*1 Michigan Reports. '504 n have, creditor, his cannot his can- place, he what secure.” Costs appellees. Affirmed. Ed- J., C. Carr, Smith,
Dethmers,
Black,
Souris, JJ., concurred.
Kavanagh,
wards,
v. WIITALA.
WALTANEN
Passengers—Driving
Under
Influence
Intox-
1. Automobiles —
icating Liquor Assumption
of Risk.
—
of in-
law assumed the
a matter of
risk
passenger as
Plaintiff
pattern
previous
conduct and after
in the
jury, where
consumption
liquor
de-
spent
after
hours
several
liquor,,
intoxiсating
the influence of
host was under
fendant
injured
and was
when
defendant’s ear
the-
plaintiff entered
defendant, although
a curve while
out of control at
vehicle went
tuning
driving
engaged in
speed,
an
was also
excessive
the car radio.
Assumption
Negligence
of-
and Wanton Misconduct —
—Wilful
.2.
Risk.
negligence
whether
be-
is a defense
Assumption of risk
negligence plus a wilful
negligence
ordinary
or such
safety
go
рublic
to make
the-
disregard for
wanton
negligence or
and wanton misconduct
gross
wilful
statutory
1956, 257.401)..
(CLS
guest passenger act
required under the
§
.[3]
[4]
[2]
[1]
Assumption of risk
Wanton
Guest’s
rule.
Appeal from Houghton; (Leo J.), Brennan J. Submitted June 1960. 10, (Docket No. 46, Calen- 48,502.) dar No. Decided 13, October Case, Felix by Waltanen Wilmer against Wilho Wiitala for personal injuries sustained while pas- senger in defendant’s Directed verdict automobile. and judgment for defendant. Plaintiff appeals. Affirmed. Jaashеlainen,
Wisti é for plaintiff.
Wright Zinn, é for defendant. J. The point a here is one. narrow It Smith, to do has with a directed by verdict the trial judge upon ground risk.
The suit arises out of an automobile accident. The plaintiff, Felix Waltanen, was a passenger a car driven by bis friend, defendant Wilmer The Wiitala. ride which the during accident oc- curred followed an evening of and fol- drinking, lowed, well, pattern conduct that bad been Plaintiff’s, for established time. some .statement of' that, facts tells us during spring summer of 1956, men young (another friend, Wesley Maki,. was included) made a practice out going together] in the evenings the pursuit pleasure ex-¡ .of .[Oct. “They frequented and taverns bars citement: pursuit com- in the of female
had a mutual interest panionship.” evening question, plaintiff Maki and Mr.
theOn p.m. drinking Toivola, in a bar in 9:30 about started enjoyed whiskey together They Michigan. beer and by they joined p.m., when were about 11 until n defendant. beer and rum 3 friends then drank closing they time “were down- cokes. Towards put plaintiff: ing it, were them real fast.” As “We trying just putting hatch,” them down beat closing them was clock. When waitress told maybe they 3, drinks, ordered more time n They left 2:30 a.m. with rum coke. about and of n case 24 bottles of beer. Defendant drove them nearby, gasoline where met other to a station and the wаs Defendant does friends, drunk. beer filling having anything to drink .not remember testimony *3 him with station. Other credited '2 to 4 or 5 bottles. Shortly after left the station.
The friends.now speed the the of it, left defendant increased n car. driving prior at he was to the accident Just steering speed per .a hour, of 95 to miles tuning other, the with hand, with car radio the one looking They approached a and gradual down the radio. at particular of road
curve. This
stretch
the
wavy
bumpy.
right
of
was
rather
wheels
pavement.
regaining
the
the
the
In
automobile left
pavement,
over,
rolled
the automobile
top.
injured.
feet
on
Plaintiff was
skidded
its
testimony
all the
the
ruled
At the conclusion
that
court
of
plaintiff
had
as a matter of
assumed the risk
nothing.
law
could
recover
appeal argues
jury
that the
should have
Plaintiff’s
assump-
pass upon
question
рermitted of
been
stating
“all
risk,
tion
that
of the
cases
question of the
-which .have .been involved
.with
WlITALA.
WALTANEN V.
of the risk
assumption
appear
to-
legal
in
cases,
several
jury questions,” citing
been
have
Hollowell,
Davis v.
simply reasonable mfen favorable to plaintiff, dence most Dalton question. respect could differ *4 1 as follows: testified Plaintiff ‘good spirits* you used the words Now, you when mentioned “Q. K & camе into the K felt when he describing Mr.-Wiitala how you mean? . you tell what bar. Will feeling good like I'refer to is kind of spirits; what' “A. Good get happy mood. That’s lots, they a kind of person a I mean drinks when way saying I mean my it. by high spirits. That’s what (cid:127) feeling good.” . 361
508 479; Mich Glinski Co., Trunk Western R. 350 Grand Szylling, Upon us, Mich 182. the facts 358 before very judge, agree the trial we have clear we properly was directed. case. Verdict suggestion by plaintiff that There ais negli- gross not a defense to wanton of risk is gence, why principle reason it should not no but by plaintiff. argued It is true in Teeter v. ishe Pugsley, 510, Mich there a statement 508, 319 stated Gibbard v. Cur- that: “In view san, with rule 320, claim of 311, 225 Mich defendant’s error respect contributory negligence assump- to must be denied.” The how- statement, tion ever, in risk is no
contains an error. There “rule” stated concerning assumption Case of risk. the Gibbard Hollowеll, this clear in Davis v. 326 later, made We 1160), sending assump- Mich an 673 jury. Case, tion of The Gibbard risk p pointed Id. at “contained no reference out, 681, we pertaining or incurred or circumstance to assumed risk.”
Assumption is a risk, course, ordinary negli- negligence, gence, disregard “mere” whether be negligence “plus a wilful and wanton or such go public safety,”2 make for statutory “gross negligence wilful and the misconduct” wanton
rеquired passenger under injuria. act.3 Volenti non Whether the defend- fit merely casually negli- ant’s Conductwas reckless or gist gent for the of the defense is that immaterial, Restatement, took his chances. See § Here the common Torts, 893.' individualism the Voluntary Bohlen, law is once more work. See Assumption L Rev 14. Risk, Harv overlap the defenses of con an between There is assumption of tributory negligence risk. But CLS Stevеns v. Stevens, 257.401 355 Mich (Stat Ann 1952 Rev 363, § 9.2101). *5 509 WALTANEN V. "WlITALA. they distinct—they respond are to different consider they application. ations and are different in Thus day, the habitual baseball enthusiast who is, one injured by a ball, batted has doubtless assumed this particular injury reasonably risk but could not guilty contributory negli be gence to have held been going game.4 to the ball Should the facts analyzed us before be so toas constitute contribu tory negligence, plaintiff’s case is not advanced, for, although' contributory negligence “mere” is not a defense to wanton conduct,5 nevertheless' wanton part conduct on the of the will be a defense part to wanton conduct on the of the defendant. puts principle The Restatement of Torts in these actor words: “An whose conduct inis reckless dis safety regard against recovery own of his barred from disregard a defendant whose reckless safety contributing actor’s bodily cause of the actor’s In
harm.”6 the case before us same knowl edge past present justified excesses that hold hold ing plaintiff justifies to have risk, assumed the ing disregard safety, him to inbe of his own pointed all a matter of law. As we out in Glinski Szylling, supra, just v. as there is a constitutional right by jury to trial there is also a constitutional 7 right question go jury not to have a to under certain example. circumstances, which this case is another wherein he misconduct themselves, dictum in charged and in such duct. He then Conditions, [4] [5] 6 Restatement, Torts, “It See See See 2 would then be eases Const Keeton, with wanton Redson hypothesizes [100] against ease the law leaves both cited in Sun gives recovery goes U Personal of Pa L Rev art on to state the law wilful gross negligenсe conduct) Michigan 2, an Oil Injuries § 13.—Reporter. 503(2). misconduct, injury Company to neither.” arising 629, Central R. Resulting to the train crew See, against parties v. out of Seamon, applicable also, Chief Justice Grant’s Co., where gross negligence, wilful intent plaintiff’s [349] Open in these terms: Mich 387. against Mich (who and Obvious wanton con have 671, had been intent; placed' 672, placed
Since, squarely decision was the court’s ground a mаtter upon risk as aspects unnecessary to discuss other of law it is the case.- *6 appellee; to
Affirmed. Costs (cid:127) J., C. Kav- Edwards, Carr, Kelly, and Dethmers, J. JJ., Smith, concurred anagh, Souris, Building (dissenting). obiter this- J. on Black, . sweeping-dictum— “Assumption a course, is risk, ordinary negligence, negligence, or such regard ‘mere’ it be whether ‘plus negligence dis- a wilful and wanton safety,’ go the public to make for (cid:127) statutory ‘gross negligence or and wanton wilful guest passеnger required under the misconduct’ act”; ... judgment on mo- entered affirms another Court Holding jury-tried négligence that case.
tion in liability, testimony presents jury I must dissent. quoted broad, for too either declaration is prof- before us. The citations case textbook (Stevens support Stevens, Mich 363, 355 v.
fered § [Stat Rev 9- Ann 1952 1956, 257.401 CLS remaining upon arguably .2101]) it.1 And our war (Gibbard precedents Cursan, 311; Mich 225 Teeter v. Pugsley, Hollowell, 508; Mich Davis v. deny 1160]) flatly apрlica- [15 ALR2d its Mich 673 plaintiff guest where, here, has tion to a case causally connected wilful out a case of made wanton misconduct.
circumstances imposes liability and an utter 1 Stevens, -miles danger, ,per a manifest construing hour)., disregard where mutual holds the driver’s conduct “manifests -a probability intoxication without applying probable consequences” (p .that, reservation and similar harm statutе that will result high speed (90 it —the corresponding high degree 371), therefrom, statute —. WALTANEN V. WlXTALA. originated The defense of of risk contractual relation of master and servant. expression judges use the tort When brought actions guest-host under conventional statutes, employ loosely really contributory for what it is— equal degree. negligence” fault of It a “form of .(see quotation below) from Restatement some courts brоught guest- have- forth to meet 'that situation equally host cases where the is said-to be at fault with far, the host. however, So and sub- proof,2 mit the cited cases as this Court properly say plaintiff-guest has can, refused that a
-legally, assume the risk reckless and wan- apply wanton, or wilful and ton, Restatement’s rule misconduct. We do §482, subsection Torts, 1262), ,p assump- but doctrine is not a matter of contributory tion of risk at all. It оne miscon- by unreasonably expo- duct occasioned injury, sure of oneself to and it would be a rare case *7 application where thereof could or should be. made support a matter of law. All as this finds in Re- quoted applied “comment,” statement’s in Davis, supra, page 680, vis-. by not barred even that form of “The voluntary assumption negligence the called which is of plaintiff’s may that the ordеr conduct risk. In recovery, necessary it is that not him’from he
bar only conduct, defendant’s reckless know of the but Jur, issue to one “assumption of risk” certainties and servant. scholars know: Note, Master and in of that which Davis, of The writer of American unreasonably Servant, the (p 680) placing belongs properly in the law of 293, p 715) “reckless and the Court’s care in quotation Jurisprudence exposure” what all scholars and marks of the instead of the un- in tells us confining expression (35 Am master quasi- the subjects complicated the law have a “Few more obscure and terminology appertaining assumption than that the doctrine of investigation perplexing risk. Even the most casual a discloses unintelligible quite array propositions. and often Commentators usually have concluded that a reconciliation of all the statements -relating subject impossible to the is an task.” gravity therein the involved risk the realize
also so only in but reckless not unreasonable he is that exposing to it.” himself graft the defense we If are neg- general the law of root or stem of into the risk may ligence, motorist, when the defendant next riding guest by risk-assuming passenger in sued employ equally with the host it in car, another bar— (Perhaps, though, instance, de- in such driver? say a “im- label, new will court under fense enter “joint enterprise,” arising negligence” puted lately in 353 Mich Korff, Sherman considered 149].) guest [14 a is killed in causal Where NCCA3d repre- will not his us, now confront as circumstances sentatives dependent be held as beneficiaries vicariously having risk” that “assumed complaint? their Would not the forms the basis of opinion majority present one for rather reversal, be if that affirmance, had been killed than Mr. Waltanen Saturday night left widow and several had My children such risk-assumers ? little is as answer assuming Court, itself, that some uncon- this handing opin- with down of risks these sidered ions. prefer harmonizing decisions, to follow those as
they Davis, to which the annotator do with refers 1165,1172) applying the doctrine of “com- parative misconduct”: denying “Thus, while cases are uniform re-
covery, proper guest where the case, has knowl- drinking, edge that driver been are not has of their conclusion. rationale Some uniform riding the act of the courts hold *8 such con- the driver under circumstances constitutes barring recovery. tributory negligence Other cases negligence contributory no state apply assumption of the such actions but doctrine jurisdictions, it held in other has been risk. While Waltanen v. Wiitala. plaintiff, that if the misсonduct of ap- the was of an proximately equal degree to that of the defendant or substantially subsequent contributed to accident, recovery. is barred from The latter de- fense is referred to in this annotation as ‘com- parative misconduct’ doctrine.”
Validity motion for of this directed verdict should by ascertaining whether, he tested on favorable anticipated view, Mi*.Waltanen should havе —and aggravated acted in time to avoid—“the tortious complained (quotation conduct herein of” from p 681); Davis, in other words whether as a matter equally of law he was at fault with Mr. Wiitala. postulate proceed point From that out that the assuredly guilty defendant driver was of causative “aggravated guest— tortious conduct” and that no suffering Schenley sober shakes—should he jury) (by judge distinguished having held recklеssly exposed himself to the incredible com- per- reckless acts such bination additional driver Phillips gas car left the formed after his station.3 previous driving (while guest occasions of and intoxicated) foolhardy speed, at were rates of host per produced top pace 75 to 85miles hour. This evening particular stepped rate the causative was per velocity an hour; to 95to 100miles increase of 3 Plaintiff testified: Now, you lot, parking you after left would “Q. tell us how driving? Mr. Wiitala was Well, driving first, K. “A. was O. his Andrew —I mean Mr. Wisti— driving he started fast as we then were near where the accident happened. you how “Q. About fast would estimate traveling he was just prior accident? say “A. "Q. maybe 100, I -would about miles an hour. Now, you happened? would describe what Well, . .“A. tuning Mr. Wiitala was the car radio and he had his left hand on steering looking-down wheel and was the ear radio tuning he was hillbilly this Saturday station night, on looking he was at the ear radio. happened? “Q. Then what “A. That’s what caused him to lose control of the car.” *9 361
514 per apptoximately feet it 150 second. And was to (or by by not the defendant shown burden-bearer4 any attempted, matter) for that that he witness on any prior leaving Phillips to that occasion station n final night, to do what combination made tragic immediate cause of this tempt that at- accident, is, per to drive at 95 to 100 miles hour one gaze hand mentarily other hand and his were—mo- while the on even—concentrated the radio mechan- ism. bring play reasoning this not into
Does the same Davis, held the real which, to be one 681): (p concludes fact? Davis knowledge that one who common “While is liquor drinking operates after a motor vehicle negligent not apt than one who has im- more be that wilful and wanton mis- follow it does not bibed, always part that foreseeable so one on his conduct recklessly subjected himself it will have who enters complained aggravated conduct herein tortious to the by that reckless defendants rule, advocated of. The recovery, exposure would risk would bar of oneself tо applicable of the case. the facts instant not be Viewing the testimony light in the most favorable anticipate plaintiff, no reason to had she indi- not sufficient There was that occurred. conduct part incapacity physical on or mental cation Douglas forewarn would defendant transpired.” that events opaque scrape and not- off the In would this case ap judges yet-hardened have word-varnish some moved for a directed some clearly appears summary. either as pleading “assumption anticipatory form, from the recent annotation stipulated in the trial assumed That defendant required by Court dangers, joint appendix risk or risk” did verdict. judge’s of risk as unreasonably and no not should Defendant did detailed appear shows Rule entitled mention have defense” No in this plеaded “Necessity and comprehensive the affirmative defense .ease exposure suggestion plead '(1945), until defendant defense, to known 239). defense, appears pretrial manner thereof WaLTANEN V. WlITALA. uniformly expression “assumption plied over the (“Torts-Negligence”) and the rule Restatement risk” chapter (“Contributory Negligence”) treats in un heading der the “Reckless Conduct.”5 The former placе negligence has no cases confront such as *10 legal here. In it essence, us continues effect legal (through start to of finish care want of care relationship. parties) both a contractual solidly precept latter is established of the common law of such torts as are committed in the course of gave highway safety noncontracted life, No statute relations. legislatively prescribed no rule—of enlarged application. or otherwise—has its limited scope Its defensive has never been broadened—in never, rubbery, this State at least—to the accu and- rately definable doctrine of It risk. assumed available, guilty' causally to a defendant when, only misconduct when that defendant— bearing repeat—is prove I burden, able to plaintiff previous experience did know from plain apt threat that he would be him misconduct causally shown; self as that the realized the gravity of the risk involved and that such therein, plaintiff was both unreasonable in.ex and reckless posing himself to such misconduct. This is not “as sumption proven, contributory is, risk.” It when equal degree. presence fault of And the contributory or absence of such is, fault from its very specifications, jury a natural one for determina tion. and remand for .would reverse new trial.
5 Bestatement, Torts, 482, p 1261.—Reporter.