
    De Shetler v. Kordt.
    
      (Decided November 23, 1931.)
    
      Mr. Herman R. Miller, for plaintiff in error.
    
      Messrs. Conn & Holloway, for defendant in error.
   Lloyd, J.

Kordt was the plaintiff and De Shetler the defendant in the action brought in the court of common pleas. The plaintiff, Kordt, recovered a judgment in that court for $750. The defendant, as plaintiff in error, seeks a reversal of that judgment. The parties will be referred to here in the order of their relation in the court of common pleas.

Plaintiff and defendant resided in Toledo and had known each other for some time. On April 4, 1929, the defendant decided to go to Detroit in his automobile to see some one there on a business matter. The plaintiff, on invitation of the defendant, and without payment therefor, accompanied him as his guest. They started their return trip to Toledo about midnight or shortly thereafter. On the way back, and while still in Michigan, the defendant, in rounding a curve in the road, which he described as “almost an S turn,” went over a concrete abutment some 6 or 7 inches high, landing about 15 feet beyond it in an adjoining field. The plaintiff, who had been asleep prior to and until the accident, received some injuries the extent of which is not involved in the questions presented to this court.

The only evidence in the record as to the manner and cause of the happening is the testimony of the defendant, and testimony of the plaintiff as to conversations thereafter had by him with the defendant. De Shetler states that the speed of his automobile was “between 20 and 25 miles an hour;” that just before he reached the abutment another car was coming down the road to his left. To use his own words: “When I saw it, naturally pretty close to me, that was 100 feet, when I was trying to make the turn, thought of the turn, but he was outside of the road taking a sweeping drive, of course I couldn’t do any different. I was driving straight ahead and this car, the light of this car hit the side of my face and eyes and I tried to see outside of the road and naturally I tried to see outside of the road, and I saw him — think of a thousand and one things in a moment’s time, and my only thought was getting out of his way. The glare of the lights hit the side of my face, and naturally I knew I was to turn, glanced to the left, saw a party coming to outside of the right, I couldn’t make the turn, all I did was to go over the abutment; of course couldn’t see the abutment.”

Asked if he was not asleep, he said: “Don’t think I was; if I was,might have been momentarily; can’t say I was; if I was, I don’t remember.”

Prior to the accident he had told plaintiff he was sleepy, but could not recall having gone to sleep.

The plaintiff, Kordt, testified: “I fell asleep in Trenton. We had a little conversation, he said he was sleepy; I told him I was tired and would get a few winks and when I woke up would let him catch a few winks and I would drive, and this was just on the outskirts of Trenton and of course this accident happened just the other side of Trenton, possibly a mile or so.”

Kordt also testified that in the conversation had with De Shetler after the accident, De Shelter “said he momentarily went to sleep and he saw lights coming around this corner, or as they came around the corner they woke him up, and he said just then why he crashed into this abutment.”

As we gather them from the record the foregoing are the facts to which we are to direct our attention in determining the questions presented by the petition in error.

The accident having happened in Michigan, and the law of that state, as defendant claims it to be, having been pleaded in his answer, and evidence thereof having been received at the trial, we must apply the law of that state to the facts in evidence. The plaintiff’s alleged cause of action is thus stated in his amended petition:

“That the defendant was guilty of gross negligence and wilful and wanton misconduct directly and proximately causing plaintiff’s injuries in the following manner and ways, towit:

“1. In that the defendant drove his said automobile at a high and dangerous rate of speed, towit: in excess of twenty-five (25) miles per hour while approaching an intersecting highway and a sharp curve in said intersecting highway and without having his said automobile under control, and ran the same into and against said concrete abutment as aforesaid.

“2. In that said defendant did not keep a proper lookout for said curve and intersecting highway and said obstruction, and wholly failed and neglected to apply the brakes on said automobile or take any other precautions to prevent said accident.

“3. In that the defendant continued to drive said automobile at said high and dangerous rate of speed as he approached said curve and said concrete abutment, and, without any notice or warning to plaintiff of his intention so to do, drove his said automobile against said abutment, as aforesaid.”

If the defendant intentionally, as distinguished from negligently, did or omitted to do what is thus alleged, he would of course be guilty of wilful misconduct or gross negligence. On the facts as alleged and proved, was he guilty of either? In Michigan a statute amended in March, 1929, and in efféct at the time of the occurrence here in question, provides in part as follows: “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 acciclent 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.” Compiled Laws of Michigan (1929), Section 4648.

In Montgomery v. Muskegon Booming Co., 88 Mich., 633, 50 N. W., 729, 26 Am. St. Rep., 308, it is held that the word “wilful” involves design and purpose, and implies that the act was done with a set purpose to accomplish the results which followed the act. It involves more than negligence; it implies malice.

In Union Trust Co. v. Detroit, Grand Haven & Milwaukee Ry. Co., 239 Mich., 97, 214 N. W., 166, 66 A. L. R., 1515, it is said: “we have in this State ordinary negligence, and subsequent negligence, frequently called gross negligence, but that we do not have gross negligence in the sense of great or much negligence because that would introduce into our law the doctrine of comparative negligence which is foreign to this jurisdiction, and that while wilful and wanton acts are frequently designated as gross negligence, such designation is a misnomer, because such wilful and wanton acts are not negligence at all.”

In Gibbard v. Cursan, 225 Mich., 311, 196 N. W., 398, it is held:

“In the ordinary case of negligence, if the plaintiff has been guilty of negligence contributing to the injury for which the action is brought, he cannot recover, and it is to avoid this rule and to excuse contributory negligence of a plaintiff that the doctrine of gross negligence is usually invoked. * * *

“Where a plaintiff free from negligence is negligently injured by the defendant, there is no occasion to invoke the doctrine of gross negligence to excuse plaintiff’s negligence for there is no negligence to plaintiff to be excused.

“If the negligence of plaintiff is concurrent with that of defendant the rule of gross negligence does not apply, since it may be invoked only where there is antecedent negligence of plaintiff and subsequent negligence of defendant. * * *

“if one wilfully injures another or if his act is so wanton or reckless that it amounts to the same thing, it transcends negligence, is different in kind and is characterized by wilfulness rather than by inadvertence, although it is often incorrectly called negligence, and in such a case contributory negligence is no more a defense than it would be in a case of assault and battery.”

In Simon v. Detroit United Railway, 196 Mich., 586, at page 589, 162 N. W., 1012, 1013, gross negligence is defined as “the intentional failure to perform a manifest duty, in wanton, wilful, or reckless disregard of the consequences, as affecting the life or property of another.”

All of the above authorities are referred to with approval in Naudzius v. Lahr, 253 Mich., 216, 234 N. W., 581, 74 A. L. R., 1189, decided January 23, 1931, where it is held that permitting an inexperienced and unskillful and incompetent boy to drive an automobile at excessive speed was not gross negligence permitting recovery by a gratuitous passenger, and that “to constitute charge of gross negligence or wanton or wilful misconduct, facts lifting owner’s faults above ordinary negligence must be set out.” In the instant case we find no evidence in the record from which any inference can be drawn of any intentional act on the part of the defendant which would amount to wilful and wanton misconduct, nor any intentional failure to act which would constitute gross negligence within the meaning of the statutes and decisions of the state of Michigan.

No facts are alleged in the amended petition, or shown by the evidence, “lifting the automobile owner’s fault above ordinary negligence.”

The judgment of the court of common pleas is therefore reversed, and motions to direct a verdict having been made by defendant both at the close of plaintiff’s evidence and at the close of all of the evidence, a final judgment is entered in his favor.

Judgment reversed and judgment for plaintiff in error.

Richards and Williams, JJ., concur.  