Langford v. Rogers

• Decision Date: 28 December 1936
• Docket Number: No. 88.,88.
• Citation: 278 Mich. 310,270 N.W. 692
• Parties: LANGFORD v. ROGERS et al.
• Court: Michigan Supreme Court

278 Mich. 310

270 N.W. 692

LANGFORD

v.ROGERS et al.

No. 88.

Supreme Court of Michigan.

Dec. 28, 1936.

Action by Lolo Langford, administratrix of the estate of Gerald Langford, deceased, against Melvin Rogers and another. From an order dismissing the cause, plaintiff brings error.

Affirmed.

Appeal from Circuit Court, Kent County; William B. Brown, judge.

Argued before the Entire Bench.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for appellant.

Travis, Merrick & Johnson, of Grand Rapids, for appellee Stauffer.

Dale Souter, of Grand Rapids, for appellee Rogers.

POTTER, Justice.

Plaintiff, as administratrix of the estate of Gerald Langford, deceased, brought suit against defendants to recover damages for personal injuries suffered by Gerald Langford resulting in his death.

Plaintiff filed a declaration claiming damages in the sum of $10,000. Each defendant filed a motion to dismiss-that of defendant Stauffer upon the ground the declaration did not state a cause of action against him; the allegations in the declaration were insufficient under 1 Comp.Laws 1929, § 4648; at the time of the accident Gerald Langford was being transported as a guest, and there was no allegation the accident was caused by gross negligence or wanton and willful misconduct; the acts of negligence alleged were ordinary negligence and not gross negligence or wanton and willful misconduct, and did not state a cause of action under 1 Comp.Laws 1929, § 4648; that, at most, this defendant was charged with acts of ordinary negligence in causing the death of a guest passenger, which allegations were insufficient to support a cause of action under the statute above mentioned. The defendant Rogers, in his motion to dismiss, alleged substantially the same grounds, although stated in different language. Upon a hearing of these motions to dismiss, the trial court dismissed the cause, and plaintiff brings error.

The only question involved in this case is whether or not the facts set forth in plaintiff's declaration are sufficient to bring the case within the guest act, 1 Comp.Laws 1929, § 4648, which provides 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 injuries resulting from accident, unless such accident was caused by the gross negligence or wanton and willful misconduct of the owner or operator of the motor vehicle.

The declaration herein alleges that prior to January 3, 1936, defendants and others, residents of the village of Sparta, organized as coasting party for the night of January 3, 1936, to which coasting party a number of children were invited, including plaintiff's decedent; that these children, including plaintiff's decedent, met at the home of defendant Rogers; that Rogers was the owner of a Pontiac automobile; that to transport the children to the location where the coasting was to take place, Rogers drove his automobile and behind it attached a four-runner bobsled, so-called, and a 12-foot toboggan upon which these children were transported; that the parties drove west and then north of Sparta, and then east to a hill, where the evening was spent in coasting and tobogganing; that about 10 o'clock that evening, the parties began their return trip, defendant Stauffer driving the automobile on the return trip; that some of the children were riding in the automobile; that behind the automobile was attached, first, the bodsled, and, behind the bobsled, the toboggan; that Paul Vincent lay flat on the bobsled, and was its only occupant, while defendant Rogers sat first on the toboggan and plaintiff's decedent was fourth; that as the parties turned east, on a gravel highway known as highway No. 500, they proceeded toward the village of Sparta for approximately one-half mile at a speed of approximately 25 miles an hour and as they were proceeding downgrade and approaching a turn in the road where it curves to the south, another automobile approached them from the opposite direction; that defendant Stauffer attempted to lessen his speed and suddenly applied the brakes of the automobile; that the surface of the highway was hardpacked snow, and slippery; that by reason of the sudden application of the brakes on the automobile, the toboggan was caused to slide or slue to the left or to the north and across the center line of the highway and onto the north half thereof and directly into the path of the automobile which was proceeding in the opposite direction; that the driver of the automobile approaching had no opportunity to stop or turn to avoid the toboggan, and, as a result, a collision occurred between the on-coming automobile and the toboggan. Plaintiff's decedent was struck and so severely injured that he soon after died. Plaintiff brings this suit as administratrix of his estate.

The negligence alleged is that the automobile was being driven at an excessive rate of speed, greater than was reasonable and proper, having due regard to the traffic, surface, and width of the highway, and other conditions; that defendants were negligent in driving the automobile at the speed at which it was driven, with the bobsled and toboggan attached thereto; that defendants were negligent in operating the vehicle as it was operated, considering that children of immature years were being transported on the toboggan; that defendants did not have the automobile under control; that defendants were negligent in stopping the automobile on the grade as the result of which the toboggan slued in front of the on-coming motor vehicle; that defendants were negligent in applying the brakes under the circumstances, in driving the automobile at an excessive rate of speed, in suddenly applying the brakes causing the toboggan to slue across the center line of the highway, and in suddenly slowing down the automobile without giving the occupants of the toboggan any warning of their intention so to do.

The language of the statute is: ‘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 * * * 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 willful and wanton misconduct contributed to the injury, death or loss for which the action is brought.’ 1 Comp.Laws 1929, § 4648.

The statute says nothing about the guest passenger riding in the automobile. The language of the statute is ‘no person transported by the owner or operator of such motor vehicle.’

When is a person transported? It has been said, a movable article may be moved in two ways: First, the movement in one way is expressed by the words ‘carry,’ ‘convey,’ or ‘transport’; second, the movement in the other way is expressed by the words ‘pull’ or ‘draw,’ or ‘push’ or ‘shove.’ Chicago, etc., R. Co. v. Petroleum Refining Co. (D.C.) 39 F.(2d) 629.

‘In the one case the movement is affected by the article being on or in something else, which is moved. It is moved simply by going along with that something else. No force is applied to it to make it move. In the other case the movement is effected by force being applied to the article.’ Chicago, etc., R. Co. v. Petroleum Refining Co. (D.C.) 39 F.(2d) 629, 630.

‘A car in which goods are loaded bears those goods. It carries, conveys, or transports them.’ Id.

If one carries persons in his own conveyance for his own purposes, it is transportation. It is not necessary that the carrier be a public one or that the goods be carried to a particular consignee for a stipulated charge. People v. Ninehouse, 227 Mich. 480, 198 N.W. 973.

The word ‘transportation’ as ordinarily used in connection with the railroad business includes all instrumentalities and facilities of shipment or carriage and all services in connection with the receipt, delivery, and handling of the property shipped or carried. Southern Ry. Co. v. Reid, 222 U.S. 424, 32 S.Ct. 140, 56 L.Ed. 257.

There is no question that under the circumstances, plaintiff's decedent, riding on the toboggan hitched to the bobsled attached to the automobile, was being transported. There is no claim plaintiff's decedent was being transported in the automobile.

Plaintiff's decedent being one who was being transported, the question arises whether he was being transported within the meaning of the statute. The language of the statute excludes the right of recovery by or on behalf of persons being transported by ‘the owner or operator of a motor vehicle as his guest without payment for such transportation.’ There is no claim plaintiff's decedent was paying for his transportation.

The owner of a motor vehicle owes no special duty to one who is being transported by stealth, Chicago & Alton R. Co. v. Michie, 83 Ill. 427, or who is a mere trespasser, Muehlhausen, v. St. Louis Railroad Co., 91 Mo. 332, 2 S.W. 315, except to restrain from gross negligence or willful or wanton misconduct, Trudell v. Grand Trunk Railway Co., 126 Mich. 73, 85 N.W. 250,53 L.R.A. 271. Where a boy was stealing a ride on a locomotive, this court said: ‘If permission was granted or implied by the action of the defendant's employes, the boy could not, in my opinion, be a...