Turner v. Buchanan, 7359

• Decision Date: 08 February 1938
• Docket Number: 7360.,No. 7359,7359
• Citation: Turner v. Buchanan, 94 F.2d 723 (6th Cir. 1938)
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: TURNER v. BUCHANAN. SAME v. LAYTON.

94 F.2d 723 (1938)

TURNER v.BUCHANAN.

SAME v.LAYTON.

Nos. 7359, 7360.

Circuit Court of Appeals, Sixth Circuit.

February 8, 1938.

Matthew Davison, Jr., and H. G. Gault, both of Flint, Mich.(Carton, Gault and Davison, of Flint, Mich., on the brief), for appellant.

H. M. Stanton, of Saginaw, Mich. (Doran & Pearson, of Flint, Mich., on the brief), for appellees.

Before HICKS and SIMONS, Circuit Judges, and RAYMOND, District Judge.

SIMONS, Circuit Judge.

The appeal involves the interpretation by the Michigan Supreme Court and the application to uncontroverted facts of the so-called "Automobile Guest Act" of that state, which is section 4648 of the 1929 Michigan Compiled Laws.

The statute so far as applicable reads: "Provided, however, That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought."

For injuries accidentally received by their wards while riding as guest passengers in the appellant's automobile, driven by her son, himself killed in the accident, alien guardians sued appellant in the court below, invoking jurisdiction because of diversity of citizenship.The causes were consolidated for trial.The appellant offered no evidence, but at the close of the case challenged the right of the plaintiffs to recover by motion for directed verdicts based upon the terms of the statute.The issues were nevertheless submitted to the jury, verdicts returned for the plaintiffs, motions by the defendant for judgments non obstante veredicto and for new trial denied, and judgments entered for the plaintiffs.The causes are here upon a single record, and the sole question presented is whether the court was in error in overruling the motion for peremptory judgments.

The right of action by a nonpaying passenger in a motor vehicle against its owner or operator being limited by the statute in derogation of the common law as it had prevailed in Michigan prior to its enactment, Roy v. Kirn, 208 Mich. 571, 175 N.W. 475, it becomes necessary under the Conformity Act, section 725,title 28 U.S.C.,28 U.S.C.A. § 725, to ascertain the scope of the Michigan statute as construed and applied by the Supreme Court, its court of last resort.Actions for damages being limited to those resulting from accidents caused by "the gross negligence or wilful and wanton misconduct of the owner or operator," the connotation of this phrase must control decision.

In its first construction of the statute, Oxenger v. Ward, 256 Mich. 499, 240 N.W. 55, 57, the court, upon a consideration of its purpose and the meaning of the term "gross negligence" as it had theretofore been judicially defined, concluded that gross negligence meant "such a degree of recklessness as approaches wanton and wilful misconduct."However, this language may suggest recognition of degrees of negligence and an appraisal of conduct which approaches yet fails in some degree to reach wanton and willful misconduct, a refinement of interpretation noted by a dissenting Justice as having been urged in Lucas v. Lindner, 276 Mich. 704, 707, 269 N.W. 611, yet it seems clear enough from the later decisions of the court that the entire phrase is single in purpose and import, and was intended to cover only such acts as disclose a willful and wanton disregard of consequences.As was said in Finkler v. Zimmer, 258 Mich. 336, 241 N.W. 851, 853, "If a defendant be guilty of more than negligence, we pass to willfulness or wantonness, and find ourselves entirely out of the field of negligence, for willfulness, wantonness, recklessness `transcends negligence — is different in kind,'" and again in Perkins v. Roberts, 272 Mich. 545, 262 N.W. 305, 306, "The term `wanton and willful misconduct,' as employed in the guest act, differs in kind and not merely in degree from ordinary, actionable negligence, for the term carries more than a `vituperative epithet.'"

The criteria of negligent conduct sufficient to carry a case to the jury in the usual negligence case are inadequate to bring the cause of action within the permissive scope of the Guest Act, for negligence alone, however extravagant the terms by which it is described, fails to meet the requirements of a cause of action under the statute.So excessive speed upon the highway, Wyma v. VanAnrooy, 260 Mich. 295, 244 N.W. 478, 479;Fink v. Dasier, 273 Mich. 416, 263 N.W. 412; driving while intoxicated, Findlay v. Davis, 263 Mich. 179, 248 N.W. 588; failing to stop for a through highway, Oxenger v. Ward, supra; driving when inexperienced, Willett v. Smith, 260 Mich. 101, 244 N.W. 246; or in a bad conditioned car, Grabowski v. Seyler, 261 Mich. 473, 246 N.W. 189; or rapidly upon icy pavements, Balcer v. Pere Marquette Railway Co., 266 Mich. 538, 254 N.W. 198, have all been held insufficient to create a cause of action under the statute.Plainly something more is required — some element of wilfulness or wantonness or utter disregard of known or reasonably to be apprehended dangers beyond the normal hazards of the road.So driving 68 to 70 miles an hour and racing with another car in a dense cloud of dust upon a gravel highway and heedless of repeated warnings of danger, McLone v. Bean, 263 Mich. 113, 248 N.W. 566; driving into a cloud of dust at excessive speed on a freshly gravelled road while approaching a curve, Goss v. Overton, 266 Mich. 62, 253 N.W. 217; zigzagging at high speed from...