Townsend v. Scupholm
| Decision Date | 26 April 1966 |
| Docket Number | No. 255,No. 1,255,1 |
| Citation | 3 Mich.App. 135,141 N.W.2d 723 |
| Parties | Frank TOWNSEND, Plaintiff-Appellant, v. Earl W. SCUPHOLM and Ted Joseph Nawrocki, jointly and severally, Defendants-Appellees. Cal |
| Court | Court of Appeal of Michigan — District of US |
Albert Lopatin, Detroit, for appellant.
Blinstrub, O'Neill & McKenna, Detroit, for Scupholm.
Marentay, Rouse, Selby, Fischer & Webber, Detroit, for Nawrocki.
Before LESINSKI, C.J., and T. g. KAVANAGH and QUINN, JJ.
,
Plaintiff appeals from a directed verdict of no cause for action granted in favor of defendant Nawrocki at the close of the plaintiff's opening statement, and from a directed verdict of no cause for action granted in favor of defendant Scupholm at the close of plaintiff's proofs. Plaintiff challenges the propriety of the entry of the directed verdicts.
On October 29, 1960 plaintiff was a passenger in a motor vehicle being driven southbound on John R in Madison Heights Oakland county, Michigan, said vehicle being owned and operated by defendant Ted Joseph Nawrocki. And on said date defendant Earl W. Scupholm was the owner of a motor vehicle being driven northbound on John R with his knowledge and consent by a person not party to this action. The vehicles collided, injuring plaintiff.
Plaintiff alleged both defendants were guilty of both ordinary and gross negligence. Defendants' answer joined issue and pleaded plaintiff's contributory negligence.
Plaintiff's counsel in his opening statement outlined his client's position to be as follows: that plaintiff and defendant Nawrocki had a couple of drinks at the Club 400 and then went to the Duchess Bar and had a few more drinks. At that point plaintiff indicated a desire to defendant Nawrocki that he, plaintiff, would like to go back to the Club 400 to call his wife and have her pick him up there. Defendant Nawrocki at this point asked plaintiff to come with him to his hosue to keep him company while he showered and changed clothes preparatory to going back to the Duchess Bar. Plaintiff did in fact accompany defendant Nawrocki to his home. Afterward, while defendant Nawrocki was driving back to the Club 400 with plaintiff, proceeding south on John R in Madison Heights, Oakland county, Michigan, on a 2 lane highway, 1 lane in either direction, a head-on collision occurred with the vehicle owned by defendant Scupholm, injuring plaintiff. That the area where the collision occurred offers a clear and unobstructed view for a good distance, and that the drivers of the vehicles were guilty of gross negligence in addition to ordinary negligence in causing the head-on collision to occur. That the collision could only have occurred if the drivers were not looking or paying attention to the oncoming vehicles, not seeing what a reasonably prudent driver should have seen under same or similar circumstances.
To determine if the directed verdict in favor of defendant Nawrocki at the close of plaintiff's opening statement may stand, two questions need be resolved. The first is whether the plaintiff, based on what plaintiff's attorney stated he would prove, was not a guest passenger in defendant Nawrocki's vehicle under the guest passenger statute, C.L.S.1961, § 257.401 (Stat.Ann.1960 Rev. 9.2101). Second, whether in the opening statement plaintiff's attorney sufficiently stated facts he intended to prove to establish gross negligence.
A reading of the opening statement clearly shows that plaintiff had not indicated any offer of proof which would establish gross negligence in fact except for plaintiff's attorney's statement that either one or both of the drivers of the vehicles was negligent in crossing into the oncoming lane, and it could only have occurred if the drivers were not looking or paying attention to the oncoming vehicles. No showing of an offer to prove ordinary negligence is made.
Plaintiff on the question of his status in defendant Nawrocki's vehicle relies on the fact that he, at the request of the defendant Nawrocki, kept him company prior to plaintiff's return to the Duchess Bar as sufficient to make the guest passenger act applicable.
In support of his position, the plaintiff cites Peronto v. Cootware (1937), 281 Mich. 664, 276 N.W. 724 wherein the plaintiff was being transported gratuitously in defenant's vehicle for the purpose of going to the home of the defendant's brother to care for the brother's wife. He also cites Hunter v. Baldwin (1934), 268 Mich. 106, 255 N.W. 431 wherein plaintiff, a gratuitous passenger, was injured while at the request of the defendant he was cranking the vehicle to get it started.
Relying on Hall v. Kimball (1959), 355 Mich. 333, 94 N.W.2d 817, plaintiff contends he was entitled to have a jury pass upon his status in defendant Nawrocki's vehicle. In Hall there was a question of whether plaintiff, who accompanied defendant to the hospital to visit defendant's wife who was plaintiff's aunt, was under any compulsion to accompany defendant. Defendant contended that there was 'not a word about payment in any shape or form either tangible or intangible,' that defendant did not need any help from plaintiff in driving and there was no contract of any kind. Plaintiff contended that defendant in the afternoon or the evening of the day of the accident called her on the telephone twice asking that she accompany him and that she refused him. That the last time he called he 'asked,' 'urged,' and 'insisted' that she accompany him. Plaintiff claimed it was a detriment, sacrifice and inconvenience to her to accompany defendant; that she did not want to make the trip with the defendant to the hospital because she not only had a dinner guest at her home, but would have to leave her sick, bedfast mother, her husband and her children.
All of the cases cited by plaintiff can be distinguished by the facts in each case. In the cases cited it remains clear that the person was not a mere guest passenger as the injury occurred while performing an act for the sole benefit of the owner or operator and at the latter's request. The same conclusion is reached if plaintiff's version is believed in Hall.
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Fors v. Waters, Docket No. 2249
...in this case. In this connection, however, see Hunter v. Baldwin (1934), 268 Mich. 106, 255 N.W. 431, and Townsend v. Scupholm (1966), 3 Mich.App. 135, 139, 141 N.W.2d 723. On appeal, defendant relies heavily on discussions of gross negligence found in 2 cases, specifically Brooks v. Haack ......