Wyma v. Van Anrooy

• Decision Date: 03 October 1932
• Docket Number: No. 34.,34.
• Citation: 244 N.W. 478,260 Mich. 295
• Parties: WYMA v. VAN ANROOY.
• Court: Michigan Supreme Court

260 Mich. 295

244 N.W. 478

WYMA

v.VAN ANROOY.

No. 34.

Supreme Court of Michigan.

Oct. 3, 1932.

Appeal from Circuit Court, Allegan County; Fred T. Miles, Judge.

Suit by Mary Wyma, administratrix of the estate of George Wyma, deceased, against Abraham Van Anrooy. From the judgment for plaintiff, defendant appeals.

Reversed.

Argued before the Entire Bench.Mason, Alexander, McCaslin, Cholette & Mitts, of Grand Rapids, for appellant.

Diekema, Cross & Ten Cate, of Holland, for appellee.

WIEST, J.

The 4th day of December, 1930, plaintiff's decedent was a guest, riding in an automobile driven by defendant. Defendant, in an endeavor to pass an automobile going in the same direction, collided with an approaching automobile, and, in a collision with still another automobile, plaintiff's decedent received fatal injuries. This suit was brought under the Guest Act (Comp. Laws 1929, § 4648), to recover damages. Plaintiff claims that the accident was caused by the gross negligence and willful and wanton misconduct of defendant. Plaintiff had verdict and judgment, and defendant prosecutes this review.

Plaintiff's decedent, defendant, and others were interested in having a state cemented highway pass their premises, and, at the time of the accident, were returning to their homes from a trip to Lansing where they had interviewed the state highway commissioner. On this account defendant contends that plaintiff's decedent and himself were engaged in a joint venture or enterprise.

Plaintiff made no case under the Guest Act, and we need not determine whether mutual interest in securing a public improvement and efforts in behalf of private desire incident thereto constitute a joint adventure or enterprise.

The testimony most favorable to plaintiff's case shows that defendant, in attempting to pass the automobile ahead of him, did not give due heed to the on-coming automobile and the situation in which it would place him. This was misjudgment or, possibly, judgment so carelessly exercised as to constitute negligence, but was wanting in willfulness or wantonness.

It is claimed that, after the first collision, defendant increased the speed of his car, turned it to the wrong side of the road, and collided with the other car, and plaintiff charges defendant with an attempt to escape from the place of the first accident, contrary to the provisions of the statute (Comp. Laws 1929, § 4722) requiring him to stop, and therefore he was guilty of gross negligence and willful and wanton misconduct.

After the first collision defendant's car started for the ditch at the right-hand side of the road, and he righted it, and then the car went to the left side of the road and to the second collision.

It is claimed by plaintiff that the second collision was at a distance of about four hundred feet from the first one.

The question is whether defendant was guilty of negligence amounting to willfulness or wantonness in his driving after the first collision, and such issue is not to be solved by...