Sherman v. David
| Decision Date | 03 June 1940 |
| Docket Number | No. 93.,93. |
| Citation | 293 Mich. 489,292 N.W. 464 |
| Parties | SHERMAN v. DAVID. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by George D. Sherman against Francis M. David for injuries sustained in an automobile accident. From a judgment for defendant, plaintiff appeals.
Affirmed.
Appeal from Circuit Court, Wayne County; Robert M. Toms, judge.
Argued before the Entire Bench.
Riseman, Lemke & Piotrowski, of Detroit, for appellant.
Cary & Be Gole, of Detroit, for appellee.
The question before us is whether defendant was guilty of ‘gross negligence or wilful and wanton misconduct’ in operating his automobile so as to warrant a recovery by plaintiff for his injuries. 1 Comp.Laws 1929, § 4648, Sec. 9.1446 Stat.Ann.; Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, 74 A.L.R. 1189.
Late in the evening of August 25, 1938, plaintiff, defendant, and three others, left a restaurant in Lapeer to go to a summer home about nine miles away. Plaintiff and another rode in the rumble seat, and defendant and two others sat in the front compartment. Before leaving the restaurant, defendant was told that there was a bad curve in the gravel road on the way, and he asked to be warned as they approached it; such warning was timely given. Despite several protests by plaintiff that the defendant was driving too fast for the condition of the road, defendant drove at speeds of 50 to 75 miles per hour. About 100 feet from the start of the curve, defendant applied the brakes, whereupon the car skidded to the left; upon finding that the road curved to the right, defendant swung in that direction. A tire was pulled off the rim, the inner tube blew out and the car rolled over on its side into a ditch. Plaintiff brought this action to recover for his injuries. At the conclusion of his proofs, the trial court sitting without a jury was of the opinion that gross negligence or wilful and wanton misconduct had not been proved, citing Holmes v. Wesler, 274 Mich. 655, 265 N.W. 492, and rendered a judgment of no cause of action. We are reviewing the propriety of this decision.
Counsel urge with logical precision the reduction into elements of ‘wilful and wanton misconduct’ of Willett v. Smith, 260 Mich. 101, 244 N.W. 246. In Schneider v. Draper, 276 Mich. 259, 267 N.W. 831, 833, we pointed out that the difficulty with such a formula is that ‘any definition or attempted dissection of the phrase is only relative, not determinative or exclusive, and slight differences in facts produce different results.’ We have before pointed out the difficulties in terminology and have attempted to straighten out the maze of thoughts. See Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398;Oxenger v. Ward, 256 Mich. 499, 240 N.W. 55;Bobich v. Rogers, 258 Mich. 343, 241 N.W. 854. Lengthy definitions or just curt statements that gross negligence is ordinary negligence with a vituperative epithet (Wilson v. Brett, 11 M. & W. 113; Grill v. General Iron Screw Colliery Co., L.R. 1 C.P. 600) are all mere attempts to explain a standard whose limits cannot be described by metes and bounds.
‘There is no exact standard or measurement by which we may determine where negligence ends and wilful or wanton misconduct begins, and each case must be decided on its own facts.’ Goss v. Overton, 266 Mich. 62, 253 N.W. 217.
In any case we can only state whether in our judgment the conduct shows a transgression into the forbidden range. Explanations of the terms before us will not mislead if we accept as mere guides to thinking the help they proffer and understand that they are not designed to be all-inclusive.
There is no question but that defendant knew that danger was lurking in his path, and that plaintiff had given heed that the speed was excessive. The protest of the guest, however, is not determinative of wantonness. Lucas v. Lindner, 276 Mich. 704, 269 N.W. 611;Pawlicki v. Faulkerson, 285 Mich. 141, 280 N.W. 141.
‘The driver of an automobile is not at his peril required to comply with the request of a guest relative to speed, nor does...
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...of gross negligence or wilful and wanton misconduct. This was somewhat of a reversal of our previous position. See Sherman v. David, 293 Mich. 489, 292 N.W. 464. Here there is no proof of any warning given to defendant. The lips of the guest passenger are sealed by death. However, a refusal......
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...supra, at page 508 of 361 Mich., 105 N.W.2d 400, the Court cited Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398, and Sherman v. David, 293 Mich. 489, 292 N.W. 464, in support of its summary denial of defendant's claims of error relating to contributory negligence and assumption of risk, but......
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