Wolfe v. Marks, 51.

• Decision Date: 05 October 1936
• Docket Number: No. 51.,51.
• Citation: 277 Mich. 154,269 N.W. 125
• Parties: WOLFE v. MARKS.
• Court: Michigan Supreme Court

277 Mich. 154

269 N.W. 125

WOLFE

v.MARKS.

No. 51.

Supreme Court of Michigan.

Oct. 5, 1936.

Action by Sadie Wolfe against Herman Marks. Judgment for the plaintiff, and the defendant appeals.

Affirmed. Appeal from Circuit Court, Wayne County; Vincent M. brennan, judge.

Argued before the Entire Bench, except POTTER, J.

Howard D. Brown, of Detroit (Louis M. Dyll, of Detroit, of counsel), for appellant.

Vandeveer & Vandeveer, of Detroit, for appellee.

WIEST, Justice.

The evening of December 19, 1933, plaintiff and her husband were guests of defendant, riding with him in his automobile when there was a blowout of the left rear tire, the car upset, plaintiff was injured and brought this suit to recover damages. Plaintiff had verdict for $9,000 and judgment, by ordered reduction, for $7,000, and defendant reviews by appeal.

Being a guest, plaintiff could recover damages only upon showing that the accident was occasioned by reason of defendant's gross negligence or willful and wanton misconduct. Comp.Laws 1929, § 4648.

Defendant claims there was an absence of such a showing, and therefore the court was in error in submitting the question to the jury.

Plaintiff testified: ‘* * * I judged that we were traveling at a speed of about 50 miles per hour, when I noticed a strong odor of burning rubber at which I remarked, ‘I smell burning rubber,’ and Mr. Marks said, ‘It is the boot in the tire.’ Mr. Wolfe said, ‘If you have a boot in your tire slow down, and let us get out and look at it,’ to which Mr. Marks did not say anything but just kept going. Then Mr. Wolfe said, ‘If you don't slow down we will have an accident.’ Mr. Marks kept going and said that he would stop at a gasoline station. The car seemed to go faster and the odor was stronger, the odor of burning rubber. Mr. Wolfe asked Mr. Marks so stop, and Mr. Marks said he would stop at the next gasoline station. When he got to the next gasoline station Mr. Marks went right on, and Mr. Wolfe asked him to go back and see whether the tire could be repaired there, but Mr. Marks said that he would go in to Mt. Clemens; it was a short distance, and the lights, you could see the lights of Mt. Clemens. After we passed the gasoline station where Marks promised to stop Mr. Wolfe looked at the speedometer and said, ‘You are going 62. Slow down,’ and I said, ‘Please don't drive so fast.’ Mr. Marks did not say anything only that we were going to Mt. Clemens. It seemed to me like we were going between 60 and 65 miles per hour and had gone about a mile or three-quarters of a mile when the tire blew out, the car turned around several times, went up in the air and left the road and then turned over, but I do not know how far from the edge of the pavement.'

If it can be said that this testimony omitted any essential to establish willful and wanton misconduct, the testimony of plaintiff's husband supplied the want, for he said: ‘* * * We went some distance when there was a burning odor like burning rubber that appeared in the car. * * * Marks' attention was called to it and he looked at his brake and said, ‘My brake is all right, it is that boot in the rear tire.’ * * * At that time I said, ‘Herman, if you have got a boot in that tire, you stop your car and let us get out and look at it.’ * * * I said that two or three times. * * * He said, ‘No, I will stop at the next gasoline station and have them look at it, and taken care of.’ * * * Then we approached this gasoline station and I called his attention that there was a gasoline station. ‘Now, go in there and have it taken care of as you said you would.’ But he didn't do that. Then Mrs. Wolfe said, ‘Please, Herman, I am nervous, go back in that station and have it taken care of as you promised.’ And he didn't do that. He kept right on. He said, ‘You can see the lights up there. We are pretty close to Mt. Clemens; it won't take us long to get there. I will have it taken care of at a garage there.’ I said, ‘No, go back. If you don't want to go back, let us out. I would rather walk home, hail somebody or walk home, or hail somebody or a taxi or something rather than to ride in that car with that...