Lucas v. Lindner

• Citation: 269 N.W. 611,276 Mich. 704
• Decision Date: 09 November 1936
• Docket Number: No. 81.,81.
• Parties: LUCAS v. LINDNER et al.
• Court: Supreme Court of Michigan

276 Mich. 704

269 N.W. 611

LUCAS

v.LINDNER et al.

No. 81.

Supreme Court of Michigan.

Jan. 6, 1936.

On Rehearing Nov. 9, 1936.

Action by Anton Lucas, individually and as guardian of Emma Lucas, a minor, against Carl Lindner and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

WIEST, J., NORTH, C. J., and POTTER, J., dissenting.

Appeal from Circuit Court, Kalamazoo County; George V. weimer, judge.

Argued before the Entire Bench except EDWARD M. SHARPE, J.

Jackson, Fitzgerald & Dalm, of Kalamazoo, for appellants.

Clifford A. Mitts, Jr., of Grand Rapids, for appellee.

FEAD, Justice.

I think the case presents testimony from which a jury could fairly find negligence, plus the willfulness and wantonness required by the Guest Act (1 Comp.Laws 1929, § 4648).

Two hours before the accident the parties turned off the main highway to a gravel road. It had been raining. The roadbed was soft and slippery. Shortly after turning off the main road they drove down a hill, at the bottom of which was a red lantern to mark a washout. Plaintiff called defendant Carl Lindner's attention to it. Shortly thereafter defendant approached a turn in the road at a speed of 30 to 35 miles per hour, too fast to make the corner, and slued into the ditch. Plaintiff had frequently protested at the rate of speed defendant was driving. After a wrecker pulled the car out plaintiff consented to return home with him only on his promise that he would drive more carefully. Instead of so doing, he drove faster than before, his car weaving on the road. When they came to the red lantern, plaintiff warned defendant that they were near the corner and asked him to slow down. He said he would not take orders from any woman and went over the hill at a speed of 45 to 50 miles per hour. The hill was about 150 feet from the main road. He ran across the main road and struck trees on the other side.

The above testimony was given in the plaintiff's main case and before defendants moved for direction of verdict.

The protest of a passenger, of course, is not evidence of negligence, wantonness, or wilfulness. However, it may have a bearing upon the state of mind of a driver.

This is not a case of a single act of negligence. It involves continuous negligent conduct, with the danger of excessive speed on a slippery road apparent to any careful driver, brought definitely to the notice of defendant by his skidding into the ditch and the weaving of his car upon the road and persisted in, with the driver guilty of more reckless and negligent conduct as his self-esteem was hurt by the protest of the passenger.

Judgment affirmed.

BUTZEL and BUSHNELL, JJ., concurred with FEAD, J.

WIEST, Justice.

This is an action under the Guest Act, 1 Comp.Laws 1929, § 4648.

The evening of October 21, 1933, defendant Carl Lindner invited Emma Lucas, who was then nineteen years of age, to go for a ride in the automobile of his father, defendant Abner Lindner, and, while the car was driven by defendant Carl Lindner over a highway ending at a turn upon another highway, the driver failed to make the turn and the car crossed that highway, collided with a tree, overturned, and Miss Lucas was seriously injured. The wilful and wanton misconduct, claimed to bring the case within liability under the guest enactment, was excessive speed over a wet and slippery highway, while approaching the end of the road, which was obscured by a hill, and therefore inability to make the turn. Earlier in the driving, while approaching the other end of the road, the car slued into a ditch and had to be pulled out, and at that time Miss Lucas, only upon the promise of slower driving, resumed the trip.

Counsel make extended review of our decisions upon what constitutes gross negligence, or wilful and wanton misconduct within such term as employed in the statute. We say ‘term’ advisedly, for it is single in purpose, and the import is in the distinguishing words ‘wilful and wanton misconduct,’ in order to remove it from mere degrees of negligence. In opinions it has sometimes been termed ‘such a degree of recklessness as approaches wilful and wanton misconduct.’ This, unless fully grasped, might lead to any degree of approach, and it was intended to mean much more and to cover only such acts in the presence of apparent danger as disclose a wilful and wanton disregard of consequences, reasonably to be apprehended; in other words, such recklessness as fits the term ‘wilful and wanton misconduct.'

We said in Perkins v. Roberts, 272 Mich. 545, 262 N.W. 305, 306:

‘The term ‘wanton and wilful misconduct,’ as employed in the guest act, differs in kind and not merely in degree from ordinary, actionable negligence, for the term...