Olszewski v. Dibrizio, 92.
| Decision Date | 04 October 1937 |
| Docket Number | No. 92.,92. |
| Citation | 275 N.W. 194,281 Mich. 423 |
| Parties | OLSZEWSKI v. DIBRIZIO. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Stella Olszewski against Anthony Dibrizio. From a judgment entered on a directed verdict for defendant, plaintiff appeals.
Affirmed.
Appeal from Circuit Court, Wayne County; Adolph F. Marschner, Judge.
Argued before the Entire Bench.
Dohany & Dohany, of Detroit, for appellant.
Howard D. Brown, of Detroit (Robert Jamieson and Philip N. Marentay, both of Detroit, of counsel), for appellee.
Plaintiff sued defendant for damages arising from personal injuries alleged to have been sustained by her while she was riding with defendant in his automobile as a guest passenger, August 4, 1935. She charges defendant with gross negligence arising from driving at an excessive rate of speed and in violation of the statute, and that ‘said defendant wilfully and wantonly removed both of his hands from the steering wheel of his said automobile in an effort to light a cigarette,’ as a result of which the automobile left the road, ran into a ditch, tipped over, and plaintiff was injured. Upon the hearing, the trial court directed a verdict for defendant. Plaintiff appeals.
The only question is whether the trial court was right in directing a verdict for defendant.
Upon motion for directed verdict, it is the duty of the trial court to view plaintiff's testimony in its most favorable light. The record whows plaintiff up to the time of the accident had been using ordinary care. It was a bright day, the pavement was dry, and the parties were on their way to a picnic.
In Willett v. Smith, 260 Mich. 101, 244 N.W. 246;McLone v. Bean, 263 Mich. 113, 248 N.W. 566;Elowitz v. Miller, 265 Mich. 551, 251 N.W. 548;Johnson v. Fremont Canning Co., 270 Mich. 524, 259 N.W. 660; and Sherman v. Yarger, 272 Mich. 644, 262 N.W. 318, this court attempted to enumerate the essential elements of willful and wanton misconduct as (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. Ordinary negligence fulfills the requirements of this attempted definition or enumeration, and by the application of the test prescribed becomes synonymous with gross negligence. We have frequently held, and now hold, that gross negligence as used in the guest statute is synonymous with willful and wanton misconduct. 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;Findlay v. Davis, 263 Mich. 179, 248 N.W. 588;Riley v. Waters, 277 Mich. 620, 270 N.W. 160;Breckenridge v. Arms, 279 Mich. 384, 272 N.W. 716. The trial court arrived at a correct conclusion.
Judgment affirmed, with costs.
I concur in the result of Mr. Justice POTTER'S opinion, but not in his holding that the term ‘gross negligence as used in the guest statute is synonymous with wilful and wanton misconduct.’
My brother has written several opinions of the court on this subject and stated therein as in Findlay v. Davis, 263 Mich. 179, 248 N.W. 588: ‘This court has frequently held, in construing the Guest Act, the term ‘gross negligence’ does not mean something of a less degree than willful or wanton misconduct.'
My brother now returns to his statement in Riley v. Walters, 277 Mich. 620-631, 270 N.W. 160, 165: ‘The term ‘gross negligence’ as used in a majority of the cases where the term has been defined in this state has no application to the term as ordinarily used under the guest statute where it is used as synonymous with wanton and willful misconduct.'
We had occasion in that case, in a concurring opinion, to point out that the term ‘willful and wanton misconduct’ carries a meaning of its own.
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...danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. Olszewski v. Dibrizio, 275 N.W. 194, 195, 281 Mich. 423 (1937). The most critical element of wantonness is knowledge, and that element need not be shown by direct evidence; rather......
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...to prove disastrous to another. This is the test which plaintiff contends should be applied in the case at bar. In Olszewski v. Dibrizio, 281 Mich. 423, 275 N.W. 194, 195, the above test was abrogated by the Michigan Court in following language: 'Ordinary negligence fulfills the requirement......