Evans v. Hackard

• Citation: 185 N.W.2d 104,29 Mich.App. 291
• Decision Date: 10 December 1970
• Docket Number: No. 2,Docket No. 9356,2
• Parties: Cynthia EVANS, a minor, by her next friend, Lorin Evans and Lorin Evans, Plaintiffs-Appellees, v. Michael A. HACKARD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 104

185 N.W.2d 104

29 Mich.App. 291

Cynthia EVANS, a minor, by her next friend, Lorin Evans and Lorin Evans, Plaintiffs-Appellees, v. Michael A. HACKARD, Defendant-Appellant.

Docket No. 9356.

Court of Appeals of Michigan, Division No. 2.

Dec. 10, 1970.

Rehearing Denied Jan. 19, 1971.

Leave to Appeal Denied March 25, 1971.

Released for Publication April 2, 1971.

John P. McKinney, Eggenberger, Eggenberger, McKinney & Weber, Detroit, for defendant-appellant.

Lopatin, Ward, Miller & Bindes, Detroit, for plaintiffs-appellees; Michael H. Feiler, Detroit, of counsel.

Before McGREGOR, P.J., and HOLBROOK and O'HARA ^*, JJ.

O'HARA, Judge.

The error in this case, and error there was, arises out of the perhaps understandable misapplication by the learned trial judge of this court's opinion in Papajesk v. C. & O.R. Co. (1968), 14 Mich.App. 550, 166 N.W.2d 46.

We say 'perhaps understandable' because Papajesk was an action by a pedestrian walking along a railroad track who was struck from behind by a gondola car that was being 'shunted' along the track.

In the opinion, the eminent Circuit Judge Charles Kaufman, sitting by assignment on this court, strove mightly to cast a beam of needed light into the murky area of the judicial meaning of the term 'gross negligence'. Judge Kaufman and the panel reviewed the various meanings of gross negligence and held that 'gross negligence' as pleaded in That case was synonymous with 'subsequent negligence', 'after-discovered negligence,' or 'last clear chance'. He denominated it 'common-law gross negligence' to differentiate it from gross negligence as used in the statute.

However, in his enlightening re sume , he adverted to the use of that term in earlier Michigan cases arising under the Guest Passenger Statute. ¹ Thus, the trial judge here might have concluded, as he apparently did, that Papajesk redefined, refined, or in some method changed the meaning of the term 'gross negligence' as used in the cited statute and host-guest case law. We, herewith, hold decisionally that Papajesk did not. Papajesk is unrelated to host-guest actions.

Thus, by its own terms, the trial judge's holding here that 'but for Papajesk' he would have granted defendant's motion notwithstanding the verdict, must of necessity be reversed.

Counsel for plaintiff-appellee on oral argument urges with great vigor that the 'Papajesk issue is a red herring.' Irrespective, counsel contended, of what the trial judge said about Papajesk, the fact remains that he charged the jury carefully on the meaning of gross negligence as used in the statute, and that under those error-free instructions the jury found gross negligence on the part of the driver, and determined that such gross negligence was a proximate cause of defendant's injury and damage. Ergo, he asserts, the verdict should stand.

This logically developed theory contains a fatal flaw. It was seized upon by appellant's counsel and developed. 'Of course', he says, 'I made no objection to the charge. I couldn't. It was a proper charge in a proper case. My precise point is the issues should never have reached the jury.'

We are constrained to agree. The initial determination of the trial judge in a guest passenger action is one of law. He must alone determine whether there has been sufficient evidence as a matter of law to permit submitting the question of whether defendant's conduct was, or was not, in fact, gross negligence. In the case at bar there was an insufficient showing to create a jury question.

This...