Slayton v. Boesch

• Citation: 315 Mich. 1,23 N.W.2d 134
• Decision Date: 03 June 1946
• Docket Number: No. 14.,14.
• Parties: SLAYTON v. BOESCH.
• Court: Supreme Court of Michigan

315 Mich. 1

23 N.W.2d 134

SLAYTON

v.BOESCH.

No. 14.

Supreme Court of Michigan.

June 3, 1946.

Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.

Personal injury action by Pearle C. Slayton against Herman W. Boesch. Judgment for defendant, and plaintiff appeals.

Affirmed.

Before the Entire Bench, except NORTH, J.

Mustard, McAuliffe, Hatch & Clagett, of Battle Creek (Allen & North, of Battle Creek of counsel), for plaintiff and appellant.

Alexander, McCaslin, Cholette & Buchanan, of Detroit, for defendant and appellee.

BOYLES, Justice.

This is an action at law for personal injury damages resulting from an automobile accident which occurred September 29, 1941, in the State of Nebraska. On trial by jury a verdict was returned that the defendant was not guilty of gross negligence as the plaintiff in her declaration alleged. Judgment for defendant was entered on the verdict, from which plaintiff appeals.

The major ground on which plaintiff relies for reversal is that the verdict is against the great weight of the evidence. This requires a consideration of the facts. These parties are residents of Battle Creek, Michigan. Plaintiff's husband, Philip E. Slayton, and the defendant had arranged for a trip by automobile to California on business. They were to use Mr. Slayton's automobile and share expenses. Mrs. Slayton, the plaintiff, went along as a guest passenger on a vacation pleasure trip. The three started out from Battle Creek on the morning of September 28, 1941, and on that day drove to Omaha, Nebraska, about 600 miles, each sharing in the driving. On the following morning they left Omaha before nine o'clock, Mr. Slayton first doing the driving. It started to rain and the pavement became wet. Mr. Slayton drove very rapidly for about 200 miles and the defendant then took over the driving. The accident in question occurred after the defendant had driven 10 or 12 miles. The road was composed of slippery blacktop, wet, and it was raining quite hard. At the scene of the accident the paved portion of the road was about 18 feet wide, with level shoulders about 15 feet wide on both sides of the road which were composed of sticky clay. The blacktop was crowning, higher in the center. Plaintiff was sitting beside the defendant driver, in the front seat, her husband was in the rear seat, both of them examining some travel books. Neither of them complained to the defendant that he was driving too fast. Mr. Slayton testified that the defendant appeared to be driving all right, although he testified that immediately prior to the accident the speedometer indicated a speed of 75 to 80 miles per hour. There was further testimony that the defendant asked for some peanuts and put them in his mouth, and that immediately thereafter the automobile skidded, the left front skidded off the road onto the clay shoulder, back onto the pavement, the automobile rolled over one or more times and landed on its right side. At the place of the accident the road was at a slight upgrade with a slight curve to the left.

Plaintiff testified that shortly after they left Omaha while her husband was driving it rained continuously, that she repeatedly complained to her husband of his speed and that the automobile skidded while he was driving. She also said that she was reading a tourist guidebook in the front seat while defendant was driving and did not notice his speed. She also testified that she did not recall that the defendant asked her to pass him the peanuts, that she had no cause for complaint about defendant's driving, and that she had not paid any attention to it.

The defendant himself testified that the accident occurred after he had driven 12 or 14 miles, that it was raining hard, that plaintiff had previously asked her husband to slow down while he was driving. Defendant testified he had noticed the car skidding while Mr. Slayton was driving although he had not looked at the speedometer and did not recall the speed. He testified the road was narrow and crowning in the center, that he concluded to stay off the right side of the pavement where it sloped, in order to avoid the car skidding into the clay shoulder. There was no other traffic, the windshield wipers kept the windshield clean. Prior to the accident some peanuts were passed to him but he did not recall whether he looked to the side when he reached for the peanuts. He took his right hand off the steering wheel to put the peanuts into his mouth, then returned it to the wheel. He then felf the car swerve, took his foot off the accelerator, did not recall whether he put his foot on the brake, that the car went into the mud, he tried to bring it under control, and the next thing the knew the car was upset. He did not know what caused the car to skid or what his speed was, no one had warned him about his driving, and he testified that he had no trouble controlling the car until it skidded. In substance, his testimony was that he was driving in a straight line in the center of the road, suddenly the car started to skid, swung to the left, went off the road, and in trying to get it back on the road the car rolled over.

The grounds on which plaintiff relies to establish gross negligence are that the defendant was driving at an excessive rate of speed under the conditions disclosed, took his right hand off the wheel to eat peanuts, failed to keep the automobile under control so as to avoid skidding and running off the pavement. Plaintiff also relies on the maximum speed claimed to be allowable under the Nebraska statute, 60 miles per hour.

Where an action for damages arises out of an automobile accident occurring in another State and is brought in this State, matters relating to the right of action are governed by the State in which the accident occurred, while matters relating purely to the remedy are governed by the laws of this State. Edison v. Keene, 262 Mich. 611, 247 N.W. 757;Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883;Kaiser v. North, 292 Mich 49, 289 N.W. 325;Summar v. Besser Manfg. Co., 310 Mich. 347, 17 N.W.2d 209.

Inasmuch as the statutes and the decisions of the courts of Nebraska govern the right of action of plaintiff, counsel for appellant in their brief discuss the two questions, namely, the great weight of the evidence and the laws of Nebraska, as a mixed question of law and fact and argue both together. We adopt the same practice.

Courts of this State may take judicial notice of statutes, common law, and the books of reports of cases adjudged by the courts of another State which purport to be published under the authority of that State. 3 Comp.Laws 1929, §§ 14179, 14181, Stat.Ann. §§ 27.874, 27.876; Laughlin v. Michigan Motor Freight Lines, 276 Mich. 545, 268 N.W. 887.

It is conceded that plaintiff at the time of the accident was a guest passenger in the car owned by her husband and driven by the defendant. Nebraska has a guest passenger statute which in defining liability is quite similar to the guest passenger statute of this State.¹ That part of the Nebraska statute, 3 Neb.Rev.Stat.1943 § 39-740, pertinent to the instant case is as follows:

‘The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in such motor vehicle as a guest or by invitation and not for hire, unless such damage is caused by the driver of such motor vehicle being under the influence of intoxicating liquor or because of the gross negligence of the owner or operator in the operation of such motor vehicle.

The guest passenger statutes of both States define the liability for an accident as one caused by the ‘gross negligence’ of the owner or operator of the vehicle. The Michigan statute adds to gross negligence ‘or wilful and wanton misconduct.’ Decision in the instant case depends on the construction given to the term ‘gross negligence’ by the Supreme Court of Nebraska.

The guest passenger act was put into the statute law of Nebraska in 1931. ² The first case decided by the Nebraska Supreme Court construing this act was Morris v. Erskine, 124 Neb. 754 at page 755,248 N.W. 96. In that case the court said:

‘We are of the opinion that in adopting the guest act the legislature used the term ‘gross negligence’ as indicating a degree of negligence. Negligence may be slight, ordinary, or gross. Gross negligence means great or excessive negligence; that is, negligence in a very high degree. It may be said that it indicates the absence of even slight care in the performance of a duty, and such We think, is the meaning intended by the legislature.

‘What amounts to gross negligence in any given case must depend upon the facts and circumstances. What would amount to gross negligence under certain circumstances might, under different circumstances, be even slight negligence. Ordinarily, the question of negligence, whether slight or gross,, is one of fact. If the evidence respecting it is in conflict and is such that ordinary minds might draw different conclusions therefrom, then a question of fact is presented for the jury to determine. Where a question of fact has been submitted to a jury upon conflicting evidence, this court, ordinarily, will assume the truth of the evidence tending to sustain the finding of the jury.’

An examination of upwards of 30 reported opinions of the Nebraska Supreme Court in which the Nebraska guest passenger act was construed plainly establishes that the construction of the act adopted in Morris v. Erskine, supra, has been consistently followed. It also is plain that the Nebraska court has in general either held that the question whether the defendant was guilty of gross negligence was an issue of fact for the jury, or that the facts were not sufficient to establish gross negligence as defined by the court. The language used in some of the Nebraska guest passenger cases is as follows:

‘The defendant was driving fast between Elkhorn and the railroad crossing, and on several occasions plaintiff to...