Lucas v. Lindner , 276 Mich. 704 ( 1936 )

This is an action under the guest act, 1 Comp. Laws 1929, § 4648.

The evening of October 21, 1933, defendant Carl Lindner invited Emma Lucas, who was then 19 years of age, to go for a ride in the automobile of his father, defendant Abner Lindner, and, while the car was driven by defendant Carl Lindner over a highway ending at a turn upon another highway, the driver failed to make the turn and the car crossed that highway, collided with a tree, overturned and Miss Lucas was seriously injured. The wilful and wanton misconduct, claimed to bring the case within liability under the guest enactment, was excessive speed over a wet and slippery highway, while approaching the end of the road, which was obscured by a hill and, therefore, inability to make the turn. Earlier in the driving, while approaching the other end of the road, the car slued into a ditch and had to be pulled out and, at that time, Miss Lucas, only upon the promise of slower driving, resumed the trip.

Counsel make extended review of our decisions upon what constitutes gross negligence, or wilful and wanton misconduct, within such term as employed in the statute. We say "term" advisedly, for it is single in purpose and the import is in the distinguishing words "wilful and wanton misconduct," in order to remove it from mere degrees of negligence. In opinions it has sometimes been termed "such a degree of recklessness as approaches wilful and wanton misconduct." This, unless fully grasped, might lead to any degree of approach, and it was intended to mean much more and to cover only such acts in the presence of apparent danger as disclose a wilful and wanton disregard of consequences, reasonably to be apprehended. In other words such recklessness as fits the term "wilful and wanton misconduct."

We said in Perkins v. Roberts, 272 Mich. 545:

"The term 'wanton and wilful misconduct,' as employed in the guest act, differs in kind and not merely in degree from ordinary, actionable negligence, for the term carries more than a 'vituperative epithet.'

"As said in Stout v. Gallemore, 138 Kan. 385, 393 (26 Pac. [2d] 573), of a similar statute:

" 'The statute would be ineffective, also, if the liability from which it relieved operators of automobiles were reestablished by the use of exaggerated terms to describe negligence.' "

If the driver knew of the turn he was approaching and miscalculated its distance away he may have been guilty of negligence in not slowing the speed of his car, but he was not guilty of wilful and wanton misconduct. The same is true if he was not familiar with the location of the turn and view thereof was cut off by a rise in the road until it was too late to reduce speed and make the turn.

But it is said that Miss Lucas warned him that he was driving too fast. The driver of a car is at the steering wheel and not on the back seat.

We have repeatedly held that the driver of an automobile is not, at his peril, required to comply with the request of a guest relative to speed, and that noncompliance with such a request, in and of itself, is not evidence of wilfulness or wantonness. See Bobich v. Rogers, 258 Mich. 343, and Mogill v.Resnick, 263 Mich. 103.

The driver may have been negligent but the evidence did not warrant a finding of wilful and wanton misconduct.

Judgment should be reversed, without a new trial, and with costs to defendants.

NORTH, C.J., and POTTER, J., concurred with WIEST, J. EDWARD M. SHARPE, J., did not sit.

The late Justice NELSON SHARPE took no part in this decision.