Rogers v. Merritt

• Decision Date: 29 December 1943
• Docket Number: No. 11.,11.
• Parties: ROGERS v. MERRITT.
• Court: Michigan Supreme Court

307 Mich. 459

12 N.W.2d 422

ROGERS

v.MERRITT.

No. 11.

Supreme Court of Michigan.

Dec. 29, 1943.

Action by Phyllis Rogers, a minor, by Ernest Parsons, her next friend, against Nelson B. Merritt, administrator of the estate of Marshall King, deceased, for injuries sustained in automobile collision. From a judgment for defendant non obstante veredicto, plaintiff appeals. Reversed and remanded for entry of judgment for plaintiff on verdict.Appeal from Circuit Court, Midland County; Ray Hart, Judge.

Before the Entire Bench.

L. A. Vincent and Dahlem & Dahlem, all of Jackson, for appellant.

H. Monroe Stanton, of Saginaw, for appellee.

STARR, Justice.

Plaintiff, a minor, by her next friend, sued to recover damages for her personal injuries sustained in an automobile accident which occurred about 8:30 p.m., May 3, 1941, while she was riding as a guest passenger in an automobile owned and driven by defendant's decedent. The trial court reserved decision on defendant's motions for a directed verdict and submitted the case to the jury, which returned a verdict of $3,500 for plaintiff. On motion, the trial court entered judgment for defendant non obstante veredicto.

Plaintiff appeals, and the only question presented is, does the testimony, viewed in the light most favorable to plaintiff, present an issue of fact for jury determination as to whether or not defendant's decedent was guilty of ‘gross negligence or wilful and wanton misconduct’ within the meaning of the guest passenger statute, 1 Comp.Laws 1929, § 4648 (Stat.Ann. § 9.1446).

Decedent, with plaintiff and three other young people as guest passengers, was driving his Ford sedan from Midland to Gordonville. He said that he was ‘in a hurry.’ Soon after leaving Midland on M-20, a concrete road, he negotiated an S-curve at 55 to 60 miles an hour. His car ‘slid over on the gravel’ and went around the curve ‘on two wheels.’ Plaintiff and other passengers protested against the speed at which he was driving and requested him to drive slower. One of the passengers attempted to turn off the motor ignition, but decedent pushed her hand away, saying, ‘I am able to drive this car.’ To the suggestion that he drive slower or permit one of the passengers to drive, decedent replied that it was his car and that he was going to ‘drive it the way he wanted to.’ He then increased his speed and, as he crossed a narrow bridge over the Chippewa river at about 70 miles an hour, plaintiff screamed and other passengers further protested against his manner of driving. After turning onto M-30, a gravel-surfaced road about 30 feet wide, he drove at a speed variously estimated at from 70 to 90 miles an hour. The testimony indicates tht M-30 was an ‘average gravel road’; that it was somewhat rough and ‘bumpy in spots'; and that decedent drove on the left (wrong) side or ‘straddling the center of the road.’ One of his guest passengers testified in part: ‘Q. Was anything said by any of the occupants of the car as to his driving on the left side of the road? A. Virginia Kennedy said, ‘Why don't you drive on the right side of the road like you are supposed to’ and he said, ‘Well, because it is too rough.’ * * *

‘Q. How far did he continue on the left side of the road? A. Well, he drove on the left side practically all of the way down. * * * Through the center of the road and mostly on the left side.

‘Q. Do you mean he was going back and forth from the center to the left side? A. Yes.

‘Q. Did he continue that way until he reached the point where you collided with the other car? A. Yes.

‘Q. Do you know where he was driving when he struck the other car? A. The center of the road.'

One of decedent's passengers testified that she smelled liquor on his breath, but there was no evidence that plaintiff or the other passengers had been drinking.

A car driven by one Melvin Beebe, at a reasonable speed and on his right-hand side of the road, approached from the opposite direction. Teh road was dry, level, and straight; the weather was clear; and it was ‘just getting dark.’ Both cars had their lights on; decedent's view of the approaching car was unobstructed; and there was no interfering traffic. Plaintiff said to decedent, ‘Look out for the lights that is coming toward us.’ Under the conditions shown by the testimony decedent saw or is presumed to have seen the Beebe car approaching. The cars collided at or near the center of the road, the left front end of decedent's car striking the left front end of the Beebe car. The decedent, two of his guest passengers, and two passengers in the Beebe car were killed, and plaintiff was severely injured.

In his opinion granting defendant's motion for judgment notwithstanding the verdict, the trial court held that defendant's decedent was not guilty of gross negligence or wilful and wanton misconduct. In the case of Greimel v. Fischer, 305 Mich. 45, 8 N.W.2d 906, 907, we said: ‘In previous cases, we have attempted to define the elements that must be present to establish wilful or wanton misconduct within the provisions of the statute (Willett v. Smith, 260 Mich. 101, 244 N.W. 246), but have also pointed out tht ‘any definition or attempted dissection of the phrase is only relative, not determinative or exclusive, and slight difference in facts produce different results' (Schneider v. Draper, 276 Mich. 259, 267 N.W. 831, 833), and that each case in which the issue is raised must be decided on its own particular facts. Goss v. Overton, 266 Mich. 62, 253 N.W. 217. And although excessive speed, warnings of passengers, refusal of the driver to heed warnings, may not as individual factual elements in a case be sufficient to charge a driver with...