Devlin v. Morse, 106.

• Decision Date: 07 April 1931
• Docket Number: No. 106.,106.
• Citation: 235 N.W. 812,254 Mich. 113
• Parties: DEVLIN v. MORSE.
• Court: Michigan Supreme Court

254 Mich. 113

235 N.W. 812

DEVLIN

v.MORSE.

No. 106.

Supreme Court of Michigan.

April 7, 1931.

Error to Circuit Court, Wayne County; Maurice H. McMahon, Judge.

Action by Helen Devlin against Harlow Morse. Judgment for plaintiff, and defendant brings error.

Affirmed.

Argued before the Entire Bench.

Edward A. Smith, of Detroit, for appellant.

Barbour & Martin, of Betroit (Henry C. L. Forler, of Detroit, of counsel), for appellee.

WIEST, J.

This is an action to recover damages for personal injuries received by plaintiff while riding as a gratuitous guest in defendant's automobile.

Plaintiff and defendant, together with others, the night of January 26, 1929, visited places where they danced and partook of refreshments. Plaintiff admits drinking a glass of beer, and defendant admits that he had drinks. At an early hour in the morning defendant, while taking plaintiff to her home, and driving at a speed of about thirty miles per hour, fell asleep at the steering wheel, the automobile ran into a safety platform post, and plaintiff received a broken leg and bruises. Trial was had before the court without a jury. Defendant was found guilty of ‘gross and wanton negligence’ and cast in damages.

After the accident, and before this suit was brought. Act No. 19, Public Acts 1929, relieved owners of motor vehicles from liability to gratuitous guests, except for injuries occasioned by ‘gross negligence or wilful and wanton misconduct.’ At the time of injury there accrued to plaintiff a common-law right of action, based on ordinary negligence of defendant.

Three questions are presented:

‘(a) There was no negligence on the part of defendant.

‘(b) That if the defendant was negligent the plaintiff herein was guilty of contributory negligence which would bar her recovery.

‘(c) The provisions of Act No. 19 of the Public Acts of 1929 prevent the plaintiff recovering except in case of gross negligence or wanton and wilful misconduct and there is no proof of gross negligence in this case.'

As well stated in 12 C. J. 972: ‘An existing right of action which has accrued to a person under the rules of the common law, or in accordance with its principles, is a vested property right which may not be destroyed or impaired by legislation.'

This in no wise conflicts with what we said in Bejger v. Zawadzki, 252 Mich. 14, 232 N. W. 746. In that case a statute relieved the plaintiff from making proof required at common law, and, before trial, the statute was repealed, and plaintiff was put to proof as at common law. What the statute gave, the statute could take away; there being no contract relation.

In the case at bar the statute takes away the common-law right of action for injuries after its enactment, but not before. The plaintiff's right of action was given by common law and not by statute, accrued before the enactment of the statute and could not be destroyed or impaired by subsequent legislation. In Siller v. Siller, 112 Conn. 145, 151 A. 524, a similar ‘guest act’ was held not to affect an accrued previous common-law right of action.

In Dunlap v. Toledo, A. A. & G. T. Ry. Co., 50 Mich. 470, 15 N. W. 555, it was held (syllabus): ‘A common law right of action is property, and as such is within the rules of constitutional protection.'

It was not necessary for the court below to find defendant guilty of gross and wanton negligence. Was defendant guilty of negligence? Defendant had been...