Findlay v. Davis

• Decision Date: 16 May 1933
• Docket Number: No. 110.,110.
• Citation: 263 Mich. 179,248 N.W. 588
• Parties: FINDLAY v. DAVIS et al.
• Court: Michigan Supreme Court

263 Mich. 179

248 N.W. 588

FINDLAY

v.DAVIS et al.

No. 110.

Supreme Court of Michigan.

May 16, 1933.

Appeal from Circuit Court, Kent County; Willis B. Perkins, Judge.

Action by Thelma Findlay, by her next friend, Ann Findlay, against Iron G. Davis and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Argued before the Entire Bench.

Shaw & McIntyre, of Grand Rapids, for appellant.

Dunham & Allaben, of Grand Rapids (Cornelius Wiarda, for Grand Rapids, of counsel), for appellees.

POTTER, Justice.

Plaintiff, a minor, by her next friend, sued defendants to recover damages alleged to have been sustained by plaintiff while riding with defendant Davis in an automobile driven by him on a public highway, by reason of his gross negligence and wanton and willful misconduct. From a verdict for defendants directed by the court, plaintiff appeals. The sole question presented is whether defendant Davis was, under the facts, guilty of gross negligence and wanton and willful misconduct. There was testimony defendant Davis was intoxicated and that plaintiff had been drinking. Plaintiff denied she had been drinking. The proof is convincing defendant Davis had drunk some intoxicating liquor some time before the accident. He says he was not intoxicated. The road where the accident occurred was a one-track sand road through the woods. There was a heavy fog. The accident occurred in the nighttime in a narrow hollow between two hills. There was a head-on collision with another automobile. It is claimed defendant Davis was guilty of gross negligence and wanton and willful misconduct as a matter of law. It is claimed there was testimony defendant Davis was intoxicated, and the question of gross negligence and wanton and willful misconduct was for the jury. Intoxication is not negligence as a matter of law. Thompson on Negligence, par. 6313. Driving a motor vehicle on the public highways of this state when intoxicated is declared to be a misdemeanor, section 4695, Comp. Laws 1929, and punishable, section 4746, Comp. Laws 1929. This offense is distinguished by statute from recklessly driving a motor vehicle on the public highways, section 4696, Comp. Laws 1929, which is by separate statutory provision made punishable, section 4747, Comp. Laws 1929. Driving a motor vehicle upon the public highways of the state while intoxicated is doing something prohibited by statute and may constitute negligence, but the terms, ‘gross and wanton and wilful,’ when used in relation to misconduct, which constitutes ‘the violation of a statute or municipal or dinance enacted to promote the public safety and which is often called negligence per se, have no legal significance which imports other than simple negligence or want of due care, and are not equivalent to wilful or wanton and it is error in advance to use them in that sense.’ Thompson on Negligence, par. 20.

Construing...