[167]*167Boyles, J.
Defendants appeal from a judgment for plaintiff after verdict by jury allowing damages from an automobile collision. • Defendants appeal separately on a consolidated record and file separate briefs, raising different grounds for reversal.
Plaintiff was a passenger in an automobile owned and operated by defendant Ritchie, going north on Telegraph road in Wayne county. Defendant Skrzycki was operating his automobile south oh the same road, the 2 vehicles collided, and plaintiff was injured. Claiming joint and several negligence of the defendants, plaintiff sued both, alleging he was a passenger for hire in Ritchie’s automobile. The defendants filed separate answers, each claiming that the other was the only one guilty of negligence. Ritchie also claimed that either he and the plaintiff were engaged in a joint enterprise, or that the plaintiff was his guest passenger. The question of which one of the defendants was guilty of negligence, or whether either one was guilty, is not raised on this .appeal.
1. Ritchie claims for reversal that the court erred in denying his motion for a directed verdict based on the claim that the plaintiff had failed to prove that he was a passenger for hire; and that the court erred in instructing the jury that the burden of proof was on him, defendant Ritchie, to show that the plaintiff was his guest passenger.
Plaintiff did not claim that Ritchie was guilty of wilful and wanton misconduct. In his amended declaration he claimed that he was a passenger for lire in Ritchie’s automobile. Defendant Ritchie answered by denying that plaintiff was a passenger for hire, and specifically denied the facts’ alleged. Testimony on that issue was taken which supported each of the claims . of both Ritchie and the plaintiff, [168]*168and the trial court held that the issue involved a question of fact to be determined by the jury. In that connection, at the request of defendant Ritchie a special question was submitted to the jury, whether the plaintiff was a guest passenger, and answered by the jury in the negative.
Plaintiff and defendant Ritchie were both employed at the same plant. Plaintiff, without an automobile, rode to and from work in Ritchie’s car. There was testimony that this was done at the request of their employer, that he had made an “arrangement” with Ritchie and offered to furnish him gasoline. At one time plaintiff offered Ritchie $5 for gasoline, but Ritchie refused to accept it. Ritchie denied there was any “arrangement,” or that plaintiff had ever furnished him any gasoline or paid for any. Plaintiff made no other claim of payment for the transportation- except furnishing gasoline, which Ritchie denied. However, Ritchie in his answer had admitted that plaintiff and other passengers who rode with him to and from work made contributions to defray expenses of all, to and from work, and that “periodically” there was “an accounting with plaintiff and other passengers,” on which they “made contributions” to defray the expenses to and from work.
At the close of the proofs, counsel for Ritchie moved for a directed verdict on the ground that the proofs showed plaintiff to be a guest passenger without payment for transportation, which motion the court denied. Ritchie’s counsel also requested the court to submit to the jury a special question whether the plaintiff was “a gratuitous guest passenger” in Ritchie’s automobile.- In submitting the question, the court charged the jury as follows:
“A question is raised by the claim of the defendant Ritchie that plaintiff was. a gratuitous guest [169]*169passenger in his automobile at the time of the accident. The statutes relating to motor vehicles, that is CL 1948, § 256.29 (Stat Ann § 9.1446), provides, among other things:
“ ‘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 the owner * * * unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator.’
“There is no claim on the part of the plaintiff that defendant Ritchie was guilty of gross negligence or wilful and wanton misconduct and accordingly, if plaintiff was a guest passenger without payment for such transportation he cannot recover as against Ritchie. It becomes important then to determine whether or not plaintiff was a guest passenger of defendant Ritchie without payment for such transportation. This presents a question of fact for your determination as jurors. * * *
“In determining this question you should consider all of the facts surrounding the transaction, the period over which payments were made as well as all other testimony relating to this issue. The statute reads, ‘without payment for such transportation.’ In this connection it is not necessary that payment for the transportation should be made in money as when you take a bus and pay a quarter or anything of that kind; the payment may be either in money •or some commodity as for example, gasoline or in services, and the question for you to determine is: Was the plaintiff being transported as a guest without payment?
“The defendant Ritchie has asked that a special question be submitted to be determined by you, as jurors, along with your general verdict. The question I am submitting reads as follows:
“At the time of this accident was plaintiff Wallace being transported by defendant Ritchie as his guest without payment for such transportation?
[170]*170“And you answer that question, yes or no, as you find the facts to be.
“If you find by a preponderance of the evidence that the plaintiff was a guest passenger without payment for such transportation then your answer will be in the affirmative, yes, otherwise it must be answered no. This means that the burden of proof as explained in these instructions is upon the defendant Ritchie to show that plaintiff was his guest without payment.”
The jury answered the question in the negative.
. Plaintiff had testified that he would hand Ritchiemoney at the gasoline station and Ritchie would use-it to buy gasoline. Ritchie’s testimony, however, was quite to the contrary, to support his claim that plaintiff was a guest passenger without payment, wherefore the plaintiff would have to show wilful and wanton misconduct in order to recover damages. Under the conflicting claims and the discrepancies and contradictions in their testimony, the court did not err in submitting the issue to the jury, together with the special question at defendant Ritchie’s request, to determine whether the plaintiff had paid for his transportation, or was a guest passenger without payment. "Whether the relationship between parties is that of a guest passenger or a passenger for hire depends on the facts in each case. The court did not err in denying Ritchie’s motion for a directed verdict on the ground that plaintiff was a guest passenger.
After the court had concluded charging the jury at length as to burden of proof, and being on the-plaintiff to establish his claims by a preponderance-of the evidence, it was prejudicial error for the court to charge the jury that the burden of proof was on.
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[167]*167Boyles, J.
Defendants appeal from a judgment for plaintiff after verdict by jury allowing damages from an automobile collision. • Defendants appeal separately on a consolidated record and file separate briefs, raising different grounds for reversal.
Plaintiff was a passenger in an automobile owned and operated by defendant Ritchie, going north on Telegraph road in Wayne county. Defendant Skrzycki was operating his automobile south oh the same road, the 2 vehicles collided, and plaintiff was injured. Claiming joint and several negligence of the defendants, plaintiff sued both, alleging he was a passenger for hire in Ritchie’s automobile. The defendants filed separate answers, each claiming that the other was the only one guilty of negligence. Ritchie also claimed that either he and the plaintiff were engaged in a joint enterprise, or that the plaintiff was his guest passenger. The question of which one of the defendants was guilty of negligence, or whether either one was guilty, is not raised on this .appeal.
1. Ritchie claims for reversal that the court erred in denying his motion for a directed verdict based on the claim that the plaintiff had failed to prove that he was a passenger for hire; and that the court erred in instructing the jury that the burden of proof was on him, defendant Ritchie, to show that the plaintiff was his guest passenger.
Plaintiff did not claim that Ritchie was guilty of wilful and wanton misconduct. In his amended declaration he claimed that he was a passenger for lire in Ritchie’s automobile. Defendant Ritchie answered by denying that plaintiff was a passenger for hire, and specifically denied the facts’ alleged. Testimony on that issue was taken which supported each of the claims . of both Ritchie and the plaintiff, [168]*168and the trial court held that the issue involved a question of fact to be determined by the jury. In that connection, at the request of defendant Ritchie a special question was submitted to the jury, whether the plaintiff was a guest passenger, and answered by the jury in the negative.
Plaintiff and defendant Ritchie were both employed at the same plant. Plaintiff, without an automobile, rode to and from work in Ritchie’s car. There was testimony that this was done at the request of their employer, that he had made an “arrangement” with Ritchie and offered to furnish him gasoline. At one time plaintiff offered Ritchie $5 for gasoline, but Ritchie refused to accept it. Ritchie denied there was any “arrangement,” or that plaintiff had ever furnished him any gasoline or paid for any. Plaintiff made no other claim of payment for the transportation- except furnishing gasoline, which Ritchie denied. However, Ritchie in his answer had admitted that plaintiff and other passengers who rode with him to and from work made contributions to defray expenses of all, to and from work, and that “periodically” there was “an accounting with plaintiff and other passengers,” on which they “made contributions” to defray the expenses to and from work.
At the close of the proofs, counsel for Ritchie moved for a directed verdict on the ground that the proofs showed plaintiff to be a guest passenger without payment for transportation, which motion the court denied. Ritchie’s counsel also requested the court to submit to the jury a special question whether the plaintiff was “a gratuitous guest passenger” in Ritchie’s automobile.- In submitting the question, the court charged the jury as follows:
“A question is raised by the claim of the defendant Ritchie that plaintiff was. a gratuitous guest [169]*169passenger in his automobile at the time of the accident. The statutes relating to motor vehicles, that is CL 1948, § 256.29 (Stat Ann § 9.1446), provides, among other things:
“ ‘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 the owner * * * unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator.’
“There is no claim on the part of the plaintiff that defendant Ritchie was guilty of gross negligence or wilful and wanton misconduct and accordingly, if plaintiff was a guest passenger without payment for such transportation he cannot recover as against Ritchie. It becomes important then to determine whether or not plaintiff was a guest passenger of defendant Ritchie without payment for such transportation. This presents a question of fact for your determination as jurors. * * *
“In determining this question you should consider all of the facts surrounding the transaction, the period over which payments were made as well as all other testimony relating to this issue. The statute reads, ‘without payment for such transportation.’ In this connection it is not necessary that payment for the transportation should be made in money as when you take a bus and pay a quarter or anything of that kind; the payment may be either in money •or some commodity as for example, gasoline or in services, and the question for you to determine is: Was the plaintiff being transported as a guest without payment?
“The defendant Ritchie has asked that a special question be submitted to be determined by you, as jurors, along with your general verdict. The question I am submitting reads as follows:
“At the time of this accident was plaintiff Wallace being transported by defendant Ritchie as his guest without payment for such transportation?
[170]*170“And you answer that question, yes or no, as you find the facts to be.
“If you find by a preponderance of the evidence that the plaintiff was a guest passenger without payment for such transportation then your answer will be in the affirmative, yes, otherwise it must be answered no. This means that the burden of proof as explained in these instructions is upon the defendant Ritchie to show that plaintiff was his guest without payment.”
The jury answered the question in the negative.
. Plaintiff had testified that he would hand Ritchiemoney at the gasoline station and Ritchie would use-it to buy gasoline. Ritchie’s testimony, however, was quite to the contrary, to support his claim that plaintiff was a guest passenger without payment, wherefore the plaintiff would have to show wilful and wanton misconduct in order to recover damages. Under the conflicting claims and the discrepancies and contradictions in their testimony, the court did not err in submitting the issue to the jury, together with the special question at defendant Ritchie’s request, to determine whether the plaintiff had paid for his transportation, or was a guest passenger without payment. "Whether the relationship between parties is that of a guest passenger or a passenger for hire depends on the facts in each case. The court did not err in denying Ritchie’s motion for a directed verdict on the ground that plaintiff was a guest passenger.
After the court had concluded charging the jury at length as to burden of proof, and being on the-plaintiff to establish his claims by a preponderance-of the evidence, it was prejudicial error for the court to charge the jury that the burden of proof was on. the defendant Ritchie to show that the plaintiff was fiis -, (Ritchie’s) guest passenger without payment, .This was ,the important issue .raised by Ritchie,, and" [171]*171the error, which followed so closely the submission of the special question by the court, might well have influenced the jury in its answering the question in the negative. See Baker v. Costello, 300 Mich 686; Bredeweg v. Boyce, 322 Mich 298.
2. Defendant Skrzycki seeks reversal on the ground that the trial court erred in allowing a police officer to testify, over his objection, from the contents of an official police report, his official notes and memorandum; and in denying the motion to strike the testimony of said officer based on his use of the official police report and notes to refresh his recollection of facts and claimed statements relating to the-accident. Defendant Skrzycki also claims that the court erred in allowing the police officer to testify as a claimed expert witness, reconstruct the accident, and express opinions and conclusions relating thereto.
During the course of the trial, an officer of the State police, who arrived on the scene shortly after the accident, was called as a witness for the plaintiff. He testified that prior to his taking the stand he had refreshed his recollection of what had happened as to the locus of the cars and the statements of the parties, from the official report and from notes taken from which the report was made, and from his own notes taken at the scene. This was objected to by counsel for defendant Skrzycki and was allowed over objection. The officer also was qualified as an expert witness and questioned as such, over defendant’s objection, the court ruling that under the circumstances whether or not the officer was an expert was a question for the jury.
In the recent case of Jakubiec v. Hasty, 337 Mich 205, it was held that an officer who did not see the accident and did not write the report could not refresh his recollection, from the report. In the instant case the officer who made the report refreshed [172]*172Ms recollection from the report he made. The report itself is not admissible in evidence. CL 1948, § 257.624 (Stat Ann 1952 Rev § 9.2324). Without regard to who made the report, as to refreshing recollection from it, the report is not admissible, nor available to refresh recollection. The court erred in allowing the officer to testify as to things in the report and the notes from which it was made, by refreshing his recollection from such use. In addition to the Jakubiec Case, see, also, Trafamczak v. Anys, 320 Mich 653; Germiquet v. Hubbard, 327 Mich 225.
For said errors relied upon for reversal, the judgment should be set aside and new trial granted as to both defendants. Costs to appellants.
Btjshnell and Sharpe, JJ., concurred with Boyles, J.
This issue was litigated between Skrzycki and Bitchie and reached this Court for review in Skrzycki v. Ritchie, 333 Mich 480.