Abendschein v. Farrell, Docket No. 3393

CourtCourt of Appeal of Michigan (US)
Writing for the CourtGILLIS; LEVIN; While disagreeing with the majority's prediction of how the United States Supreme Court would decide the case there presented
Citation162 N.W.2d 165,11 Mich.App. 662
Decision Date20 July 1968
Docket NumberNo. 1,Docket No. 3393
PartiesEarl ABENDSCHEIN, individually and as Executor of the Estate of Leona Abendschein, Deceased, and as Guardian of Darrell Abendschein, a minor; and Paul Kanter, as Guardian of Penny Lipsitz, a minor, Plaintiffs- Appellants, v. Robert FARRELL and Dietrich Leasing Incorporated, a Michigan corporation, Defendants-Appellees

Page 165

162 N.W.2d 165
11 Mich.App. 662
Earl ABENDSCHEIN, individually and as Executor of the Estate
of Leona Abendschein, Deceased, and as Guardian of Darrell
Abendschein, a minor; and Paul Kanter, as Guardian of Penny
Lipsitz, a minor, Plaintiffs- Appellants,
v.
Robert FARRELL and Dietrich Leasing Incorporated, a Michigan
corporation, Defendants-Appellees.
Docket No. 3393.
Court of Appeals of Michigan, Division No. 1.
July 20, 1968.
Released for Publication Nov. 8, 1968.

Page 166

L. S. Charfoos, [11 Mich.App. 664] Charfoos & Charfoos, Detroit, for plaintiffs-appellants.

Arnold N. Magnuson, Alexander, Buchanan & Conklin, Detroit, for defendants-appellees.

Before LEVIN, P.J., and GILLIS and QUINN, JJ.

GILLIS, Judge.

Defendant Robert Farrell, a Michigan resident, was the driver of a Michigan-licensed automobile which went out of control and rolled over a number of times while proceeding west on highway 401 in the Province of Ontario, Canada. Defendant Dietrich Leasing, Incorporated, is a Michigan corporation with its principal place of business in Wayne county. Dietrich was the owner of the automobile being driven by Farrell.

At the time of the misfortune in Ontario, Farrell was en route from Buffalo, New York, to Detroit, his most direct route taking him through Ontario. There were 3 passengers in Farrell's automobile, all of whom were New York residents: Leona Abendschein, Darrell Abendschein and Penny Lipsitz. Leona was killed in the crash. Darrell, 12 years old, and Penny, 19 years old, were severely injured.

Plaintiff Earl Abendschein was the husband of Leona and is the personal representative of her estate. He also sues as guardian of Darrell. Plaintiff Paul Kanter is guardian for Penny. Appointments were made and letters were issued by the New Yorks courts.

Plaintiffs brought this action in the circuit court for Wayne county alleging that defendant Farrll operated the automobile in a grossly negligent manner with reckless and intentional disregard of his own safety and that of his passengers and was guilty of wanton and wilful misconduct. In particular,[11 Mich.App. 665] it is alleged that Farrell consumed excessive amounts of alcohol both while driving and before driving with a conscious indifference to the safety of his passengers. Plaintiffs plead that Farrell drove his automobile at an excessive rate of speed (90 miles per hour around curves) over the protestations of his passengers, and refused to slow down on their demands.

Defendants moved for summary judgment in the trial court for plaintiffs' failure to state a claim upon which relief can be granted (GCR 1963, 117.2(1)). The motion urged that the issue of defendants' liability must be governed by the law of Ontario, the place of the wrong. Ontario statutes (Ont.Rev.Stat. c. 172, § 105(2) (1960)) deny recovery to a gratuitous passenger who is injured as a result of the negligence or gross negligence of the host-driver. No allegation is made that this was not a gratuitous guest-passenger relationship within the meaning of the Ontario statute.

Plaintiffs argued in the trial court, as they contend on this appeal, that Ontario law should not govern the issue of liability of a host-driver to his guest-passenger. New York allows recovery against the host for ordinary negligence (Babcock v. Jackson (1963), 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1), and Michigan allows recovery for injuries sustained due to the driver's gross negligence or wilful and wanton misconduct, C.L.S.1961, § 257.401 (Stat.Ann.1960 Rev. § 9.2101). Under the law of either New York or Michigan, plaintiffs have stated a good cause of action.

The trial judge granted the motion for summary judgment on the authority of Kaiser v. North (1939), 292 Mich. 49, 289 N.W. 325, and dismissed the action. To be sure, Kaiser, decided some 29 years ago, does appear to [11 Mich.App. 666] be on all fours with the present case, and to compel the result reached by the trial court.

In Kaiser, two Michigan residents were driving in Ontario where their automobile was involved in an accident. The Supreme Court affirmed the summary dismissal holding first, that the law of the place of the wrong governs (the Lex loci delicti) and second, that the Ontario statute did not

Page 167

contravene the public policy of the State of Michigan. This precise issue of what law governs the host's responsibility to his guest has not been questioned since 1939. 1 In Goldberg v. Koppy Tool & Die Co. (1962), 365 Mich. 469, 113 N.W.2d 770, the Court spoke in terms of law governing the guest-passenger relationship but in actuality had before it only the question of whether defendant was negligent under the law of Tennessee. The Court did apply Tennessee law to the duty owed the passenger by her host, but a careful reading will disclose that the choice-of-laws problem was not raised or decided.

Thus in innumerable cases the Court has said that matters relating to the existence of a right of action, that is whether a cause of action exists, are governed by the law of the place of the wrong, but, as in Goldberg, only decided that the issue of negligence is determined by law of the place of the wrong. Leebove v. Rovin (1961), 363 Mich. 569, 111 N.W.2d 104; Blake v. Brama (1955), 343 Mich. 27, 72 N.W.2d 10; Slayton v. Boesch (1946), 315 Mich. 1, 23 N.W.2d 134. In other cases, the Court was deciding the applicable law governing substantive rights in a suit brought under a foreign statute, Summar v. Besser Manufacturing Co. (1945), 310 Mich. 347, 17 N.W.2d 209; Howard [11 Mich.App. 667] v. Pulver (1951), 329 Mich. 415, 45 N.W.2d 530; Yount v. National Bank of Jackson (1950), 327 Mich. 342, 42 N.W.2d 110, 17 A.L.R.2d 685.

In Bostrom v. Jennings (1949), 326 Mich. 146, 40 N.W.2d 97, the Court held that the law of the place of the wrong governed the question of whether plaintiff-passenger was a joint adventurer with the driver-host. A careful reading of this case will reveal that the choice-of-laws problem was not decided. The question the Court had before it already assumed the applicability of foreign substantive law, and the Court decided whether the relationship was a matter of substance or procedure under local law.

Reviewing the Post-Kaiser Michigan authority, we find that the only cases in which the Court was called upon to make a choice of conflicting substantive law were those in which the foreign standard of conduct was applied to a Michigan suit. That is, we are firmly committed to the notion that the substantive wrong being sued upon and the sufficiency of the alleged facts constituting that wrong must be governed by the law of the place of the wrong. While other cases recite a broad rule of governing laws, they were mere recitals and were not necessary to resolution of any choice of conflicting laws.

The case of Kaiser v. North itself does specifically decide a conflicting choice-of-laws problem. Its holding cannot be distinguished from the pertinent issue in the present case; that is, that the law of the place of the wrong governs the rights and duties between nonresident hosts and passengers, who fortuitously happened to be in the state wherein the accident occurred. Plaintiffs do not attempt to distinguish the present case, and ask this Court to merely criticize the rule of Kaiser as presently being out of step with other jurisdictions. If Kaiser is to be overruled, to be sure that is the function of the Supreme Court.

[11 Mich.App. 668] Kaiser is not based on any authority which remains viable today, and, although the operative facts in the present case are indistinguishable from Kaiser, the policy facts on which that decision rested have changed radically in the intervening years--so much so that one might question whether we are even deciding the same

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problems raised by the Kaiser situation. Kaiser's emphasis on comity might lend support to the argument that that case no longer stands as authority.

Kaiser and the Mighigan decisions predating that case reveal that our Courts have never expressed an independent analysis or reason for the rule therein stated. Lex loci delicti was the universal rule among the jurisdictions and universality of application made the rule not only desirable in terms of predictability, but almost automatic as well, with no alternative rules being presented to the courts. The authority referred to in Kaiser included Restatement of the Law, Conflicts, § 388; 15 C.J.S. Conflict of Laws §§ 4, 12 pp. 865, 899; Beale on Conflicts, § 378.4; Goodrich on Conflicts (1st ed.) § 92, p. 188; and the only Michigan case cited as authority was Eskovitz v. Berger (1936), 276 Mich. 536, 268 N.W. 883.

Eskovitz v. Berger is well illustrative of the point that the Lex loci delicti rule had simply come to be accepted in Michigan, apparently because it was, at that time, the general if not the only rule available. In Eskovitz two Michigan residents were injured in an automobile accident which occurred in the State of Ohio. Ohio allowed recovery by a guest passenger on a showing of ordinary negligence. The Ohio statute was held to govern in the Michigan lawsuit.

Although the language of the Eskovitz opinion is phrased in all-encompassing, sweeping choice-of-laws language ('all matters relating to the right of action are governed by the laws of Ohio,' 276 Mich. [11 Mich.App. 669] 536, 540, 268 N.W. 883, 885) the decision did not deal with a choice-of-laws question. Even by the time Eskovitz was decided, the doctrine of Lex loci delicti was being automatically applied in this State. It is noteworthy that defendant's brief in Eskovitz did not even raise the choice-of-laws question. 2 So automatic was the application of the law of the place of the wrong that defendant's only issues on appeal were whether application of Ohio law contravened the public policy of Michigan and whether defendant was negligent under Ohio law.

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19 practice notes
  • Hollerud v. Malamis, Docket No. 4173
    • United States
    • Court of Appeal of Michigan (US)
    • 10 Diciembre 1969
    ...114, and Michigan Transportation Company v. Good (1969), 16 Mich.App. 226, n. 1, 167 N.W.2d 876, with Abendschein v. Farrell (1968), 11 Mich.App. 662, 162 N.W.2d 165, affirmed Abandschein v. Farrell (1969), 382 Mich. 510, 170 N.W.2d 7 In Jones the plaintiff commenced his action after the 2-......
  • Bowser v. Jacobs, Docket Nos. 8197
    • United States
    • Court of Appeal of Michigan (US)
    • 19 Octubre 1971
    ...Marshall, J., dissenting. 12 See Abendschein v. Farrell (1969), 382 Mich. 510, 170 N.W.2d 137, affirming Abendschein v. Farrell (1968), 11 Mich.App. 662, 162 N.W.2d 165; Maxwell v. Maxwell (1969), 15 Mich.App. 607, 614, 167 N.W.2d 114; Hollerud v. Malamis (1969), 20 Mich.App. 748, 758, 174 ......
  • Duncan v. Beres, Docket No. 1797
    • United States
    • Court of Appeal of Michigan (US)
    • 31 Diciembre 1968
    ...which we are convinced the Supreme Court would no longer follow, see the opinions in Abendschein v. Farrell (1968), 11 MichApp. 662, 680, 162 N.W.2d 165. In Morgan v. McDermott (1967), 8 Mich.App. 260, 154 N.W.2d 576, the defendant was allowed to implead another alleged tort-feasor on the c......
  • Fireman's Fund Ins. Companies v. Ex-Cell-O Corp., Civ. A. No. 85-71371.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 14 Diciembre 1988
    ...886 (1968); Grantham and Mann, Inc. v. American Safety Prod., Inc., 831 F.2d 596, 608-09 (6th Cir.1987); cf. Abendschein v. Farrell, 11 Mich.App. 662, 680-85, 162 N.W.2d 165, 173-76 (1968) (Levin, J., dissenting) (on the Michigan Court of Appeals' power and obligation to overturn Policyhold......
  • Request a trial to view additional results
19 cases
  • Hollerud v. Malamis, Docket No. 4173
    • United States
    • Court of Appeal of Michigan (US)
    • 10 Diciembre 1969
    ...114, and Michigan Transportation Company v. Good (1969), 16 Mich.App. 226, n. 1, 167 N.W.2d 876, with Abendschein v. Farrell (1968), 11 Mich.App. 662, 162 N.W.2d 165, affirmed Abandschein v. Farrell (1969), 382 Mich. 510, 170 N.W.2d 7 In Jones the plaintiff commenced his action after the 2-......
  • Bowser v. Jacobs, Docket Nos. 8197
    • United States
    • Court of Appeal of Michigan (US)
    • 19 Octubre 1971
    ...Marshall, J., dissenting. 12 See Abendschein v. Farrell (1969), 382 Mich. 510, 170 N.W.2d 137, affirming Abendschein v. Farrell (1968), 11 Mich.App. 662, 162 N.W.2d 165; Maxwell v. Maxwell (1969), 15 Mich.App. 607, 614, 167 N.W.2d 114; Hollerud v. Malamis (1969), 20 Mich.App. 748, 758, 174 ......
  • Duncan v. Beres, Docket No. 1797
    • United States
    • Court of Appeal of Michigan (US)
    • 31 Diciembre 1968
    ...which we are convinced the Supreme Court would no longer follow, see the opinions in Abendschein v. Farrell (1968), 11 MichApp. 662, 680, 162 N.W.2d 165. In Morgan v. McDermott (1967), 8 Mich.App. 260, 154 N.W.2d 576, the defendant was allowed to implead another alleged tort-feasor on the c......
  • Fireman's Fund Ins. Companies v. Ex-Cell-O Corp., Civ. A. No. 85-71371.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 14 Diciembre 1988
    ...886 (1968); Grantham and Mann, Inc. v. American Safety Prod., Inc., 831 F.2d 596, 608-09 (6th Cir.1987); cf. Abendschein v. Farrell, 11 Mich.App. 662, 680-85, 162 N.W.2d 165, 173-76 (1968) (Levin, J., dissenting) (on the Michigan Court of Appeals' power and obligation to overturn Policyhold......
  • Request a trial to view additional results

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