Opinion
Docket No. 15608.
Decided March 5, 1974.
Appeal from Tuscola, James P. Churchill, J. Submitted Division 2 December 4, 1973, at Lansing. (Docket No. 15608.) Decided March 5, 1974.
Complaint by Norman Ball and Mamie Ball against Harold Causley and Gregory H. Causley for damages resulting from an automobile accident. Third-party complaint by Harold Causley and Gregory H. Causley against Edgar H. Dinkel for contribution. Judgment for plaintiffs and third-party plaintiffs. Third-party defendant appeals. Reversed and remanded.
Smith Brooker, P.C. (by James W. Tarter), for third-party plaintiffs.
Mainolfi McGraw, for third-party defendant.
This case arose out of a collision between an automobile, owned by Harold Causley and driven by Gregory Causley, and a private ambulance, owned and operated by Edgar Dinkel, which was on an emergency run. Plaintiff, Mamie Ball, a passenger in the right front seat of the ambulance, was injured. She and her spouse, Norman Ball, brought suit for damages against the operator and the owner of the Causley vehicle. Defendants Causley brought a third-party action against Dinkel seeking contribution in any judgment rendered against them. The case was tried to a jury which returned a verdict in favor of plaintiffs Ball against defendants Causley, assessing Mamie Ball's damages at $23,000 and Norman Ball's damages at $6,000. Judgment on the verdict was entered. The record reflects that the judgment against defendants Causley has been fully paid, and from that judgment there is no appeal.
The jury also found in favor of defendants Causley on their third-party complaint against Dinkel for contribution. From the trial court's order denying motion for judgment notwithstanding the verdict or for new trial, and from the trial court's ruling that as a matter of law Mamie Ball was not a guest passenger, third-party defendant Dinkel appeals.
The following facts appear from agreed excerpts of the trial transcript. On June 20, 1968, at approximately 6 p.m., plaintiffs were at their home in Unionville, Michigan, when their 21-year-old son, Tim, was stricken with an apparent heart attack. Edgar Dinkel responded to plaintiffs' call for an ambulance. Mamie Ball took her car out into the street awaiting arrival of the ambulance and then directed the ambulance to their home. The stricken son was placed in the rear of the ambulance, and, because Mr. Dinkel did not have an assistant, their elder son, Terry, got into the rear and sat alongside his brother administering oxygen by a mask.
Plaintiff Mamie Ball testified that she got into the front seat alongside Mr. Dinkel. Dinkel did not instruct her to do anything. She testified that she was just a passenger and without any intent to make any payment for her ride with her stricken son to the hospital. She was concerned about her son and wanted to be in the ambulance, but from where she was sitting she could not assist or administer to her son in any way. She did not know whether her son, Tim, wanted her to be there. She testified that her husband was following the ambulance in their private car.
Edgar Dinkel testified that plaintiff Mamie Ball wanted to accompany her son to the hospital and that she climbed into the right front seat. Dinkel testified that he did not expect Mamie Ball to make any payment. He had in the past taken parents in the ambulance with children. Mamie was just a passenger. There was no request for any assistance from her and, from her position, no assistance could be given. Dinkel would have sent a bill for his services, but did not in this case. He did not know at the time whether Mr. or Mrs. Ball was going to pay for his services.
On the way to the hospital, the ambulance overtook the Causley vehicle which was travelling in the same direction. When the automobile made a left turn, a collision resulted. The facts as to the left turn, whether or not Gregory Causley signaled his intention to turn, whether or not the ambulance signaled its approach by flasher or siren, were all in dispute.
On appeal, Dinkel makes no claim that, as an alleged independent wrongdoer whose concurring act of negligence proximately contributed to Mamie Ball's injury, he is not a joint tortfeasor within the meaning of the contribution statute, RJA 2925, being MCLA 600.2925; MSA 27A.2925. Duncan v Beres, 15 Mich. App. 318; 166 N.W.2d 678 (1968). Nor does he claim that the trial court's grant of the Causley motion to implead for contribution under GCR 1963, 204 was an abuse of discretion. In contrast to prior law, under RJA 2925 the right of contribution does not now depend on whether plaintiff chose to sue both joint tortfeasors. Those made a party to the action by the exercise of the trial court's discretionary power pursuant to court rule may be liable for contribution. Moyses v Spartan Asphalt Paving Co, 383 Mich. 314; 174 N.W.2d 797 (1970).
Defendants Causley's right of contribution does, however, depend on the existence of a common liability shared by them with Dinkel, and Dinkel shares no liability if he was protected against suit by reason of the guest passenger proviso in MCLA 257.401; MSA 9.2101. Counsel for both parties have stipulated that defendants Causley did not plead gross negligence in their third-party complaint against Dinkel and, "There is no dispute regarding the nonexistence of gross or willful and wanton conduct on the part of Edgar Herbert Dinkel in the operation of his ambulance". In his answer, Dinkel clearly alleged the guest status of Mamie Ball as a defense. The trial court declined to submit for jury determination the status of Mamie Ball in Dinkel's ambulance and ruled as a matter of law that she was not a guest passenger within the meaning of the statute.
Dinkel argues that the trial court erred in its ruling; that to preclude operation of the guest passenger proviso the occupant of a vehicle must have conferred a "tangible benefit" on the driver, which benefit must be "the motivating influence for furnishing the transportation". Bushouse v Brom, 297 Mich. 616, 628; 298 NW 303, 305-306 (1941). At a minimum, it is argued that the trial court erred in not submitting the question of Mamie Ball's status to the jury. Moore v Detroit, 19 Mich. App. 636; 173 N.W.2d 256 (1969).
A strict application of the tangible benefit rule, as enunciated in Bushouse, supra, would lead to the conclusion that Mamie Ball was a guest within the meaning of the statute. She was not requested by her stricken son or by the driver to enter the ambulance. She was not, in contrast to Terry Ball, in a position inside the ambulance from which she could render assistance to her stricken son. The record is clear that no payment was billed or ever expected for her transportation.
Contrast the following cases: Carey v Oakland, 44 Cal.App.2d 503; 112 P.2d 714 (1941); Hertz Rental Co v Pitts, 174 So 2d 437 (Fla App, 1965); Perrine v Charles T Bisch Son, 346 Ill. App.? 321; 105 N.E.2d 543 (1952).
However, cases cited by Dinkel for a strict application of the tangible benefit test arose in an arguably social context where the occupant was transported for reasons of hospitality, or was transported "by reason of an implied invitation * * * for his own entertainment, pleasure, and enjoyment * * *." Langford v Rogers, 278 Mich. 310, 316; 270 N.W. 692, 695 (1936). See also Brody v Harris, 308 Mich. 234; 13 N.W.2d 273 (1944); Shumaker v Kline, 333 Mich. 346; 53 N.W.2d 295 (1952).
In the case at bar, the context in which Mamie Ball was transported was not social. Dinkel was clearly within the scope of his ambulance business. It has been held that, when considering the statute in question, the test to be applied is whether the transportation was furnished gratuitously. McGuire v Armstrong, 268 Mich. 152; 255 N.W. 745 (1934); Thomas v Currier Lumber Co. 283 Mich. 134; 277 N.W. 857 (1938). Furthermore, under those decisions, it is immaterial whether the passenger himself or another paid for the transportation. Given the business nature of the context, the jury could reasonably conclude that Dinkel's expectation of payment for his services in transporting Mamie Ball's stricken son was sufficient to preclude the statute's application with respect to her.
In holding that the nature of the relationship between plaintiff, Mamie Ball, and third-party defendant Dinkel was susceptible to different constructions, we also conclude that the trial court erred in ruling as a matter of law that she was not a guest. It was for the jury to determine whether the hire of the ambulance was the motivating influence for her transportation. The issue should have been submitted for determination under appropriate instructions. See Collins v Rydman, 344 Mich. 588; 74 N.W.2d 900 (1956).
Defendants Causley refer us to the case of Cedziwoda v Crane-Longley Funeral Chapel, 155 Tex 99; 283 S.W.2d 217 (1955), wherein the Texas Supreme Court, under a strikingly similar factual situation, ruled as a matter of law that the guest statute was inapplicable. While we do not disagree with the reasoning of the majority opinion in that case, we believe the issue in this state to be jury-submissible. Pence v Deaton, 354 Mich. 547; 93 N.W.2d 246 (1958); Hall v Kimball, 355 Mich. 333; 94 N.W.2d 817 (1959); Moore v Detroit, 19 Mich. App. 636; 173 N.W.2d 256 (1969).
This case is therefore remanded for retrial of the issues as framed in the third-party complaint and answer thereto. The jury shall determine whether a guest-host relationship did or did not obtain. If it did not, judgment for contribution shall enter against Dinkel if the jury finds that he was negligent. If the jury should determine that Mamie Ball was a guest passenger within the meaning of MCLA 257.401, supra, then on the record before us, wherein the parties have stipulated as to the absence in pleadings and proofs of facts constituting gross negligence, a judgment of no cause of action should enter.
Should third-party plaintiffs move hereafter in the trial court to amend their complaint so as to allege gross negligence, a grant or denial of such motion pursuant to GCR 1963, 118 is a matter within the sound discretion of the trial court.
Reversed and remanded. Costs to abide the final outcome.
All concurred.