Le Groh v. Bennett

• Decision Date: 17 May 1935
• Docket Number: No. 79,Jan. Term.,79
• Citation: Le Groh v. Bennett, 271 Mich. 526, 261 N.W. 81 (Mich. 1935)
• Parties: LE GROH v. BENNETT.
• Court: Michigan Supreme Court

271 Mich. 526

261 N.W. 81

LE GROH

v.BENNETT.

No. 79, Jan. Term.

Supreme Court of Michigan.

May 17, 1935.

Suit by Lillian Le Groh against Daymon Bennett, administrator of the estate of Glen E. Bennett, deceased.From a judgment for plaintiff, defendant appeals.

Reversed without new trial.

POTTER, C. J., dissenting.

Appeal from Circuit Court, Genesee County; Edward D. Black, judge.

Argued before the Entire Bench.

Carton & Gault, and Matthew Davison, Jr., all of Flint, for appellant.

Cook & Stipes, of Flint, for appellee.

POTTER, Chief Justice (dissenting).

Plaintiff, riding as a guest in an automobile owned by Glen E. Bennett and driven by Jack Donnell, was injured in an automobile accident on the Dixie Highway south of Grand Blanc, and brought suit to recover damages, claiming her injuries were caused by the gross negligence and wanton and willful misconduct of the driver of Bennett's automobile.There were in the automobile in which plaintiff was riding, Jack Donnell, Glen Bennett, and a Miss White, all of whom were killed, and plaintiff.The case was tried before the court without a jury, and a judgment rendered for plaintiff of $11,662.35.Defendant appeals, and the case must be considered here on this appeal the same as if it were here on writ of error.The trial court was trier of the facts, and if there was sufficient evidence of willful and wanton misconduct or gross negligence upon the part of the driver of the automobile upon which to base the verdict rendered, such judgment must be affirmed.

It is said this court should weigh and consider the evidence if it be found there is any evidence of wanton and willful misconduct or gross negligence on the part of the decedent, and sustain the judgment rendered only in case there is a preponderance of evidence in favor of plaintiff.Appellee admits plaintiff must prove by a preponderance of the evidence that the defendant was guilty of wanton and willful misconduct under the guest act.

This court is not in law cases ordinarily a trier of facts.The facts are tried and determined in the circuit court, and the case being brought here on appeal, this court may consider only such questions as might have been raised on writ of error.It may not exercise appellate jurisdiction, because the Constitution says its jurisdiction is in this class of cases original, any more than it may exercise original jurisdiction in those cases where by the Constitution its jurisdiction is appellate only.To do so would be to disregard the Constitution which all public officers are sworn to support, and from which the members of this court derive all their authority to act at all.

In the early morning hours of April 1, 1933, between 12 and 1 o'clock, the automobile in which these young people were riding was being driven northerly on the Dixie Highway, a main trunk line highway 40 feet in width, having four lanes of travel, a short distance south of the village of Grand Blanc.This automobile caught up with and attempted to pass another automobile going in the same direction, which was being driven on the right-hand side of the highway.The night was dark, foggy, and rainy, and the pavement slippery.As the driver of the automobile in which plaintiff was riding attempted to pass the automobile on the easterly side of this highway, the testimony indicates it swerved to the left, hit the rear end of a trailer on a cartage truck, glanced over to the right-hand side of the highway, describing an arc, coming back on to the left-hand side of the highway approximately 400 feet from the point where it struck the trailer mentioned above, and there crashed into a heavy freight truck on the westerly lane of traffic of the highway, resulting in the death of three of the occupants of the automobile and the injury of plaintiff.

There is testimony that the automobile in which plaintiff was riding was being driven at a speed of from 50 to 60 miles an hour, on a slippery road, in a heavy fog, when it was dark and rainy, and when objects were discernible only for a distance of from 12 to 15 feet ahead, and when, some witnesses testified, it was not safe to go more than 10 or 12 miles an hour.

The question is whether or not so driving under such circumstances, under the conditions then existing, constituted gross negligence or wanton and willful misconduct.The trial court resolved this question of fact in favor of plaintiff, and I am unable to distinguish this case in principle from ...