Sun Oil Co. v. Seamon

• Decision Date: 04 September 1957
• Docket Number: No. 34,34
• Citation: 84 N.W.2d 840,349 Mich. 387
• Parties: SUN OIL COMPANY, a foreign corporation, Plaintiff and Appellee, v. George SEAMON, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 840

84 N.W.2d 840

349 Mich. 387

SUN OIL COMPANY, a foreign corporation, Plaintiff and Appellee, v. George SEAMON, Defendant and Appellant.

No. 34.

Supreme Court of Michigan.

Sept. 4, 1957.

Jennings, Fraser, Parsons & Trebilcock, Lansing (Everett R. Trebilcock, Lansing, of counsel), for defendant and appellant.

Best and Falahee, Jackson, for plaintiff and appellee.

SMITH, Justice.

The opinion of the Chief Justice reveals the potentialities of a mechanical and unwarranted application of the doctrine of contributory negligence.

Here we have a drunk driver on Grand River avenue, a heavily traveled, 4-lane, arterial highway. He was driving west. Suddenly, and without warning, he turned to his left, crossed in front of two vehicles attempting to pass him in the passing lane, 'went straight across the double yellow line, and across two eastbound lanes to the curb.' There was traffic moving east. 'I don't understand,' testified the driver of the Mercury station wagon (which was ultimately struck by the plaintiff) 'how this (eastbound) traffic avoided striking the red pickup.' After driving onto the south shoulder, the defendant turned to the north, crossed again all four lanes of traffic, and finally came to a stop in the ditch on the north side of the highway. In the scramble resulting from the recklessness described, three of the vehicles in the westbound lane came into collision.

These wanton antics on a wet and hazardous night resulted in widespread destruction of property and imminent danger to human life. Yet, brought to book, as the erstwhile intoxicated defendant has been, in a court of law by one imperiled and injured thereby it is proposed that we permit him to walk from court scot-free and unscathed because, it is said, his victim was contributorily negligent.

Thus our open invitation to recklessness without retribution. As the drunk careens back and forth across the 4-lane highway he wears a judge-bestowed mantle of immunity. It is fashioned like this: Our statute law says that every motorist must so drive that he can stop within the assured clear distance ahead. All of the surrounding drivers are plain to be seen (there is no allegation of fog, blinding snow, or other impediment to vision) as the drunk driver 'shoots' and 'careens' (the words are the trial court's) across westbound and eastbound roads, not once, but twice. If one of the sober drivers in his original direction of travel (I will call them, for the purpose of differentiation, the 'sober' drivers) runs or skids into a fellow motorist, who, by braking and maneuvering on the slippery pavement, is himself trying to elude the intoxicated menace, he, the sober driver, will collect no damages from the drunk. Why? (1) Because the 'assured clear distance' between two vehicles following each other is the distance from the car behind to the next car ahead; (2) It is clear that the plaintiff's driver (the following truck) did not stop within this distance or there would have been no collision with the car ahead; (3) Since plaintiff's driver did not so stop, he has been 'contributorily negligent,' and, having so offended, his employer cannot recover. In other words, we apply the doctrine of contributorily negligence to shield the very person whose prior reckless acts caused the crisis which gave rise to negligence 'as a matter of law' on the part of plaintiff's driver. This is poor morals, poor government, and poor law all rolled into one, and while we have no primary jurisdiction in the first two fields, we have ample with respect to the third, and I urge that we use it.

1. The Origins of Contributory Negligence.

What is this doctrine of contributory negligence which has lent itself to such distortion? The result proposed in the case before us, the complete release from liability of the intoxicated driver, should shock us into a thorough re-examination of the rule, its antecedents and its application. If the rule demands such a results, if it leaves us no choice but to free the drunk and penalize the sober, then all branches of government having to do with the formulation, enuciation, and administration of law are remiss in leaving our people exposed to its baleful influence. If, on the other hand, the result comes not from necessities of the law but from our own mechanical application thereof without regard to the proper qualifications that we (in the past), and the overwhelming majority of courts have placed on it, the baleful influence comes from us and is within our power to correct. At all events, we can no longer postpone an onerous task. ¹ What, again, is this doctrine of contributory negligence?

The first thing to notice is that it is not, properly speaking, negligence at all. 'Negligence is conduct which creates an undue risk of harm to others.' Restatement of of Torts, § 463, Comment (b). But contributory negligence is conduct which involves an undue risk of harm to the actor himself. Negligence involves a duty to others. Contributory 'negligence' does not. Actually, what we are talking about (Prosser, Torts, § 51) is contributory 'fault,' or contributory misconduct. Only when we get that (fault) concept clearly in mind will we be in a position to apply the doctrine properly to the facts before us.

The dectrine of contributory negligence, its place in our modern law, cannot be understood without a consideration of its time and place of development. Try as we will, we cannot escape the past. It intrudes itself upon us and will not be denied. We must pay it deference lest it betray us into error, and with us our people, and justice itself. It is the fashion with some to speak of this doctrine of contributory negligence as though it were as ancient as time itself. 'It has been a rule of law from time immemorial,' said the court in Pennsylvania R. Co. v. Aspell, 23 Pa. 147, quoted in Harper and James, Law of Torts, § 22.1, 'and is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual default of both parties.' Actually, however, most authorities agree that it came into the English law with the case of Butterfield v. Forrester, 11 East. 60, 103 Eng.Rep. 926 (1809). (Defendant had negligently left a pole across the highway and plaintiff was injured by it, although he might have seen and avoided it had he not been 'riding with great violence.') It came into the law casually, and as casually crossed the Atlantic. It is not a doctrine of great antiquity or dignity. ² It was not, as a matter of fact, introduced in its parent case with any discussion of pertinent principles or weighing of social consequences. (Bohlen, Contributory Negligence, 21 Harv.L.Rev. 233). It was simply stated. It squinted at cause and smelled of the early 'last human wrongdoer' doctrine. Thus the Butterfield court remarked that with ordinary care the plaintiff (who, we observed, 'had been riding with great violence') could have seen the obstruction. Hence, 'The accident appeared to happen entirely from his own fault.' Its ready acceptance, indeed, is in part attributable to its linkage with medieval principles of causation (8 Holdsworth, History of English Law, 459 (1922); James, Last Clear Chance, 47 Yale L.J. 704). But only in part is it so attributable. The more significant factor was the burgeoning industrial revolution. We have discussed heretofore (e. g., Salmon v. Bagley Laundry Co., 344 Mich. 471, dissent 475, 74 N.W.2d 1; Pazan v. Michigan Unemployment Compensation Commission, 343 Mich. 587, dissent 592, 73 N.W.2d 327; Powell v. Appeal Board of Michigan Employment Security Commission, 345 Mich. 455, dissent 462, 75 N.W.2d 874) the impact of the great revolution upon our legal doctrines and precedents as concerned workingmen and their families. But our entire society was affected since the dangers of the new mechanical devices (e. g., the railroads) marched hand in hand with their blessings. Injuries multiplied. Recoveries, however, did not keep pace. The causes of denial were both philosophical and economic, social as well as legal. (Bohlen's Contributory Negligence, 21 Harv.L.Rev. 233, and Malone's The Formative Era of Contributory Negligence, 41 ill.L.Rev. 151). In this pattern of denial, possibly essential thereto, was the doctrine of contributory negligence. On the substantive side it was perfectly consistent with the intense individualism of the common law. But it served, as well, a procedural purpose, for

'By adoption of the doctrine of contributory negligence, a court could, in many cases, find a welcome means by which to control, or even to eliminate, the jury. Specific features of plaintiff behavior, acts or omissions which would be apt to recur frequently in special types of cases, as for instance in railroad crossing accidents, could be handled by rule-of-thumb judgments, soon to be regarded as rules of law, leaving nothing to be considered by the jury. Thus, the issue of contributory negligence came to be 'an ingenious device which gave the court almost complete freedom to accept or reject jury participation at its pleasure." (Turk, Comparative Negligence on the March, 28 Chi-Kent L.Rev. 198, 199).

We will not probe deeper for identification of elements. They are complex and of varying molecular weights. Contributory negligence had arrived, so to speak, together with its brothers in arms, the fellow-servant rule and assumption of risk. We have long struggled with their application to modern society, to an economy and life where, in great numbers of tort actions neighbor no longer sues neighbor for simple personal transgressions arising from individual frictions, but where the action is a concomitant to mass operations and movements of great segments of our society. The struggle has been reflected in both legislative and judicial action. Thus, in a related field, it was the inability of the common law tort concepts to cope with the vast numbers of industrially injured that...