Citizens Commercial and Sav. Bank v. Gambill, Docket No. 5363

• Decision Date: 25 March 1969
• Docket Number: Docket No. 5363,No. 2,2
• Parties: CITIZENS COMMERCIAL & SAVINGS BANK, Administrator de bonis non of the Estate of Clyde Perkins, Jr., Deceased, Plaintiff-Appellee, v. Gwendolyn R. GAMBILL and Donovan E. Neville, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 472

168 N.W.2d 472

16 Mich.App. 533

CITIZENS COMMERCIAL & SAVINGS BANK, Administrator de bonis

non of the Estate of Clyde Perkins, Jr., Deceased, Plaintiff-Appellee, v. Gwendolyn R. GAMBILL and Donovan E. Neville, Defendants-Appellants.

Docket No. 5363.

Court of Appeals of Michigan, Division No. 2.

March 25, 1969.

Released for Publication June 20, 1969.

Matthew Davison, Jr., and Russell E. Bowers, Gault, Davison & Bowers, Flint, for appellants.

Milliken & Magee, Flint, for appellee.

Before QUINN, P.J., and V. J. BRENNAN and McGREGOR, JJ.

McGREGOR, Judge.

Plaintiff, as decedent's administrator, filed an action against defendants, one of whom was driving the other defendant's car at the time of an accident in which decedent, a guest passenger in the car, was killed. The jury awarded damages against defendants, who thereafter appealed. The controlling issue is whether the facts as presented pose a jury question of defendant's liability for gross negligence or wilful and wanton misconduct under the guest passenger statute. C.L.S.1961, § 257.401 (Stat.Ann.1968 Rev. § 9.2101). Defendants contend the facts present an issue of negligence only, and thus the liability issue should not have been submitted to the jury.

Briefly, the pertinent facts are as follows: A group of men, including the defendant car owner, decedent, and a business acquaintance, gathered in a restaurant lounge for approximately four hours before the acquaintance's scheduled plane departure. As they left for the airport, defendant-driver, a waitress in the restaurant, agreed to accompany the party. The men consumed alcoholic beverages throughout their discussions, but it is unclear whether defendant-driver similarly indulged other than having an abbreviated cocktail at the airport. After the plane left, decedent, who had completed a favorable business deal with the acquaintance, exhibited his jubilation by an impromptu heel-kicking in the airport parking lot while atop a car hood. Apparently sharing the spontaneity of the moment, the defendant-driver kissed decedent, after with the group began the return journey in defendant-owner's Ford Thunderbird. Defendant-driver had never driven a Thunderbird and requested to drive the unfamiliar car; both decedent and defendant-owner consented. Shortly thereafter, the car exceeded the speed limit, passed at least one car contrary to a yellow line warning, returned to its proper lane, and then swerved out of control into the oncoming lane...