Horton v. Fleser

• Decision Date: 07 June 1954
• Docket Number: No. 4,4
• Citation: Horton v. Fleser, 340 Mich. 68, 64 N.W.2d 605 (Mich. 1954)
• Parties: HORTON v. FLESER.
• Court: Michigan Supreme Court

Page 605

64 N.W.2d 605

340 Mich. 68

HORTON v.FLESER.

No. 4.

Supreme Court of Michigan.

June 7, 1954.

Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids (Stanley Cheff, Grand Rapids, of counsel), for defendant and appellant.

Linsey, Shivel, Phelps & Vander Wal, Grand Rapids, for plaintiff and appellee.

Before the Entire Bench.

BUSHNELL, Justice.

This action was brought by plaintiffClifford M. Horton to recover damages for his personal injuries and the money expended as a result thereof after an automobile accident which occurred on May 28, 1949.At the time Horton and his wife were in the rear seat of a car driven by defendantG. Glen Fleser, with his friend, Mrs. Beulah Voltz, in the front seat.The parties, on their way to Torch lake, were about a mile and a half from their destination, where the road curved before it crossed the Arwood bridge over Rapid river.The Fleser care, in negotiating the curve on a winding road at excessive speed and after repeated warnings of the occupants, passed a sign reading, 'Narrow Bridge,' and thereafter truck its west abutment, at about 11:00 p. m.

Plaintiff's action was upon the theory that he was either engaged in a joint enterprise with Fleser or was a guest passenger in defendant's car.Both questions, under appropriate instructions, were submitted to the jury, which found that Horton was a guest passenger and rendered a verdict in his favor of $25,000.Motions for judgment non obstante veredicto and for a new trial were denied.

Appellant argues that the court erred in submitted to the jury the questions of whether defendant was guilty of wilful and wanton misconduct; whether the parties were engaged in a joint enterprise; the excessiveness of the verdict; error in refusing certain requests to charge and in an instruction to the jury; refusal to grant a mistrial and in permitting counsel to argue proposed special questions which were not thereafter submitted to the jury.The controlling one is whether the claim of wilful and wanton misconduct was a question of law or fact.

The term "gross negligence or wilful and wanton misconduct" has been defined in numerous cases, among which are Goss v. Overton, 266 Mich. 62, 253 N.W. 217, andTitus v. Lonergan, 322 Mich. 112, 33 N.W.2d 685 at page 686.In both of these it was held that each case must be determined upon the basis of the facts involved.In the Titus casethe Court referred to Willett v. Smith, 260 Mich. 101, 244 N.W. 246, 247, where it was said that the elements necessary to constitute wilful and wanton misconduct may be summarized as follows:

"(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another."

Excessive speed, unless accompanied by wilful and wanton misconduct, is insufficient to impose liability under the so-called guest act.Bushie v. Johnson, 296 Mich. 8, 295 N.W. 538.For the statute involved, seeC.L.1948, § 256.29,Stat.Ann. § 9.1446.The mere fact that the guest passenger gave the driver warnings which were not heeded does not, standing alone, constitute wilful and wanton misconduct.Greimel v. Fischer, 305 Mich. 45, 8 N.W.2d 906;Rogers v. Merritt, 307 Mich. 459, 12 N.W.2d 422;andCramer v. Dye, 328 Mich. 370, 43 N.W.2d 892.However, this in addition to other circumstances are proper objects for consideration by the jury in arriving at its conclusion.

The finding of the jury that defendant was guilty of wilful and wanton misconduct in the operation of his automobile is supported by the testimony.Defendant's contention to the contrary is not in accord with the findings of this Court in the recent cases of Kocks v. Collins, 330 Mich. 423, 47 N.W.2d 676;Price v. Western, 330 Mich. 680, 48 N.W.2d 149;andCain v. Enyon, 331 Mich. 81, 49 N.W.2d 72.

The record is replete with testimony, too lengthy to quote in this opinion, which, taken in its entirety, presents a question of fact...