Donelan v. Wright, 158 Kan. 287, 81 P.2d 50; Mason v. Banta, 166 Kan. 445, 201 P.2d 654; Naglo v. Jones, 115 Kan. 140, 222 P. 116. (8) There was no evidence to show defendant was conscious or knew of weaving or that car was about to go off the pavement, as required by Kansas Law. Sayre v. Malcolm, 139 Kan. 378, 31 P.2d 8; Leabo v. Willett, 162 Kan. 236, 175 P.2d 109; In re Wright's Estate, 228 P.2d 911; Elliott v. Peters, 163 Kan. 631, 185 P.2d 139. (9) A Missouri appellate court in Kansas guest case has previously found no liability on facts where defendant's knowledge of peril was clear and certain because of guest's specific warning against specific peril. Stevers v. Walker, 233 Mo. App. 636, 125 S.W.2d 920. (10) Drinking, speed, scare notice by driver, remonstrance, zigzagging, and increased speed were held not to make a submissible case on stronger fact situation in Michigan case; Bushie v. Johnson, 295 N.W. 538. (11) A speed of 80 m.p.h., or speed in general, is not an accurate test for determining driver's state of mind. Anderson v. Anderson, 50 P.2d 995; Elliott v. Peters, 185 P.2d l.c. 144. (12) Weaving due to unknown cause and where there is no evidence of warning against weaving or that driver was conscious of peril and intended, or was completely indifferent, as to car going out of control, does not constitute anything more than ordinary negligence at most. Sayre v. Malcolm, 31 P.2d 8; Leabo v. Willett, 175 P.2d 109; Bushie v. Johnson, 295 N.W. 538. (13) Failure to have car under proper control is no more than negligence.

Thus, the question of liability between members of a joint enterprise, involved in the Frisorger Case, was decided without being considered. This same situation obtained in Johnson v. Fischer, 292 Mich. 78, and Bushie v. Johnson, 296 Mich. 8. In Hopkins v. Golden, supra, our opinion was directed chiefly to a consideration of whether plaintiff and defendant actually were engaged in a joint enterprise.

Even if a passenger is contributorily negligent vis-a-vis his driver in a suit against the driver under the "gross negligence" exception to the guest-passenger statute, a finding of gross negligence by defendant will ordinarily excuse the contributory negligence of the plaintiff, Gibbard v Cursan, 225 Mich. 311, 320-322 (1923); Clark v Braham, 386 Mich. 53, 57-58 (1971). Although it is said that the mere fact of drinking does not alone amount to gross negligence so as to give rise to a cause of action by a passenger under the guest passenger statute, Bushie v Johnson, 296 Mich. 8 (1941); Davis v Hollowell, 326 Mich. 673 (1950), the combination of drinking along with other evidence of improper driving makes the question of gross negligence one for the jury, Davis v Hollowell, supra; Hindes v Heyboer, 368 Mich. 561 (1962); Price v Western, 330 Mich. 680 (1951). Under the rule stated infra, p 659, the question of the gross negligence or wilful and wanton misconduct of the host will be a jury question in almost every conceivable case.

"We, therefore, hold 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. The contrary rule, given effect but not considered, in Hopkins v. Golden * * * [(1937), 281 Mich. 389] ; Frisorger v. Shepse * * * [(1930), 251 Mich. 121]; Johnson v. Fischer * * * [(1940), 292 Mich. 78, and reconsideration denied (1951), 330 Mich. 491], and referred to in Bushie v. Johnson * * * [(1941), 296 Mich. 8] is overruled."

See, also, the "sum total" comment of Chief Justice KAVANAGH, writing for the Court in Anderson v. Gene Deming Motor Sales, Inc., 371 Mich. 223, 230. Defendant relies upon certain of our earlier decisions, including Bushie v. Johnson, 296 Mich. 8, 12. There is no need to review them. The development of traffic conditions and of traffic hazards, occurring since such decisions were handed down, has forced this Court to "enlarge" the area "in which the question of the existence of gross negligence or wilful and wanton misconduct becomes a matter for the jury."

"' "Excessive speed, unless accompanied by wilful and wanton misconduct, is insufficient to impose liability under the so-called guest act. Bushie v. Johnson, 296 Mich. 8. For the statute involved, see CL 1948, § 256.29 (Stat Ann § 9.1446). The mere fact that the guest passenger gave the driver warnings which were not heeded does not, standing alone, constitute wilful and wanton misconduct.

Gill v. Hayes, 108 P.2d 117, at page 120. Other cases similarly applying the guest statute are: Del Bosque v. Kakoo Singh, 19 Cal.App.2d 487, 65 P.2d 951; Porter v. Hofman, 12 Cal.2d 445, 85 P.2d 447; Carpenter v. Yates, 58 N.M. 513, 273 P.2d 373; Gillespie v. Rawlings, 49 Cal.2d 359, 317 P.2d 601; Duncan v. Lowe, 221 Iowa 1278, 268 N.W. 10; Bushie v. Johnson, 296 Mich. 8, 295 N.W. 538. Citation of the foregoing cases from other jurisdictions is done for purpose of comparison only.

"' "Excessive speed, unless accompanied by wilful and wanton misconduct, is insufficient to impose liability under the so-called guest act. Bushie v. Johnson, 296 Mich. 8. For the statute involved, see CL 1948, § 256.29 (Stat Ann § 9.1446). The mere fact that the guest passenger gave the driver warnings which were not heeded does not, standing alone, constitute wilful and wanton misconduct.

It is a general rule that excessive speed, unless accompanied by wilful and wanton misconduct, is insufficient to impose liability under the so-called guest act. In Bushie v. Johnson, 296 Mich. 8, defendant Gallagher, the driver of the car, drove at a speed of 60 or 70 miles per hour and sort of zigzagged on a curved road. The jury rendered a verdict for plaintiff, but the trial court granted defendants' motion for judgment non obstante veredicto and entered judgment for defendants.

"`(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.'" Excessive speed, unless accompanied by wilful and wanton misconduct, is insufficient to impose liability under the so-called guest act. Bushie v. Johnson, 296 Mich. 8. For the statute involved, see CL 1948, § 256.29 (Stat Ann § 9.1446). The mere fact that the guest passenger gave the driver warnings which were not heeded does not, standing alone, constitute wilful and wanton misconduct.