Huhtala v. Anderson, Docket No. 4781

• Decision Date: 31 January 1969
• Docket Number: Docket No. 4781,No. 3,3
• Citation: 15 Mich.App. 693,167 N.W.2d 352
• Parties: Carol Ann HUHTALA, now Anderson, and Arne Huhtala, Plaintiffs-Appellants, v. Clifford ANDERSON, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 352

167 N.W.2d 352

15 Mich.App. 693

Carol Ann HUHTALA, now Anderson, and Arne Huhtala, Plaintiffs-Appellants, v. Clifford ANDERSON, Defendant-Appellee.

Docket No. 4781.

Court of Appeals of Michigan, Division No. 3.

Jan. 31, 1969.

Released for Publication May 7, 1969.

Sterling W. Schrock, Wisti, Jaaskelainen & Schrock, Hancock, for appellants.

Humphrey & Weis, Ironwood, for appellee.

Before T. G. KAVANAGH, P.J., McGREGOR and ELLIOTT, ^* JJ.

McGREGOR, Judge.

As a sleeping passenger, plaintiff was seriously injured when defendant's car left the road and struck a bridge abutment. The accident occurred at approximately 3 a.m. while defendant was driving plaintiff, his date, home from a lakeside party. The preceding morning defendant arose early, engaged in vigorous summer activities including swimming and water skiing, and in late afternoon drove 50 miles to his location of employment as a tavern cashier. At 9 p.m., after 5 hours of work, defendant drove 15 miles to the lakeside party during which he consumed 6 mixed drinks, swam, and had a sauna bath. Apparently the day's activities had a soporific effect by 2:30 a.m. when defendant decided to escort plaintiff home. The ensuing accident occurred about 20 miles from the party site. Defendant does not recall the second half of the trip and admits sleeping during the trip. Plaintiff, now defendant's wife, testified that defendant was 'under the influence' but was not drunk. Defendant testified that he was 'very tired that night.'

After the court gave instructions on gross negligence or wanton and willful misconduct, based on the guest passenger statute, C.L.S. 1961, § 257.401 (Stat.Ann. 1960 Rev. § 9.2101), the jury found defendant liable. The trial judge granted defendant's motion for judgment notwithstanding the verdict, GCR 1963, 515.2, and plaintiff filed this appeal.

The issue posed is whether the granting of a judgment notwithstanding the verdict was correct after the jury decided the question of defendant's liability. The standard for a judgment notwithstanding the verdict in this situation is whether the facts taken inferentially favorable to plaintiff preclude a judgment for plaintiff as a matter of law. Killen v. Benton (1965), 1 Mich.App. 294, 136 N.W.2d 29; Serinto v. Borman Food Stores (1966), 3 Mich.App. 183, 142 N.W.2d 32, affirmed 380 Mich. 637, 158 N.W.2d 485. Therefore, plaintiff, with all reasonable inferences, must have submitted evidence of more than ordinary negligence.

Plaintiff contends that there was sufficient evidence to present a jury question of liability under the Michigan guest passenger statute, and consequently, the judgment notwithstanding the verdict was improper. If evidence on which reasonable men could differ was submitted, the question of liability is one of fact for jury determination. See Prentkiewicz v. Karp (1965), 375 Mich. 367, 134 N.W.2d 717; Kroll v. katz (1965), 374 Mich. 364, 132 N.W.2d 27; Emons v. Shiraef (1960), 359 Mich. 526, 102 N.W.2d 490; Goree v. Russell (1967), 7 Mich.App. 79, 151 N.W.2d 176. Defendant submitted no reply brief on this appeal.

Since the guest passenger statute and the court's instructions envision liability for either gross negligence or willful and wanton misconduct, and the verdict did not specify guilt under either heading, we may refer to definitions of both, free from the encumbrance of previously drawn distinctions between the two terms. One Michigan decision described liability in the sleeping driver--guest passenger situation in terms of the traditional 'reasonably prudent man.'

'To constitute gross negligence in falling asleep while driving there must have been such prior warning of the likelihood of sleep that continuing to drive constitutes reckless disregard of consequences. There must be an appreciation of the danger of falling asleep or circumstances which would cause a reasonably prudent person to appreciate it and proceed in defiance of results. It has been held that prior warning may be by way of having before gone to sleep or dozed off. Manser v. Eder, 263 Mich. 107, 248 N.W. 563; Potz v. Williams, 113 Conn. 278, 155 A. 211. Without discussing the distinction between ordinary and gross negligence, it was held in Coconower v. Stoddard, 96 Ind.App. 287, 182 N.E. 466, 467, a question for the jury where defendant had worked all day and driven most of the night without sleep.' Boos v. Sauer (1934), 266 Mich. 230, 233, 253 N.W. 278, 279.

Referring to the sleeping driver situation, a later case discussed the applicable standard as follows:

'The rule adopted in the 'sleep' cases, Supra, is based upon the presence of premonitory symptoms at some time in the chain of circumstances.' Thayer v. Thayer (1938), 286 Mich. 273, 275, 282 N.W. 145, 146.

More recently, liability under the guest passenger statute has been judged by the following criteria:

"(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 and 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." Coon v. Williams (1966), 4 Mich.App. 325, 334, 144 N.W.2d 821, 825, quo...