Flint v. Voiles

• Decision Date: 09 June 1936
• Docket Number: 1907
• Citation: Flint v. Voiles, 50 Wyo. 43, 58 P.2d 443 (Wyo. 1936)
• Parties: FLINT v. VOILES
• Court: Wyoming Supreme Court

58 P.2d 443

50 Wyo. 43

FLINT v. VOILES

No. 1907

Supreme Court of Wyoming

June 9, 1936

ERROR to the District Court of Sheridan County; JAMES H. BURGESS Judge.

Action by Sarah Voiles, administratrix and personal representative of the estate of William A. Voiles, deceased, against John C Flint.To review an order granting a new trial, defendant brings error.

Proceedings in error dismissed.

For the plaintiff in error there was a brief and oral argument by Wm B. Cobb of Casper.

The granting of a new trial was an abuse of discretion.There was sufficient evidence to sustain the verdict.A guest passenger assumes the risk of defects in the vehicle as well as lack of ability in the driver.Guest passengers have been defined by the authorities.Bookhart v. Motor Company, (Ia.)244 N.W. 721;Marple v. Haddad, (W. Va.)138 S.E. 113;Collins v. Anderson,37 Wyo. 275;Higgins v. Mason, (N. Y.)174 N.E. 77; 5 Blashfield, Cum. Ser. Cyc. of Automobile Law, 957.A driver owes a duty of reasonable care to an invited guest.20 A. L. R. 1014, 40A. L. R. 1444, 47 A. L. R. 592, 51 A. L. R. 585, 61 A. L. R. 1264;Gifford v. Dice, (Mich.)257 N.W. 830.Gross negligence is a want of slight care.Dawson v. Foster,14 P.2d 458;Weld v. Company,210 N.Y. 59;Trust Company v. Railway Company, (Mich.)214 N.W. 166.A guest passenger accepts the premises of the host as he finds them.Cleary v. Eckart, (Wis.)210 N.W. 267;Eisenhut v. Eisenhut,248 N.W. 440;Ingeric v. Mess,63 F.2d 233;Berry on Automobiles, Vol. 2, Sec. 1330, page 1088.The instructions given by the court, if not objected to, become the law of the case, and thereafter whether the verdict is to be sustained is then to be determined by scrutiny and inspection of the instructions, unless the record conclusively established that the party obtaining the verdict is not entitled to it.Kovaniemi v. Sherman,256 N.W. 661;Strode v. Strode, (Ky.)240 S.W. 368.It is the duty of the plaintiff in error to argue his exceptions to the granting of a new trial.Kahn v. Traders Insurance Company,4 Wyo. 419.Unless the trial court committed error in granting a new trial, the order will not be reversed.Elliott v. Sloan,38 Wyo. 276.In this case, a jury properly instructed arrived at a conclusion which differs from that of the trial court.It is not within the province or discretion of the trial court to say that there was insufficient evidence to support the verdict.Defendant in the case at bar was entitled to a judgment upon his motion for a directed verdict.The trial court erred in overruling that motion and further erred in granting the plaintiff's motion for a new trial.Anderson, "An Automobile Accident Suit,"Section 1206, page 1513.

For the defendant in error there was a brief by Bert Griggs and Harry G. Beatty of Buffalo, and oral argument by Mr. Beatty.

Counsel for defendant apparently takes the position that if there was any competent evidence to justify the submission of the case to the jury, the court was without jurisdiction to set aside its verdict.The point was discussed in the leading case of Kester v. Wagner,22 Wyo. 512;Elliot v. Sloan,38 Wyo. 276.The most recent case is State Board of Law Examiners v. Phelan,5 P.2d 263.It therefore seems to be clearly established in this jurisdiction that whenever the trial court is convinced that the jury failed to respond to the real merits of the controversy, the verdict ought to be set aside and a new trial granted, also, that unless it is made to appear to the appellate court that the trial court abused its discretion, or that its conclusion was manifestly erroneous, its judgment will not be reversed.We believe that the last case in which a motion for a new trial has been passed on by the court is Jackson v. Hansard,45 Wyo. 201.The conditions here however are quite different from the conditions in the cited case.A court of general jurisdiction has in the proper case inherent power to grant a new trial sua sponte.46 C. J. 283-285.The rule is clearly stated in Rawleigh Company v. Cate, (Okla.)38 P.2d 940.See also Anderson's "An Automobile Accident Suit,"Sec. 1206, page 1513.The trial court committed no error in granting a new trial herein, and his order should be affirmed.

RINER, Justice.KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

In this cause it is desired to have this court review by proceedings in error an order of the district court of Sheridan County, granting a new trial upon motion of Sarah Voiles, as administratrix of the estate of William A. Voiles, deceased.The trial thus ordered has not been had and no judgment disposing of the issues thus for trial has been entered in that court.

The litigation arose in consequence of an automobile accident in which William A. Voiles, the husband of Sarah Voiles, lost his life.She, as administratrix of his estate, brought the action against John C. Flint, plaintiff in error here, to recover damages for alleged gross negligence of the latter in causing his death.

It appears from plaintiff's petition that the defendant Flint, with Voiles and two other men, on or about April 19, 1932, drove by automobile from Buffalo, Wyoming, to the City of Casper, in this state, to attend a meeting held at the latter place in the interests of the Buffalo Commercial Club, all the men making the trip being members of that organization, Flint being its secretary and Voiles its president.The petition alleges "that the transportation for said party was arranged by the defendantJohn C. Flint, who provided for their use in making said trip a certain Buick automobile then owned and controlled by the said defendant."They arrived safely in Casper, but on their return trip, in the early morning hours of the 20th of April, in loose gravel, as the record shows, a rear tire blew out, and the vehicle in which they were riding plunged off the road, overturned, injured all the others more or less, and caused the death of plaintiff's intestate.

J. E. Keith, one of the occupants of the car, was driving it at the time the accident happened, as the petition states, "at a safe and moderate rate of speed," Flint, the owner of the car, sitting beside him on the front seat.As ground for the recovery sought plaintiff's pleading charged: "That the defendantJohn C. Flint was guilty of gross negligence in knowingly suffering and permitting the operation of said automobile with a weak and unsafe tire and boot, and in neglecting to inform the other passengers in said car of their peril in travelling in an automobile thus equipped; that the proximate cause of said accident and of the death of the deceased was the gross negligence of the defendant in providing, for the use of said party, an automobile so equipped with an unsafe, insecure and defective tire and boot."The defendant answered with a general denial and other defenses not necessary now to mention, to which plaintiff filed a reply.

The case was tried before the court with a jury in attendance.After both plaintiff and defendant had rested, the defendant renewed a motion made earlier in the course of the trial, requesting the court to direct the jury to return a verdict in his favor, upon the ground, among others: "That the evidence on behalf of the plaintiff affirmatively shows that plaintiff's decedent was riding in the defendant's car at the time of the accident in question as a guest of the defendant host, and that by reason thereof Section 72-701,Wyoming Revised Statutes 1931, has become and is applicable, and that there is no showing of any gross or other negligence on the part of the defendant in the record."

Section 72-701 W. R. S., 1931, referred to, reads:

"No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought."

The motion was denied and plaintiff excepted.

The cause was submitted to the jury under instructions with which the parties seemed to have been satisfied, as no complaint is made of them here, and a verdict was returned in favor of the defendant, upon which the court, in due course, entered its judgment in his favor.

Within ten days thereafter, plaintiff filed her motion to set aside the verdict aforesaid and for a new trial, alleging that the verdict was not sustained by sufficient evidence, was contrary thereto and contrary to law.This motion, by the order which we are now asked to review and which was excepted to by the plaintiff, was sustained and the judgment vacated.

It is now urged on behalf of the plaintiff in error that the court erred in not sustaining his motion for a directed verdict and that there was error in granting a new trial.Our attention is directed to the pertinent case of Gifford v. Dice,269 Mich. 293, 257 N.W. 830, 96 A. L. R. 1477, where under a statute with verbiage quite like that of Section 72-701, supra, it was held that neither "gross negligence" nor "wilful and wanton misconduct" on the part of the owner and driver of an automobile, so as to make him liable under the so-called "guest act"(Compiled Laws of Michigan, 1929, § 4648), could be maintained for an injury to one riding with him as a guest.It was so decided though the proof was that he drove his car on a concrete pavement knowing that one of the front tires was weak, by reason of a badly worn condition of the tire fabric, and that the...