Olszewski v. Dibrizio
275 N.W. 194
Mich.
1937
Check Treatment

Lead Opinion

*424 Potter, J.

Plаintiff sued defendant for damages arising from personal injuries alleged to havе been sustained by her while she was riding with defendant in his automobile as a guest passenger, August 4, 1935. She charges defendant with gross negligence arising from driving at an excessive rate of speed and in violation of the statute, and that “said defendant wilfully and wantonly removed both of his hands from the steering Avheel of his said automobile in an effort to light a cigarette,” as a result of Avliich the automobile left the road, ran into a ditch, tipped over and plaintiff was injured. Upon the hearing, the trial court directed a verdict for defendant. Plaintiff appeals.

The оnly question is whether the trial.court was right in directing a verdict for defendant.

Upon motion for directed verdict, it is the duty of the trial court to view plaintiff’s testimony in its most fаvorable light. The record shows plaintiff ‍‌‌​​​​​​‌​‌​​​​‌​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​​​‌‌​‌​‌‌‌‌​‍up to the time of the accident had been using ordinary care. It was a bright day, the pavement was dry, and the parties were on their way to a picnic.

In Willett v. Smith, 260 Mich. 101; McLone v. Bean, 263 Mich. 113; Elowitz v. Miller, 265 Mich. 551; Johnson v. Fremont Canning Co., 270 Mich. 524; and Sherman v. Yarger, 272 Mich. 644, this court attempted to enumerate the essential elements of AAdlful and Avanton misconduct as (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury tо another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to аvert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. Ordinary negligence fulfills *425 the requiremеnts of this attempted definition or enumeration and by the application оf the test prescribed becomes synonymous with gross negligence. We have frеquently held and now hold that gross negligence as used in the guest statute * is synonymous with wilful and wаnton misconduct. Oxenger v. Ward, 256 Mich. 499; Bobich v. Rogers, 258 Mich. 343; Mater v. Becraft, 261 Mich. 477; Findlay v. Davis, 263 Mich. 179; Riley v. Walters, 277 Mich. 620; Breckenridge v. Arms, 279 Mich. 384. The trial court arrived at a correct conclusion.

Judgment affirmed, with costs.

Butzel, Bushnell, and Chandler, ‍‌‌​​​​​​‌​‌​​​​‌​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​​​‌‌​‌​‌‌‌‌​‍JJ., concurred with Potter, J.



Concurrence Opinion

Wiest, J.

(concurring). I conсur in the result of Mr. Justice Potter’s opinion, but not in his holding that the term “gross negligence as used in the guest statute * is synonymous with wilful and wanton misconduct. ’ ’

My Brother has written several оpinions of the court on this subject and stated therein as in Findlay v. Davis, 263 Mich. 179:

“This court has frequently held, in construing the guest act,* the term ‘gross negligence’ ‍‌‌​​​​​​‌​‌​​​​‌​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​​​‌‌​‌​‌‌‌‌​‍does not mean something of a loss degree than wilful or wanton misconduct.”

Mv Brother now returns to his statement in Riley v. Walters, 277 Mich. 620, 631:

“The term ‘gross negligence’ as used in a majority of the cases where the term has been defined in this State has no application to the term as ordinarily used under the guest statute where it is *426 used as synonymous with wilful and wanton misconduct.”

We had occasion in that case, in a concurring opinion, to point оut that the term “wilful and wanton misconduct” carries a meaning of its own.

North, J., concurred with Wiest, J.



Dissenting Opinion

Fead, C. J.

(dissenting). There wаs testimony that defendant was driving at a speed of 55 miles per hour; he followed a car going ‍‌‌​​​​​​‌​‌​​​​‌​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​​​‌‌​‌​‌‌‌‌​‍in the same direction and intended to pass it; as he swung to the lеft to pass the car ahead he took his right hand off the steering wheel and struck a match to light a cigar; while his car was still angled to the left he took his other hand off the wheel; the car ran off the road and into a ditch.

Defendant must be credited with ordinary intelligence and ordinary knowledge of driving1. It must be assumed that he knеw the car would continue, to run, although he took his hands off the wheel, and would run strаight in the direction it was headed unless deflected. Reasonable minds cannot disagree that it is misconduct for a driver to let go of the steering wheel of thе car going at a high speed. Fifty-five miles per hour is high speed. Defendant’s misconduct was wilful, because he did it intentionally, voluntarily, and without compulsion or exсuse or under stress. It was wanton, because it was wholly disregardful of consequenсes. Any ordinarily intelligent person would expect the car to continue оn its angling’ course and leave the highway in a fraction of a second. Defеndant cannot be presumed to have been ignorant of the obvious, natural and practically inevitable consequences of his act.

*427 Under the testimony, whether defendant was guilty of wilful ‍‌‌​​​​​​‌​‌​​​​‌​‌​‌‌‌‌‌​‌​​​​​‌‌​‌​​​‌‌​‌​‌‌‌‌​‍and wanton misconduct was a question of fact for the jury.

Judgment should be reversed, with new trial and costs.

Sharpe, J., concurred with Fead, O. J.