Francis v. Scheper
| Decision Date | 08 December 1949 |
| Docket Number | No. 5,O,5 |
| Citation | 326 Mich. 441,40 N.W.2d 214 |
| Parties | FRANCIS v. SCHEPER et al. (SHELBY MUT. CASUALTY CO. OF SHELBY, OHIO, Garnishee). ctober term. |
| Court | Michigan Supreme Court |
George A. Porter and Romaine C. Rice, Detroit, for plaintiff and appellee.
Alexander, Cholette, Buchanan, Perkins & Conklin, Detroit, for defendant and appellant.
Before the Entire Bench.
In the principal suit, plaintiff Francis obtained judgment against all three defendants for personal injuries arising out of an automobile accident, which injuries were received by reason of the negligence of, or attributable to, the defendants. On the trial of the statutory issue in garnishment, now under consideration on appeal, plaintiff obtained a judgment against the garnishee defendant, the insurer of Howard Houck, one of the principal defendants. Garnishee defendant The Shelby Mutual Casualty Company appeals.
In the principal suit, the court charged the jury that plaintiff could not recover against defendant Houck, the owner of the motor vehicle in which plaintiff was a passenger, if the transportation of the plaintiff was not a part of the consideration of the contract of hire. The verdict of the jury in the principal case amounted to a finding that the transportation of plaintiff was a part of the consideration of the contract of hire.
Plaintiff Francis was seriously injured on August 26, 1946, at about 4:45 p.m., at the intersection of Crooks and Auburn roads in Oakland county, while plaintiff was riding home after work in defendant Houck's pickup truck when said truck collided with a Pontiac sedan owned by defendant Henry F. Scheper, Sr. and operated by defendant Henry W. Scheper. Plaintiff was not a guest passenger in defendant Houck's truck, but was riding as a passenger for consideration under an employment agreement wherein Houck agreed to pay plaintiff $1.50 per hour plus transportation from Oxford to the job and back again to Oxford for his work as a painter for Houck. Plaintiff testified that he left his employment on the afternoon in question at 4:30 p.m. and that of his own volition and choice, he then became a passenger in defendant Houck's truck, which was driven by one Wilbur Priddy, an employee of defendant Houck.
The verdict in the principal case against all three defendants in that case implied that Priddy, as agent and driver, driving defendant Houck's truck with his knowledge and consent, was guilty of negligence, that the defendant Henry W. Scheper drove the car that collided with defendant Houck's car, negligently and that Henry W. Scheper was driving the car of his father, Henry F. Scheper, Sr., with the knowledge and consent of Henry F. Scheper, Sr.
The verdict of the jury in the principal case and the consequent judgment of the court were against all three defendants jointly and severally in the sum of $14,322.20 and costs were taxed at $114.30. The validity of the said judgment is not in issue on this appeal. The defendants Scheper, Henry F. Scheper, Sr., and Henry W. Scheper, paid one-half of the principal judgment and costs, leaving the other half of the judgment and costs unpaid.
Upon failure of defendant Houck or his insurer to pay upon said judgment when it became final, plaintiff began garnishment proceedings against defendant Houck's insurer, The Shelby Mutual Casualty Company of Shelby, Ohio, hereinafter referred to as the casualty company, which casualty company had issued a liability insurance policy to defendant Houck in the sum of $10,000 covering the truck involved.
The garnishee defendant casualty company had defended defendant Houck in the principal case on the ground that plaintiff was barred from recovery because he was a guest passenger in the truck. However, the casualty company in its disclosure in garnishment and on the trial of the statutory issue in garnishment, claimed that plaintiff was 'engaged in the employment' of Houck at the time of his injuries, and that therefore he was excluded from coverage under the policy. The so-called exclusion clause in the policy is as follows:
'This policy does not apply: * * *
'(d) under coverages A and C, to bodily injury to or death of any employee of the insured while engaged in the employment other than domestic, of the insured, or while engaged in the operation, maintenance or repair of the automobile.' (Italics supplied.)
On the trial of the statutory issue in garnishment, plaintiff claimed that he was in no way 'engaged in the employment' of Houck at the time of the accident, but claimed that he was a passenger for hire in Houck's truck under the hiring agreement, that his duties for Houck had ended at the time of the accident and that plaintiff was merely collecting part of his pay (his ride home) whe injured.
Plaintiff testified that he was employed by Houck as a painter; that under his employment agreement with Houck he was to receive for his work $1.50 per hour and his transportation; that his working hours were from 8 a. m. to 4:30 p. m. with one-half hour out for lunch; that on the day he was injured he had worked 8 hours and quit at 4:30 p. m., that he then had nothing further to do for Houck; that his pay period ended at 4:30 p. m. and he received no pay for time after that; that his injuries occurred at 4:40 or 4:45 p. m.; that Houck had no control over or right to control him or his actions after 4:30 p. m.; that plaintiff was not obligated to ride home in the truck after 4:30 but that he could go to Detroit or any where else he might desire to go or he could ride back home to Oxford in the truck if he so desired.
Defendant Houck, called for cross-examination by plaintiff, testified that plaintiff was employed by him; that under the employment agreement plaintiff was required to be at work on the job at 8 a. m.; that he was to work 8 hours, have one-half hour off for lunch, and his day stopped at 4:30; that under the employment agreement Houck required plaintiff to stay on the job only 8 hours; that his day's work ended and he was through at 4:30 p. m. and Houck did not require him to perform any services after that; that Houck did not require plaintiff to ride home in the truck, but if plaintiff wanted to, he could, it was up to plaintiff; that Houck had no control or right to control over plaintiff after 4:30 p.m. Defendant Houck further testified that his insurance policy on the truck was prepared by the garnishee defendant casualty company and was in full force and effect at the time of plaintiff's injury.
At the close of all proofs in the garnishment case, both parties moved for a directed verdict, each in his own favor. The court proceeded to decide all issues of fact and law. Attorneys for garnishee defendant especially requested the court to decide the case without the aid of the jury.
The court found under the facts and the law applicable that plaintiff 'was not engaged in Houck's employment at the time of the accident,' and entered judgment for plaintiff against the garnishee defendant casualty company for $7,161.15, that being the remaining unpaid balance of the principal judgment.
Garnishee defendant casualty company claims that the plaintiff was engaged in the employment of the insured at the time...
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