Sorenson v. Wegert

• Citation: 301 Mich. 497,3 N.W.2d 857
• Decision Date: 18 May 1942
• Docket Number: No. 57.,57.
• Parties: SORENSON v. WEGERT.
• Court: Supreme Court of Michigan

301 Mich. 497

3 N.W.2d 857

SORENSON

v.WEGERT.

No. 57.

Supreme Court of Michigan.

May 18, 1942.

Action by Anna Sorenson against Emma Wegert for personal injuries. From a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from 497>>Appeal from Circuit Court, Manistee County; Max E. Neal, judge.

Before the Entire Bench.

Alexis J. Rogoski, of Muskegon, for defendant and appellant.

Frederick P. Clohset and Campbell & Campbell, all of Manistee, for plaintiff and appellee.

CHANDLER, Chief Justice.

This action is brought by plaintiff against defendant for damages for personal injuries sustained while a guest passenger of defendant. The case was tried before a jury and resulted in a verdict in favor of plaintiff for the sum of $3,500.

Upon the conclusion of plaintiff's proof, and again after the proof of both parties had been submitted, defendant moved for a directed verdict on the ground that the proof failed to show that the conduct of defendant in the operation of her car before and at the time of the accident, which resulted in plaintiff's injuries, constituted gross negligence or wilful and wanton misconduct within the meaning of the guest passenger act as construed by this court. See 1 Comp.Laws 1929, Sec. 4648, Stat.Ann. Sec. 9.1446.

Decision on these motions was reserved by the trial court under the Empson Act, 3 Comp.Laws 1929, Sec. 14531, Stat.Ann. Sec. 27.1461, and the case was submitted to the jury.

After the return of the verdict, defendant moved for entry of judgment non obstante veredicto which was denied by the trial court, and judgment for plaintiff was entered on the verdict.

Defendant moved for a new trial for alleged errors in the trial and proceedings, which will be later discussed, which motion was also denied by the court, and this appeal followed.

Certain facts are undisputed, viz: That plaintiff was a guest passenger in an automobile owned and driven by defendant; and that in the course of the trip the automobile collised on the highway with another car driven by one Gladys Ohman Rischkewicz and plaintiff was injured. As to the alleged acts of gross negligence or wilful and wanton misconduct of defendant at the time of and immediately preceding the accident the testimony is conflicting.

The parties litigant are cousins and both are residents of the City of Manistee. On Sunday, September 15, 1940, defendant invited plaintiff, her husband and her mother to accompany defendant and her husband on an automobile trip to the City of Ludington, and at about three o'clock in the afternoon the group left Manistee and proceeded to Ludington. From there, they went to Hamlin Lake, a resort north of Ludington on the shore of Lake Michigan. While there each of the party, except the mother, had two servings of beer, and she, plaintiff's mother, had one glass of wine. On their return from the resort, they stopped at a tavern in the west end of Ludington where plaintiff, defendant, and her husband each had one serving of beer. Mr. Sorenson did not go into the tavern. When they left the tavern, they went toward Scottville, which would take them through the main street of Ludington, past the Stearns Hotel. Defendant and plaintiff were on the front seat and the others were in the rear. Up to this point, all parties are in agreement that none of the party showed any evidence of intoxication at the time they left the tavern. It is the subsequent conduct of the defendant of which complaint is made.

The conduct of defendant which plaintiff claims constituted gross negligence or wilful and wanton misconduct is alleged in her declaration to be the following:

‘IV. That after plaintiff became a passenger in said automobile in the City of Ludington, for the return trip to Manistee, defendant repeatedly turned in her seat to argue with her husband, who was on the rear seat of the car, and began to drive and operate said automobile in a careless, reckless, negligent, and unlawful manner and in willful and wanton disregard of the traffic upon the streets of Ludington, and wholly ignored the stop signs and traffic signals in said city and when defendant was requested to drive cautiously and keep a lookout ahead where she was driving the car and respect the rules and regulations governing the operation of automobiles upon public streets and highways and drive it on its proper side of the highway in the direction in which it was traveling, defendant became angry with plaintiff and others in her automobile and swore at them and said that if her automobile was wrecked she would wreck it.

‘V. That as soon as plaintiff discovered the mental attitude and careless manner of defendant while operating said car over the public streets and highways and her failure to keep a lookout in the direction in which she was driving said car, and the rapid speed with which she was driving it, and her failure to drive it at all times on its proper side of the highway in the direction it was being driven, plaintiff demanded that the automobile be stopped so that she and her husband and her mother could get out of the car, and find some other way of getting home.

‘VI. That defendant refused to stop the automobile or let plaintiff and her husband and mother alight from the car, and proceeded in an easterly direction from Ludington, Michigan, over U. S. Highway No. 10 and when about six (6) miles east of said City of Ludington, while driving said automobile in a careless and reckless manner from one side of the road to the other, and while defendant's husband and plaintiff were protesting to defendant about the manner and improper way which she was driving said automobile, whereupon defendant while in a violent quarrel with her husband, and without keeping a lookout in the direction in which she was driving said car, and with her head turned to the side and back, carelessly, negligently and wantonly directed said automobile, while it was being driven at a high and dangerous rate of speed, to-wit, Fifty (50) miles per hour, across the highway into the lane of traffic of oncoming automobiles from the opposite direction and cut off the course of traffic of an automobile driven in a westerly direction by one Gladys Ohman, and did then and there run into and against said automobile with such force and violence that plaintiff, who was sitting in the front seat of the automobile with defendant, was thrown against the inside front of said automobile whereby her head broke the windshield and her right arm and side struck the cowel or inside front of said automobile with such force that her right arm was seriously and permanently injured and damaged, and her right side was seriously and permanently injured and damaged;

‘That plaintiff's back and spine, as well as her neck and head were seriously and permanently injured thereby.’

The testimony on behalf of plaintiff in support of the foregoing allegations was that defendant almost immediately after leaving the tavern commenced driving her automobile in the business section of the City of Ludington at a rate of speed in excess of 50 miles per hour in disregard of stop signals and of approaching traffic, and that as she continued she increased the speed of her car to 55 miles per hour and better, zig-zagging and swerving in and out of the road and the oncoming traffic like a snake trail and almost sideswiping cars proceeding in the opposite direction.

Plaintiff testified that while in the business section she asked defendant not to drive so fast ‘or we will all get pinched or killed’, and that defendant angrily replied, ‘shut up, I'm driving this car’; that later as defendant increased her speed and barely missed sideswiping a car, and increasing danger became more apparent to her, she asked defendant to be careful, to stop the car and let Lawrence (plaintiff's husband) drive, to which request defendant angrily responded, ‘that (words not found in the books) won't drive my car’; that during this drive through Ludington and beyond, cars coming from the opposite direction were lined up as far as one could see; that as defendant was swerving in and out of her line of travel defendant's husband said to her, ‘Stop that car. Let us out. G_____ d_____ it, we will all get killed.’, to which defendant, in an angry tone responded, ‘Shut up you (words still not found in the books)’; that defendant also told her husband that she was driving the car and if it was to be smashed she would smash it, and that in about a minute thereafter the car was smashed and plaintiff was injured; that at the time of the collision defendant had partially turned around and was arguing with her husband, telling him ‘to shut up’, and that when she turned she swung the car around and collided with the oncoming car.

The record discloses that the right front fender of the Wegert car was struck first, from which an inference might be drawn that defendant turned her car rather sharply into the path of the oncoming vehicle.

Plaintiff testified that she first noted that something was wrong with defendant when she was ignoring traffic regulations and commenced zig-zagging back and forth on the streets of Ludington, and concluded that defendant was not sober. Mr. Sorenson testified that he first noticed that defendant was intoxicated just east of Ludington because she was not keeping to her side of the road and was off the road half of the time.

On the day in question, the roads were dry and the weather clear. The accident happened sometime between 6:30 and 7:00 o'clock in the evening and all cars on the highway had lights on.

The testimony of defendant was a denial of all acts of negligence or misconduct charged by plaintiff. She denied that she was intoxicated or that she was angry; denied having any quarrel with her husband and the use of the language accredited to her by plaintiff and Mr. Sorenson; and denied that anyone in the car complained of her driving or asked her to stop the car. In this she was corroborated by the...