Oxenger v. Ward

• Decision Date: 04 January 1932
• Docket Number: No. 203.,203.
• Citation: 240 N.W. 55,256 Mich. 499
• Parties: OXENGER v. WARD.
• Court: Michigan Supreme Court

256 Mich. 499

240 N.W. 55

OXENGER

v.WARD.

No. 203.

Supreme Court of Michigan.

Jan. 4, 1932.

Appeal from Circuit Court, Hillsdale County; Guy M. Chester, Judge.

Action by Duane Oxenger, by Ora Oxenger, his next friend, against Glenn J. G. Ward. From a judgment for plaintiff, defendant appeals.

Reversed and remanded, with instructions.

Argued before the Entire Bench.William C. Searl, of Lansing, and Merton Fitzpatrick, of Hillsdale, for appellant.

Paul W. Chase and Wilbur D. Grommon, both of Hillsdale, for appellee.

BUTZEL, J.

Duane Oxenger was three years of age on July 1, 1930. He has brought suit by his father, Ora Oxenger, as next friend, against his uncle, Glenn J. G. Ward, defendant herein. Duane's mother is Ward's sister. On June 29, 1930, Duane, together with his parents and their three other young children, were the guest passengers of defendant. The latter were also accompanied by his wife and their two small children, so that there were ten persons in defendant's Ford car. They left their home in the morning with the intention of visiting a relative in Ohio. Defendant drove the car along the Territorial road, which runs east and west. He was nearing Hagaman's Corners, where the Territorial road is intersected by another road running south from Hillsdale. This latter road, herein referred to as the Hillsdale road, had been designated as a through traffic highway, and stop signs had been placed on the Territorial road 70 feet from the center of the Hillsdale road. Both roads are county roads 24 feet in width. The Territorial road is graveled a width of 16 feet and the Hillsdale road 9 feet. There is not much traffic on either road. The road commissioner estimated that the average traffic on the Hillsdale road was about 300 vehicles a day, or less than one vehicle every two minutes. As defendant's car approached the intersection, he saw a car pass by on the Hillsdale road at a very rapid rate of speed, and remarked: ‘I'd hate to have that car hit me.’ The immediate events that followed, and defendant's conduct, we shall describe in the words of Ora Oxenger, who was the main witness for plaintiff.

‘Well, what he done, he slowed up somewhat as he approached the stop sign, but he didn't stop, and when he got just about to the corners, why-about ready to go out into the road-he apparently gave it just a little more gas, and I looked and saw a car coming, and I says ‘Look out, there comes a car.’ Well, of course, the car struck us, we couldn't help but be struck.'

When asked at what rate of speed defendant was traveling between the stop sign and intersection, he replied:

‘Well, that would be rather hard to tell exactly, but probably was slipping along 20 miles an hour, close to it.’

In a signed statement made at the time of the accident, Oxenger stated that defendant was a good cautious driver and was driving his car with care. He repeated this statement at the trial, but also said that he had changed his mind since the accident. The car going south struck defendant's car as he was driving across the Hillsdale road. The record does not show the injuries to defendant's car. However, Duane's right eye was so badly cut by broken glass that its vision has been permanently destroyed. At the trial, defendant did not take the witness stand, nor was any testimony introduced in his behalf. It was shown without objection that an insurance company was in some manner interested in the case. Judgment upon findings of the trial court of $6,000 was rendered in favor of plaintiff.

The only question involved in the case is whether defendant was guilty of gross negligence. What is known as the ‘guest’ statute (Pub. Acts 1915, No. 302, § 29) was amended by Act 19 of the Public Acts of 1929 (§ 4648, C. L. 1929), which limits the liability of the owner or operator of a car to a guest passenger to cases where the owner or operator of the motor vehicle is guilty of gross negligence or willful and wanton misconduct that contributes to the injury or death or loss which the accident may cause. In the instant case, there is no testimony showing willful or wanton misconduct on the part of defendant. The question, therefore, is whether he was guilty of ‘gross negligence’ within the meaning of the statute.

In Michigan, some confusion in terminology has arisen from the manner in which the term ‘gross negligence’ has been used in many cases. We shall refer to some of them. In Bouwmeester v. Grand Rapids & Indiana R. Co., 63 Mich. 557, 30 N. W. 337, the defendant was held liable, on the last clear chance doctrine, and it was held that plaintiff's contributory negligence did not preclude his recovery where the action of defendant is wanton, willful or reckless and injury results therefrom. Accord: Matta v. Railway Co., 69 Mich. 109, 37 N. W. 54. In Battishill v. Humphreys, 64 Mich. 514, 38 N. W. 581, and also in Freeman v. Railway Co., 74 Mich. 86, 98, 41 N. W. 872,3 L. R. A. 594, the expression ‘reckless negligence’ is used. In Hughes v. Railway Co., 78 Mich. 399, 44 N. W. 396, the term ‘gross negligence’ is used as synonymous with ‘recklessness.’

In Denman v. Johnston, 85 Mich. 387, 396, 48 N. W. 565, the term ‘gross negligence’ was held to mean ‘an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exertion of any effor to avoid them.’ This case has been cited and approved of in Knickerbocker v. Railway Co., 167 Mich. 596, 602, 133 N. W. 504;Good Roads Construction Co. v. Railway Co., 173 Mich. 1, 12, 138 N. W. 320;Berry v. Railway Co., 173 Mich. 181, 187, 138 N. W. 1038;Vought v. Mich. United Traction Co., 194 Mich. 343, 160 N. W. 631;Simon v. D. U. Ry., 196 Mich. 586, 162 N. W. 1012. In Schindler v. Railway Co., 87 Mich. 400, 49 N. W. 670, the defendant was held guilty of gross negligence in a case where it was found that defendant's servants were regardless of consequences in shunting the cars in the manner they did and that these servants and employees of the defendant did not care whether they ran the plaintiff down or not. Accord: Putt v. Railway Co., 171 Mich. 216, 137 N. W. 132. In Buckley v. Railway Co., 119 Mich. 583, 78 N. W. 655, the term ‘gross negligence’ was applied to defendant's misconduct in a last clear chance situation. In Labarge v. Railway Co., 134 Mich. 141, 95 N. W. 1073, the court said:

‘It may be conceded that, where one willfully injures another, the doctrine of contributory negligence is not involved, because the injury is not negligent, but intentional. Again, where one is seen in danger, though placed there through his own negligence, the who, thus seeing him, omits ordinary care to avert an injury to him, is not alone negligent, but is wanton, and, as wantonness of this kind is akin to willfulness, there is an opportunity for applying the same rule, and defendants have been held liable under such circumstances. And again, we can conceive of a degree of recklessness which, by reason of its coincidence with probable disaster, is closely allied to the foregoing, and should perhaps be governed by the same rule. * * * In our opinion, the term ‘gross', as applied to negligence, has no such broad legal effect, as is contended for in this case; but whenever the defendant sees a plaintiff in danger, or by exercising only ordinary care in the discharge of his duty should discover such danger in time to avert an injury, and either fails, after discovering it, to take steps to avert it, or fails to discover the danger, the fact that the plaintiff's danger...