Howton v. Kearns

The trial judge correctly charged the jury that plaintiff was not guilty of contributory negligence. He correctly charged the jury that plaintiff could recover only in case there was a collision. But by his repeated use of the word "wilful" his charge as a whole gave the jury to understand that plaintiff could recover only for "wilful" misconduct of defendant. The case, therefore, presents the question of whether a plaintiff may recover as for ordinary actionable negligence where the declaration counts on wilful acts alone. Under the former decisions of this court we think this question must be answered in the affirmative. While the negligence of defendant must be set out in the declaration, the greater includes the lesser and a plaintiff may recover for ordinary negligence where he has alleged gross negligence as that term is commonly understood.

Richter v. Harper, 95 Mich. 221; Keating v. Railroad Co.,104 Mich. 418; Gorton v. Harmon, 152 Mich. 473 (15 Ann. Cas. 461); Hook v. Solomon, 194 Mich. 517.

In the last cited case, it was said:

"It is insisted by defendant that the words 'wilful' and 'wanton' make the charge one for gross negligence, and that the court was in error in permitting recovery for what may be called ordinary, actionable, negligence. In this defendant is mistaken as to the rule under such a declaration. Simply characterizing the negligence as 'wilful' and 'wanton' does not prevent a recovery for ordinary negligence."

The plaintiff was entitled to go to the jury on the question of ordinary actionable negligence. The charge as it appears in this record and from which we have quoted at length, taken as a whole, did not submit her case on that theory. Nor are we persuaded that the last quoted paragraph of the charge relieved it of the taint of reversible error.

The judgment must be reversed with a new trial. Plaintiff will recover costs.

BIRD, SHARPE, STEERE, and WIEST, JJ., concurred with FELLOWS, J.

CLARK, C.J., and McDONALD and MOORE, JJ., concurred in the result.