Riley v. Walters

Decision Date08 December 1936
Docket NumberNo. 127.,127.
CourtMichigan Supreme Court


Action by Ward Riley against Donald Walters. Judgment for defendant, and plaintiff appeals.


POTTER, SHARPE, and TOY, JJ., dissenting.

Appeal from Circuit Court, Oakland County; Glenn C. gillespie, judge.

Argued before the Entire Bench.

Hugh K. Davidson and Walter M. Nelson, both of Detroit, for appellant.

William J. Eggenberger, of Detroit, for appellee.

WIEST, Justice.

The judgment should be affirmed. Van Blaircum v. Compbell, 256 Mich. 527, 239 N.W. 865;Oxenger v. Ward, 256 Mich. 499, 240 N.W. 55;Finkler v. Zimmer, 258 Mich. 336, 241 N.W. 851;Bobich v. Rogers, 258 Mich. 343, 241 N.W. 854;Wyma v. Van Anrooy, 260 Mich. 295, 244 N.W. 478; Grabowski v. Seyler, 261 Mich. 473, 246 N.W. 189;Mater v. Becraft, 261 Mich. 477, 246 N.W. 191;Mogill v. Resnick, 263 Mich. 103, 248 N.W. 562;Fink v. Dasier, 273 Mich. 416, 263 N.W. 412;Schlacter v. Harbin, 273 Mich. 465, 263 N.W. 431, 432.

At the time and place of the accident, the weather was warm and the roadbed dry. Plaintiff testified that as the automobile approached the curve he looked at the speedometer and the car was going between 65 and 70 miles per hour, and he said to his companion on the back seat: ‘Harold, I hope he slows down, and Harold said, ‘So do I,” and then defendant said: He thought he could handle the car all right.’

In Bobich v. Rogers, supra, the claim was made that defendant drove his automobile at such a high rate of speed that he was unable to make a sharp turn without losing control of his car and, as a consequence, the car left the roadway and overturned. We said:

‘Whether a turn of the road can be made with reasonable safety at any particular speed depends, of course, upon the character and condition of the road and the skill of the driver. We cannot draw a line beyond which mere speed in making a turn departs from negligence and becomes willful and wanton misconduct. Conceding that defendant was negligent in making the turn at high speed it would not constitute willful and wanton misconduct.’

In Findlay v. Davis, 263 Mich. 179, 248 N.W. 588, Mr. Justice Potter, speaking for the court, said:

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. 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, supra, we 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.’

Affirmed, with costs to defendant.

NORTH C. J., and FEAD, BUTZEL, and BUSHNELL, JJ., concurred with WIEST, J.

POTTER, Justice (dissenting).

Plaintiff brought suit against defendant to recover damages resulting from personal injuries. He alleged he was riding with the defendant July 9, 1934, at about 11 p. m., was without negligence or contributory negligence on his part, and that the defendant operated his automobile, in which the parties were riding, in a careless, reckless, and negligent manner and, as a result of the negligence of the defendant, plaintiff suffered painful, permanent, and disfiguring injuries. Plaintiff's declaration also alleged defendant operated the motor vehicle, in which plaintiff and defendant were riding, carelessly, in willful and wanton disregard of the rights and safety of plaintiff. There are some immaterial allegations in the declaration. Defendant filed an answer denying all the material allegations contained in plaintiff's declaration.

On the day preceding the night on which the injury to plaintiff occurred, a friendly ball game had been played between young men in the neighborhood of Maybury Sanitorium and the employees of the sanitorium. After the ball game, the parties in question went to the home of one Ivan Ely who was employed in the Maybury Sanitorium. They stayed there a short time and then got into the car of defendant which had been left parked there and went to Bud Newton's place, a beer parlor, where they stayed an hour and a half. From there they came back to Ely's, sought to get in touch with him, Ely's father suggested that Ivan might be at the Maybury Sanitorium. The parties started to the sanitorium. At a red light, defendant stopped his automobile and plaintiff got out of the automobile, but at the solicitation of the defendant got back in and rode to the sanitorium to aid defendant in looking for Ivan Ely. They were unable to locate Ivan Ely and then started back toward Northville. In going around a curve, the accident occurred.

In his opening statement, counsel for plaintiff said, after stating the facts:

We claim on this statement of facts, * * * that Ward Riley was not a guest of Donald Walters but that he was in the car in the service of Donald Walters, the driver and owner of the car, doing an errand and a service for Walters, that there was no purpose for * * * Riley to go to the sanitorium except to accommodate Mr. Walters, that, therefore, Mr. Walters owed this plaintiff the duty to drive with due care and not to take any unnecessary risks and we claim he violated and disregarded that duty in the manner in which he drove this car, that these injuries are the result of that neglect.’

At the conclusion of the opening statement of counsel for plaintiff, defendant moved for a directed verdict based thereon, stating:

‘There is no claim made in the opening statement that this accident was due to any wilful or wanton misconduct on the part of this defendant; the relationship as between the parties as made in the opening statement and as may be inferred from the reply filed to the defendant's answer clearly shows a host and guest relationship there is no claim of any consideration, the relationship between the parties is primarily predicated upon a friendship between them; now, the degree of that friendship has no bearing in this case.’

The court overruled this motion. The testimony was taken showing substantially the facts above indicated, and at the conclusion of the testimony of plaintiff the motion for directed verdict was made by defendant's counsel, in which he stated:

‘I assume from the opening statement made and the proofs offered there is no claim of any gross negligence and wilful and wanton misconduct and that they claim that the plaintiff in this case was not a guest and that, on the contrary, that he was a servant of the defendant, was out in the car performing an errand and a service of some kind to the defendant, for that reason is not a guest and does not go under the provisions of the guest law.’

This motion to direct a verdict was argued whereupon the court directed a verdict upon the ground there could be no recovery unless plaintiff could establish he was not a guest passenger in defendant's car, the court holding that under the undisputed facts he was a guest passenger.

Plaintiff contends he was not a guest passenger of the defendant within the meaning of section 4648, 1 Comp.Laws 1929, and that defendant was guilty of gross negligence and wanton and willful misconduct within the meaning of the same section. There is no question but that plaintiff was being transported by defendant in his automobile without payment or charge for his transportation. Plaintiff contends his relation as a guest of defendant terminated at the red street light when he got out of defendant's automobile, and that, when he got back in, his relation to defendant changed to one of employment. These young men, after their visit to the beer parlor, were skylarking around trying to find Ivan Ely and his girl friend, and, failing to find them, decided to go home and plaintiff got back into defendant's automobile at or near the sanitorium for that purpose and was then just as much a guest within the meaning of the statute when the accident occurred as he had been before he reached the red light.

Appellant relies upon Monison v. McCoy, 266 Mich. 693, 256 N.W. 49, affirmed on rehearing, 266 Mich. 700, 256 N.W. 51. But in this case, there was no contractual relation between the parties, no relation of master and servant, or of employer and employee. At the time of the injury plaintiff was not riding with defendant as an incident to any employment or in going to or coming from such employment. He was a voluntary guest passenger riding home.

In Breger v. Feigenson Brothers Co., 264 Mich. 37, 249 N.W. 493, there was testimony of express direction to the driver of the truck from his employer not to employ plaintiff, but from the multiplicity of circumstances when plaintiff was employed, notwithstanding these instructions if they were given, there was a fair inference such instructions were waived and that defendant had knowledge of plaintiff's employment. The record here shows a mere social relationship, mutual companionship, and a united search for mutual pleasure.

Gross negligence is a term well known to the law of Michigan. Bouwmeester v. G. R. & I. R. R. Co., 63 Mich. 557, 30 N.W. 337;Battishill v. Humphreys, 64 Mich. 514, 38 N.W. 581;Cooper v. L. S. & M. S. Ry. Co., 66 Mich. 261, 33 N.W. 306,11 Am.St.Rep. 482; Matta v. C. & W. M. Ry. Co., 69 Mich. 109, 37 N.W. 54;Freeman v. Railway Co., 74 Mich. 86, 41 N.W. 872,3 L.R.A. 594;Hughes v. Railway Co., 78 Mich. 399, 44 N.W. 396;Robinson v. Railroad Co., 79 Mich. 323, 44 N.W. 779,19 Am.St.Rep. 174;Denman v. Johnston, 85 Mich. 387, 48 N.W. 565;Schindler v. Railway Co., 87 Mich. 400, 49 N.W. 670;Montgomery v. Booming Co., 88 Mich. 633, 50 N.W. 729,26 Am.St.Rep. 308;Richter v. Harper, 95 Mich. 221, 54 N.W. 768;Frost v. Railroad Co., 96 Mich. 470, ...

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