HOUSE
v.
GIBBS.
Docket No. 792.
Michigan Court of Appeals.
Decided October 11, 1966.George A. Jones, for plaintiff.
Davidson, Gotshall, Kelly, Halsey & Kohl (Konrad D. Kohl, of counsel), for defendant.
LESINSKI, C.J.
Plaintiff comes on appeal from a directed verdict granted in favor of the defendant. The cause arose when the plaintiff's decedent rode along in a car with the defendant's decedent to a founder's day program at Alabama A & M College in May of 1959. As the car traveled south on US-72 in the State of Alabama, it was involved in a head-on collision in which all the occupants of the car were killed.
The plaintiff's decedent, at the time of the accident, was president of the Detroit chapter of Alabama A & M College Alumni Association. He had been given $75 from the club's treasury for expenses on the trip. The driver, Edward L. Gibbs, was also attending the founder's day program as a representative of the Detroit chapter, but he was not given any expense money.
In her declaration, plaintiff alleged that her decedent was a passenger for hire or, in the alternative, a joint venturer with Edward Gibbs.
*522 Plaintiff further alleged that the defendant's decedent violated the duty of care owed to plaintiff's decedent "by failure to operate his vehicle to the right of the centerline and to maintain such control of his vehicle as to prevent its traveling left of center of the highway causing said defendant's decedent's automobile to collide with an oncoming truck causing plaintiff's decedent's death."
At the close of plaintiff's proofs, the trial court directed a verdict for the defendant, stating that the plaintiff had in fact predicated her case on ordinary negligence, and that she had failed to take the case out from under the guest passenger act, CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101), by proving that her decedent was a passenger for hire or a joint venturer of the defendant's decedent.
In this appeal the Court is called upon to determine, among other questions, whether there was sufficient evidence[1] to allow the jury to determine if the plaintiff's decedent was a passenger for hire or a joint venturer,[2] and further, if the plaintiff's pleadings gave the defense sufficient notice of a claim of gross negligence so as to allow this issue to go to the jury.
A review of the depositions submitted in evidence reveals a lack of sufficient proof to have required the trial court to have the question of joint venturer or passenger for hire placed before the jury for *523 determination. As the Court stated in Emons v. Shiraef (1960), 359 Mich 526, citing Farthing v. Hepinstall (1928), 243 Mich 380, 382, 383:
"To constitute a joint enterprise between a passenger and the driver of an automobile within the meaning of the law of negligence, there must be such a community of interest in its operation as to give each an equal right of control. There must be a common responsibility for its negligent operation, and there can be no common responsibility unless there is a common right of control. It must be held that the driver is acting as the agent of the other members of the enterprise. The rule of joint enterprise in negligence cases is founded on the law of principal and agent. On no other theory could the negligence of the driver be imputable to a passenger. Being parties to the same enterprise, they are assumed to have common control and possession of the machine. Otherwise, each could not be charged with the negligence of the other."
From all the evidence before us, no right of control on the part of the plaintiff's decedent was ever made out. Nor did it appear from the evidence presented that the defendant's decedent was the agent of the plaintiff's decedent. To have allowed the jury to speculate on these considerations would have meant that the jury's verdict would have been based on pure conjecture.
As to whether the plaintiff's decedent was a passenger for hire, the law is clear in Michigan that the driver needs to receive a benefit, either of money, services or other value, for the transportation received. See Collins v. Rydman (1956), 344 Mich 588. Herein no benefits to the defendant's decedent were ever proved. In fact, the plaintiff could not prove that the defendant's decedent received any benefit from having the plaintiff's decedent as a rider.
*524 Thus the trial court properly ruled that there was insufficient evidence on this question to go to the jury.
The second question raised on appeal is whether the issue of gross negligence should have been submitted to the jury, where the pleadings and pretrial statement refer only to negligence, under the circumstances presented by this case.
The order for directed verdict for defendant was premised on the statement by the trial judge that plaintiff predicated her case upon ordinary negligence. The trial judge based this determination on discussions prior to trial and the pretrial statement which indicated that plaintiff claimed that plaintiff's decedent was a paying passenger or, in the alternative, a joint venturer. The judge concluded from this that plaintiff's case rested on ordinary negligence.
Plaintiff contends that the trial court erred in refusing to submit the issue of gross negligence to the jury. We cannot agree. We reiterate, in passing, that we are not dealing with an appeal from a summary judgment wherein there has been no opportunity for the plaintiff to submit her proofs, but rather from an order granting defendant's motion for a directed verdict after plaintiff had presented her proofs.
According to the order for directed verdict discussed above, the parties had limited the issue prior to trial. It is well settled that "we must presume that the rulings of the trial court were correct, in the absence of anything showing them to be wrong." Wagar v. Peak (1871), 22 Mich 368, 371. Since the issue that defendant was liable to plaintiff on a theory of gross negligence was not before the trial court, it is not available on appeal. See Baker Contractor, Inc., v. Chris Nelsen & Son, Inc. (1965), 1 Mich App 450.
*525 Where the proofs presented to the trial court are available to the appellate court, it may well determine that the issue of gross negligence is one for a jury, based on its analysis of these proofs. In McKenzie v. McKenzie (1965) 374 Mich 320, the Supreme Court, after a review of the proofs presented, held that they made a case for the jury. And in Brooks v. Haack (1965), 374 Mich 261, the Court again reviewed the facts and, in Brooks, determined that the facts were insufficient to sustain the jury verdict. We emphasize that the instant case is distinguishable from the cited cases in that this Court does not have before it the proofs presented to the trial court.
Plaintiff filed a motion to file less than a full transcript on appeal which was granted pursuant to GCR 1963, 812.2(b), which reads in part:
"Upon motion of appellant for good cause shown, with notice to the opposing party, the trial court may order that some portion less than the full transcript may be transmitted."
Plaintiff cites York v. Litteral (1962), 367 Mich 462, to support her contention. The facts in York silhouette the difference between it and the case at bar. In York, the lower court impressed an equitable lien on property defendant was found to have purchased in his own name with plaintiff's money, although it did not make a finding of fraud as alleged in plaintiff's bill to establish a trust. The defendant alleged that he was prejudiced because the Court did not find fraud and was misled into defending on the grounds of fraud. The Court said at p 463:
"An examination of the bill of complaint and pretrial statement shows that defendant was sufficiently advised as to the facts that were testified to by the plaintiff and we see no merit to defendant's contention."
*526 The pretrial statement in the instant case deals with the plaintiff's claim that plaintiff's decedent was a paying passenger or joint venturer. There is no mention of any other claim, or facts which would infer another claim or theory for relief. And, as discussed above, we do not have the transcript of the trial, as plaintiff chose to file only a partial record, and thus we cannot rule on the sufficiency of the evidence testified to at trial. Plaintiff's theory is not justiciable here without the record below. See Ogontz School v. Spence (1933), 261 Mich 518.
Affirmed, costs to defendant.
T.G. KAVANAGH and RASHID, JJ., concurred.
NOTES
[1] A motion was filed in the trial court on April 30, 1965 requesting that the plaintiff-appellant be allowed to file less than a full trial transcript. Thus, this appeal is limited to the depositions, pleadings, pretrial statement, and order by trial court filed and not to any testimony taken in the trial court. (see p 525 infra.)
[2] Prior to Bostrom v. Jennings (1949), 326 Mich 146, it would not have availed plaintiff's cause to prove a joint venture for the negligence of the driver would have been imputed to the joint adventurer, contrary to the general rule in this country. In Bostrom, supra, the Court expressly overruled the prior rule and held that the negligence of an agent is not imputable to his principal nor that of a member of a joint enterprise to his fellow member in an action by the latter against the former.