Opinion
Docket No. 40, Calendar No. 40,225.
Submitted October 5, 1938.
Decided November 10, 1938.
Appeal from Van Buren; Warner (Glenn E.), J. Submitted October 5, 1938. (Docket No. 40, Calendar No. 40,225.) Decided November 10, 1938.
Case by Effie Thayer against Deyo Thayer for personal injuries sustained while a guest passenger in defendant's car. Verdict for plaintiff. Judgment for defendant non obstante veredicto. Plaintiff appeals. Affirmed.
Earl L. Burhans, for plaintiff.
David Anderson, Sr., and David Anderson, Jr., for defendant.
Plaintiff, Effie Thayer, a sister-in-law of defendant, Deyo Thayer, was badly injured while riding in an automobile driven by defendant. She brought an action for damages under the so-called guest act, 1 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446), charging the defendant with gross negligence. The court, after reserving decision on defendant's motion for directed verdict under the provisions of the Empson act, 3 Comp. Laws 1929, § 14531 (Stat. Ann. § 27.1461), submitted the cause to a jury, which rendered a verdict for plaintiff in the sum of $720.58. Later the trial judge filed a written opinion and entered a judgment for the defendant notwithstanding the verdict.
On August 1, 1937, defendant and his wife, who lived at Paw Paw, drove to a farm near Gobles, where plaintiff Effie Thayer joined them to call on a sick relative at South Haven. En route, Mrs. Stuart, a sister of Mr. Thayer, living at Bloomingdale, became one of the group. Before returning home someone suggested that they visit Old Baldy, a large sand dune near Saugatuck. When the party reached Old Baldy, defendant Thayer experienced pains in his stomach. The parties went into a drug store, where the three women had some ice cream and Thayer drank some ginger ale, thinking it would warm up his stomach. Before leaving Saugatuck he had a chill and stated that he did not feel very well. Later he remarked that he wished Fra (his granddaughter) were with them as no one else in the party besides himself could drive a car. While on the way home defendant reached Barnard's Corners, a locality with which he was well acquainted, and just as he was about to turn the corner he was seized with cramps, could not move the steering wheel, went across the corner and into a ditch. He stated upon cross-examination that he thought he was capable of getting the car home.
It is claimed that the action of the defendant under these circumstances was gross negligence and that plaintiff is therefore entitled to recover for the damages she sustained. The guest statute precludes recovery — "unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought."
It is argued that the situation is analogous to guest cases where automobile drivers have been overcome by sleep. See Manser v. Eder, 263 Mich. 107; Boos v. Sauer, 266 Mich. 230; Perkins v. Roberts, 272 Mich. 545, and Malicote v. DeBondt, 281 Mich. 650. The rule adopted in the "sleep" cases, supra, is based upon the presence of premonitory symptoms at some time in the chain of circumstances. As stated in Perkins v. Roberts, supra:
"A driver overcome by sleep is not guilty of wanton or wilful misconduct unless it appears that he continued to drive in reckless disregard of premonitory symptoms."
When one is overcome by drowsiness he has a tendency to lose control of his faculties, but pains such as the defendant experienced do not necessarily put one on notice that he would so lose control of himself that he would be unable to turn the wheel of his car.
Defendant's testimony that he thought he would be able to get his car home is not controverted. We are unwilling to hold that this mistake in judgment constituted either "gross negligence or wilful and wanton misconduct."
In Armstrong v. Cook, 250 Mich. 180, plaintiff was precluded from recovery because no negligence of the defendant was shown, although the driver of the car lost consciousness or fainted when she started to cross an intersection. A similar situation developed in Cohen v. Petty, 62 App. D.C. 187 ( 65 Fed. [2d] 820), where the defendant driver fainted and an accident followed.
Cases involving claimed wanton and wilful misconduct are equally applicable to a situation where gross negligence is charged because, notwithstanding our division in Olszewski v. Dibrizio, 281 Mich. 423 (2 N.C. C. A. [N. S.] 456), we have recently unanimously held in Pawlicki v. Faulkerson, 285 Mich. 141, that the term "gross negligence" as used in the guest statute is synonymous with wilful and wanton misconduct.
Appellant argues that the court was in error in excluding certain medical testimony offered by plaintiff as to defendant's temperature and physical condition after the accident. Such testimony, whether privileged or not, would have been of little aid in our determination of the question of gross negligence and, in our opinion, would not have resulted in any change in the determination of the issue here involved. Nor does it "affirmatively appear that the error complained of has resulted in a miscarriage of justice." 3 Comp. Laws 1929, § 15518 (Stat. Ann. § 27.2618).
The other question raised by appellant is not discussed in her brief and will not be considered.
The judgment non obstante veredicto is affirmed, with costs to appellee.
WIEST, C.J., and SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred. BUTZEL, J., did not sit.