Stevens v. Stevens, 30

• Decision Date: 01 October 1958
• Docket Number: No. 30,30
• Citation: 355 Mich. 363,94 N.W.2d 858
• Parties: William STEVENS, Jr., Plaintiff-Appellee, v. William A. STEVENS, Defendant-Appellant. ,
• Court: Michigan Supreme Court

Page 858

94 N.W.2d 858

355 Mich. 363

William STEVENS, Jr., Plaintiff-Appellee, v. William A. STEVENS, Defendant-Appellant.

No. 30, Oct. Term, 1958.

Supreme Court of Michigan.

Feb. 19, 1959.

Ready & Braunlich, Monroe, for defendant-appellant.

Cubbon & Rice, Toledo, Ohio, for plaintiff-appellee.

Before the Entire Bench.

SMITH, Justice.

The plaintiff, William Stevens, Jr., brought this action to recover for injuries sustained while riding as a guest in an automobile driven by the defendant, his brother, William A. Stevens. The trial court, sitting without a jury, entered judgment in favor of the plaintiff in the sum of $21,888. Error is charged upon the admission in evidence of a dying declaration and the denial of motions designed to test whether the facts that the plaintiff proposed for proof constituted a basis for liability under the guest statute, ¹ whether findings made by the court were supported by sufficient evidence, and whether the award of damages was excessive.

The facts may be very simply stated. The driver of the car involved was defendant William A. Stevens. He was driving a 1950 Chrysler from Toledo to Jackson, Michigan. Prior to commencing the journey he stopped at Johnny's tavern and enjoyed a 'shot' of whiskey. He then left with his brother, plaintiff herein, whom he had met by chance at the bar, and picked up his wife, Leona. The group then went to a second bar, where another drink of whiskey was had. Thus fortified, the trip northward to Jackson was commenced. By this time the driver and his wife were quarreling to the degree that the brother took a seat in the center, between the two.

So, as we noted, started the journey, somber from its very inception. The road traveled, running generally north and south, was highway 223, a black top, two-lane road. The night was 'very foggy,' the road surface wet. Just south of Ottawa Lake the road makes a sharp turn to the right. Here the car left the road, hit a concrete culvert with such force that it broke off 'quite a large chunk' (some 4 feet long, 8 inches in thickness, and 18 inches high), and proceeded onward approximately 50 feet, coming to rest on its top, upside down, 'a mangled mass of metal,' states the trier of the facts, 'which it is hard to realize ever was an automobile.' The defendant had been thrown out of the car but the two passengers remained therein. The plaintiff was wedged behind the wheel, his stomach, to quote his own words, forced 'up in my chest.' The defendant's wife, also in the wreckage, was also 'in bad shape,' dying later from her injuries.

Her account of the accident (objections to which we will hereinafter consider) was given to her sister-in-law, which in the hospital. 'She [the wife] would sort of doze off like and then she would wake up with a jerk, and I asked her what was wrong, and she would relive the episode of going through the windshield.' At about 10 o'clock the night before she died 'she seemed like there wasn't much hope for her.' She said she was 'ready to meet God.' What followed was hearsay. In certain criminal trials, at least, both by common law and, in this State, by statute (C.L.1948, § 767.72 [Stat.Ann. § 28.1012]), dying declarations are admissible despite the hearsay rule. The exception comes down to us from simpler times. It was believed that the awareness of imminent death invested the occasion with a solemnity not surpassed by the judicial oath itself, however impressively it might be mumbled in court by the bailiff. It was believed also, some now think quaintly, that the lack of opportunity for repentance or amends would deter from falsehood even the most debased. The trial court had before him the declaration of a girl of 17 years, carrying her unborn child. One, normally has not, at 17, had time to learn much of the practice of dissimulation or deceit. If, moreover, she was aware of the legal significance of what she was saying as it affected liability under the guest passenger act the record does not disclose it. Her life, she believed, was drawing to a close, her youth, her maturity, and her old age having been telescoped together in a split instant of time as the car left the curve. The trial court obviously believed that the girl was aware of impending death, impressed with the finality and solemnity of the occasion, and that she was speaking the truth, shorn of incentive to lie or distort, to shield or to betray. That a crime was not involved, but a mere civil action, did not, in his opinion, rob her statement of the essential guaranty of truth inherent in the occasion of its utterance. The statement was, accordingly, admitted.

The night of the accident, her sister-in-law reports her as stating, 'was rainy and foggy.' Her husband was racing with a station wagon. The curve, she knew, was there. (The route was a familiar one to defendant.) She told him, she is reported to have said, to slow down, 'because he was doing around between 90 and 95.' He is said to have told her in reply, that 'he wouldn't because he knew that road, he traveled it enough. And instead of making that, he just didn't make the curve.' Leona died a few hours after making this statement.

The substance of the above chronology of asserted facts was stated by plaintiff in his opening statement, at the close of which defendant moved 'for a judgment based upon the opening statement.' This was properly denied. Such motion for judgment may be granted where, from the opening statement and the pleadings, it is clear that the plaintiff would not be entitled to judgment even though the facts proposed for proof were conceded and the inferences most favorable to the plaintiff were drawn. See Vida v. Miller Allied Industries, Inc., 347 Mich. 257, 79 N.W.2d 493; Ballinger v. Smith, 328 Mich. 23, 43 N.W.2d 49 (motion for a directed verdict in a jury case). From the facts recited, however, one might reasonably infer that the defendant drove deliberately at a speed involving grave and apparent danger, particularly in view of the condition of the road and the weather. Such conduct might properly be regarded as gross negligence or wilful and wanton misconduct. See Tien v. Barkel, 351 Mich. 276, 88 N.W.2d 552; McLone v. Bean, 263 Mich. 113, 248 N.W. 566; Powers v. Wilson, 2 Cir., 110 F.2d 960.

Plaintiff's proofs were then made, including the dying declaration above summarized, at the conclusion of which defendant moved that the dying declaration be stricken (denied), following which motion was made for 'a verdict of no cause of action based upon the failure of the plaintiff to make a prima facie case.' This, also, was denied. Defendant having offered no proofs the court thereupon entered judgment for plaintiff for a total of $21,888. Motion to set aside the judgment and for new trial were denied, the court finding that even without the dying declaration, the evidence sufficiently established negligence under the guest passenger act, supra. The appeal was taken upon grounds hereinbefore summarized.

We are presented, once again, with the necessity for interpreting the Michigan version of the guest passenger acts. These acts, passed practically simultaneously as time is reckoned in the law, came to the various states in the late 1920's and early 1930's. Our Court has shared with the other courts of the nation the most extreme difficulties in interpretation. The dissenting opinion (addressed to the claimed emergency) filed in the case establishing the constitutionality of the act ² was prescient of the division the court would know, both immediately ³ and in the years to come, as our Court sought vainly to harmonize the provisions of the act with the principles of the common law. A distinguished student of the law (Prosser, Torts, 2d ed., § 450), after the review of many cases, has concluded that 'the whole matter is surrounded by considerable confusion.' See, also, Florida's automobile Guest Statute, 11 Univ. of Fla. L.R. 287 (1958). Under these circumstances our continued piling of case on case without an examination of the causes of our difficulty can only result in confusion the worse confounded.

Our difficulties with the interpretation of this act arise from an irreconcilable conflict between the provisions of the act and the principles and traditions of the common law, the customs and convictions of our people. Thus, our law has long held that one who undertakes to act must act with a due regard for the safety of others. The fact that no money changes hands is not determinative of this duty or of liability. So it is that the common carrier must, at the common law, show a gratuitous passenger the same care as a paying passenger. ⁴ A doctor must observe the standard of due care, even with respect to a charity patient. ⁵ A rescuer, indeed, must act with all the care demanded by the circumstances, despite the noble nature of his act. ⁶ The shining thread traceable through the tapestry of these decisions is well known to all of us, the value placed by our people upon human life and human safety. The thought requires no elaboration. Our pen can add nothing to its lustre. There it stands, crystal clear, illumined by its own intrinsic radiance.

Hand in hand with this rubric of the common law runs another: the fulfillment of trust imposed. Rightly or wrongly, our law has prided itself that those who put their faith in another shall not suffer unrecompensed harm through that other's falsity or lack of care. It has been our boast that when one entrusts another with life or property relying upon a relationship of trust and confidence, rather than the weapons and guarantees of the business world, a performance of duty the most exacting will be demanded, a conformity not with the arm's length standards of the market but rather the infinitely nicer standards of the hearth and the heart. The authorities we need not cite.

The guest passenger acts changed all of this. The friends of the driver, his family, those to whom he...