Olsen v. Larson

• Decision Date: 24 August 1970
• Docket Number: Docket No. 6696,No. 3,3
• Citation: 182 N.W.2d 50,26 Mich.App. 73
• Parties: John B. OLSEN, Administrator of the Estate of Arnold Good, Deceased; Jerry Brandow, Francis D. Hopkins and Jay A. Kerr, Plaintiffs- Appellants, v. William J. LARSON, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 50

182 N.W.2d 50

26 Mich.App. 73

John B. OLSEN, Administrator of the Estate of Arnold Good Deceased; Jerry Brandow, Francis D. Hopkins and Jay A. Kerr, Plaintiffs- Appellants, v. William J. LARSON, Defendant-Appellee.

Docket No. 6696.

Court of Appeals of Michigan, Division No. 3.

Aug. 24, 1970.

Released for Publication Dec. 28, 1970.

Leave to Appeal Denied Jan. 14, 1971.

John B. Olsen, Olsen & Rogoski, Muskegon, for plaintiffs-appellants.

Harold M. Street, Poppen, Street & Sorensen, Muskegon, for Olsen.

Jerome R. Sanford, Lidke & Sanford, Muskegon, for Brandow, Hopkins and Kerr.

Before R. B. BURNS, P.J., and HOLBROOK and LEVIN, JJ.

LEVIN, Judge.

Arnold Good was killed and Jerry Brandow, Francis D. Hopkins, and Jay A. Kerr were injured when an automobile in which they were riding and operated by William J. Larson collided with a truck trailer. The administrator of Good's estate and the other persons named commenced this action against Larson to recover their damages.

The plaintiffs and the defendant both moved for summary judgment on the ground that there is not a genuine issue of material fact. ¹ The trial judge granted the defendant's motion and entered a judgment dismissing the plaintiffs' complaint.

This appeal comes to us on a stipulation of facts. The defendant Larson concedes that he was driving and that he was guilty of ordinary negligence that caused the accident. It is further agreed, however, that Larson was not grossly negligent or guilty of willful or wanton misconduct. The parties also agree that Illinois law governs ² and that summary judgment should be awarded to one side or the other.

The Illinois motor vehicle law provides: 'No person riding in * * * a motor vehicle * * * as a guest without payment for such ride, or while engaged in a joint enterprise with the owner or driver' shall have a cause of action against the driver or owner for injuries sustained unless the accident is caused by the driver's or owner's 'willful and wanton misconduct' and such misconduct contributed to the injury. 'Nothing contained in this section shall be construed to relieve a motor vehicle or motorcycle carrier of passengers for hire of responsibility for injury or death sustained by any passenger for hire.' ³

The defendant successfully contended in the trial court that the plaintiffs were either guest passengers or joint enterprisers. On appeal, the plaintiffs contend that they were passengers for hire. We reverse.

Good and the other plaintiffs were serving in the United States Army and were stationed at Fort Leonard Wood, Missouri. Hopkins and Kerr, each of whom owned an automobile, had arranged to provide common transportation to Muskegon, Michigan for themselves, Brandow and Good. The two automobiles were used alternately to transport the four men on a number of trips. Brandow and Good each contributed $20 to the owner of whichever automobile was used. Hopkins and Kerr paid nothing, the alternate use of their respective automobiles being regarded as their contributions.

The defendant Larson learned of the arrangement and joined the group for the first time on the trip that gave rise to this action. Hopkins' automobile was used; accordingly, Good, Brandow, and Larson each paid him $20. In keeping with the usual practice, all the men shared the driving.

The collective purpose of the young men extended no further than a plan to transport themselves to Muskegon and back to Missouri. On their arrival in Muskegon, they went their separate ways to visit their wives and families. There was apparently no communication between the men while in Muskegon except to arrange a meeting place and time for their return to Missouri. The collision occurred in Illinois during the return trip to Missouri.

The requirement that a passenger 'engaged in a joint enterprise with the owner or driver' prove willful and wanton misconduct was added to the Illinois statute by amendment in 1957. ⁴ Previously, only 'guests' had to prove more than ordinary negligence to recover.

In McNanna v. Gach (1964), 51 Ill.App.2d 276, 281, 201 N.E.2d 191, 193, the accident occurred in 1956, before the effectiveness of the 1957 amendment. The plaintiff and five other students paid $2 a week to the driver in return for rides to and from high school. The Court declared:

'We conclude, as a matter of law, that plaintiff was a passenger and not a guest. These trips were not made for pleasure or social purposes. The arrangement or custom was not for an isolated, single or occasional transportation, but had been in effect on a paying basis for more than two months, five days each week. It comprehended continuous transportation to and from school. The amount of the payment was certain and substantial in amount. The arrangement constituted an economic benefit to the deceased driver, Gach, for the reason he was obliged to make the trip to reach his own place of study.'

In the post-1957 amendment case of Robbins v. Campbell (1966), 72 Ill.App.2d 252, 218 N.E.2d 492, 494, the plaintiff paid the defendant driver, her son, $20 for her share of the expenses for gasoline and meals during a 560 mile round trip to visit another son. The Court ruled:

'Under the circumstances, the payment of $20 appears to be sufficient to entitle plaintiff to the status of a passenger, rather than a guest. 8 Am.Jur.2d 47; McNanna v. Gach (1964), 51 Ill.App.2d 276, 201 N.E.2d 191.'

On the authority of McNanna and Robbins we hold that under Illinois law Good and the other plaintiffs were not riding as 'guest(s) without payment for such ride.' ⁵ As in McNanna, the arrangement between the men did not relate to an isolated transaction. The amounts paid by the cash-paying passengers and the use of the automobiles of the nonpaying passengers ⁶ were compensation substantial in amount. In Summers v. Summers (1968), 40 Ill.2d 338, 239 N.E.2d 795, the Illinois Supreme Court held that an owner-occupant, such as Hopkins in this case, is not a 'guest' within the meaning of the statute.

The Robbins Court also ruled that the plaintiff in that case was not engaged in a joint enterprise with her son. ⁷ The trip there was for the purpose of visiting another son whose home and furniture had recently been destroyed by fire and the defendant had rented a trailer in which to transport some furniture which the plaintiff gave to her son. The Court ruled (218 N.E.2d p. 494): 'Absent evidence of a Business enterprise' the parties were not engaged in a joint enterprise within the meaning of the statute. (Emphasis supplied.)

The most recent expression by an Illinois appellate court is in Enlow v. Illinois Central R. Co. (1969), 103 Ill.App.2d 269, 276, 277, 243 N.E.2d 847, 851. There, schoolboys were killed while riding in a school-owned truck on which they had helped load a drag or grader which the school was returning to the owner. The court said:

'To define a joint enterprise there must be evidence of a common Business purpose in which the occupants are mutually interested in the trip itself as part of such purpose and where each is responsible for the manner in which the car is operated. Grubb v. Illinois Terminal Co., 366 Ill. 330, 339, 8 N.E.2d 934 (1937); Smith v. Bishop, 32 Ill.2d 380, 385, 205 N.E.2d 461 (1965). Here the original complaint was sufficient to show that there was no mutual interest in the purpose of the automobile ride, and that the purpose was not a business purpose to the boys.' (Emphasis by the Court.)

It is apparent from Robbins that the mere sharing of expenses does not...