Pokriefka v. Mazur

• Decision Date: 21 July 1967
• Docket Number: No. 1,A,1
• Citation: 151 N.W.2d 806,379 Mich. 348
• Parties: Rose Mary POKRIEFKA, guardian of Margaret Pokriefka, a minor, Plaintiff and Appellant, v. Frank MAZUR, Defendant and Appellee. Rose Mary POKRIEFKA, Plaintiff and Appellant, v. Frank MAZUR, Defendant and Appellee. pril Term.
• Court: Michigan Supreme Court

Page 806

151 N.W.2d 806

379 Mich. 348

Rose Mary POKRIEFKA, guardian of Margaret Pokriefka, a minor, Plaintiff and Appellant, v. Frank MAZUR, Defendant and Appellee.

Rose Mary POKRIEFKA, Plaintiff and Appellant, v. Frank MAZUR, Defendant and Appellee.

No. 1, April Term.

Supreme Court of Michigan.

July 21, 1967.

Markle & Markle, by Fergus Markle, Detroit, for appellant.

Marcus, McCroskey, Libner, Reamon, Williams & Dilley, by William G. Reamon, Grand Rapids, in support of plaintiff-appellant, amicus curiae.

Davidson, Gotshall, Kelly, Halsey & Kohl, by John R. Secrest, Detroit, for appellee.

Luyendyk, Hainer & Karr, by Stephen W. Karr, G. Anthony Edens, Grand Rapids, amicus curiae.

Before the Entire Bench.

KELLY, Justice.

The facts and issues involved herein are so well and concisely stated in the opinion of the Court of Appeals, 3 Mich.App. 534--536, 143 N.W.2d 151, 153, that we quote that opinion in its entirety:

'Plaintiff Rose Mary Pokriefka commenced the instant actions on July 30, 1962 on behalf of herself and as guardian of Margaret Pokriefka, a minor, against the defendant as owner of an automobile involved in an accident and operated by defendant's daughter. The minor Margaret Pokriefka was injured when the defendant's automobile, in which she was a passenger, ran into the rear of another automobile on the Edsel Ford expressway in Detroit.

'At the time of the accident, on February 27, 1962, the plaintiff's minor and defendant's daughter were on their way home from classes at Marygrove College in Detroit.

'The two girls were 18 years old at the time of the accident and pursuant to an agreement between themselves, plaintiff's daughter had paid defendant's daughter $2 a week for daily transportation to and from school. The complaint in each case alleged ordinary negligence rather than gross negligence and relied on the theory that since plaintiff's daughter had paid for the ride the guest act ¹ did not apply.

'At trial, defendant's daughter, then 21 years old, was called to testify, whereupon she stated she desired to disaffirm the contract. A tender of $22 was made to plaintiff and witnesses by the court. The court then dismissed plaintiff's case on the basis of the holding in Brown v. Wood (1940), 293 Mich. 148, 291 N.W. 255, 127 A.L.R. 1436.

'This Court considers itself bound by the ruling of the Supreme Court in Brown, supra, and feels that the case is dispositive of the issues herein. A reading of the Brown Case will reveal substantially similar facts and issues.

'Plaintiff's contention that the contract was not disaffirmed within a reasonable time after reaching majority is not well taken since a notice to that effect was filed in circuit court approximately 16 months prior to the 21st birthday of defendant's daughter.

'Affirmed. Costs to appellee.'

In Brown v. Wood (1940), 293 Mich. 148, 291 N.W. 255, 127 A.L.R. 1436, this Court held that defendant's disaffirmance of his contract to carry plaintiff for hire made plaintiff a guest passenger because 'holding the infant liable in tort would in effect enforce a liability arising out of his contract, then since the infant cannot be held Ex contractu he cannot be held liable for his tort. The injured party is not permitted to enforce against the infant indirectly by an action in tort a liability which he could not enforce directly against the infant by an action based upon contract. * * * From our review of this record we are unable to conceive how the tort aspect of these actions can be separated from the contractual relation which these minor plaintiffs entered into with the minor defendant.'

We cannot agree with appellant that the facts and issues in Brown v. Wood can be distinguished from the instant case and, therefore, we devote the remainder of this opinion to consideration of appellant's request that we overrule the Brown Case.

Appellant urges that we overrule Brown v. Wood because:

(a) This is a tort action and the only relation the contract bears to the suit is to establish the status of the parties at the time of the accident;

(b) Margaret Pokriefka was a paying passenger in defendant's automobile when the accident occurred and this Court should apply and follow our decision in Shumaker v. Kline, 333 Mich. 346, 53 N.W.2d 295, where we held that the status is determined at the outset of the host-passenger relationship and is not subject to change on the basis of subsequent events;

(c) The fact that a contract is involved should not enable the minor driver to avoid liability for his torts and this principle of law is widely accepted, as evidenced by 27 Am.Jur., Infants, § 92, p. 815, stating:

'The mere fact that a cause of action grows out of or is connected with a contract will not shield an infant from liability for a tort which is not a mere breach of the contract, but is a distinct wilful and positive wrong in itself.'

(d) While this Court has recognized the minor's right to revoke executory contracts and contracts for the sale or purchase of goods, chattels and real estate when such contracts are not necessities, we have held a definite contrary view in regard to a minor's right to revoke an executed contract for personal services since our 1879 decision in Spicer v. Earl, 41 Mich. 191, p. 193, 1 N.W. 923, 924 (32 Am.Rep. 152), where we held:

'The principle laid down in the case of Squier v. Hydliff, 9 Mich. 274, governs this case. It was there held that an infant was bound by his executed contract of service if it was reasonable under all the circumstances, or not so unreasonable as to be evidence of fraud or undue advantage.'

(e) The quotation from 1 Cooley on Torts (4th ed.), § 66, p. 204:

'But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, wilful and positive wrong of itself, then, although it may be connected with a contract, the infant is liable,'

is applicable to the instant case because the contract was in fact performed, and appellant does not base her case on any failure to exercise the high degree of care urged by a carrier of passengers for hire to the passenger being carried;

(f) Margaret Pokriefka never accepted the status of guest and she sustained her injuries as a passenger for hire. In Hunter v. Baldwin, 268 Mich. 106, 109, 255 N.W. 431, 432, we said:

'On the other hand, not everyone riding in a car without payment is a guest.'

This quotation was cited with approval in Hall v. Kimball, 355 Mich. 333, 335, 94 N.W.2d 817. Also, in Hunter we made the point (p. 109, 255 N.W. p. 432) that: 'This statute (Guest Act), being in derogation of the common law, must be strictly construed', and in Moore v. Palmer, 350 Mich. 363, 390, 86 N.W.2d 585, 594, we held:

'The owner liability statutes (now CLS 1961, § 257.401; Stat.Ann. 1960 Rev. § 9.2101) were aimed at situations in which the common law was helpless. While they were not passed as a substitute for the common law, they were adopted to complement the common law.'

(g) The Brown v. Wood decision has never under similar facts been approved or cited as authority for decision in this or any other State.

We quote the following from defendant and appellee's brief as a summartion of his position in regard to the Brown v. Wood case:

'Plaintiff-appellant claims that the holding in Brown v. Wood, supra, was erroneous in two respects. It is urged that the Brown case was not based upon the voidable contract; rather it was based upon his status at the time of the accident and that revoking the contract did not affect the status. The argument is answered in the South Dakota case of Tennyson v. Kern, 76 S.D. 136 (74 N.W.2d 316). * * *

'Justice Cooley states that the law will not permit the plaintiff to enforce a contract with a minor indirectly by counting on the infant's neglect to perform it or omission of a duty under it as a tort. The Oregon Supreme Court case of Steenson v. Robinson (1964), 236 (Or.) 414 (389 P.2d 27), as cited by plaintiff-appellant, completely overlooked this resoning as set forth in the Tennyson case.

'Plaintiff-appellant also claims that the Supreme Court in Brown v. Wood, supra, erred in assuming that, if plaintiff were not a paying passenger, she would be Ipso facto a guest passenger. As in the case at bar, the sole claim of plaintiff was that plaintiff was a paying passenger. The Tennyson case, supra, and Michigan cases have recognized that there are certain situations where a passenger may be something other than a guest; however, this is not the case at bar, inasmuch as the sole issue raised by plaintiff was where or not the plaintiff had paid for the ride. It should further be noted that in the case at bar the trial court gave plaintiff a chance to amend her claim and she declined to do so.

'In summary, it is submitted that the case of Brown v. Wood, supra, should not be overruled, inasmuch as this reasoning is sound, as shown in Tennyson v. Kern, supra; and, further, plaintiff-appellant has claimed that plaintiff was a passenger for hire in his (sic) opening statement and in his (sic) statement of facts to this court and, therefore, that was the only claim before the trial court.'

Quotations from the brief of Amicus curiae in support of defendant's position concerning Brown v. Wood follow:

'If later and more recent decisions are to be discussed and reviewed as bearing on the propriety and authority of Brown v. Wood, the case of Payette v. Fleischman, 329 Mich. 160 (45 N.W.2d 16) (1 NCCA 3d 71), must be brought forth. In Payette, although it arose from circumstances different from those in Brown v. Wood, the Supreme Court, in an opinion written by Justice Dethmers, quoted the Brown decision extensively and approved it by application in that case.

'A case decided by the Supreme Court of Oregon is cited by appellants as being 'critical' of Brown v. Wood. It rather clearly appears, however, that the so-called criticism is unfounded and the result of the same narrow analysis of the Brown case...