Eskovitz v. Berger

• Decision Date: 02 September 1936
• Docket Number: April Term.,No. 23,23
• Citation: 268 N.W. 883,276 Mich. 536
• Parties: ESKOVITZ v. BERGER (two cases). JOSEPH v. BERGER.
• Court: Michigan Supreme Court

276 Mich. 536

268 N.W. 883

ESKOVITZ

v.BERGER (two cases). JOSEPH v. BERGER.

No. 23, April Term.

Supreme Court of Michigan.

Sept. 2, 1936.

Separate actions by Rose Eskovitz and by Rudy Eskovitz and by Morris Joseph against Max Berger, which were tried together. From adverse judgments, the defendant appeals.

Judgments affirmed.Appeal from Circuit Court, Wayne County; Arthur Webster, judge.

Argued before the Entire Bench.

Alexander, McCaslin & Cholette, of Detroit, for appellant.

Leonard Simons, of Detroit, for appellees.

BUSHNELL, Justice.

These separate actions of three guest passengers against defendant were tried as one before the court without a jury.

On December 4, 1932, Berger and his wife left Detroit for Cleveland, Ohio, in Berger's car, taking with them their friends, Morris Joseph, Rudy Eskovitz and his wife, Rose. About 10 or 12 miles east of Toledo, Ohio, the highway was being widened on the south side by two new strips of concrete, a portion of which was still covered by straw and mud, one of the lanes being open to traffic with signs reading, ‘Drive Carefully.’

Berger drove along the new open lane on the right side of the center of the highway for some distance, then turned over to the left lane. While moving at a speed estimated at from 45 to 52 miles per hour, he saw an approaching vehicle and turned back to the right-hand side of the highway. In doing so, he lost control of his car which skidded into the ditch, tipped over, and all of his passengers were injured. The pavement was wet and slippery, the air damp and the atmosphere foggy. The statutory speed limit in Ohio is 45 miles per hour on highways, and it is conceded by counsel that under the statutes and decisions of Ohio, it is negligence per se to exceed this speed.

The Ohio common law permits recovery against a host for his ordinary negligence; one riding as a guest in an automobile in that state does not assume the responsibilities of the driver, and the driver's negligence may not be imputed to him. Hocking Valley R. Co. v. Wykle, 122 Ohio St. 391, 171 N.E. 860;American Sec. & Tr. Co. v. White, 42 Ohio App. 272, 181 N.E. 918;Myers v. Norfolk & W. R. Co., 122 Ohio St. 557, 172 N.E. 666; and see Page's Ohio Digest, Vol. 8, § 62, Motor Vehicles. That the law of Ohio has since been changed by statute is suggested but not briefed.

The trial judge found defendant guilty of negligence which was the proximate cause of the accident, but not of willful or wanton misconduct in the operation of his vehicle. The injuries to the several plaintiffs were separately considered and the court awarded damages to Rose Eskovitz of $500, to her husband Rudy, $1,000, and to Morris Joseph, $100.

Defendant appeals from the several judgments and urges that since the passage of the guest act, Comp.Laws 1929, § 4648, in Michigan, it is against the public policy of this state to permit actions by guests for ordinary negligence even though such actions may be permissible under the lex loci delicti. Berger also argues that in any event plaintiffs have not shown that they were not guilty of any negligence which was the proximate cause of the accident.

‘It is fundamental law that the driver of a car must keep on the right side of a street or highway, but failure to keep to the right, when, through no fault of the driver, an automobile skids on a slippery pavement and is thus thrown across the road, has been held to excuse failure to comply with the statute [1 Comp.Laws 1929, § 4703]; Chase v. Tingdale Bros., 127 Minn. 401, 149 N.W. 654, but, if such skidding results from the negligent acts or commissions of a driver, he is not absolvedfrom the consequences of breach of the rule, although it is not deliberate or intentional. Berry on Automobiles (4th Ed.), § 865. ‘One cannot be held guilty of negligence in unconsciously failing to keep to the right of the highway, where that is impossible by reason of circumstances over which he has no control, and for which he is in no sense responsible.’ 1 Blashfield, Cyclopedia of Automobile Law, p. 414.' Leonard v. Hey, 269 Mich. 491, 257 N.W. 733, 734.

“One who violates the ‘law of the road’ by driving on the wrong side assumes the risk of such an experiment and is required to use greater care than if he had kept on the right side.' Winckowski v. Dodge, 183 Mich. 303, 308, 149 N.W. 1061, 1063.' Paton v. Stealy, 272 Mich. 57, 261 N.W. 131, 132. See, also, Smith v. Ormiston, 242 Mich. 600, 219 N.W. 618.

There was a sufficient showing of negligence to permit the court, sitting without a jury, to determine the question of negligence, and we do not substitute our judgment in this particular unless the facts clearly preponderate in the opposite direction. Leonard v. Hey, supra. The finding of negligence is supported by the testimony.

The accident having happened in Ohio, and the action having been brought in Michigan, the general rule is applicable that all matters relating to the right of action are governed by the laws of Ohio and all matters relating purely to the remedy by the laws of Michigan. Edison v. Keene, 262 Mich. 611, 247 N.W. 757, and Hazard v. Great Cent. Transport Corp., 270 Mich. 60, 258 N.W. 210. See Young v. Masci, 289 U.S. 253, 53 S.Ct. 599, 77 L.Ed. 1158, 88 A.L.R. 170.

Much has been written on the enforcement of transitory actions and the theory underlying decisions in such matters has been variously explained on the grounds of ‘comity’ and ‘vested rights.’ See Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198;Slater v. Mexican National R. Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900;Cuba R. Co. v. Crosby, 222 U.S. 473, 32 S.Ct. 132, 56 L.Ed. 274,38 L.R.A.(N.S.) 40;Spokane & I. E. R. Co. v. Whitley, 237 U.S. 487, 35 S.Ct. 655, 59 L.Ed. 1060, L.R.A.1915F, 736; Goodrich, Conflict of Laws, p. 196; Minor, Conflict of Laws, p. 9; Wharton, Conflict of Laws (3d Ed.) p. 14; Beach, Uniform Interstate Enforcement of Vested Rights; 12 Corpus Juris, Conflict of Laws, § 15; 5 R.C.L. Conflict of Laws, § 3 et seq.; and 27 Yale Law Journal 656.

Under any theory of enforcement there is the well established exception that the foreign law will not be recognized if contrary to the public policy of the forum.

We shall not repeat that which was so recently stated at length regarding ‘public policy’ in Skutt v. City of Grand Rapids, 275 Mich. 258, at pages 263-265, 266 N.W. 344.

A somewhat comparable situation was considered by this court in Rick v. Saginaw Bay Towing Co., 132 Mich. 237, 93 N.W. 632, 633.102 Am.St.Rep. 422. In that case, an injury to a workman occurred in Canada where the statute dispensed with the immunity to an employer from liability for the negligence of a fellow servant. It was contended that such a statute was contrary to the public policy of this state. We said:

‘Authorities may be found which, perhaps, will sustain this contention in its entirety; but the tendency of the modern decisions is to hold that, before the court of any state is justified in refusing to enforce the right of action accruing under the laws of any other state or country, it must appear that such right is against good morals or natural justice, or that for some other reason an enforcement of it would be prejudicial to the general interest of the citizens of the state of the forum, and that it does not follow that, because the statute differs from the law of the forum, it is contrary to the public policy of the state, within the meaning of this rule. See 22 Am. & Eng.Enc.Law [2d Ed.] 1379, 1380; Rorer on Interstate Law [2d Ed.] p. 217 et seq.; Dennick v. Railway Co., 103 U.S. 11, 26 L.Ed. 439;Hanna v. Grand Trunk Railway Co., 41 Ill.App. 116. For an able and learned opinion, reviewing the authorities, see Herrick v. Railway Co., 31 Minn. 11, 16 N.W. 413,47 Am.Rep. 771.

‘Defendant's counsel cite and rely upon the case of Bettys v. Railway Co., 37 Wis. 323, which was decided in connection with Anderson v. Railway Co., 37 Wis. 321. The court in Herrick v. Railway Co. refuse to follow the latter case, and point out, we think very clearly, that by the weight of modern authority the rule contended for by the plaintiff in this case is the prevailing rule. We hold, therefore,that the plaintiff's rights are to be determined by the law of Canada. See Wingert v. Wayne County Circuit Judge, 101 Mich. 395, 59 N.W. 662;Turner v. St. Clair Tunnel Co., 111 Mich. 578, 7o N.W. 146,36 L.R.A. 134, 66 Am.St.Rep. 397.’

Our statute does not permit recovery by a guest passenger against his host unless the ‘accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator’ of the motor vehicle. Section 4648, Comp.Laws 1929. At the time of the accident in...