Davis v. Hollowell, 23
| Decision Date | 09 January 1950 |
| Docket Number | No. 23,23 |
| Citation | 40 N.W.2d 641,15 A.L.R.2d 1160,326 Mich. 673 |
| Parties | , 15 A.L.R.2d 1160 DAVIS v. HOLLOWELL et al. |
| Court | Michigan Supreme Court |
Before the Entire Bench.
Paulson, Laing, Palmer & Tinker, Kalamazoo (Steg J. Lignell, Grand Rapids, of counsel), for defendants and appellants.
Joseph W. McAuliffe, Battle Creek, for plaintiff and appellee.
Floragene Davis brought action against Harriette Hollowell Douglas, driver of an automobile in which she was injured as a guest passenger. She joined as codefendants Ben Hollowell and Ruth Hollowell, owners of the car, with whose consent defendant Douglas was using it. She claimed that defendants were guilty of gross negligence and wilful and wanton misconduct.
At the conclusion of plaintiff's proofs motions were made to dismiss as to the vehicle owners and for a cirected verdict of no cause of action in favor of all defendants. Decision on both motions was reserved by the trial court. Thereupon the defense rested without offering any testimony and renewed the motions. The court again reserved decision and the jury returned a verdict in the sum of $3,004.35 in favor of plaintiff against the defendants. In answer to the special questions submitted to the jury, they found that Mrs. Douglas was under the influence of liquor when she left the party, that Mrs. Douglas did mot lose control of the car solely as a result of excessive speed in loose gravel, that the accident was not caused solely by excessive speed and that it was not caused solely by the intoxication of the driver. Defendants' motion for a judgment non obstante veredicto was denied. The charge to the jury is not before us and no objection is made to it as grounds for appeal. We limit our discussion to the two questions raised by defendants.
Was defendant driver free from wilful and wanton misconduct as a matter of law? Plaintiff was the sole witness of the events leading up to the accident. As the defendants offered no testimony, plaintiff's testimony must be regarded in the light most favorable to her. Plaintiff, who lived in California, had stopped in Kalamazoo, Michigan, to visit defendant Douglas, a good friend of hers. On June 15, 1948, she and Mrs. Douglas each drank a highball before going to dinner in the evening at the Hollowell residence. They left there between 7:30 and 8:00 p. m. Thereupon, they visited several public places where they were served with liquor, and where each consumed, in all, one highball, two glasses of beer and an additional drink containing some hard liquor, and also some soft drinks. Later that night accompanied by another person they stopped at a friend's house and plaintiff was served two more highballs, her last liquor of the evening, only one of which she finished. Defendant Douglas also drank there but the amount is not shown. Then they proceeded to a party at a home located about five miles out of Battle Creek on Stone Jug Road, about two to two and a half miles south of US-12 and arrived there at about 3:00 a. m. according to plaintiff's recollection, defendant Douglas had several drinks at the party, including 'one for the road' just before leaving. She acted hilarious and gayer than normal and showed the influence of liquor. After several requests plaintiff finally induced defendant Douglas to leave. Upon their departure after sunrise, defendant Douglas assured one of the guests of her ability to drive safely. Plaintiff was somewhat apprehensive at the time she entered the automobile but was certain that defendant was capable of driving. Defendant backed the car out of the yard and driveway without difficulty and commenced to drive north on Stone Jug Road toward US-12.
The road, a gravel one, had wheel track ruts that were packed fairly hard. The gravel on the sides was loose. There was a small gutter and also trees and brush east of the road. Mrs. Couglas began to accelerate the speed of the car. At least four times before the accident, plaintiff importuned her to decrease the speed. These unheeded requests began when the car reached 35 miles per hour and were repeated thereafter. Mrs. Douglas became belligerent and did not seem to care what she was doing. The car began to swerve to the right and then to the left side of the road, going farther each time, and plaintiff became terrified and begged the driver to slow down. In response to the request that she should not get off the ruts, she said, 'Well, there is no other cars coming,' and 'I might as well have the road while nobody else wants it.' Then again she stated, 'The car has always gotten me home before; don't worry, we won't have an accident.' She did not take her foot off the accelerator. After a speed of 60 miles per hour was reached the car went off the left side of the road and through the weeds and grass, then it returned to the road for a very short distance and went off on the right side. It struck a tree that was located 15 feet east of the traveled portion of the road and turned over. During all this time defendant made no attempt to use the brake until the car passed over the gutter east of the road. The testimony of the State trooper who went to the scene of the accident and the photographs of the car's tire tracks, admitted without objection, show that the car first went off the west side of the road at a point 288 feet south of the tree, that after it returned to the road for a very short distance, it went off the east side for 177 feet and collided with the tree. Plaintiff was thrown from the car and suffered severe injuries, including a broken collar bone and fractured rib, which entailed 67 days of hospitalization. She also claimed possible permanent injuries and loss of wages.
The guest act, C.L.1948, § 256.29, Stat.Ann. § 9.1446, limits recovery by a guest passenger in an automobile accident to injuries resulting from the gross negligence or wilful and wanton misconduct of the driver. Excessive speed alone is not sufficient to establish liability, Keilitz v. Elley, 276 Mich. 701, 268 N.W. 787; Quinlan v. Wells, 291 Mich. 214, 289 N.W. 135; Bushie v. Johnson, 296 Mich. 8, 195 N.W. 538; nor is merely driving while under the influence of liquor of itself adequate, Bonnici v. Kindsvater, 275 Mich. 304, 266 N.W. 360; Bielawski v. Nicks, 290 Mich. 401, 287 N.W. 560. However, these are matters to be considered along with the other circumstances in the determination, and the refusal to...
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