Burhans v. Witbeck

• Decision Date: 09 April 1965
• Docket Number: Nos. 11,12,s. 11
• Parties: Betty Lou BURHANS, a minor, by her next friend, Charles Norman Burhans, Plaintiff and Appellant, v. Ted WITBECK, administrator of the estate of William Witbeck, deceased, Defendant and Appellee. Kathie Ann BURHANS, a minor, by her next friend, Charles Norman Burhans, Plaintiff and Appellant, v. Ted WITBECK, administrator of the estate of William Witbeck, deceased, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 225

134 N.W.2d 225

375 Mich. 253

Betty Lou BURHANS, a minor, by her next friend, Charles

Norman Burhans, Plaintiff and Appellant, v. Ted WITBECK, administrator of the estate of William Witbeck, deceased, Defendant and Appellee.

Kathie Ann BURHANS, a minor, by her next friend, Charles

Norman Burhans, Plaintiff and Appellant, v. Ted WITBECK, administrator of the estate of William Witbeck, deceased, Defendant and Appellee.

Nos. 11, 12.

Supreme Court of Michigan.

April 9, 1965.

Rehearing Denied May 10, 1965.

Burton A. Hines, Cadillac, for plaintiffs-appellants.

Savidge & Sahlin, Reed City, Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), for defendant-appellee.

Before the Entire Bench.

DETHMERS, Justice.

These 2 cases were consolidated for trial and appeal. Suit is for injuries sustained by the respective plaintiffs in an automobile accident. When it occurred plaintiff Kathie Ann Burhans was 5 years of age and her sister, plaintiff Betty Lou Burhans, was 7. From jury verdict of no cause for action and judgment thereon in both cases, plaintiffs appeal.

Error is assigned on submission of the case by the court to the jury on the included theory of possible applicability of the guest passenger act (C.L.S.1961, § 257.401 [Stat.Ann.1960 Rev. § 9.2101]), with instructions that, if the jury should find that plaintiffs were guest passengers, then the test of defendant's decedent's liability would be his gross negligence or willful and wanton misconduct rather than mere ordinary negligence. Plaintiffs say this was erroneous for the reason that children of tender years were incapable of becoming guest passengers, particularly when they were in decedent's car by reason of a driving agreement between plaintiffs' parents and the parents of decedent's grandchildren that they would take turns in driving the children to school and that decedent, the grandfather, would drive when it was his son's turn but he was unable to go.

The question presented is whether the guest act applies to plaintiffs who are children of tender years.

Since trial of these cases, this Court handed down opinions in Baker v. Alt, 374 Mich. 492, 132 N.W.2d 614 and in Queen Insurance Co. v. Hammond, 374 Mich. 655, 132 N.W.2d 792. In former, a majority of this Court held that a child under 7 years of age is incapable of contributory negligence. In the latter, a majority of this Court held that a child under 7 years of age is incapable of negligence and of intentional tort or crime. In both cases this writer dissented and he remains unpersuaded still, but impelled to accept the holding of the majority. That majority made the dividing line 7 years of age, apparently content, in regard to children 7 years of age or older, to leave standing the old rule that the capability of children in the above respects is a question of fact for the jury, which is to determine it on the basis of whether the child had conducted himself as a child of his age, ability, intelligence and experience would reasonably have been expected to do under like circumstances. (See Mr. Justice Wiest's opinion in Tyler v. Weed, 285 Mich. 460, 490, 280 N.W. 827.)

We come now to the question of whether children of tender years can, as a matter of legal consequence, exercise the requisite power of choice, accept an invitation to become a guest passenger and enter into a guest relationship.

In Kudrna v. Adamski, 188 Or. 396, 216 P.2d 262, 16 A.L.R.2d 1297, under a guest passenger...