subject is Van Gilder v. Gugel, 220 Wis. 612, 265 N.W. 706, 710, 105 A.L.R. 824. There the plaintiff brought action to recover damages resulting from the death of her husband due, as it was claimed, to negligence on the part of one of the defendants. It appeared from the proofs that plaintiff's husband was riding in an automobile driven by said defendant, that each of the men owned a wood lot, and that each wished to go to his lot for the purpose of sawing wood thereon. There was also an arrangement whereby each was to assist the other in certain work. Neither had any interest in the wood that belonged to the other. It was held that, as a matter of law, Van Gilder and the driver of the car in which he was riding at the time of the fatal accident were not engaged in a joint venture. Commenting on the situation it was said:

'They were not joint owners or bailees of the automobile. It was solely under Meicher's control in every respect, and he did the driving. Neither the wood lots nor the wood were owned by Van Gilder and Meicher jointly or in common. Neither had or was to have any interest in either the land or the wood, before or after it was cut, which had theretofore belonged to the other. It continued to be the individual property of each original owner, to be used solely for his individual purpose. Consequently, the journey in question was not part of any business or...