Johnson v. Fischer
| Citation | 292 Mich. 78,290 N.W. 334 |
| Decision Date | 14 February 1940 |
| Docket Number | 73.,Nos. 72,s. 72 |
| Parties | JOHNSON v. FISCHER (two cases). |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Nettie W. Johnson, and by John E. Johnson, against Mae Fischer, otherwise known as Myrtle Fischer, and Lee Benedict, to recover damages alleged to have been caused by the gross negligence and wanton and willful misconduct of defendant Mae Fischer (now Mrs. Benedict). From an adverse judgment, defendants appeal.
Reversed.
Appeal from Circuit Court, Kent County; Cornelius Hoffius, judge.
Argued before the Entire Bench.
Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids (Phil R. Johnson, of Grand Rapids, of counsel), for defendants and appellants.
Allaben & Wiarda, of Grand Rapids, for plaintiffs and appellees.
John E. Johnson and Nettie W. Johnson are husband and wife. He sues defendants to recover damages alleged to have been caused by the gross negligence and wanton and wilful misconduct of defendant Mae Fischer (now Mrs. Benedict). She sues in her own behalf to recover damages caused to herself by defendant Mae Fischer's alleged gross negligence and wanton and wilful misconduct. Defendants by way of answer say Mrs. Johnson and the defendant Mae Fischer were engaged in a joint enterprise at the time of the injury to Mrs. Johnson; that if she was a guest passenger in defendants' automobile, defendants were not grossly negligent, but, if negligent at all, were guilty only of ordinary negligence. Upon trial by jury, there was motion for directed verdict which was overruled, a motion for judgment notwithstanding the verdict and a motion for a new trial. These were overruled. Defendants appeal and claim the court erred in overruling their motion for a directed verdict upon the ground the two women were engaged in a joint enterprise, and upon the ground plaintiffs had failed to show gross negligence or wanton and wilful misconduct upon the part of defendant Mae Fischer; in refusing to give defendants' first and second requests to charge, and in its charge to the jury; in refusing to grant a mistrial upon defendants' motion; in overruling defendants' motion for judgment notwithstanding the verdict; and in refusing to grant a new trial.
The parties are residents of the city of Grand Rapids. Plaintiff Nettie W. Johnson had become acquainted with the defendant Mae Fischer about two years before the alleged accident. She testified Mrs. Fischer was then pointed out to her as a wonderful sportswoman, and that fishing was her hobby. Plaintiff and her husband had a place near Pentwater where they went fishing week-ends. The principal thing the parties talked about at the time of their first meeting was fishing for steelhead trout. The next November plaintiff read in the Grand Rapids Press the steelheads were running up at Pentwater. She talked with her husband about going there fishing but he couldn't go. He suggested she call another woman. She did but she could not go. She then called the defendant Mae Fischer, told her the steelheads were running and that, if she would like to go, this was her chance. Later, Mrs. Fischer called up and said she would go.
Plaintiff Nettie W. Johnson on the day of the accident desired to go fishing and wanted defendant Mae Fischer to take her to the fishing grounds. Plaintiff did not drive an automobile but the defendant did and had the use of a car. Mrs. Fischer came to the plaintiffs' home with an automobile. Plaintiff Nettie Johnson offered to pay for the gasoline but the car had already been filled by Mrs. Fischer. Plaintiff directed defendant where to go. They went up near Pentwater. In order to do any fishing, plaintiff had to get her fishing tackle which was at the summer home which she and her husband maintained near Pentwater. Plaintiff was familiar with the highway. The parties drove north from Grand Rapids, through Sparta, Casnovia, Newaygo and past White Cloud where they turned to the west on the way to Pentwater. Plaintiff was familiar with the fishing grounds and with the highway over which she directed the defendant to travel. When they reached the summer home of plaintiff and she got her fishing tackle, defendant assisted her in getting it ready for use. They drove to Pentwater and out to the fishing grounds but found it was too rough for fishing. They came back to Smith's restaurant in Pentwater where plaintiff bought and paid for dinner for both of the parties, and incidentally bought a bottle of beer for each of them at a nearby tavern. It was then suggested they go to the place of a fisherman named Knight. They visited that but there was no fishing. They then started for Whitehall where the defendant suggested they might get some perch fishing. When they...
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Bostrom v. Jennings
...a joint enterprise, involved in the Frisorger case, was decided without being considered. This same situation obtained in Johnson v. Fischer, 292 Mich. 78, 290 N.W. 334, and Bushie v. Johnson, 296 Mich. 8, 295 N.W. 538. In Hopkins v. Golden, supra, our opinion was directed chiefly to a cons......
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Johnson v. Fischer
...Justice (dissenting). This is a motion by plaintiffs to set aside an order of this Court denying them a rehearing in Johnson v. Fischer, 292 Mich. 78, 290 N.W. 334, 336, decided in 1940. In that case the Court held that the plaintiff Nettie W. Johnson was engaged in a joint venture or enter......
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Boyd v. McKeever, 8
...* * * ((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), 2......
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Sherman v. Korff
...appeals. The mentioned finding of the trial judge finds support in Hopkins v. Golden, 281 Mich. 389, 275 N.W. 184, and Johnson v. Fischer, 292 Mich. 78, 290 N.W. 334, in which persons travelling together in one automobile on a noncommercial fishing trip were held, as a matter of law, to be ......