McGuire v. Armstrong, 28.

• Decision Date: 02 July 1934
• Docket Number: No. 28.,28.
• Citation: 255 N.W. 745,268 Mich. 152
• Parties: McGUIRE v. ARMSTRONG.
• Court: Michigan Supreme Court

268 Mich. 152

255 N.W. 745

McGUIRE

v.ARMSTRONG.

No. 28.

Supreme Court of Michigan.

July 2, 1934.

Appeal from Circuit Court, Kent County; Leonard D. Verdier, Judge.

Action by Con McGuire against Anna Armstrong. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before the Entire Bench.

Arthur F. Shaw, of Grand Rapids, for appellant.

Cornelius Hoffius, of Grand Rapids (R. Van Kovering, of Grand Rapids, of counsel), for appellee.

BUSHNELL, Justice.

Plaintiff recovered a judgment of $1,000 against defendant, a nurse employed by Kent county, for the loss of his wife's services. The sole question presented by the appeal is whether deceased was a guest passenger in the automobile driven by defendant. The deceased, who was being treated for cataracts on her eyes, had made four previous trips with the defendant for this purpose. There is some immaterial dispute as to whether plaintiff's wife was a county or township patient, but, in any event, she was being taken by the county nurse to Grand Rapids for the purpose of having glasses fitted for her eyes, and neither she nor her husband was paying for the treatment or transportation.

The morning of the accident, the nurse had five passengers in her car, and Mrs. McGuire was in the front seat. The fog had just lifted and there was a bright sun blinding Mrs. Armstrong's vision. Her knowledge of the head-on collision, which resulted in Mrs. McGuire's death a few hours later, is limited to the following testimony:

‘I thought I was on my own side of the road. I always aim to drive on that side and the first thing I saw was this car loomed up right in front of me and that is all I know.’

Did the trial court err in holding that Mrs. McGuire was not a guest passenger of either the county or its employee Mrs. Armstrong? The so-called Guest Statute, section 4648, Comp. Laws 1929, reads in part:

‘Provided, however, That no person, transported by the owner or operator of a motor be as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.’

At the trial, no testimony was offered by the defendant and plaintiff's witnesses were not subjected to cross-examination. Eighteen days after the entry of the judgment on the jury's verdict, on the hearing of a motion for entry of judgment non obstante veredicto, defendant attempted to show that the transportation was furnished by the county as a convenience to the township, and the claim was then made that the deceased was the patient of the township. This testimony was not proper on the hearing of the motion.

Appellant's brief cites only one case, Morgan v. Tourangeau, 259 Mich. 598, 244 N. W. 173, in support of her contention that since Mrs. McGuire was being transported without payment, she must necessarily have been a guest. That case held that plaintiff was a gratuitous passenger, even though she was permitted to buy some gasoline during the course of a pleasure trip. The language of the statute does not emphasize the necessity of payment by the passenger himself, but rather the question is, Was the transportation furnished gratuitously? There is ample authority for allowing a recovery for ordinary negligence when a third party compensates the defendant for transporting his passenger.

In Dahl v. Moore, 161 Wash. 503, 297 P. 218, defendant was employed by a realty company to sell real estate. Prospects were furnished with transportation tickets and were driven by the defendant to view the property. If a sale was made, the company paid a commission. Otherwise, the defendant only received reimbursement for her expenditures for gas and oil. The court refused to find that a prospect was a guest under such an arrangement. See, also, Sullivan v. Richardson, 119 Cal. App. 367, 6 P.(2d) 567.

A school pupil transported to school in a special bus provided for that purpose under contract with the bus driver, was held not to be a guest in Smith v. Fall River Joint Union High School Dist., 118 Cal. App. 673, 5 P. (2d) 930, 932. After a discussion of the reasons for the enactment of the Guest Statute, the court held:

‘We do not believe * * * that it was ever the intent of the Legislature, in a case where the driver received compensation for the passenger, that the latter should be classified as a ‘guest’ where the result would be the deprivation of the right to recover upon the ground of ordinary negligence.'

The consideration need not pass from the passenger to the driver. If the driver receives a direct benefit from another, the service is not gratuitous and there is no guest relationship. Mrs. Armstrong admitted that it was her duty as a county nurse to bring patients to various clinics in Grand Rapids. It is reasonable to infer that the transportation of such passengers as the deceased was within the course of defendant's employment. From the testimony, it seems that it was within the scope of the county's duties to provide medical services for the indigent....