Boos v. Sauer

• Decision Date: 06 March 1934
• Docket Number: No. 115.,115.
• Citation: 266 Mich. 230,253 N.W. 278
• Parties: BOOS v. SAUER et al.
• Court: Michigan Supreme Court

266 Mich. 230

253 N.W. 278

BOOS

v.SAUER et al.

No. 115.

Supreme Court of Michigan.

March 6, 1934.

Appeal from Circuit Court, Allegan County; Fred T. Miles, Judge.

Action by Lloyd Boos, by his next, friend, Joseph Boos, against Walter Sauer and another, doing business as Michigan Cottage Cheese Company. Judgment for defendants, and plaintiff appeals.

Affirmed.

Argued before the Entire Bench.

Knight, Mitts & Schmidt, of Grand Rapids (Leo Hoffman, of Allegan, of counsel), for appellant.

L. J. Carey and George J. Cooper, both of Detroit, for appellees.

FEAD, Justice.

Plaintiff, a guest passenger in a truck, charges defendant Sauer with gross negligence in going to sleep while driving. The court submitted the case to the jury upon plaintiff's theory and he had verdict of $2,000. Defendant's motion non obstante, however, was granted, and judgment entered for defendant.

For about a year Sauer had been in the employ of Loebel, delivering cheese. His duties required him to leave Grand Rapids about 3 a. m., drive to Otsego, 40 miles away, get a load of cheese, and return to Grand Rapids to meet a 6 o'clock train. To do this he drove at a speed of 50 to 60 miles per hour. Later he distributed the cheese about the city, finishing in the middle of the afternoon. Two days each week he drove to other cities and did not return until about 6 o'clock or later. The day before the accident he was awake from 3 a. m. to bedtime, 10:30 to 11 p. m.

On the day in question he followed his routine. Plaintiff, Sauer's cousin, about 10 years old, and Joseph Skok, 14 years old, were with him. Both were asleep at the time of the accident. Sauer left Otsego about 4 o'clock and, when within a few miles of Grand Rapids, the truck ran off the road, struck a culvert and telephone pole, caught fire, and the occupants of the truck were injured and burned. Sauer became unconscious and so remained until evening. Sauer testified that he did not know how the accident happened. Another driver coming from the opposite direction said his attention was called to the truck when 500 feet from it by the ‘slight weaving’ of it on the pavement; then it hit the telephone pole and burst into flames. A passenger with him first saw the car lights and then the flames. Sauer had had 14 years' experience in driving, without an accident, and had driven the cheese truck for one year.

It is plaintiff's theory that the accident was caused by Sauer going to sleep. The claim must rest on inference, as there was no direct testimony of the fact. The claim of gross negligence is that Sauer had been forewarned that he was sleepy and that he continued to drive at a rapid rate knowing his condition.

Sauer testified that, on this trip as on others, he had felt a little sleepy but that he was wide awake, did not shut his eyes at any time, and had full control of his mental processes up to the time of the accident. The strongest evidence favoring plaintiff's theory is contained in the statement which Sauer made over a year after the accident, when he said: ‘I was driving between 50 and 60 miles per hour, and while I was going at this rate of speed I didn't notice anything peculiar about how the truck handled on the road. I felt drowsy at times on this trip, and at these times I would light a cigarette and that would wake me up. * * * In order to make this train it was necessary to drive at this rate of speed unless I got up earlier in the morning. I didn't have time to stop and rest when I felt drowsy.'

Without deciding that the inference is justified, we will assume that the accident was caused by Sauer falling asleep. Sauer, then, was guilty of at least ordinary negligence. Devlin v. Morse, 254 Mich. 113, 235 N. W. 812;Bailin v. Phoenix, 102 Cal. App. 177, 282 P. 421;Whiddon v. Malone, 220 Ala. 220, 124 So. 516;Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A. L. R. 785.

It is also the weight of authority that the mere falling asleep is not gross negligence. Devlin v. Morse, supra; Krueger v. Krueger, 197 Wis. 588, 222 N. W. 784;DeShetler v. Kordt, 43 Ohio App. 236, 183 N. E. 85;Kaplan v. Kaplan, 213 Iowa, 647, 239 N. W. 682. Massachusetts holds to the contrary. Blood v. Adams, 269 Mass. 480, 169 N. E. 412;Oppenheim v. Barkin, 262 Mass. 281, 159 N. E. 628, 61 A. L. R. 1228. But in that state gross...