Garvie v. Cloverleaf, Inc.

• Decision Date: 14 March 1939
• Parties: GARVIE v. CLOVERLEAF, Inc.
• Court: Florida Supreme Court

187 So. 360

136 Fla. 899

GARVIE v. CLOVERLEAF, Inc.

Florida Supreme Court, Division B.

March 14, 1939

Rehearing Denied April 6, 1939.

Error to Circuit Court, Duval County; DeWitt T. Gray, Judge.

Action by Mary A. Garvie against the Cloverleaf, Inc., to recover for injuries sustained in automobile accident. To review an order denying plaintiff's motion to file her fourth amended declaration and dismissing the cause of action, the plaintiff brings error.

Judgment reversed and cause remanded for further proceedings.

COUNSEL Will O. Murrell, of Jacksonville, for plaintiff in error.

John L Nixon and Marks, Marks, Holt, Gray & Yates, all of Jacksonville, for defendant in error.

OPINION

BROWN Justice.

This is an appeal from an order denying plaintiff's motion to file her 'Fourth Amended Declaration' and dismissing the cause of action at the cost of plaintiff. In her declaration plaintiff alleged:

'That on or about the twenty-sixth of August, 1933, on the Chicago, Illinois--Detroit, Michigan, public highway, near Artesian Wells, Michigan, about fourteen miles from Hudson, Michigan, the defendant was the owner of an automobile in which the plaintiff was then and there riding as a guest of the defendant. That at said time and place the defendant's said automobile was being operated in an easterly direction, by and with the knowledge and consent of the defendant. That at said point there was a junction in said highway, where traffic leading to and from Hudson, Michigan, and Toledo, Ohio, and other large cities met and joined said highway; that said highway was traversed and traveled by hundreds of automobiles daily between two huge and large cities, towit, Chicago Illinois, and Detroit, Michigan, where heavy traffic was apparent to the operator of the defendant's said automobile, who had traveled during said date in and upon said highway; that at said junction there was a red flashing signal light, which was properly operating, facing and flashing towards the defendant's said automobile, which said red, flashing signal light was kept and maintained at said junction for the purpose of warning travelers using said highway in the direction that the defendant's automobile was traveling of the danger at said junction, and that ordinary care and diligence was necessary in the operation of such motor vehicles to avoid injury to persons in the use of said highway; that there was a hill and downgrade on said highway approaching said red, flashing signal light in the direction defendant's automobile was being operated, and that immediately east of said red, flashing, warning signal there was another automobile being operated across said highway, traversing the path being traveled by defendant's motor vehicle, all of which was known to the operator of the defendant's automobile in ample time, by use of the means at hand, to avert the collision and injury hereinafter referred to, through the use of ordinary care and diligence. That it was then and there the duty of the operator of the defendant's automobile to heed the circumstances aforesaid.

'And the plaintiff alleges that the operator of the defendant's automobile aforesaid was then and there guilty of negligence and recklessness as is characterized by wantonness and wilfulness in the premises in this, to-wit, that the said operator of the defendant's said automobile then and there propelled and ran the same at a high, dangerous and reckless rate of speed, to-wit, 55 miles per hour, on said highway towards said junction and said flashing, red light and signal and said other automobile crossing the said highway, then and there not regarding his duty thereabout after knowledge of the aforesaid facts and failed to apply the brakes or slacken such speed and did then and there, wilfully and knowingly, increase the speed of said automobile and cause the same to be propelled as aforesaid down said hill and downgrade, and past said flashing, warning signal, continuously increasing such speed to travel such highway ahead of the said other automobile then crossing said highway, thereby causing said automobile to come into such violent collision and impact as to cause the defendant's automobile to be hurled into an adjoining ditch and careen and overturn three times * * *.'

Section 4648, Mich.Comp.Laws 1929 (Public Acts 1929, No. 19), provides, inter alia:

'* * * That 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 issue raised by the motion to file the 'Fourth Amended Declaration' and passed on by the lower court is: That under the laws of Michigan, a guest injured by the collision of the automobile in which he is riding has no cause of action against the owner of the automobile to recover damages for personal injuries unless such injuries shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such car, and that the allegations of the declaration do not disclose gross negligence or wilful and wanton misconduct of the owner or operator as the proximate cause of the collision.

The several conflicting decisions of the Michigan Supreme Court cited by the parties hereto involving definitions of the terms 'gross negligence' and 'wilful and wanton misconduct' have culminated in Thayer v. Thayer, 286 Mich. 273...