Abendschein v. Farrell

App 662. 11 Mich v. FARRELL. ABENDSCHEIN LIPSITZ SAME.

Opinion of the Court. Overruling Supreme 1. Courts — of Precedents — Court. Overruling precedential laws, origi- ease law as to choice of nally Supreme Court, by decided must be done Supreme Court. Negligence 2. —Choice of Law —Lex Loci Delicti. policy application of automatic of the rule that the law place injury of the determines the existence of cause of negligence action and all of its incidents should be re- light uniformity examined in fact of result longer which was the for the reason existence of the rule is no jurisdictions important objective, many an depart since now application questions, from its striet apply- to choice-of-law ing, instead, place significant the law of the of most relation- ship. Passenger Relationship. Same —Guest —Creation 3. govern The law of New York should a cause of action auto- negligence by passenger against mobile arising his driver host-guest passenger out of accident Ontario where the was formed New plaintiff-passengers York and residents, were York genuine New and where Ontario has no passenger interest whether a New York can recover for the wrongful aet of a driving Michigan host-driver vehicle. Negligence—Gross Negligence 4. Automobiles — —Choice of Law. Whether conduct of negligence gross host-driver constituted negligence is to be determined the law of the where negligence occurred. [1, [3, 4, ^{[2] [6]} 5] 4 Am 7] 20 Am Jur Am 8 Am Jur Jur Jur 2d, References 2d, 2d, Appeal 2d, Conflict Laws Courts 231. Automobiles and and Error § for Points § §§ Highway Headnotes in 73. Traffic 466. § v. Farrell.

Dissenting Opinion.

Levin, J. Appeal Reviewing Appeals. and Eeeoe — Function of Couet of Appeals Supreme await Court bound to decision rule, overruling the law Court outmoded law of of governs injury 'action all incidents a cause of of of negligence; Appeals by overwhelming is convinced Court if of application jurisdic- repudiation strict the rule in other of of question today Supreme passing tions that were it Court approach problem, adopt would another to the choice lawof duty Supreme then its is to the rule it believes the follow adopt. would Court Appeal —Denial of Leave. 6. Same —Leave may grant Supreme appeal decline to Court leave to from Appeals the Court reasons unconnected with its view of for of question presented by appeal. the meritorious Negligence Passenger 7. —Guest —Choice of Law^ —New York —(cid:127) Michigan. summary judgment by provides

Record lower court insufficient Michigan apply- basis decision whether the interests im. for of ing guest statute its automobile to an Ontario accident out- weigh protecting guest passengers, those Yorlc in New of extraterri-, Michigan apply whether statute is not intended to torially, Michigan in which case the common law the lia- of bility guest might passenger a host to his to be of found Yorlc, eliminating identical to that New thus choice-of- question. Appeal Wayne, (Lila M.), from Neuenfelt J. Division November at Detroit. 8, 1967, Submitted (Docket 3,393.) No. Decided June 1968. Leave September appeal granted 30, 1968. See Mich

Complaint by Abendscbein, Earl for bimself, tbe estate of Leona Abendscbein, executor of de- guardian of Darrell ceased, Abendscbein, a guardian Penny Paul Kanter, as minor, Lipsitz, against a Eobert Farrell and minor, Dietrich Leasing Michigan corporation, Incorporated, for 11 Mich

damage wrongful personal injuries for death and Judgment an automobile for accident. defendants. appeal. Plaintiffs Affirmed. plaintiffs. Charfoos, é

Charfoos Alexander, Conklin, Buchanan & for defendants. Mich- Farrell, J. J. Defendant Robert H. Gillis, igan Michigan-licensed resident, was the driver of a automobile over which went out control and rolled proceeding highway a number of times west on while 401 in Dietrich poration Defendant Ontario, the Province Canada.

Leasing, Incorporated, cor- principal place its business Wayne county. owner the auto- Dietrich was the being mobile driven Farrell.

theAt time of the misfortune in Farrell Ontario, was en from Buffalo, York, Detroit, route New taking through most direct him his route Ontario. passengers 3 automobile, There were of whom were New York residents: Leona Abend- schein, Farrell’s all Lipsitz. Penny Darrell and years Leona was killed in Darrell, the crash. Penny, years severely injured. old, old, and were Plaintiff Earl Abendschein was the of husband personal representative Leona and is the of her guardian estate. He also sues as of Darrell. Plain- Penny. guardian Appoint- tiff Paul Kanter is ments were made and letters were issued for the New York courts. brought

Plaintiffs this action in the circuit court Wayne county alleging'that for Farrell defendant operated grossly negligent the automobile in a man- disregard ner with reckless and intentional of his safety passengers own guilty and that of his and was particu- misconduct. In

of wanton and wilful v. Farrell. Abendscüein the Coukt. alleged excessive Farrell consumed it is lar, driving and before while alcohol of both amounts safety driving indifference to a conscious plead passengers. that Farrell Plaintiffs of his speed an excessive rate automobile at drove his protesta- curves) per over the hour around miles passengers, down on refused to slow his tions their demands. summary judgment in the moved for

Defendants upon plaintiffs’ failure to a claim court for state trial (G-CR 117.2[1]). granted 1963, which relief can be urged lia- motion that the issue defendants’ bility governed Ontario, the law must wrong. (Ont statutes Rev Stat of the Ontario c passenger 172, § ^[2] [1960]) deny recovery gratuitous injured negligence who is a result of the allega- gross negligence No or the host-driver. gratuitous guest- tion is made that this was not meaning passenger relationship within the statute. Ontario argued they

Plaintiffs trial con- court, in the gov- appeal, tend on this that Ontario should guest- liability ern the issue of of a host-driver to his passenger. against recovery New York allows ordinary negligence (Babcock for Jackson host [240 12 NY2d 191 NE2d [1963], NYS2d 1]), recovery ALR2d allows injuries gross neg- to the sustained due driver’s ligence or wilful wanton misconduct, OLS (Stat § 9.2101). § Ann 257.401 1960 Rev Under Michigan, plaintiffs New York law of either good cause action. stated judg’e summary granted The trial the motion for (1939), judgment authority the on of Kaiser v. North 292 Mich the To be sure, dismissed action. years ago, appear to Kaiser, decided some 29 does 11 Mich the Court. present compel and to case, be on all fours the by trial reached court. result Michigan driving Kaiser, In were two residents in where in Ontario their automobile was involved Supreme affirmed accident. The Court the sum mary place holding first, that law of the dismissal wrong governs (the delicti) of the ond, lex loci and sec Ontario statute did not contravene the public policy Michigan. pre of the State This governs responsibil cise of what law guest issue the host’s ;to ity questioned his been has not since 1939.1 Goldberg Koppy (1962), In Tool & Die Co. spoke governing Mich law 469, the'Court terms of guest-passenger actuality the before but had only question of whether defendant was it. negligent under the law Tennessee. The Court apply passen duty did Tennessee law to the owed the ger by reading host, her but a careful will disclose problem that' the was not or choice-of-laws raised decided.

Thus innumerable cases the Court has said that relating- right matters to the action, existence of a governed that is whether a cause of action are exists, by place wrong, law the but, inas Gold berg, only negligence decided that the issue of is de wrong. termined law of the Leebove (1961), v. Rovin 363 Mich Blake 569; v. Brama (1955), Slayton Mich 27; v. Boesch deciding Mich 1. In other the Court was cases, applicable governing rights substantive brought foreign suit under a statute, v. Bes Summar Manufacturing ser Co. 310 Howard 347; Some of authority, referring it much of to the decision, appear Kaiser would rule principles broader than those actually Language before the plagued Court. has this area of the especially 'law when spoken “right” courts have terms “remedy.” An language illustration of this problem pointed out concurring opinion Browning (1967, Miss), v. Shackelford 196 So 2d Abenbschein v. Farrell. Opinion the Court. 415; Pulver 329 Mich Yount v. National (1950), Mich 342. Bank Jackson Jennings (1949), In 326 Mich 146, Bostrom v. place wrong the law of the held that

Court question governed plaintiff-passen- of whether ger joint with the was a adventurer A driver-host. reading careful choice-of-laws of this case will reveal that

problem ques- was not decided. The already tion had before it the Court assumed the and the foreign applicability law, substantive whether the a mat- Court decided was procedure ter of local substance under law. post-Kaiser Michigan Reviewing authority, only we that the cases in which the find Court was upon conflicting called to make choice substan- foreign in which the tive were those standard of applied to a is, conduct was suit. That firmly to the notion that we committed the sub- are wrong being upon sufficiency stantive sued alleged constituting wrong of the must be facts governed by place wrong. the law of the of the While governing rule of laws, other cases recite broad they necessary mere and were not were recitals conflicting any choice of laws. resolution of North, specifically itself does The case of Kaiser v. conflicting problem. choice-of-laws Its hold- decide distinguished pertinent ing cannot be from the issue present that the case; is, in the law of the rights wrong governs and duties between passengers, fortuitously hosts and who nonresident happened wherein the accident to be in the state attempt distinguish Plaintiffs do occurred. merely present criti- and ask this Court case, presently being step Kaiser out of rule of cize the jurisdictions. If Kaiser is to be over- with other Supreme function of the that is the iuled, to be sure Court. Apt? 11 Mioií op the Court. any authority

Kaiser is not based on which re- today, although operative and, mains viable facts present indistinguishable in the Kaiser, have case are from policy facts on which that decision rested changed radically intervening years— in the might question so much so one that whether we are deciding problems even situation. the same raised the Kaiser emphasis comity might on

Kaiser’s lend support argument longer to the that that case no authority. stands as Michigan predating

Kaiser and the decisions expressed case reveal that our Courts have never independent analysis or reason for the rule therein stated. Lex loci delicti was the universal rule among jurisdictions universality appli of only cation made the rule not in desirable terms of predictability, but almost automatic as well, with no being presented alternative rules to the courts. The authority to in referred Kaiser included Restate § ment of the Law, Conflicts, 388; 15 CJS, Conflict pp Laws, of §§4, 12, 865, 899; Beale Conflicts, § (1st ed) p 378.4; § Goodrich on Conflicts 92, 188; only Michigan authority case cited as was Berger Eskovitz v. Berger point

Esl&ovitsv. well is illustrative of the simply the lex loci delicti rule had come to be accepted Michigan, apparently because it was, at general only that time, the if not the rule available. Michigan injured In Esl&ovitstwo residents were an automobile accident which occurred the State by guest recovery passenger Ohio. Ohio allowed showing negligence. ordinary on a The Ohio stat- govern Michigan was held to ute lawsuit. Although language opinion of the Esl&ovits is phrased all-encompassing, sweeping choice-of- language (“all relating right laws matters to the governed by action are laws Ohio,” Mich v. Farrell. the Coukt. 540) with a choice-of- did not deal the decision question. was de the time Eskovits Even laws being auto delicti was of lex loci the doctrine cided, noteworthy applied matically It in this State. raise in Eskovits not even did brief that defendant’s question.2 automatic was choice-of-laws So wrong application of the law of the ap appeal only were whether issues on defendant’s policy public plication law contravened of Ohio negligent defendant was and whether under law. Ohio

Through of the broad lan- the unfortunate use guage pointed has come to above, out Eskovits something leading case in this State be cited applicable governing tort actions. on choice of laws misappli- Case, in the Kaiser unfortunate Thus questionable foundation cation of Eskovits formed for the decision.

There were other cases besides Eskovits which prior Kaiser, were decided but like Eskovits did actually decide the issue before Court Why authority is Kaiser. Eskovits was chosen only curiosity- now historical were cases —other point dic beside but Eskovits was unfortunate pre-Kaiser decisions, tum. Of these the bulk deal applicable with the to the standard of conduct uni or the substantive elements of the tort. It was accepted versally seriously dis and would not be puted today that the measure of is conduct deter wrong, law of the Stahl mined (1936), Meyer v. Bell 276 Mich 37; v. Weimaster (1933), (1936), Mich 262 370; Edison v. Keene Mich port and in Perkins Central Trans 611; v. Great

Corp. (1933), 616, 262 Mich a similar decision 2 Supreme Term, Briefs, Court Records and April 1936, Docket No. Arp 11 the Couet. foreign local on

was law contribu- dictum since tory negligence same. were tbe Transport Corp. v.

In Hazard Great Central (1935), employ 60, 270 Mich Court did some might language which indicate choice of laws for governing legal relationships having- incidents Michigan. Again, had some this with contact however, language dispositive dictum, was issue appeal jury’s sup on whether the was the verdict was ported by evidence. In its dictum the decision Young (1933), cites the case v. Masci US (53 S Ct 77 L Ed 599, 88 ALR which merely decided whether New York could constitu apply ownership tionally Jersey its statute to New bailor of an automobile involved in accident in Young supports New York. a broader multistate legislative jurisdiction applica wider choice of —a ble laws rather than a narrow choice of laws formula. early Michigan

In two and “venerable” cases the Supreme applied injuries Court law to Canadian occurring they On facts, however, Canada. distinguishable are from the case at bar and from Kaiser, and were not cited in the Kaiser In Case. Wingert Wayne Judge (1894), Circuit 101 Mich plaintiff’s decedent drowned Canadian waters allegedly negligence due to defendant’s in Canada. Michigan nothing relationship, had do injury understandably, or the accident, inapplicable. Court held the statute It doubtful whether a different conclusion could have been Company reached. See Home Insurance Dick US S Ct 74 L Ed 926, 701). early 74 ALR The second of these cases is Turner v. St. Clair Tunnel Co. 111 Mich 578 134). LRA A workman the tunnel was in jured working when he was on the Canadian side. super- held was It whether actions the his Abendschbin v. Farrell. Opinion op the Court. negligent failing supervise properly visor in were to question Again, was a under Canadian law. the is measured law conduct of the of the wrong. indulged this extensive

We review of Michi- gan authority point only to out Kaiser is the question in decision decide the of what governs legal (the law incidents standard of owed) duty relationship having care or of a con- jurisdiction. tact more than one Kaiser stands Michigan authority alone with no before or after its coming support. decision to its The decision itself purport making merely does not to be law but to be following Those established rules. rules are not only today, contrary unsettled but are to the modern very If if so, trend of decisions. this is founda- longer tion facts on istent, to control Kaiser which rests are no ex- why then we cannot see Kaiser should be held new of foundation set facts. (§ 378.4) The citation Beale on Conflicts express prevailing Kaiser did lex loci delicti rule day. printed Professor Beale’s work was reporter the author was also the for the American Law Institute’s Restatement of the Con (section flict of Laws 388 of the Restatement was Kaiser). longer cited in Beale’s work would no acceptable to the American Law Institute whose proposed expressly repudiates Restatement 2d original partially upon view and that relied Kaiser. See Restatement 2d, Law Conflict Proposed (May of Laws, Official Draft following reporter’s §§ 145,3 1464and comments and notes. rights 3“(l) parties respect and liabilities of the -with which,

issue tort are determined local law of the state issue, significant as to that has the most to the occur parties principles rence under and the stated 6.§ “(2) in applying principles Contacts be taken into account pf applicable determine to an issue include: § the Court. (1st ed) on Conflicts to Goodrich The reference proposition supported lex loci the doubt no governs matters relative to the to all delicti 1964) (Scoles, of Goodrich right. 4th edition evolution of choice-of- the dramatizes on Conflicts intervening years, concepts and the this over laws longer supports a no me- of the work later edition aspects application all loci delicti to lex chanical (p 165) section 92 tort case. See of the multistate seq.: et recognition law the which the “Frank determining guided the in tort issues

forum is significantly the state which is most is that of cases related sults issue will the mechanistic re- the avoid past. this area in the have characterized required perhaps will make and to ar- Courts pertinent policy ticulate that will en- considerations develop our able common-lawrules to commensurate growing complexity the with of multistate torts.” (Id, pp 167.) section 92 at § p The citation to Laws, 35, CJ, Conflict (now obsolete), 15 CJS, and Conflict of Laws pp §§ general 4,12, 865,899, did reflect the view it publication existed 1939, the later vol- date of the expressed Corpus ume. The Juris, however, view point prevail- as we shall out, the collection but “(a) occurred, place injury the the where occurred, “(b) causing injury place the the where the conduct “(e) incorporation domicil, nationality, place residence, the place and parties, of business and the “(d) any, relationship, between the where the if parties is centered. according “These are to be to their relative contacts evaluated importance respect particular with issue.” personal “In of the state injury, for a aetion local injury rights liabilities where occurred determines respect issue, parties, unless, particular some other significant state has more to the occurrence will be parties, state which- other event local law of applied,” v. Farrell. Opinion op the Coukt. jurisdictions ing amongst the views which dras- has tically dramatically changed years. in recent

The Kaiser decision further cites the case of American Banana Co. v. United Fruit Co.

213 US 347 Ct 53 L S Ed for the proposition that: “the character of an act as lawful wholly by or unlawful must he determined the law country where the act is To sure, done.” be agree foreign we that whether or not in a activities jurisdiction wrong constitute a substantive should governed by jurisdiction. the laws of that That say, is not to however, that the territorial limitation application of a state’s laws limits its of own its issue with laws which it has a substantial and legitimate legislative interest. Given the multistate imposes interest, American Banana no choice-of-laws respective mandate on the states, Richards v. United States 492). 1US L S Ct 7 Ed 2d Such legiti rules, choice-of-laws within the limit of governmental mate interest in the matter, have been and remain policy a matter of internal of the re spective supra. states, Richards, inescapable

We are left with the conclusion that independent Kaiser was analysis not the result of based on facts similar to those now before us. No- inquiry where in Kaiser is why made as to the law place wrong of the invariably govern should by parties the standard of care owed to a relation- ship primarily based in a state other than that in injury which occurred. conclude We that a nec- ingredient essary of the Kaiser decision was that application any of lex loci delicti toas and all relating right issues universally to the was ac- cepted country. rule in this What should the re- sult onbe very re-examination of Kaiser when the universality predictability essential fact of are longer appears no existent? It to our minds that Api> 11 Opinion- the Court. longer governs a fact situation which no ex-

Kaiser present including case, ists. Under the facts necessarily part jurisdictional which are facts Supreme any rule, or choice-of-laws our conflicts write a clean slate. No Court should the issue of choice-of-lawsamid decision has decided a apply family sovereignties who chosen sister place significant

the law of rela- most tionship particular question. issue

In Reich v. Purcell 67 Cal 2d Rptr Cal P2d the California court rejected forthrightly lex loci delicti rule favor approach of the more significant relationship. flexible modern of most Traynor, writing Justice for the court, stated: jurisdiction jurisdiction departed “As after had place wrong from the trolling involved law the of the as the con- regardless law tort cases, of the issue * * * longer that law no affords even general application a semblance of the that was once thought great to be its virtue. We conclude the the wrong necessarily

law of the applicable courts brought law for all tort actions in the this state.” predicated “gen We believe that Kaiser was on this application” eral having disap and that the reason peared present from the simply case, that decision is longer applicable. legis no Ratio est anima; mutata 5 legis ratione mutalur et lex. longer

Indeed, the lex loci delicti formulation is no general application. Nearly" every jurisdiction6 5 In paraphrase, mildest this maxim familiar principle reflects the that when the changed, reason the law changed. is the law is also Steger See, also, (1958), 140, v. Blanchard 353 Mich 6 only jurisdiction recently The upheld ap- to have the automatic plication Maryland, of lex loci delicti is appeals where the court of- considered the legislature. abandonment of the rule to be for King v. (1966), White our (223 244 Md 348 763). A2d Insofar discloses, approach research unique. this is 675 v. Farrell. Opinion op the Court. which has recently considered the choice-of-laws is sue departed multistate torts has from the lex loci delicti formulation as to applicable pre law. The cise language and rules adopted these jurisdic tions vary exact content but are unanimous a rule of seeking will governing which jus do particular tice case and vindicate the state’s policy having the most significant particular issue the case. Purcell, Reich v. supra;7 Babcock v. Jackson 12 (1963), NY2d 473 (240 NYS2d 191 NE2d 743, 279, 95 ALR2d 1); 8 Wartell v. Formusa 34 Ill 2d (1966), (213 57 NE2d Balts 544); v. Balts 273 Minn 419 (1966), (142 NW 2d Clark v. 66); Clark 107 NH (1966), (222 351 A 9 2d 205); v. Air Lines, United Inc. (1964), 10 Griffith (203 416 Pa 1 796);11 A2d ellk v. Sarahson (1967), M 49 226 (229 NJ A2d 625); Wilcox v. Wilcox (1965), 12 26 Wis 2d 617 (133 408); Merchants NW2d National Bank & Trust Fargo Co. (DC v. United States ND, F 1967), 272 409; Supp Casey v. Manson Construc & tion Engineering Company (1967), 247 Or 274 Wessling (428 P2d 898); . Paris (Ky, 417 v 259; SW2d Williams Rawlings v. Truck Line, Inc. (CA DC, 1965), 357 F2d 581.13

Concluding then, do, as we that every vestige of reason for the Kaiser decision has been stripped 7 see, Emery California, In also, Emery (1955), v. 45 Cal 2d 421 (289 218). P2d 8 Dym Other New York (1965), decisions include v. Gordon 16 (262 Macey NY2d 120 792); 209 NYS2d NE2d v. Rozbicki (1966), (274 18 NY2d 380). 289 NYS2d 221 NE2d 9 Following the now famous Minnesota of Schmidt ease v. Driscoll Hotel, (1957), Inc. 249 (82 365). Minn 376 NW2d Another case applying wrongful Myers the law of the conduct v. (DC App, 1967), Gaither A2d (1966), And v. 506). Dow Larrabee 107 NH 70 A2d especially significant decision is when viewed Griffith Kilberg Airlines, comparison with Northeast Inc. 9 NY 526). 2d NYS2d 172 NE2d Koplik Trucking Corporation Also C. P. NJ 1 34). (141 A2d recently, (CA Roscoe DC, More Roscoe 379 F2d 94. 11 Mich the Couet. it now decide which law

away, remains to should govern the issue of owed host-driver to his duty More we must ana- guest-passenger. particularly, lyze of respective Ontario, interests New York resolving this issue which of those interests will be of by application served that jurisdiction’s substantive rules.

The sole issue on is appeal duty this attached to a created legal relationship and consummated in New York. We believe State’s law should gov- ern the duties and liabilities imposed through relationship. North, Kaiser supra, which we are obligated follow, compels contrary conclusion. But to our minds it seem only logical would not to subject a one-time legal host relationship such to a of multitude passenger legal incidents, unantici- pated by parties, virtue of solely by crossing states’ lines. Jackson,

Babcock v. supra, explicit on this point. There, New law was York held to govern the issue of owed a New duty York driver to a New York passenger who were involved in an automobile accident while through Ontario. passing opin- The ion talks both about the most significant relationship owed, the issue and a duty “grouping con- tacts” approach to at a arriving choice of govern- law. This has ing led to uncertainty the minds some whether the test Babcock is a quali- tative appraisal respective states’ interests aor (quantitative) mechanical counting grouping of relevant contacts. See L comment, Va Rev later in Dym decision v. Gordon (1965), 16 NY2d 120 (262 463, 209 NE2d 792), NYS2d would make it York appear identify New will the most significant quantitative terms of a contacts. counting Dym, Thus two New York residents met in Colorado and were traveling 677 v. Farrell. the Court. Although occurred. the accident in when that State host-passenger in more interest had no Colorado liability Babcock, Colorado than had there Ontario apparently govern liability issue was held to law greatest of contacts. had the number it because appear run- thread to be common There would placed weight being great through ning cases of these legal relationship in- whose situs on the initial cidents are place where that rela- issue, tionship was created. Hamp- comparison found in New can be A similar (217 NH 70 Larrabee

shire. In Dow v. Hampshire Massa- resident went New A2d Hampshire pick up resident another New chusetts staying On the in Massachusetts. who had been parties trip while the the accident return occurred Although the New were still in Massachusetts. significant Hampshire applying most was court law was held to Massachusetts’ formula, interest guest-passenger govern re- there the it was because supra, decided Clark, created. In Clark v. lation was Hamp- year by court, New the same two later point driving in that one shire were from residents through they passed state another when Vermont. and the law Vermont, The accident occurred guest- required gross negligence for a that State guest- passenger Clark, In however, the action. passenger Hampshire relation arose in New govern. State’s law held was many dealing cases with the issue of intra liability governed by familial been likewise relationship, Emery the law of the situs 218); Emery (1955), 2d 421 P2d War Cal supra; supra; Koplik Formusa, Balts Balts, tell v. Trucking Corporation C. v. A2d P. 27 NJ 34). Although explained that the on the basis significant domicile state has the most interest Opinion op the Court. relationship (Wartell, supra, family 34 Ill 2d 545]) [213 it is not unlike other NE2d 57, may legal relationships which exist within the state gist, believe, aside from some we as well. The what family exceptional law, is that the nature relationship legal in which incidents of a state significant primarily in are situate has the most governing for choice-of- terest purposes. logical to the believe this be better and more We duty of law to this of a choice issue host’s to his guest. Defendant Farrell went York into New guest-passenger relationships there the were formed. parties reasonably anticipate, begin- All could on trip ning the from Buffalo to that Detroit, New might govern rights York’s the incident to that relationship. decision, any do not rest this We pretense aof contract made Buffalo to relative carriage agreement, to Detroit. There was an agreed which however, defendant to a become passengers agreed host-driver his to ride with agreement, consequently him. The the rela- tionship, was born in New York and was a creature parties contemplated New York law. If the had governing inception law at the of their relation- ship, showing, only say, contrary we can in the of a absence they contemplate application would say of New York’s rules. We cannot that under such arrangement parties an York these New would have contemplated application of Ontario or Michi- even gan relationship. might imagine to law their One surprise of a New York resident a out for ride over he where Ontario now finds out that his driver indulge in the is free most wanton misconduct liability. without fear genuine no Ontario has interest a in whether New passenger wrongful York can recover for the acts Farrell. Abendschbin the Court. driving Michigan Michigan vehi- host-driver, óf policy statute behind the Ontario involved cle. prevent fraudulent and collusive case was in this gratuitous against Bab- host’s insurer. See suits supra, citing Jackson, at 1 article Toronto LJ cockv. (1936); L Rev 459. On- see, also, Columbia policy nor will be neither served thwarted tario’s present imposition liability in this case—a being sim- Canadian insurer involved. Ontario ply no in the of this has interest resolution issue good why no its should and there is reason laws ignoble purpose in this'case. such serve Because we do not believe has responsi- significant relationship Farrell’s most ques- passengers, bility we need not reach to his apply its would free to tion of whether this State liability. Home Insur- rules See substantive .own supra. Dick, ance Co. primary conduct has the interest Ontario highways taking province. on the and roads within accepted generally

It is wrong, i.e., whether the conduct consti- substantive gross negligence, negligence law of the tuted wrong governs. Jackson, Babcock v. supra; supra; Purcell, Williams v. Rawl- Reich v. supra. ings Inc., Line, interest Truck Ontario’s aspect prime. The decisions of the case is this question will have considered this which State application support law to determine of Ontario tor- was Farrell’s conduct whether the defendant tious. empty remains North, shell, however

Kaiser urge creating by its tribunal. "We destruction its are lex loci delicti and dictates of look at the fresh pursue In hopeful plaintiff will so his cause. we re-examined share have this rule our desire Judge expression Toms, M. Robert of the late [juné 11 the Court. precedent, speaking duty to he of his stated when, Company (as quoted Janoss in Detroit Edison 614): 350 Mich [1957], “ hopes petitioners fervently court ‘The appeal that it will be his decision and this case will Supreme definitely promptly reversed join court will a host of in which Court event ” dancing in the streets.’ others appellees.

Affirmed. Costs j. with H. J., concurred J. Giulis, Quinn, my agree (dissenting). P. I broth- J. Levin, loci lex delicti is obsolete. ers that doctrine of reviewing principal disagreement concerns our Our merely my opinion, Michi- In because the function. gan formally repudiated Supreme lex has not Court decision if are us to await its we loci does bind question today passing on were it convinced Supreme adopt approach would another the to Court problem. choice-of-law fully Judge opinion demonstrates Gillis’ re- free to felt themselves courts which have thosé repudiated question lex loci delicti. examine the today authority in America of laws “No conflict agrees old should be retained. See, that the rule Ehrenzweig, g., Han- Cavers, articles texts and e. Reese, Rheinstein, Trautman, Leflar, Morris, cock, Traynor, Weintraub, Mehren and to mention von only American court which has felt free a few. No thoroughly in dec- the matter the last to re-examine old rule.” Clark v. has chosen to retain the ade 207). A2d NH Clark Supreme for the same Court, I am convinced our compelling influenced courts that have reasons 681 Farrell. v. by P. J. Levin, Dissenting Opinion will loci, lex abandon jurisdictions numerous given opportunity when conclusion reach same do so. we as this case to decide I it our duty conceive decide would Court Supreme believe confidently it.1 1943), 1 Service, (CA2, 139 Spector Motor Inc. v. Walsh See Service, Spector Inc. grounds Motor 809, 814, remanded on other

P2d v. where, 101), McLaughlin 152, L Ed (65 S Ct 323 US Judge panel, circuit majority of the second speaking for a Clark wrote: story duty “If whole or if our were limited that were the further analogy reported and picking unoverruled cases to following the closest blindly mechanically, these and should hold that that we cases, case, all particularly Alpha had foreclosed Cement story; is far from the whole further discussion. But trends noted above mentally gone specific further in eases funda several in divisions States Su close to this and [United itself, certainly significance in preme] not without Court which are forecasting And our function eannot the future eourse of the law. must deter precedent. We limited to a mere blind adherence to powers are best exercise our mental which we with the mine probability applied capable litigants covering which in all will be to these similarly others situated. If this means the dis or to Court, applying of a ‘new doctrinal trend’ Corp. 208, 217, 218, (CA2), Perkins Endicott Johnson 128 F2d 339, L task ed this is our affirmed 317 US S Ct direetly performed straightforwardly, rather than ‘art to be Changing fully’ dodged. Prece The Attitude L Lower Courts to 1448, recently dents, 1459. As was said with rare 50 Yale J Judge issue as to the con prescience Parker the controversial flag stitutionality and required salute: ‘Under such cireumstanees do, flag required believing, as salute here is viola we holding religious liberty required persons religious when tive duty plaintiffs, feel that we would be recreant to our views of we through following judges, blind of a decision which the if authority, impaired Supreme has thus as an we should Court itself among regard deny protection rights we the most sacred which guaranties.’ Barnette West protected constitutional of those Virginia (DC Va), Supp W 47 F Board Education SD State 1628).” (Em L Ct ed 319 US S affirmed supplied.) phasis majority’s prediction of how the United disagreeing with the While Judge presented, Supreme there Court would decide ease States agreement expressed nevertheless his Hand dissent Learned statement, (p 823) : foregoing quoted when he said say embarrassing the yet always for a lower court to whether “It higher court, disregard of a decisions has come to time overruled, they parallel higher in which the explicitly because others agree contrary I should not expressed view. that one has court Mici-i Dissenting Levin, P. J. our with the best exercise of determine must “We capable powers that law of which we are mental applied probability all will be to these liti which in * * * similarly gants or to situated. others changes plainly the fore- wait for formal retraetion in face of may higher shadowed; ease before In appeal the an in the court entertain court, parties may appeal. the lower or the not ehoose to judges the will which the do either event actual decision be one higher to be not believe that whieh court would 'make. But yet nothing is making appeared and, bar has which -satisfies me that the case at said, kind; good I I no of as can reason for that see any activity distinction between one kind federal and of quite way direction, out is in another and includes another. is it desirable for a lower court both. Nor to embrace the exhilara- anticipating may ting opportunity of doctrine whieh be in the time, distant; contrary but birth is I womb of whose conceive duty divine, can, is it measure its to as what that the best would appeal (Emphasis sup- an in the ease it.” be the event of before plied.) City Manufacturing See, also, Company Putman v. Erie (CA5, 911, 921, 923, 1964), Judge F2d where Wisdom wrote: problem presents troublesome, “The Erie this case is but is not problem as troublesome confronted First in Circuit Emery Works, Wheel (CA1, 1957), Mason American v. 241 F2d plaintiff, employee an 906. defendant In that ease the aof subvendee of the manufacturer, injured emery was when dis wheel integrated. Mississippi supreme law controlled. The court of Mis sissippi unequivocally Myers in had held Ford Motor Co. v. (117 in 151 Miss 73 So and cases, number of earlier privity prerequisite recovery against was a manufacturer. Nevertheless, basing its decision on in a dictum a later case in other the evident trend states started MacPherson v. Buick (111 [(1916), 1050, Motor Ann Cas 1916C NY 382 Co. NE 696, LRA 1916F 440)], dispensed the court necessity with the * * * privity has “This Court supreme same deference for the Texas court Judge Magruder Mississippi supreme that Mason v. American had court Emery Echoing Wheel Judge Works. Magruder 906, 909], F2d we conclude 'gratuitous it would be [241 forward-looking unwarranted’ assume that supreme court of Texas, Sons, Decker E. Inc., Capps which Decker [Jacob v. & 828, 139 Tex SW2d 142 ALR 1479)] was one of in the the leaders that assault on the privity, citadel of would hold now privity required eases, is in nonfood 'when we bear in mind the courts, other jurisdictions readiness that, conservative at holdings overrule their earlier bring jurisprudence their into accord with what is overwhelming weight now the authority’.” (Emphasis supplied.) Chrysler Similarly, Corporation see Necaise v. (CA5, 1964), 335 F2d 573: Farrell. Dissenting Opinion by Levin, P. J. “The measure lower is duty [a court’s] to di- best it can, what would be the vine, event of an it.” appeal case before [Quotations from Clark and opinions Judges Hand Spector Motor Service, Inc., Walsh, supra, footnote 1, pp 814, 823.] “It is supreme difficult for us to conclude that eourt of Mis-

sissippi would now hold that a danger- automobile not a defective instrumentality per (Emphasis ous supplied by se.” court.) See, also, Judge Woodbury’s dissenting opinion in United States (CA1, 1945), v. Girouard 149 F2d reversed 328 US 61 826, 1084) L ; Corporation S Ct 90 Ed Picard United Aircraft 1942), (CA2, 632, 636; 128 Son, F2d S. C. Johnson & Inc. v. Pal 1958), mieri (CA1, 88; 260 F2d v. Denver and R. G. W. Maxfield (1958), (330 1018) R. Co. 8 ; Utah 2d 183 P2d Watts v. Pioneer Company, (CA7, Corn 617; Inc. 343 F2d Gardella v. Chandler (CA2, 1949), 402, 409, Judge opinion. 172 F2d Frank’s The reader will observe that the eases in cited this footnote can by that large distinguished be ground from the at bar ease on the changes controlling the in law in dealt with the cited cases by opinions highest either were foreshadowed other of the Court jurisdiction (i.e., itself or concerned the law of another conflict of diversity eases), laws or in Federal which latter situations there obtaining way opinion was say The no the of the Court with the final adopted in the deeisional trends some of the cited eases. although valid, opinion my distinction in of only noted weakens authority, persuasiveness analysis in not the cited cases. concurring Compare opinion of Mr. Justice Frankfurter Bern Poly graphic Company (1956), 198, hardt America 350 US 280, 209, (76 273, 199) S Ct L Ed : 210 100 “For the mere fact that Vermont in 1910 its restated old law denying against equitable promise relief for breach of a to arbitrate law, hardly a contract made under such Vermont ground is a conclusive attributing Supreme to application for the Vermont Court equitable of this doctrine 1956 to a contract made in New York agreement by explicit parties with which law of New York stay sought, practice sueh a as was here New allows York civil act, 910, and that law is 1451, govern. Perry, should Brown v. 104 66Vt A § Cf. 1294). change circumstances, ALR Law does times and merely through legislative It is to not reforms. also be noted is Reports, not to what found Law or restricted other Browning Nashville, St. L. R. See C. Co. v. wise written. & 1254). L Supreme Ct on this matter ed S Court US spoke last in 1910. The doctrine that of Vermont indigenous peculiar a not Vermont rule. The it referred was century nearly ago half decision a was attitude refleeted ousting judicial hostility against courts, traditional as the current the jurisdiction.” ran, phrase of their Michigan Supreme Court did not lex here. The invent Likewise Michigan, adopted in without consideration It was loci delicti. [Juno 11 P. J. Levin, Dissenting Opinion most our course, circumspect be should, We a declared previously concluding analysis before followed today. no be We longer would rule Court’s Supreme intrude on not properly may inject attempt- view subtly personal function law. But where the governing replacement ed rule here, that a overwhelming, pre- evidence longer followed, announced would no our viously us to the to act on that con- requires duty litigants do viction, acknowledging, as we that we have so, wrong been declared before.

There are reasons we why substantial should not await formal declaration our overruling from Su Court. The litigant whose cause is preme defeated by application of rule of law predictably obsolete have wherewithal may carry struggle Supreme further. The may Court decline to grant appeal leave to for reasons unconnected with its view of the meritorious I question. think it fairer desirability, represented generally its beeause it accepted rule deciding questions of law choice of law in tort cases. It would unique adopted been any rule, just to have then other today unique it would be to continue to adhere to the old rule. To the extent Kaiser v. North 292 Mich reflects a policy part Supreme decision on the adopt Court prevalent rule, then conflict-of-laws applying policy we would be adopt, would, were we to problems I approach as new the to choice of law adopted by many jurisdictions. so other fairly Michigan Supreme The recent Court reiterating decisions explained by old rule can be the the failure of counsel to raise the question whether the old rule should govern, continue to which in may explained by be nothing turn the may fact have turned in cases on of those selection one law rather than another un- or certainty, here, what law would be selected if the old rule were abandoned. 2 again, “It is time to remind as Justice Holmes did for in United Court States v. Garner 482, 260 US 490 S 181, 361) L67 ed that Ct 'The denial of a writ of certiorari imports expression opinion no of upon the case, merits of the many has been times’, the bar told and that this Court formally has adopted expressive that reminder as policy of its and attitude the effect denying toward of orders appeal.” leave to Frishett v. Farm Company State Mutual Automobile Insurance (1967), 378 Mich 733, approving our Court’s summary judgment. reversal aof per opinion Supreme curiam of the (see Court observed 5) footnote 685 Abendsciiein v. Farrell. by Levin, Dissenting Opinion P. J. litigants litigants to those other case, in this and pending may be in the trial now courts eases whose ' governed courts, in in the Federal of this State diversity by of Erie Railroad Com eases the rule Tompkins (1938), pany 817, 304 US 64 CtS look 1188, 114 ALR who to the 82 L Ed of our Court as well as those of the decisions Su Michigan guidance concerning preme of Court governing to decide this case as we are con law, Supreme vinced the of would decide Court it . provide footing a trial “will a for determination much better posed question of law.” Rodebaugh Compare v. Grand Trunk W. R. Co. limiting a years rule of ago law enunciated a number Michigan Supreme Court. See Comment: The attitude of Changing Lower Courts to Prece dents, (1941). 50 Yale L J 1448 differing expressed A view opinion ably the one in this is Kelman, presented in The Force of in Courts, Precedent the Lower Wayne (1967). L Rev appellate Trial daily and intermediate judges court engaged are announcing law, rules new question either because the is new thought now, they or or among because conflicting must choose high precedents, they eourt or because discern “distinction”, a all recognized perceptively is which and well illustrated Profes- sor Kelman’s article. judge’s power The trial to find the facts cases tried without jury, evidentiary on questions, rule proceed- control the course of ings, grant trial, motions for a sentencing power, etc., new power grant deny Court’s our greater a appeal, leave to much impact on than relatively the law will the rare decision stating forthrightly court convinced, lower tribunal it is on the evidence, previously basis of substantial declared rule of longer no Supreme law would be followed Court. judicial judge’s JSTo action is more viable ruling than a on a law, question of on discretionary unlike decisions the countless mat- viability, which in any viability ters most eases have low if at panels agreement all. Our to take ment, sits in Court 2 is required any aetion, presumably judges all agree- would be 3 of as all us are question, this case on the meritorious Supreme longer if the evidence Court would no adhere to previously enough of law' is declared rule clear to warrant degree part justify our of conviction on which alone would us in acting unjustified, thereon. If conviction which we act remedy. Supreme Court is not without judges proceed There need be little concern that lower court wall great circumspection addressing other than with when themselves 662. 11 686 P. Dissenting J. Levin, 2. Michigan Supreme

Although convinced (the law’of Ontario lex not choose would Court loci), necessarily it far from clear would I it think preference apply in to law. York law New journey though in New the fatal commenced Even York, lationship guest-passenger in a re sense, thus, to exalt that factor created, there was all others would to return to to the exclusion approach rights Beale’s vested to choice- Professor problems, substituting lex loci relationis or of-law The a kind lex loci contractus for lex loci delicti. emphasize the cases lex loci that have abandoned importance examining all factors, all relevant resolving significant just in contracts, one, 4 problems. choice-of-law presented question high viability to court the continued precedent. established 4 e.g., See, (1967), NW2d (151 Heath v. Zellmer 35 Wis 2d 578 Zellinger 664), 2d (1968), State Co. 38 Wis v. Sand Gravel & (156 466). 98 NW2d McCrory 897), (222 (1966), Kuchinic v. 422 Pa 620 A2d held Pennsylvania significant that in reaching the was interest “with the most State legal defining consequences relationship.” In attached mentioned, in faet that decision the to the court addition host-guest relationship Pennsylvania, in was established relationship of all the 4 was intended terminate the domicile Pennsylvania. xiassengers was Zellmer, supra, In Heath its own v. the Wisconsin eourt selected preference being Indiana’s, latter where the the State host-guest acknowl- was established. The court contacts; trip edged had both Indiana substantial ap- expected ease is and was to end Indiana. The commenced in the in footnote Xirovingly discussed law review article cited Macey (274 (1966), Rozbicki In v. NY2d NYS2d Ontario, host-guest relationship 380), was NE2d yet “created” denying recovery applied in an action was not Ontario’s rule Dym Compare relatives, Gordon all New Yorkers. between 463). 792, 262 NYS2d NE2d 16 NY2d NH A2d Dow v. Larrabee Contrast: Clarke, supra. but see Clarke Restatement, Second, Conflicts of proposed The official draft of Law, up law as follows: sum the state of American would Principle. The General “§ “(1) respect rights parties and liabilities of the which, local law the state are determined issue tort Abendscsein v. Farrell. Dissenting Opinion by Levin, P. J. relationship the is in Here, not centered either Michigan plaintiffs York; or New the are domicili arles of New bnt the defendant driver York, and corporate the defendant iciled in owner of car are dom the Michigan. Whether choose should preference depends its own law in to New York’s inadequately on considerations covered the sum judgment mary on which case record this comes fully developed us,5 and not in the briefs. issue, as to that significant has the most to the occur- parties rence and the under principles the stated section 6. “(2) Contracts to be taken applying prin- into account ciples of section 6 to applicable determine the law to an issue include: “(a) plaee injury occurred, where the “(b) plaee causing injury where occurred, the conduct “(c) domieil, residence, nationality, plaee incorporation of and of parties, business of the and “(d) plaee relationship, any, where the if between the parties is centered. “These aeeording contacts are to be evaluated to their relative importance respect particular to the Restatement, issue.” Second, Laws, proposed Conflict of draft, official Pt II. 6. Principles. Choice of Law “§ “(1) court, A subject restrictions, to constitutional will follow statutory a directive of its own state on ehoice of law. “(2) directive, When there is no such the factors relevant to the applicable choice of the of rule law include “(a) “(b) the needs of the interstate systems, international policies forum, the relevant “(c) policies the relevant of other interested states and the relative interests those states the determination of the issue, particular “(d) “(e) “(f) “(g) protection justified expectations, policies underlying particular law, the basic field of certainty, predictability uniformity result, application ease the determination and of the law to applied.” Restatement, Second, Laws, proposed Conflict of draft, Pt I. official summary judgment bring “Reversal of this will doubtless about provide plaintiff’s allegations, a trial of of winch will the record footing posed question tetter

much determination law. Summary judgment, assigned by defendant, for the reason should not granted. question Rather should have been been reserved peremptory for consideration on motion for verdict.” motile Insurance instruction or directed (Emphasis supplied.) Frishett v. State Farm Mutual Auto- Company, supra. Dissenting Opinion P. J. Levin, is no need consider whether New York’s

There in preference Michigan’s applied should be determined that there is difference until it first the two Traynor, States. See between the laws Tex L Really Necessary?, This Conflict Rev Is cannot determine whether there And we (1959). first the law determining is difference without this resolving each of the would apply two States controversy.

In York’s law in choosing New Mich preference on proceed igan’s, majority, necessity, is a supposition that there difference between the requires of the law two States —that prove gross to and New guest passenger negligence York law does not. That supposition, turn, is on the based owner lia assumption Michigan’s bility statute and its amendment6 guest-passenger operate extraterritorially.

At the the owner was liability times statute en (PA 1915, 302, 1915, No §4825]) §29 acted [CL its added (PA amendment was guest-passenger 256.29 Ann 1929, 1948, (Stat 9.1446)]), [CL § No § the universal rule was that all to a relating matters of action for in one personal brought right injury for a tort in another were jurisdiction committed by of the That injury.7 the law governed 1961, (Stat Ann §9.2101). 6CLS 7 ll 257.401 1960 Rev § Jur, Laws, Restatement, §182, 490; Am Con p Conflict of Law, seq. Later, 378, sometimes held flicts of et were owners § plaee vicariously liable on statutes than that of the of the state of based other injury by characterizing injury the owner’s actions outside sought application consent law it was to the whatever II, 794, Ehrenzweig, p Part apply; these discussed cases are infra, footnote 11. Michigan’s extraterritorially it must applied have so If statute incongruous say that the statute in 1915 is applied applies and 1929. It extraterritorially say, of Kaiser v. North and also to because apply only plaee of the (1939), 49, 292 Mich must the law we injury. Farrell. Dissenting Opinion by P. J. Levin, being conceptual setting tbe at the time of enact interpret ment, it seems to me anomalous our liability guest owner passenger statute and its having amendment as extraterritorial im effect, to pute legislature to the the intention to make the ly8 operate though, statute even when extraterritorial including Michigan’s,9 applied all enacted, the lex courts, apply any

loci, and refused to other law, statutory, determining common or the standard of guest passenger. care owed holding Kaiser can be liability read as the owner statute extraterritorially. is not effective following (p 54): p nor See footnote on and the “Neither our constitutional laws our statu- tory laws are of applied extraterritorial force as to a ease of this character.” 8 “Unless the operate beyond intention to have a statute the limits country clearly of the state or expressed is or its indicated language, purpose, subject matter, history, legislation or no is presumed tion of the operate jurisdic- to be intended to outside the territorial country enaeting contrary, state or it. To the

presumption is that the statute is intended to no extraterri- effect, only apply jurisdiction torial but within the territorial country enaeting it, generally of the state or and it is so construed. given An extraterritorial Accordingly, implication. effect is not to be statutes prima operative only persons statute is facie as to things jurisdiction lawmaking power within the territorial Jur, Statutes, pp whieh enacted it.” 50 Am § Appeals liability In 1936 New York’s Court of held its owner statute “has no extraterritorial 272 Cherwien effect.” v. Geiter holding. 185). NY 165 In NE2d it its overruled earlier rber Smolak 36). Thus, 20 NY2d 198 NE2d Fa precedent breathing extraterritoriality (at there into our enactment) statute, but, principle time of thority, York decision did not consider or local as well as au persuasive. 1967 New York’s decision is not The 1967 New attempt explain how a statute application construed to without extraterritorial at the time of operate extraterritorially by passage could be held to enactment of time. also, See, Compare (1929), footnote 7. Kernan v. Webb RI 50 Young (1932), (162 (148 A Masci v. 109 NJL A 394 623), and 453 Young 253, Masci 258 affirmed 289 US S Ct 1158, 170), regarding 599, nonresidents liability ALR L Ed 88 vicarious of 77 See, also, delicti when lex loci was the universal rule. 387, Law, Law, p 384(2), 11 Conflicts of Restatement § Law, 492, 10, 2d, Jur, p n 8 Am Jur Am Conflicts of and § Traffic, 601, p Highway and 153. Automobiles § 9 Slayton Boesch 315 Mich 1. See App 662. 11

690 by P. J. Levin, Dissenting Opinion 4. owner Michigan’s opinion, this by suggested

If, extraterritorially, not apply does statute liability fori) lex (the law Michigan determining then, statute, it case governed a applicable as com decide and consider necessary would be owner’s of the extent both questions mon-law standard whether a different and liability10 vicarious a guest injured person when the applies of care 11 com conclude that our well might passenger. "We from to recover a permits guest passenger mon law upon the driver a liable owner vicariously both decision, If be the negligence. showing ordinary law between then there would be no difference need thus, no and, of and New York is de- once it issue,12 a make choice of pp 122-149. much passenger gested insurability emerges Prosser in negligent driving by Pedrick, tion of they rule of zweig, Guest American Law ‘Foreseeable Courts of states which a 205, 210). Statute, Conflict owner’s vicarious 69 Tale Professor See, also, Prosser, 10 However, ^[12] See, “dangerous extending Enterprise See Am8 contradict the of more also, law and an Risk, states 8 Torts, L J 595 Taken for a Ride: The Automobile Guest and state Am Jur Jur Laws—Toward Similarly, (p Ohio St Ehrenzweig has eolleeted and classified Ciarle v. narrowly, evidencing and Insurable Laws’: common law Statutes Liability instrumentality.” a conflict of vicarious Florida 991) 2d, has § La liability. 26.10, p Í394, commenting 2d, spirit Automobiles and (1960); newly adopted insurance Law of Torts “lex as the L Rev 90 L J Ciarle, another on the Automobiles see Heath v. in the has under liability did of fori liability, making gone laws rationally the times.” 107 NH Ehrenzweig, In adopt supra, Theory Conflict ‘Foreseeable and Insurable supplemented aspect (1961). Farber v. (1961) ; Comment, further conflict See, also, Harper and issue could arise them are their a (3d ed), pp where the court observed: “No III, Zellmer, supra, Highway guest of theory applicable Highway Traffic, than 69 Tale Though the matter. Vicarious Enterprise Liability dissatisfaction with them. Laws—Towards Smolak, laws statute for today construing that an automobile is any Traffic, on both the Florida owner liable for 494-499. Professor cases, still on the law.” L J test other supra Liability in p The Ohio Guest both regard § and has many years. James, §§ jurisdiction See reasonable Laws’: (see 571-594, Assump- (I960). Theory Ehren- pp 33, books, under guest them foot- A2d sug- any I, v. Farrell. Dissenting Opinion by P. J. Levin, (the cidecl Ontario’s law injury) law the does not control decision. Michigan’s liability If owner operates statute ex-

traterritorially, question there remains a substantial apply, whether we should not in a suit in this forum against Michigan driver and a owner, the policy expressed Michigan’s in “extraterritorial stat expectations ute.” expec Their and their insurer’s may thought superior tations to New York’s inter protecting guest passenger est in its domiciliarles.13 adopted Courts which have the substantial contacts 8), note New Appeals York’s Court result achieved the it desired reach, namely, to liable vicariously the automobile owner should be held respect to the outstate accident as under New York’s owner liability statute, by overruling its earlier decision Cherwein v. Getter, supra. The same by result could have been achieved declaring that under the forum’s (applicable common law to those governed by eases New York law but until Farter v. Smolak not governed by liability statute) vicariously its owner the owner was principles (see liable supra). eommon-law footnote If, appears as (see to be the ease law review articles cited footnotes and 15 and eases cited footnote the courts seeking avoiding operation guest are and means of statutes retaining liability, the owner’s simpler vicarious it would be many develop eases to the forum’s common law rather than to go barn, turning around Robin Hood’s the matter into a choice-of- reconstruing liability question guest-passenger law and the owner and statutes, which, enacted, only when could have been concerned with difficulty making accidents. The intrastate it a ehoiee of law question is revealed the cases where this has been The done: frequently out worked in the first case does serve solution as cases with cited well (see different facets come to decision law review articles 15). in footnotes and making they courts are new law when their The reeonstrue statu- tory foreign result; they law law or choose a to achieve the desired law-making process, no in the beeome more involved and in would they simply so, less were reformulate the eommon-law sense a rules liability regarding the owner’s vicarious and the standard of applied guest passenger as so as outstate accidents care owed foreign “choosing” attained law the same results to achieve foreign by reinterpreting statutes. local suggested prob- approach would not eliminate choice-of-law forum’s, law is different than the but contact State’s lems when owner-liability impetus reinterpretation of it would eliminate long ago passed and would guest-passenger statutes it eliminate problem in common law of of those eases where the is the same choice-of-law the the forum applicable formulated so States. all other contact Zellinger Zellmer, supra, State Compare Heath v. supra. Co., Gravel Sand & 11 692 App by Levin, Dissenting Opinion P. J. pre

approach of the forum that the law have held sumptively applies until it has been shown special or consideration of some because the nonforum contacts significance.14 greater

have supreme Hampshire and The New Wisconsin try to forum should that the courts have declared soundest result: law which reaches the select the prefer apply rule law the better “We to just cases, in nonconflicts as is done conflicts cases open to us. If the law some the choice when unrepealed remnant outmoded, other state is a drag bygone age, civilization,’ on the coattails of ‘a (Freund, and the Conflict Justice Stone Chief [1946]), will 1210, L Rev 1216 we Laws, 59 Harv apply try If it is our way our own law instead. our clear see senseless own law that is obsolete try apply (and be) it will the other state’s could we always cases, done in conflicts law. have this Courts they by up usually what have done covered but employing manipulative techniques charac- such as (1966), and renvoi.” Clark Clark 107 terization NH (222 209). A 351, 205, 355 (1967), Heath v. Zellmer 2d 578 Accord: 35 Wis (151 673). 664, NW2d recently suggested

A commentator the effort “better to achieve the result attainable under the 14 (1965), (133 408); NW2d Wilcox Wilcox 26 Wis 617 2d (1966), 552), Henderson 26 595 Kell v. Div 2d NYS2d governs holding New York’s law rather than Ontario’s a law persons and of Ontario suit between who were residents domiciliarios by Rosenberg, arising (discussed Two out of a New York accident An the New York Court on Kell v. Henderson: Views Trautman, (1967), A Appeals, L and Com 67 Colum Rev ment, Colum L and in cited footnote Rev article op cit, 674, infra). See, also, 4, Traynor, p footnote Ehrenzweig, cit. Rptr Cal Compare Reich v. Purcell 67 Cal 2d 551 action, choosing 727), wrongful death Ohio 432 P2d (place in survivors) Missouri (residence over of decedents similarly, residence) ; (forum jury) California and defendant’s Empresa Viacao Aerea Bio Grandense Tramontana v. S. A. De see DC, 350 E2d (CA v. Farrell. Dissenting Opinion P. J. Levin, law” some conflict found explains the host- Perhaps that we conflict cases.15 is what guest should accomplish this hut on the try ease, present see record I neither summary judgment need for nor for an informed decision basis decision thereon. See, also, Ehrenzweig, Foreign footnote 12. See Guest Statute Against Desperanto “Interests”, and Forum Accidents: of State L (1968). 68 Colum Rev FUND, INC.,

ENVIRONMENTAL DEFENSE v. DIRECTOR OF AGRICULTURE DEPARTMENT. Agriculture Agriculture 1. —Pest Control —Discretion De- partment. regarding pesticides

Decisions the need to use certain area and the effect such use are a matter of discretion left to judgment wisdom department agricul- of the State (CL 1948, seq., 286.201et amended). ture § Agriculture Department. 2. Same —Pest Control —-Discretion agriculture department pesticide Decision State use the county Dieldrin certain areas of purpose Berrien for the controlling Japanese beetle, held, presented, on reeord seq., (CL abuse of discretion 286.201 et § amended). action for mandamus Original the Court of Appeals. Submitted Division 3 10, 1967, November at Eapids. (Docket Grand No. 4,594.) Decided November filed June appeal Leave to denied November See 379 22,1967. Mich 789. Reference Points Headnotes seq.

[1, 2d, Agriculture 3 Am Jur 38 et §

Case Details

Case Name: Abendschein v. Farrell

Court Name: Michigan Court of Appeals

Date Published: Sep 30, 1968

Citation: 162 N.W.2d 165

Docket Number: Docket 3,393

Court Abbreviation: Mich. Ct. App.