Rehm v. Interstate Motor Freight System

• Decision Date: 01 February 1943
• Docket Number: No. 9206.,9206.
• Citation: 133 F.2d 154
• Parties: REHM v. INTERSTATE MOTOR FREIGHT SYSTEM et al.
• Court: U.S. Court of Appeals — Sixth Circuit

133 F.2d 154 (1943)

REHM v. INTERSTATE MOTOR FREIGHT SYSTEM et al.

No. 9206.

Circuit Court of Appeals, Sixth Circuit.

February 1, 1943.

Clifford A. Mitts, Jr., of Grand Rapids, Mich. (Farabaugh, Pettengill & Chapleau, of South Bend, Ind., and Clifford A. Mitts, Jr., of Grand Rapids, Mich., on the brief), for appellant.

L. E. Becker, of Grand Rapids, Mich. (Warner, Norcross & Judd and Alexander, McCaslin & Cholette, all of Grand Rapids, Mich., on the brief), for appellees.

Before HICKS, SIMONS, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

Appellant concedes that the negligence of the driver of an automobile is, under the law of Michigan, imputable to a guest passenger. Asserting, however, that this doctrine, which is at utter variance with that prevailing generally in American jurisprudence, is limited in its applicability to those whose election to ride with the operator of the automobile is free and voluntary, appellant insists that the district court erred in charging the jury that there would be imputable to appellant's decedent any contributory negligence of the driver of the automobile in which the deceased was riding when fatally injured as the result of a collision with a trailer attached to appellee's tractor.

Appellant's decedent and Gamble, owner and driver of the automobile, were employees of the Federal Home Loan Bank Board for the Sixth District. The district supervisor had assigned them, on official business, from Hammond, Indiana, to Monroe, Michigan, and had ordered them to report from Monroe to Grand Rapids, Michigan, to examine the Federal savings and loan association located there. He testified that the manner of travel "was usually optional with the examiners," that he knew the two men had traveled together in Gamble's car on their last three assignments, and also that Gamble received five cents per mile travel allowance when using his own automobile; but that the examiners had not been instructed by him one way or the other concerning their method of transportation. Such direction did not fall within the scope of his authority. The supervisor testified further that, had he desired to do so, appellant's decedent could have adopted some other mode of travel than in Gamble's automobile.

The fatal collision occurred at night on a United States Highway between Monroe and Grand Rapids. The evidence as to responsibility for the collision was conflicting. In his testimony, Wilkins, driver of appellee's tractor and trailer, placed the blame upon Gamble's attempt to pass another car in a manner violative of Michigan statutes. The jury evidently believed him and returned a verdict of no cause of action, which was upheld by the district court.

The argument of appellant has been answered adversely in Caswell v. New York Central Railroad Company, 263 Mich. 18, 248 N.W. 641, where a jury verdict for plaintiff against a railroad company was reversed without a new trial. The plaintiff and another special commissioner appointed by the probate court were invited by their co-commissioner, Hine, to ride in the latter's automobile to view the location for a proposed drain. The trip was to be made on official business. As a result of the joint negligence of Hine and the railroad company, the plaintiff was injured in a collision at a crossing. He sued both Hine and the railroad company, but recovered against the latter only. In reversing the judgment and terminating the litigation, the Supreme Court of Michigan said (263 Mich. op. 20, 21, 248 N.W. 642): "The question is whether plaintiff was a gratuitous passenger in Hine's car, to be so found as a matter of law, counsel conceding that the negligence of the driver is imputed to such passenger. The court submitted the question as an issue of fact, and the jury found plaintiff a passenger for hire.

"Plaintiff's contention in this respect is based upon the fact that the county drain commissioner paid Hine 10 cents per mile for the distance his car traveled in going to and from the meeting, and did not pay such mileage to the other special commissioners. However, in his testimony the county drain commissioner made it plain that he did not hire Hine to transport the other special commissioners; that the mileage was a customary allowance; that he would have paid each special commissioner the mileage had each gone in his own car; and that he did not control the transportation, and each could have used his own car had he desired.

"The mileage was not a hiring of Hine's car nor paid as compensation for its use in transporting himself or the others. Mileage is a well-established method, widely used in public and private business, of reimbursing an officer or employee for the expense necessarily sustained by him in traveling to perform his duties. It is merely a substitute for actual expenses, and, theoretically, covers only the cost of transportation of the individual officer or employee, and the rate is set upon that basis, unless otherwise indicated by circumstances. It involves no control of the car by the superior officer or employer, nor does it change the driver's relation or liability to any one who might ride with him."

Other Michigan authorities do not sustain the contention of appellant that her decedent was a passenger for hire and, as such, exempt from the applicability of the Michigan doctrine of imputation of negligence. All the cases cited by her are differentiable from the case at bar. In Johnson v. Mack, 263 Mich. 10, 248 N.W. 534, the successful plaintiff in a personal injury suit, and others who rode with him, had paid a private carrier for hire to transport them to and from their work. In the case at bar, appellant's decedent rode free. In McGuire v. Armstrong, 268 Mich. 152, 255 N.W. 745, among the duties of a county nurse, for which she was paid by the county, was the transportation of patients to various clinics in Grand Rapids. The holding was that a patient injured in an automobile negligently driven by the nurse was not a guest passenger. Cardinal v. Reinecke, 280 Mich. 15, 273 N.W. 330, 331, 274 N.W. 379, held that the injured plaintiff, riding in defendant's automobile "not of her own volition" but to render a requested service to the defendant, was not a mere guest. Peronto v. Cootware, 281 Mich. 664, 275 N.W. 724, presented a situation where a mother recovered judgment for personal injuries against her son, in whose automobile she was riding at the instance of another son who had sent for her to become paid nurse for his sick wife. The mother was held not to be a guest passenger. It was declared that the transportation was a "business proposition" and that the fact that her son who drove her in his car was an uncompensated volunteer did not prevent his being the alter ego of the son at whose instance she made the journey. Crook v. Eckhardt, 281 Mich. 703, 275 N. W. 739, 742, found a question of fact for the jury, where the testimony was conflicting as to whether the defendant was transporting plaintiff "as an accommodation," or as a part of the consideration of a contract for hire. Thomas v. Currier Lumber Co., 283 Mich. 134, 277 N.W. 857, 858 (discussed by this court in Taylor v. Chrysler Corp., 6 Cir., 108 F.2d 196, 197), presented the question whether plaintiff, while riding in the automobile of a salesman for the defendant company, was a "guest without payment for such transportation" within the meaning of 1 Comp.Laws of Michigan, 1929, Sec. 4648. The judgment of the trial court that, as a matter of law, the plaintiff was not a gratuitous guest passenger was affirmed on appeal. The State Supreme Court pointed out that, although the salesman was paid for his services on a salary basis, he could not hope to remain in the employ of the lumber company or to aspire to promotion, unless productive of business; and that at the time of the accident it was to his benefit to convey the plaintiff to the office of the lumber company and thus, if possible, complete the sale under negotiation. The plaintiff had desired to drive his own car, but the salesman had advised him that the president of the lumber company had sent him to convey the plaintiff to the president's office.

Examination of the facts reported in Monison v. McCoy, 266 Mich. 693, 256 N. W. 49, the detail of which would unduly lengthen this opinion, is convincing that this authority does not strengthen appellant's insistence that her decedent was not a guest rider, subject to imputation to him of the negligence of the driver of the automobile. The same comment may be made upon other Michigan citations of appellant: Skvarce v. Sales Necessities, Inc., 267 Mich. 540, 255 N.W. 328; McKernan v. Detroit Citizens' Street Ry. Co., 138 Mich. 519, 101 N.W. 812, 68 L.R.A. 347; In re Harper's Estate, 294 Mich. 453, 293 N.W. 715; Konopka v. Jackson County Road Commission, 270 Mich. 174, 258 N.W. 429, 97 A.L.R. 552.

Appellant urges that the imputed negligence rule operative in Michigan is "an unwanted doctrine which arose as the result of a judicial mistake," and that the Supreme Court of Michigan has engrafted upon the rule "every conceivable exception" and has shown an increasing trend toward broadening the exceptions until the rule is altogether abrogated. Her counsel assert that "the Supreme Court has reluctantly recognized the fact that it is the unhappy creator of a problem child, of questionable legitimacy, and understandably enough has done its level best to keep the product out of sight, while not daring to disclaim it altogether."

It is not the function of a Federal court either to legitimatize, or to bastardize, the brain-children of state courts in diversity of citizenship cases. Since Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, the duty of United States courts in such cases is to ascertain, construe and apply static state law: not to limit, modify or repeal state doctrine.

Meeting a vigorous attack upon the Michigan...