Willett v. Smith

• Decision Date: 16 September 1932
• Docket Number: No. 107.,107.
• Citation: 244 N.W. 246,260 Mich. 101
• Parties: WILLETT v. SMITH.
• Court: Michigan Supreme Court

260 Mich. 101

244 N.W. 246

WILLETT

v.SMITH.

No. 107.

Supreme Court of Michigan.

Sept. 16, 1932.

Appeal from Circuit Court, Bay County; Samuel G. Houghton, Judge.

Suit by June Willett, by Dolphus Willett, her next friend, against Clarence C. Smith. From a judgment for defendant, plaintiff appeals.

Affirmed.

Argued before the Entire Bench.Crane & Crane, of Saginaw (Carl H. Smith, of Bay City, of counsel), for appellant.

Collins & Thompson, of Bay City (Wm. C. Searl, of Lansing, of counsel), for appellee.

CLARK, C. J.

Plaintiff, a child of seven years, sues by her next friend for damages for personal injuries suffered in an accident while she was a gratuitous guest in the automobile of defendant, Smith. Judgment for defendant, notwithstanding the verdict, was entered by order of the court, and this presents the only question in the case, appealed by plaintiff, which is: Was there any evidence of so-called gross negligence or of willfulness or wantonness of defendant to permit recovery under the guest statute, 1 Comp. Laws 1929, § 4648, Act. No. 19, Pub. Acts 1929, no recovery being permitted by the statute for ordinary negligence, so called. The statute: ‘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.’

In the car were plaintiff, her mother, and Mrs. Smith (wife of defendant) with her two young children.

Mrs. Willett, an experienced driver, drove the car from Bay City to near Whittemore, where she and Mrs. Smith exchanged places. Mrs. Smith was experienced in driving her husband's model T Ford, but had driven the car she then had, his model A Ford, but a few times. She drove the car, using the hand throttle, and at a speed of near 25 to 30 miles per hour. She had gone but a short distance, perhaps 20 rods, when apparently she lost her head and lost control of the car; Mrs. Willett grabbed the wheel, told Mrs. Smith to let up on power; the car swayed and went into a ditch. Permitting the car to sway and to go into the ditch, and not then stopping it can hardly be said to be negligence under the circumstances, especially where the driver had lost her head and had lost control. Rather it is a consequence of the prior negligence, if such it be, in attempting to drive without sufficient acquaintance with the method of control of the car and without sufficient experience in driving a car of standard control as distinguished from type of control on the model T. If negligence of Mrs. Smith be conceded, still, under the guest statute, there can be no recovery unless she be guilty of ‘gross...