Hoag v. Paul C. Chapman & Sons, Inc.

• Decision Date: 24 June 1975
• Docket Number: Docket No. 20209,No. 2,2
• Citation: 62 Mich.App. 290,233 N.W.2d 530
• Parties: Luretha HOAG et al., Plaintiffs-Appellees, v. PAUL C. CHAPMAN & SONS, INC., a Michigan Corporation, and Paul C. Chapman Leasing Co., Inc., a Michigan Corporation, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 530

233 N.W.2d 530

62 Mich.App. 290

Luretha HOAG et al., Plaintiffs-Appellees, v. PAUL C. CHAPMAN & SONS, INC., a Michigan Corporation, and Paul C. Chapman Leasing Co., Inc., a Michigan Corporation, Defendants-Appellants.

Docket No. 20209.

Court of Appeals of Michigan, Division No. 2.

June 24, 1975.

Released for Publication Oct. 7, 1975.

Sommers, Schwartz, Silver, Schwartz, Tyler & Gordon by Stanley S. Schwartz, Detroit, for defendants-appellants.

Jaffe, Snider, Raitt, Garratt & Heuer by Richard F. Roth, Detroit, for plaintiffs-appellees.

Before ALLEN, P.J., and BRONSON and KAUFMAN, JJ.

KAUFMAN, Judge.

Defendant appeals from a January 23, 1974 interlocutory order by the Washtenaw County Circuit Court which denied its motion for summary judgment.

This is a wrongful death action, pursuant to M.C.L.A. § 600.2922; M.S.A. § 27A.2922. Plaintiffs' decedent, Melbourne J. Hoag, was employed as a salesman by defendant, which operates an automobile sales and leasing company. ¹ As part of his compensation, decedent was given the use of a company automobile. According to plaintiffs' complaint, decedent was killed in an auto accident when, after having consumed a large amount of alcohol, and while driving at a high rate of speed, he failed to negotiate a turn and his auto careened off the road. ² Plaintiffs admitted decedent's negligence, but claimed that defendant was liable for his death because it had been negligent in entrusting a company car to him. In their complaint, plaintiffs alleged several grounds in support of their negligent entrustment claim:

'(a) Defendants Chapman knew or had reason to know that Melbourne J. Hoag was engaged in the regular consumption of alcohol that would or might render his operation of said vehicle dangerous to himself and others.

'(b) Defendants Chapman knew or had reason to know that Melbourne J. Hoag regularly operated the said motor vehicle at unlawful high speeds.

'(c) Defendants Chapman knew or had reason to know that Melbourne J. Hoag turned the air filter inside the car engine upside down to increase the maximum speed the car could attain.

'(d) Defendants Chapman knew or had reason to know that Melbourne J. Hoag did not have a valid Michigan Operator's License.

'(e) Defendants Chapman were told on numerous occasions that as a result of Melbourne J. Hoag's high speed driving and drinking, his driving had become extremely reckless and that the said motor vehicle should be taken from him.'

Plaintiffs contended that these claims alternatively constituted 'gross negligence' or negligent entrustment on the part of defendant. Plaintiffs also alleged that defendant was 'strictly liable' for decedent's death under the motor vehicle Civil Liability Act, M.C.L.A. § 257.401; M.S.A. § 9.2101.

Defendant moved for a summary judgment arguing that, under GCR 1963, 117.2(1), plaintiffs had failed to state a cause of action upon which relief could be granted. In support of its motion, defendant contended that since plaintiffs' complaint had admitted decedent's negligence, decedent's contributory negligence barred plaintiffs' suit. The court, in denying defendant's motion, stated:

'The general rule is that contributory negligence will not bar recovery if defendant is grossly negligent. However, when the plaintiff has been guilty of conduct of the same nature and quality as that of the defendant, recovery may be barred if plaintiff's conduct was a proximate cause of the injury. Toomer v. Steiner, 43 Mich.App. 12, 14, 202 N.W.2d 808 (1972).

'The existence or absence of gross negligence or of willful and wanton misconduct of (sic) the part of the defendant may be decided as a matter of law if the evidence unquestionably shows, or fails to show, their existence. However, in an action for injury or death, where evidence has been introduced which tends to show negligence or misconduct on the part of the defendant, a determination on such evidence remains a question of fact to be decided by the jury. Shepherd v. Barber, 20 Mich.App. 464, 466, 174 N.W.2d 163 (1969).'

On appeal, defendant contends that the trial court erred by failing to grant summary judgment as to (1) plaintiffs' statutory claim under the automobile civil liability act, Supra, and (2) plaintiffs' common law claim under the negligent entrustment theory. A motion for summary judgment under GCR 1963, 117.2(1) tests only the legal, not factual, sufficiency of the pleadings. Crowther v. Ross Chemical and Manufacturing Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972). An appellate review accepts as true all of plaintiffs' factual allegations as well as any reasonable inferences which may be drawn from the allegations. Martin v. Fowler, 36 Mich.App. 725, 194 N.W.2d 524 (1971). Under the wrongful death act, M.C.L.A. § 600.2922; M.S.A. § 27A.2922, an action may be maintained by the decedent's personal representatives only if the decedent could have recovered in his own name had he not died.

I

Before discussing plaintiffs' common law and statutory claims, we feel compelled to examine and define the common law and statutory concepts of 'gross negligence' and 'wilful and wanton misconduct'. These concepts involve a different meaning under the guest passenger portion of the Civil Liability Act than they do at common law. As the Supreme Court stated in LaCroix v. Grand Trunk Western R. Co., 379 Mich. 417, 426, 452 N.W.2d 656, 660 (1967), '(w)hile the guest passenger cases may be helpful * * *, we do not regard them as controlling in determining the correct concepts of gross negligence and wilful and wanton misconduct at common law'.

Under the first portion of the Civil Liability Act, M.C.L.A. § 257.401; M.S.A. § 9.2101, an injured party may recover from the owner of a motor vehicle for injuries caused by the negligent operation of that vehicle. Under the proviso in the last sentence of the Act, an injured guest passenger may recover from the operator of the vehicle only if the injuries have resulted from the 'gross negligence or wilful and wanton misconduct' of the operator. Although the statute posits these terms in the disjunctive, the Supreme Court has held them to be synonymous. Thayer v. Thayer, 286 Mich. 273, 282 N.W. 145 (1938); Pawlicki v. Faulkerson, 285 Mich. 141, 280 N.W. 141 (1938). Liability is imposed when the driver's conduct 'manifests a high degree of danger, a manifest probability that harm will result therefrom, and an utter disregard of the probable consequences'. Stevens v. Stevens, 355 Mich. 363, 371, 94 N.W.2d 858, 863 (1959). A plaintiff must additionally show that the driver, through his conduct, exhibited 'an affirmatively reckless state of mind with intent to depart from careful driving'. Brooks v. Haack, 374 Mich. 261, 265, 132 N.W.2d 13, 15 (1965), Hendershott v. Rhein, 61 Mich.App. 83, 232 N.W.2d 312 (1975).

At common law, however, gross negligence and wilful and wanton misconduct are different concepts with different bases and different legal effects. The Supreme Court in LaCroxi v. Grand Trunk Western R. Co., supra, 379 Mich. pp. 423--424, 152 N.W.2d p. 658, quoting from Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398 (1923), defined gross negligence:

"When will gross negligence of a defendant excuse contributory negligence of a plaintiff? In a case where the defendant, who knows, or ought, by the exercise of ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury. Strictly, this is the basis of recovery in all cases of gross negligence. 20 R.C.L. p. 145. Such gross negligence is also sometimes called discovered negligence, subsequent negligence, wanton or willful or reckless negligence, discovered peril, last clear chance doctrine, and the humanitarian rule.

"The theory of gross negligence is that the antecedent negligence of plaintiff only put him in a position of danger, and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause. Cooley on Torts (2d ed.) p. 674; Labarge v. Pere Marquette R. Co., 134 Mich. 139 (14 Am.Neg.Rep. 575) 95 N.W. 1073 (1903).

"If the negligence of a plaintiff is concurrent with the negligence of a defendant, the rule as to antecedent negligence of plaintiff and subsequent negligence of defendant does not apply. The doctrine of gross, subsequent, or discovered negligence may not be invoked to excuse concurrent negligence of a plaintiff." (Citations omitted.) (Emphasis in original.)

Thus, for a contributorily negligent plaintiff to recover, his negligence must have ceased to exist as the proximate cause and defendant's negligence must have continued and have been the proximate cause of plaintiff's injuries. Routt v. Berridge, 294 Mich. 666, 293 N.W. 900 (1940). Gross negligence and subsequent negligence are identical concepts.

We are not unmindful of the cases which have held that gross negligence is not limited to 'subsequent negligence' but also includes 'reckless disregard' or 'wilful and wanton' conduct. ³ We find, however, that they do not accurately reflect current law. First, the LaCroix opinion clearly stated that, '(t)he charges (for gross negligence and for wilful and wanton misconduct) are not identical', 379 Mich. 417, 422, 152 N.W.2d 656, 657. Second, adding an element of reckless conduct to the definition of gross negligence would seriously blur the distinction between gross negligence and wilful and wanton misconduct. Adding this element would also involve the introduction of degrees of negligence between gross negligence and wilful and wanton misconduct akin to a comparative negligence theory, one not accepted in this jurisdiction. As the Supreme Court stated in Union Trust Co. v. Detroit, G.H. & M.R. Co., 239 Mich. 97, 100, 214 N.W. 166 (1927), and reiterated in LaCroix, supra, 379 Mich. p. 425, 152 N.W.2d p. 659:

"We do not have gross negligence in the sense of great or much negligence, because that...