Waltanen v. Wiitala

• Decision Date: 13 October 1960
• Docket Number: No. 46,46
• Citation: 361 Mich. 504,105 N.W.2d 400
• Parties: Felix WALTANEN, Plaintiff-Appellant, v. Wilmer Wilho WIITALA, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 400

105 N.W.2d 400

361 Mich. 504

Felix WALTANEN, Plaintiff-Appellant, v. Wilmer Wilho WIITALA, Defendant-Appellee.

No. 46.

Supreme Court of Michigan.

Oct. 13, 1960.

Wisti & Jaaskelainen, Hancock, for plaintiff and appellant.

Wright & Zinn, Ironwood, for defendant and appellee.

Before the Entire Bench.

SMITH, Justice.

The point here is a narrow one. It has to do with a directed verdict by the trial judge upon the ground of assumption of risk.

The suit arises out of an automobile accident. The plaintiff, Felix Waltanen, was a passenger in a car driven by his friend, defendant Wilmer Wiitala. The ride during which the accident occurred followed an evening of drinking, and followed, as well, a pattern of conduct that had been established for some time. Plaintiff's statement of facts tells us that, during the spring and summer of 1956, the young men (another friend, Wesley Maki, was included) made a practice of going out together in the evenings in the pursuit of pleasure and excitement: 'They frequented bars and taverns and had a mutual interest in the pursuit of female companionship.'

On the evening in question, plaintiff and Mr. Maki started drinking about 9:30 p. m. in a bar in Toivola, Michigan. They enjoyed beer and whiskey together until about 11:00 p. m., when they were joined by defendant. The 3 friends then drank beer and rum and cokes. Towards closing time they 'were downing them real fast.' As plaintiff put it, 'We were just putting them down the hatch,' trying to beat the clock. When the waitress told them it was closing time they ordered more drinks, two, or maybe three, of rum and coke. They left about 2:30 a. m. with a case of 24 bottles of beer. Defendant drove them to a gasoline station nearby, where they met other friends, and the beer was drunk. Defendant does not remember having anything to drink at the filling station. Other testimony credited him with from two to four or five bottles.

The friends now left the station. Shortly after they left it, defendant increased the speed of the car. Just prior to the accident he was driving at a speed of from 95 to 100 miles per hour, steering with one hand, tuning the car radio with the other, and looking down at the radio. They approached a gradual curve. This particular stretch of the road was wavy and rather bumpy. The right wheels of the automobile left the pavement. In regaining the pavement, the automobile rolled over, and skidded 171 feet on its top. Plaintiff was injured. At the conclusion of all the testimony the court ruled that plaintiff had assumed the risk as a matter of law and could recover nothing.

Plaintiff's appeal argues that the jury should have been permitted to pass upon the question of assumption of risk, stating that 'all of the Michigan cases which have been involved with the question of the legal defense of assumption of the risk appear to have been jury questions,' citing several cases, including Davis v. Hollowell, 326 Mich. 673, 40 N.W.2d 641, 15 A.L.R.2d 1160. In the Davis case we did approve the sending of the case to the jury, but the facts were not as extreme as those of this case. Here, in the trial court's words, the plaintiff entered defendant's car 'with full knowledge of the driver's past record of careless and reckless conduct in the operation of his motor vehicle.' What happened on the night in question, up to the time of the accident, was merely a repetition of what had been going on every Saturday night for some time, getting 'pretty well lit,' driving around the area at speeds up to 85 miles per hour, often while adjusting the radio, all without objection by plaintiff. Moreover, plaintiff knew when defendant first entered the bar that night that defendant was under the influence of liquor,* a condition that could not have improved, with respect to sobriety, as the evening wore on and more drinks were consumed. Despite these circumstances, and plaintiff's knowledge of defendant's driving habits upon previous Saturday nights, plaintiff reentered defendant's car at the filling station and drove with him. He obviously assumed the risk of what happened. There is nothing peculiar about the doctrine of assumption of risk as regards a court's direction of a verdict with respect to it upon defendant's motion. Here, as elsewhere in the law, the question is simply whether or not, taking that view of the evidence most favorable to plaintiff, reasonable men could differ in respect of the question. Dalton v. Grand Trunk Western R. Co., 350 Mich. 479, 87 N.W.2d 145; Glinski v. Szylling, 358 Mich. 182, 99 N.W.2d 637. Upon the facts before us, we agree with the trial judge, we have a very clear case. Verdict was properly directed.

There is a suggestion by plaintiff that assumption of risk is not a defense to wanton and gross negligence, but no reason in principle why it should not be is argued by plaintiff. It is true in Teeter v. Pugsley, 319 Mich. 508, 29 N.W.2d 850, 851, there is a statement that: 'In view of the rule stated in Gibbard v. Cursan, 225 Mich. 311, 320, 196 N.W. 398, defendant's claim of error with respect to contributory negligence and assumption of risk must be denied.' The statement, however, contains an error. There is no 'rule' stated in the Gibbard case concerning assumption of risk. We made this clear later, in Davis v. Hollowell, 326 Mich. 673, 40 N.W.2d 641, in sending an assumption of risk question to the jury. The Gibbard case, we pointed out, Id. 326 Mich. at page 681, 40 N.W.2d at page 644, 'contained no reference or circumstance pertaining to assumed or incurred risk.'

Assumption of risk, of course, is a defense to negligence, whether it be ordinary 'mere' negligence, or such negligence plus 'a wilful and wanton disregard for public safety,' ¹ which go to make up the statutory 'gross negligence or wilful and wanton misconduct' required under the guest passenger act. ² Volenti non fit injuria. Whether the defendant's conduct was reckless or merely casually negligent is immaterial, for the gist of the defense is that the plaintiff took his chances. See 4 Restatement, Torts, § 893. Here the individualism of the common law is once more at work. See Bohlen, Voluntary Assumption of Risk, 20 Harv.L.Rev. 14.

There is an overlap between the defenses of contributory negligence and assumption of risk. But they are distinct--they respond to different considerations and they are different in application. Thus the habitual baseball enthusiast who is, one day, injured by a batted ball, has doubtless assumed this particular risk of injury but could not reasonably be held to have been guilty of contributory negligence in going to the ball game. ³ Should the facts before us be so analyzed as to constitute contributory negligence, plaintiff's case is not advanced, for, although 'mere' contributory negligence is not a defense to wanton conduct, ⁴ nevertheless wanton conduct on the part of the plaintiff will be a defense to wanton conduct on the part of the defendant. The Restatement of Torts puts the principle in these words: 'An actor whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the actor's safety is a contributing cause of the actor's bodily harm.' ⁵ In the case before us the same knowledge of past and present excesses that justified holding plaintiff to have assumed the risk, justify holding him to be in reckless disregard of his own safety, all as a matter of law. As we pointed out in Glinski v. szylling, supra, just as there is a constitutional right to trial by jury, there is also a constitutional right not to have a question go to the jury under certain circumstances, of which this case is another example.

Since the court's decision was squarely placed upon the ground of assumption of risk as a matter of law it is unnecessary to discuss other aspects of the case.

Affirmed. Costs to appellee.

DETHMERS, C. J., and CARR, KELLY, EDWARDS, KAVANAGH and SOURIS, JJ., concurred with SMITH, J.

BLACK, Justice (dissenting).

Building obiter on this sweeping dictum----

'Assumption of risk, of course, is a defense to negligence, whether it be ordinary 'mere' negligence, or such negligence plus 'a wilful and wanton disregard for public safety,' which go to make up the statutory 'gross negligence or wilful and wanton misconduct' required under the guest passenger act.';

the Court affirms another judgment entered on motion in a jury-tried negligence case. Holding that the testimony presents a jury question of liability, I must dissent.

The quoted declaration is too broad, either for textbook or the case before us. The citations proffered in support (Stevens v. Stevens, 355 Mich. 363, 94 N.W.2d 858 and C.L.S.1956, § 257.401) arguably war upon it. ¹ And our remaining precedents (Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398; Teeter v. Pugsley, 319 Mich. 508, 29 N.W.2d 850; Davis v. Hollowell, 326 Mich. 673, 40 N.W.2d 641, 15 A.L.R.2d 1160) flatly deny its application to a case where, as here, the plaintiff guest has made out a case of causally connected wilful and wanton misconduct.

The defense of assumption of risk originated from the contractual relation of master and servant. When judges use the expression in tort actions brought under conventional guest-host statutes, they employ it loosely for what it really is--contributory fault of equal degree. It is a 'form of negligence' (see quotation from Restatement below) some courts have brought forth to meet that situation in guest-host cases where the guest is said to be equally at fault with the host. So far, however, and I submit the cited Michigan cases as proof, ² this Court has properly refused to say that a plaintiff guest can, legally, assume the risk of reckless and wanton, or wilful and wanton, misconduct. We do apply Restatement's rule (Torts, § 482, subsection 2, p. 1262), but that doctrine is not a matter of assumption of risk at all. It is one...