Mitchell v. Walters

• Decision Date: 12 March 1940
• Docket Number: 2136
• Citation: 55 Wyo. 317,100 P.2d 102
• Parties: MITCHELL v. WALTERS
• Court: Wyoming Supreme Court

100 P.2d 102

55 Wyo. 317

MITCHELL v. WALTERS

No. 2136

Supreme Court of Wyoming

March 12, 1940

APPEAL from the District Court, Johnson County; JAMES H. BURGESS Judge.

Action by Marvin Mitchell, a minor, by his guardian, E. Robert Meinig, against Fred Walters, to recover damages for injuries sustained in an automobile collision. From a judgment of dismissal, plaintiff appeals.

Affirmed.

For the appellant, there was a brief and oral argument by M. L Bishop, Jr. of Casper.

The action was brought by a guest automobile passenger to recover damages for injuries. The evidence established willful and wanton misconduct by respondent in the operation of his automobile within the provisions of Section 72-701, R. S 1931. The term is defined in 5 Amer. Jur., § 241, p. 636; Summer v. Edmunds (Cal.) 21 P.2d 159; Castro v. Singh (Cal.) 21 P.2d 169; Cooper v. Kellogg (Cal.) 31 P.2d 797; O'Nellion v. Haynes (Cal.) 9 P.2d 853; Baatz v. Noble (Mont.) 69 P.2d 579; Storm v. Thompson (Ore.) 64 P.2d 1309; Welch v. Auseth (Wash.) 287 P. 899; Francesconi v. Belluomini (Cal.) 83 P.2d 298. Passing an automobile by turning to the left side of the highway without looking ahead is such an act that damage is likely to result therefrom. Norton v. Peuter (Cal. ) 32 P.2d 172; Sheehy v. Abboud (Nebr.) 253 N.W. 683; Olson v. Gay (Calif.) 27 P.2d 922; Sanford v. Grady (Calif.) 38 P.2d 652; McLone v. Bean (Mich.) 248 N.W. 566. Disregard of signals given by a car ahead also presents a question of gross negligence. Upson v. General Baking Company (Conn.) 156 A. 858; Oxenger v. Ward (Mich.) 240 N.W. 55. The case of Doody v. Rogers (Conn.) 164 A. 641 is quite similar to the case at bar, in that the rear lights on the truck in the cited case were in plain sight. The facts in the present case differ from the case of Huffman v. Transportation Company of Colorado, 98 F.2d 916 (Tenth Circuit). Guest statutes were primarily enacted to prevent collusion suits and not as a complete bar to recovery.

For the respondent, there was a brief and oral argument by Burt Griggs of Buffalo.

Plaintiff's petition brings the case under the provisions of Section 72-701, R. S. The statute was adopted from Michigan, which has the parent guest statute. Flint v. Voiles, 50 Wyo. 43. This court quoted with approval from Gifford v. Dice (Mich.) 257 N.W. 830, indicating that the Michigan rules should be followed. The Michigan case held that the expression "wanton and willful misconduct" is synonymous with gross negligence. Appellant's brief cites seventeen cases, of which nine are from California and but one from Michigan--McLone v. Bean (Mich.) 248 N.W. 566. But the facts in the Michigan case so cited are vastly different from the situation here. The California statute is entirely different from the Wyoming Statute. The words "gross negligence" do not appear in the California statute, and the several decisions cited from that state are readily distinguishable from the present case on the facts. The Nebraska case of Sheeley v. Abboud, 253 N.W. 683, is decidedly not in point on the facts, and the same may be said of the Michigan cases cited. The Oregon case of Storm v. Thompson, 64 P.2d 1309, disclosed that the driver ignored a warning as to speed and the existence of a short turn just ahead. An unreasonable rate of speed was involved in the Washington case of Welch v. Auseth, 287 P. 899. We direct the court's attention to the case of Huffman v. Buckingham Transportation Company of Colorado, decided by the Circuit Court of Appeals of the Tenth Circuit, and reported in 98 F.2d 916, wherein the Wyoming statute was construed. Appellant attempts to distinguish the Hoffman case from the case at bar, but an examination of the opinion will show a careful analysis of the Michigan decisions, and a decision from South Dakota construed a similar guest statute, so we contend that the Hoffman case is applicable to the case at bar. Indeed, many of the elements of negligence disclosed in the Michigan case of Bielawski v. Nicks, 287 N.W. 560, are absent in the instant case. We also cite Kraig v. Stagner (Tenn.) 19 S.W.2d 234; 29 Cyc. 510; 5 Amer. Jur. 636; An Automobile Suit 993.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

This is a companion case argued at the same hearing with our number 2137, Burton S. Hill, Administrator of the Estate of Amos J. Thornber, deceased, v. Fred J. Walters, this day decided. The alleged cause of action is predicated upon the facts set forth in the opinion filed in that case, except that this proceeding is instituted by the guardian of Marvin Mitchell as plaintiff against Fred J. Walters as defendant. It will be unnecessary to again set forth the facts aforesaid, and reference will be made to them as delineated in the companion case as may be necessary to a determination of this litigation, the parties having so stipulated herein. It will be recalled that Mitchell was riding as a non-paying guest of Walters and was severely injured as a result of the collision of the Walters automobile with that driven by Dr. Thornber, as described in the opinion mentioned above.

Plaintiff's amended petition in substance charges the defendant Walters with reckless disregard of and reckless indifference to plaintiff's safety by driving a distance of 350 feet and to the left of the center line of the highway unlawfully and willfully and at a dangerous and excessive rate of speed, to-wit, sixty miles per hour, in endeavoring to pass the car having the foreign license referred to in Case No. 2137, and thereby caused the collision with the Thornber Lincoln-Zephyr vehicle, and that the defendant saw, or in the exercise of slight care could have seen the vehicle last mentioned, and that "because of defendant's gross negligence and willful and negligent misconduct, in absolutely disregarding plaintiff's safety, as above described, plaintiff suffered serious and permanent injury. " Regarding the negligence or willful misconduct charged, the defendant's answer interposed a general denial.

The district court of Johnson County, to which the case was tried without a jury, found generally in favor of the defendant and against the plaintiff "in all the issues," and adjudged that plaintiff's petition be dismissed and that the defendant recover his costs. The unsuccessful litigant has brought the record here for review by direct appeal.

The cause is to be considered, as both parties concede, in connection with the provisions of Section 72-701 W. R. S., 1931, which reads:

"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 injury, death or loss, in case of accident, 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 wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought."

This law was enacted by the Twenty-first State Legislature and passed through that body as House Bill No. 4. It was approved by the Governor of this State January 29, 1931. An inspection of the House and Senate Journals of that session discloses that House Bill No. 4 passed the House of Representatives January 20, 1931, and the Senate January 23, 1931, being signed by the Speaker of the House as House Enrolled Act No. 2 on January 24, 1931. It appears as Chapter 2, Section 1 of the Session Laws of Wyoming, 1931, and was thereafter incorporated in the Wyoming Revised Statutes, 1931, as Section 72-701 thereof. The language of the law appears to have been taken verbatim from the proviso added by the Legislature of the State of Michigan through Act No. 19 P. A. 1929, by way of amendment to Act No. 302 P. A. 1915, for the regulation of motor vehicles and their operators upon the highways of that state.

The Michigan statute seems to have been construed to some extent and its constitutionality upheld by the Supreme Court of Michigan in the case of Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, decided January 23, 1931. No earlier decision in that State, undertaking to place a construction upon the terms of the proviso has been drawn to our attention. That being so it is apparent from what has been above set forth as to the legislative history of Section 72-701, supra, that while the Wyoming Legislature borrowed the language of the proviso aforesaid, that body was not then acquainted with the construction ultimately placed upon the language of the proviso by the Supreme Court of Michigan. That tribunal, by a number of subsequent decisions, was held, as stated in Findlay v. Davis, 263 Mich. 179, 248 N.W. 588, that "the term 'gross negligence' does not mean something of a less degree than willful or wanton misconduct," citing Oxenger v. Ward, 256 Mich. 499, 240 N.W. 55; Bobich v. Rogers, 258 Mich. 343, 241 N.W. 854; Mater v. Becraft, 261 Mich. 477, 246 N.W. 191.

In Schlacter v. Harbin, 273 Mich. 465, 263 N.W. 431, 432, the court said:

"As we have frequently stated, we do not recognize comparative negligence or various degrees of negligence. We have attempted heretofore to define gross negligence, a confusing term, as used in the guest statute. Section 4648, C. L. 1929. Finkler v. Zimmer, 258 Mich. 336, 337, 241 N.W. 851. Gross negligence is such negligence as is characterized by wantonness or willfulness." Its remark on the same point in Thayer v. Thayer, 286 Mich. 273, 282 N.W. 145, was that:

"We have recently unanimously held in Pawlicki v Faulkerson, 285 Mich. 141, 280 N.W. 141, that the term 'gross negligence' as used in the Guest statute, supra, is synonymous with...