Defendant appeals from a judgment of $2,000 rendered against him for injuries suffered by plaintiff in an automobile accident. Plaintiff is defendant's sister-in-law. She lives in Crump, about 20 miles north of Bay City, the residence of defendant. Defendant's wife was sick at the home of Mrs. Dupuis, her sister. Defendant's wife sent their son Floyd McCoy to plaintiff's home to get her to come and take care of his mother. No wages were agreed upon; nothing was said about paying her for her services by defendant's wife. Plaintiff says she would have been glad to have given her services without pay. There was no understanding about pay before plaintiff went to Bay City. Plaintiff was paid $8 before she left defendant's home, and her sister, defendant's wife, said she would send her $2 more for her services. Plaintiff cared for defendant's wife at their home in Bay City for about a week, and then wanted to go back to her home at Crump. It was understood defendant's wife would see that plaintiff was taken home. Defendant's wife instructed defendant to take her home. He started to do so. Plaintiff had some clothing and other things at Mrs. Dupuis' and defendant drove out of his way to Mrs. Dupuis' where plaintiff's things were procured, and then started to take her home. At a street intersection the automobile driven by defendant was struck by an automobile *Page 695 driven by William Young, named as a joint defendant in plaintiff's declaration, and plaintiff injured.
The declaration charges defendant's negligence with great particularity. Defendant filed an answer denying negligence and alleging the accident was caused by the negligence of defendant Young. The case was discontinued as to Young and submitted to the jury as to defendant with the result above indicated. Defendant appeals.
The case is here on a bill of exceptions alleging error in refusing to give eight requests of the defendant to charge; refusing to submit two special questions to the jury; denying plaintiff was in the employ of defendant at the time of her injury; charging the jury in many particulars and in holding and charging plaintiff was not a guest passenger, but a passenger for hire.
It is claimed the court was in error in charging the jury:
"I submit that the plaintiff in this case wasn't a guest under the language of that statute, because under the testimony in this case the defendant's wife, Mrs. McCoy, had engaged her sister to come and work for her and sent to get her, apparently for some reason, whether she had a conveyance or not, but sent for her and took her to her home and she understood and the plaintiff understood that she was to take her back. Everything that has developed here indicates it, and she did provide a means of sending her home. They employed her and went after her with the understanding and intention of returning her to her home."
It is the claim of the defendant the testimony shows plaintiff was a guest passenger at the time of her injury and defendant may be held liable only for gross negligence or wilful or wanton misconduct. *Page 696 By 1 Comp. Laws 1929, § 4648, it is provided: "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 ordinary negligence, but only for gross negligence or wilful or wanton misconduct. Under this statute, which is in derogation of the general rule, two things must concur to bring the injured person within the exclusionary rule. First, the party must be the guest of the owner or operator of the motor vehicle; and second, transportation must be given without payment therefor. The cases bearing upon who is a guest are discussed in Bookhart v. Greenlease-Lied MotorCo., 215 Iowa, 8 (244 N.W. 721), and the annotations thereto in 82 A.L.R. 1365. It seems to be established that a prospective buyer of an automobile to whom it is being shown is not a guest, nor is one invited by real estate salesmen to look at real estate. Where plaintiff was engaged in general housework and defendant went after her with an automobile to take her to her home to work and plaintiff was injured by reason of defendant's negligent operation of the automobile, it was said:
"The legislature, when it used the word 'guest,' did not intend to include persons who are being transported for the mutual benefit of both the passenger and the operator or owner of the car, and in determining whether the transportation was for the mutual benefit of both, not merely the act of transportation must be considered, but also any contract or relationship between the parties to which it was an incident. Whether one is a 'guest' must often resolve itself into a question of fact, to be determined by the jury under appropriate instructions from the court. * * * In the application of the fellow-servant doctrine, numerous cases have arisen where an employee suffered injury while being transported to or from the place of employment *Page 697 in a vehicle of his employer." Kruy v. Smith, 108 Conn. 628 (144 A. 304).
If the testimony was such that more than one inference or conclusion might be drawn therefrom by the jury, whether plaintiff was a guest or not would be a question for the jury, but there is no dispute in the facts here presented and the court on this record properly held, as matter of law, plaintiff was not a guest passenger.
This case was tried by jury. When the jury was being impanelled, counsel for plaintiff asked the jury:
"Are any of you insured in the Citizens Mutual Automobile Insurance Company?
"Any of you gentlemen insured in any insurance company?
"Do you know anyone connected with the Citizens Mutual Automobile Insurance Company?
(To a particular juror) "Are you insured in the Citizens Mutual Insurance Company?
"Do you know anyone connected with the Citizens Mutual Insurance Company?
"Do you know any agents?
"Do you carry any insurance in the Citizens Mutual Automobile Company?"
"Do you have any insurance in the Citizens Mutual Insurance Company?"
Timely objection was made to each of these questions by counsel for defendant. The court indicated he did not think it proper to ask if a juror knew an agent or officer."The question is whether he is a stockholder or whether he is insured, and that is proper."
This case was not against an insurance company. No insurance company was a party to the record. If the case directly involved an insurance company some of the questions might be proper as bearing *Page 698 upon the interest of the jurors and possibly to develop reasons for peremptory challenges; but upon the record the question of insurance was not involved. We think the persistent interrogation of witnesses in relation to insurance and a particular insurance company brings this case fairly within the prior decisions of this court and constituted prejudicial error. Holman v. Cole, 242 Mich. 402; Palazzolo v. Sackett,245 Mich. 97; Easton v. Medema, 246 Mich. 130;Harker v. Bushouse, 254 Mich. 187. It is claimed the charge of the court was unfair in that it gave undue prominence to the claims of plaintiff and failed to fairly submit the theory of the defendant. There is no doubt but it was the duty of the court to fully and fairly present to the jury the contentions of the respective parties. Instructions of the court should not unduly emphasize either one side or the other. We have examined the charge of the court. That part of the charge in which the court stated; "You have no right to deliberately walk into a place of danger and then claim you are free from negligence. That is the law of the road and the law governing vehicular traffic," might well have been omitted. But on the whole the charge fairly stated the contentions of the respective parties.
Judgment reversed, with costs. New trial granted.
McDONALD, C.J., and WEADOCK and FEAD, JJ., concurred with POTTER, J.
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