Opinion
Docket No. 88, Calendar No. 38,904.
Submitted April 14, 1936.
Decided December 28, 1936.
Appeal from Kent; Brown (William B.), J. Submitted April 14, 1936. (Docket No. 88, Calendar No. 38,904.) Decided December 28, 1936.
Case by Lolo Langford, administratrix of the estate of Gerald Langford, deceased, against Melvin Rogers and Ward Stauffer for personal injuries sustained while riding on a toboggan towed by a car and colliding with an oncoming car, causing death of plaintiff's decedent. From order dismissing declaration, plaintiff appeals. Affirmed.
Linsey, Shivel, Phelps Vander Wal, for plaintiff.
Travis, Merrick Johnson, for defendant Stauffer.
Dale Souter, for defendant Rogers.
Plaintiff, as administratrix of the estate of Gerald Langford, deceased, brought suit against defendants to recover damages for personal injuries suffered by Gerald Langford resulting in his death.
Plaintiff filed a declaration claiming damages in the sum of $10,000. Each defendant filed a motion to dismiss — that of defendant Stauffer upon the ground the declaration did not state a cause of action against him; the allegations in the declaration were insufficient under 1 Comp. Laws 1929, § 4648; at the time of the accident Gerald Langford was being transported as a guest and there was no allegation the accident was caused by gross negligence or wilful and wanton misconduct; the acts of negligence alleged were ordinary negligence and not gross negligence or wilful and wanton misconduct, and did not state a cause of action under I Comp. Laws 1929, § 4648; that at most, this defendant was charged with acts of ordinary negligence in causing the death of a guest passenger, which allegations were insufficient to support a cause of action under the statute above mentioned. The defendant Rogers, in his motion to dismiss, alleged substantially the same grounds although stated in different language. Upon a hearing of these motions to dismiss, the trial court dismissed the cause and plaintiff brings error.
The only question involved in this case is whether or not the facts set forth in plaintiff's declaration are sufficient to bring the case within the guest act, I Comp. Laws 1929, § 4648, which provides that no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries resulting from accident, unless such accident was caused by the gross negligence or wilful and wanton misconduct of the owner or operator of the motor vehicle.
The declaration herein alleges that prior to January 3, 1936, defendants and others, residents of the village of Sparta, organized a coasting party for the night of January 3, 1936, to which coasting party a number of children were invited, including plaintiff's decedent; that these children, including plaintiff's decedent, met at the home of defendant Rogers; that Rogers was the owner of a Pontiac automobile; that to transport the children to the location where the coasting was to take place, Rogers drove his automobile and behind it attached a four-runner bob-sled, so-called, and a, 12-foot toboggan upon which these children were transported; that the parties drove west and then north of Sparta, and then east to a hill where the evening was spent in coasting and tobogganing; that about 10 o'clock that evening, the parties began their return trip, defendant Stauffer driving the automobile on the return trip; that some of the children were riding in the automobile; that behind the automobile was attached, first, the bob-sled, and, behind the bob-sled, the toboggan; that Paul Vincent lay flat on the bob-sled and was its only occupant, while defendant Rogers sat first on the toboggan and plaintiff's decedent was fourth; that as the parties turned cast, on a gravel highway known as Highway No. 500, they proceeded toward the village of Sparta for approximately one-half mile at a speed of approximately 25 miles an hour and as they were proceeding downgrade and approaching a turn in the road where it curves to the south, another automobile approached them from the opposite direction; that defendant Stauffer attempted to lessen his speed and suddenly applied the brakes of the automobile; that the surface of the highway was hard-packed snow, and slippery; that by reason of the sudden application of the brakes on the automobile, the toboggan was caused to slide or slue to the left or to the north and across the center line of the highway and onto the north half thereof and directly into the path of the automobile which was proceeding in the opposite direction; that the driver of the automobile approaching had no opportunity to stop or turn to avoid the toboggan and, as a result, a collision occurred between the oncoming automobile and the toboggan. Plaintiff's decedent was struck and so severely injured that he soon after died. Plaintiff brings this suit as administratrix of his estate.
The negligence alleged is that the automobile was being driven at an excessive rate of speed, greater than was reasonable and proper having due regard to the traffic, surface and width of the highway, and other conditions; that defendants were negligent in driving the automobile at the speed at which it was driven, with the bob-sled and toboggan attached thereto; that defendants were negligent in operating the vehicle as it was operated, considering that children of immature years were being transported on the toboggan; that defendants did not have the automobile under control; that defendants were negligent in stopping the automobile on the grade as the result of which the toboggan slued in front of the oncoming motor vehicle; that defendants were negligent in applying the brakes under the circumstances, in driving the automobile at an excessive rate of speed, in suddenly applying the brakes causing the toboggan to slue across the center line of the highway, and in suddenly slowing down the automobile without giving the occupants of the toboggan any warning of their intention so to do.
The language of the statute is:
"That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action * * * unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought." 1 Comp. Laws 1929, § 4648.
The statute says nothing about the guest passenger riding in the automobile. The language of the statute is "no person transported by the owner or operator of a motor vehicle."
When is a person transported? It has been said, a movable article may be moved in two ways: First, the movement in one way is expressed by the words "carry," "convey," or "transport;" Second, the movement in the other way is expressed by the words "pull" or "draw," or "push" or "shove." Chicago, R.I. P. R. Co. v. Petroleum Refining Co., 39 Fed. (2d) 629.
"In the one case, the movement is effected by the article being on or in something else, which is moved. It is moved simply by going along with that something else. No force is applied to it to make it move. In the other case the movement is effected by force being applied to the article. * * *
"A car in which goods are loaded bears those goods. It carries, conveys, or transports them." Chicago, R.I. P. R. Co. v. Petroleum Refining Co., supra.
If one carries persons in his own conveyance for his own purposes, it is transportation. It is not necessary that the carrier be a public one or that the goods be carried to a particular consignee for a stipulated charge. People v. Ninehouse, 227 Mich. 480.
The word "transportation" as ordinarily used in connection with the railroad business includes all instrumentalities and facilities of shipment or carriage and all services in connection with the receipt, delivery and handling of the property shipped or carried. Southern R. Co. v. Reid, 222 U.S. 424 ( 32 Sup. Ct. 140).
There is no question that under the circumstances, plaintiff's decedent, riding on the toboggan hitched to the bob-sled attached to the automobile, was being transported. There is no claim plaintiff's decedent was being transported in the automobile.
Plaintiff's decedent being one who was being transported, the question arises whether he was being transported within the meaning of the statute. The language of the statute excludes the right of recovery by or on behalf of persons being transported by "the owner or operator of a motor vehicle as his guest without payment for such transportation." There is no claim plaintiff's decedent was paying for his transportation.
The owner of a motor vehicle owes no special duty to one who is being transported by stealth, Chicago Alton R. Co. v. Mickie, 83 Ill. 427, or who is a mere trespasser, Muehlhausen v. Railroad Co., 91 Mo. 332 ( 2 S.W. 315), except to refrain from gross negligence or wilful or wanton misconduct, Trudell v. Railway Co., 126 Mich. 73 (53 L.R.A. 271). Where a boy was stealing a ride on a locomotive, this court said:
"If permission was granted or implied by the action of the defendant's employees, the boy could not, in my opinion, be a trespasser." Ecliff v. Railway Co., 64 Mich. 196.
Plaintiff's decedent was not a trespasser. He was on the toboggan with the express or implied consent of the owner or operator of the automobile. He was not a paying passenger. He was one of those who had attended the coasting party and was being transported, without the payment of compensation, by the driver of the motor vehicle. He was a person to whom the hospitality or accommodation of being hauled home on his toboggan was being extended by the operator.
A "guest" within the meaning of the Michigan statute here involved may be defined as one who is carried or transported by the owner or operator of the motor vehicle, whether by express invitation or by implied consent or invitation. So long as the party transported accepts the hospitality of the owner or driver, or is carried or transported by reason of an implied invitation of such owner or operator of the motor vehicle, as in this case, for his own entertainment, pleasure and enjoyment, without compensating the owner of the vehicle, he is a guest within the meaning of the statute. Plaintiff's decedent was one of the members of the coasting party which was being hauled home by the owner or operator of the motor vehicle in question. He was one who took part in the party. Webster defines a party:
"A company or association of persons * * * a temporary company for doing some particular thing, as traveling together, fishing, being socially entertained, attending the theater, etc." Webster's New International Dictionary (2d Ed.), p. 1784.
Friends of a tenant's family who called or visited at the tenant's home without express invitation so to do have been held to be guests of the tenant upon the doctrine of implied invitation. Butler v. Watson, 193 Mich. 322 (16 N.C.C.A. 1013). And a child one year old left by her mother to be cared for by her grandparents while the mother worked has been held to be a guest. Butler v. Watson, supra.
The old definition of a guest as a visitor sojourning in the house or entertained at the table of another, Odell v. Railroad Co., 18 App. Div. 12 ( 45 N.Y. Supp. 464); State v. Johnson, 4 Wn. 593 ( 30 P. 672); McDaniels v. Robinson, 26 Vt. 316 (62 Am. Dec. 574); McDonald v. Edgerton, 5 Barb. (N.Y.) 560; Johnson v. Reynolds, 3 Kan. 257; Jalie v. Cardinal, 35 Wis. 118; Pinkerton v. Woodward, 33 Cal. 557 (91 Am.Dec. 657); Shoecraft v. Bailey, 25 Iowa, 553; Metzger v. Schnabel, 23 Misc. 698 ( 52 N.Y. Supp. 105); Fay v. Pacific Improvement Co., 93 Cal. 253 ( 26 P. 1099, 28 P. 943, 16 L.R.A. 188, 27 Am. St. Rep. 198); Meacham v. Galloway, 102 Tenn. 415 ( 52 S.W. 859, 46 L.R.A. 319, 73 Am. St. Rep. 886); Curtis v. Murphy, 63 Wis. 4 ( 22 N.W. 825, 53 Am. Rep. 242); Mason v. Thompson, 9 Pick. (26 Mass.) 280 (20 Am. Dec. 471); Ross v. Mellin, 36 Minn. 421 ( 32 N.W. 172), has little or no application to its meaning in this act.
The California statute, somewhat analogous, provides:
"The term 'guest' is hereby defined as being a person who accepts a ride in any vehicle without giving compensation therefor." (California Stats. 1929, p. 1580.)
This statute is different from the Michigan act: First, because it provides "as being a person who accepts a ride in any vehicle;" and second, it covers persons riding "without giving compensation therefor" — instead of "without payment for such transportation" as does the Michigan act.
The California statute was before the court of appeals of that State in Crawford v. Foster, 110 Cal.App. 81 ( 293 Pac. 841), in a case involving whether a person to whom an automobile was being demonstrated by a salesman was a guest within the meaning of the California act. It was held in that case that "the taking of a demonstration of an automobile, with its accompanying possibilities of profit, would not only seem to be a benefit to the dealer, but a return fully proportionate to any benefit conferred on the prospect." In the discussion of that case, the court attempted to define who was a guest within the meaning of the statute. It was said:
"We think the meaning of the language used is, that a guest is one who is invited, either directly or by implication, to enjoy the hospitality of a driver of a car; who accepts such hospitality; and who takes a ride either for his own pleasure or on his own business, without making any return to or conferring any benefit upon the driver of the car other than the mere pleasure of his company."
This definition of a guest passenger in a motor vehicle was followed in Smith v. Fall River Joint Union High School District, 118 Cal.App. 673 ( 5 Pac. [2d] 930); Sullivan v. Richardson, 119 Cal.App. 367 ( 6 Pac. [2d] 567); Sumner v. Edmunds, 130 Cal.App. 770 ( 21 Pac. [2d] 159); Rocha v. Hulen, 6 Cal.App. (2d) 245 ( 44 Pac. [2d] 478); Piercy v. Zeiss, 8 Cal.App. (2d) 595 ( 47 Pac. [2d] 818); Parrett v. Carothers, 11 Cal.App. (2d) 222 ( 53 Pac. [2d] 1023); and many other cases.
Plaintiff's decedent fastened his toboggan to the bob-sled and was towed by the motor vehicle at the implied invitation of the owner or operator of the vehicle. He gratefully accepted the friendly indulgence and kindness of the driver of the motor vehicle as a means of conveyance rather than to walk. He rode the toboggan so attached for his own pleasure, for his own purposes, without making any return to or conferring any benefit upon the driver of the motor vehicle. He was a grateful recipient of the natural and acceptable generosity of the driver thereof. Plaintiff's decedent was a guest within the meaning of the Michigan statute. He was a person "transported by the owner or operator of a motor vehicle as his guest without payment for such transportation," 1 Comp. Laws 1929, § 4648, and as such, by the express terms of the statute, his personal representative is denied a right of action except for gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle causing decedent's death. Such gross negligence or wilful and wanton misconduct is not claimed or proved.
Other principles involved have been discussed in Oxenger v. Ward, 256 Mich. 499; Finkler v. Zimmer, 258 Mich. 336; Bobich v. Rogers, 258 Mich. 343; Riley v. Walters, 277 Mich. 620; and the cases cited therein. The trial court arrived at a correct conclusion.
Judgment affirmed, with costs.
BUTZEL, SHARPE, and TOY, JJ., concurred with POTTER, J. WIEST, J., concurred in the result.
I concur under the facts here presented, particularly that the owner of the automobile provided and attached the sled and toboggan to the car, invited plaintiff's decedent and others to ride thereon, and the accident occurred in the course of a planned coasting party in which the defendants were clearly hosts and the children were guests; and that it is not claimed that the declaration sets up a case of gross negligence or wilful and wanton misconduct.
NORTH, C.J., and BUSHNELL, J., concurred with FEAD, J.