Arritt v. Fisher , 286 Mich. 419 ( 1938 )

Plaintiff's wife suffered injuries while riding as a guest in an automobile and he brought this action to recover for loss of her services and for medical and hospital bills. Defendant contended that he was free from negligence; that plaintiff's wife was guilty of contributory negligence, and that no recovery could be had under the guest statute. 1 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446).

The case was tried before a jury and plaintiff received a verdict in the amount of $600 upon which judgment was entered and from which defendant appeals.

The accident occurred November 2, 1936, about 6:30 in the evening. Defendant was driving the automobile and his wife and plaintiff's wife were sitting in the back seat. He was proceeding in a southerly direction on Mills street in the city of Kalamazoo. When he approached the tracks of the Pennsylvania railroad which intersected Mills street in a diagonal direction, running southeast and northwest across Mills street, railroad flasher signals were operating. Defendant observed them and brought his automobile to a stop about two car lengths from the railroad track, there being another car in front of him which proceeded across the tracks ahead of defendant's car without incident.

While he was stopped at the track defendant saw a locomotive standing on the tracks to the right. He decided that it was a switch engine which was causing the signals to operate and he then started to proceed across the tracks when his automobile was struck by a locomotive coming from the left. There was disputed testimony as to whether such locomotive had its headlight burning. Defendant stated that he had not seen the oncoming locomotive before it struck his car. Under the testimony the question of defendant's negligence was one of fact for the jury.

Defendant further charges that plaintiff's wife, Mrs. Arritt, was guilty of contributory negligence because she encouraged him to proceed across the tracks and that, therefore, she may be said to have assumed the risk incident to the crossing. In her testimony, Mrs. Arritt stated that she was sitting in the back seat of the car and denied that she approved the conduct of defendant or advised him to drive across the tracks. Whether she did so was a question for the jury.

Mrs. Arritt was a guest passenger. The so-called guest act provides that:

"No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such vehicle, and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought."

The point involved in the instant case has never been passed upon by this court, nor apparently by the courts of any other States having a "guest statute." At common law a husband has a right of action for loss of his wife's services. Blair v. Seitner Dry Goods Co., 184 Mich. 304 (L.R.A. 1915D, 524, Ann. Cas. 1916C, 882); Gregory v.Oakland Motor Car Co., 181 Mich. 101. By statute a wife can bring an independent action in her own name for damages suffered by reason of negligence. Blair v.Seitner Dry Goods Co., supra.

There is no question in this case of the husband's right of action being barred because of his wife's negligence, as that question was submitted to the jury. Both plaintiff and his wife had, however, independent causes of action for negligent injuries to the wife. Plaintiff conceded that defendant was not guilty of gross negligence. Mrs. Arritt, therefore, would not have been able to bring an action for her injuries as her cause of action was in this case abrogated by statute, since she was a guest passenger at the time the accident occurred. In Bandfield v. Bandfield,117 Mich. 80 (40 L.R.A. 757, 72 Am. St. Rep. 550), this court said:

"The legislature should speak in no uncertain manner when it seeks to abrogate the plain and long-established rules of the common law. Courts should not be left to construction to sustain such bold innovations. The rule is thus stated in 9 Bacon's Abridgment, title 'Statute,' I (4), pp. 244, 245:

" 'In all doubtful matters, and where the expression is in general terms, statutes are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature; for statutes are not presumed to make any alteration in common law, farther or otherwise than the act expressly declares. Therefore, in all general matters the law presumes the act did not intend to make any alteration; for, if the parliament had had that design, they would have expressed it in the act.' "

The trial judge gave expression to this rule in his refusal denying judgment notwithstanding verdict, when he said:

"At common law plaintiff and his wife have independent causes of action for negligent injuries to his wife. By statute — the guest act — the legislature has abrogated one of those causes of action belonging to the wife, namely, when she is a guest passenger in an automobile. If the legislature intended to deprive plaintiff of his cause of action, it could and presumably would have said so."

In other words, prior to the enactment of the guest statute, the negligence of a defendant, resulting in injuries to a married woman, constituted two legal wrongs at common law, — one to the wife, and the other to the husband. The statute cancelled the wrong to the wife, by abrogating her right of action at common law. It left existing, with a remedy, only the wrong to the husband.

The husband's cause of action, therefore, remained unaffected by the statute and on proof of defendant's negligence and damages suffered by plaintiff, he was entitled to a verdict.

Judgment should be affirmed, with costs to plaintiff.

POTTER, J., concurred with McALLISTER, J. BUTZEL, J., took no part in this decision.