
    Herrell v. Hickok.
    (Decided November 19, 1934.)
    
      Messrs. Yager, Bebout & Stecher, for plaintiff in error.
    
      Messrs. Marshall, Melhorn, Marlar & Martin, and Mr. L. Grary Davis, for defendant in error.
   Lloyd, J.

Helen Herrell commenced an action in the Court of Common Pleas to recover damages for personal injuries which she claims were caused by the gross negligence and wilful and wanton misconduct of Clarence Hickok, in whose automobile, driven by him, she, a Miss Siegfried and a Mr. Brettel were guest passengers. Brettel was killed and Miss Herrell was severely injured.

This catastrophic event occurred in the state of Michigan on May 15, 1932, and the trial judge, at the close of all the evidence produced at the .trial, directed a verdict in favor of Hickok. Miss Herrell and Hickok occupied the front seat in the latter’s Packard roadster, Miss Siegfried and Brettel occupying the rumble seat. Hickok drove north from Toledo on the Dixie Highway toward Monroe, Michigan, and after passing through Erie, Michigan, turned to the right from the Dixie Highway on to Rauch Road, which leads to North Shores on Lake Erie where Hickok has a summer cottage. He was familiar with this road, as much so, he says, “as a person driving hack and forth to his home every day”. The evidence discloses that there are at least two curves in this road, the first curve being located about half a mile east of the Dixie Highway, and the other being some six or seven hundred feet further east. There is testimony that Hickok was driving his car at a speed of from 65 to 70 miles an hour, and at the first curve “swerved to the left and went off the road, ’ ’ and Miss Siegfried says:

“We were driving quite rapidly and it seemed shortly after we turned off the Dixie we hit this first cúrve to the, — toward the right, — went off the road on the left hand side. # * * Then we went back on again and it seemed almost immediately after we swerved to the right and the car started to go back and forth, first on the left and then on the right, and finally we turned over”.

The “accident”, she says, happened at “the next curve”.

Brettel and the two girls protested to Hickok, but according to Miss Siegfried he “just laughed” and “drove faster, if anything.”

As they approached the second curve, an automobile was approaching from the east, and there is testimony to the effect that Hickok, admittedly familiar with the contour of Rauch Road, and having experienced the difficulty of keeping on the road at the first curve, continued thereafter to proceed toward the second curve with no effort on his part to lessen the sp.eed of the car. Miss Herrell also so testified, and says that the speed of the automobile just before the accident “was around 70 miles”. This was known to her because, she says, “I saw the speedometer”. She says also, “as we took the first curve, we just barely made it, and I protested and Miss Siegfried protested. It seems we gathered more speed for the next curve. * * * I said ‘be careful’ and started hanging on the door”. Photographs were offered and received in evidence wherein each of the curves in question appears to be a sharp curve, — it, however, being contended by counsel for Hickok tha| they do not truly picture the curves as in fact they are, because photographically exaggerated. The only evidence offered by Hickok at the trial in the Common Pleas Court consisted of the so-called guest statute of the state of Michigan, and a number of decisions of the Supreme Court of that state interpreting and applying this statute to litigated cases. Hickok thereupon resting his case, the court upon his motion directed a verdict in his favor. Judgment was rendered upon this verdict, and Miss Herrell as plaintiff in error asks this court to reverse that judgment.

It is contended first, that the lav/ of the place where the cause of action arose governs the substantive rights of the parties, and that the law of the forum controls as to the quantum of evidence necessary to require submission of the issues involved to the jury. Secondly, it is contended that without regard to the law of Ohio, the law of Michigan as announced in various decisions of its Supreme Court required submission of plaintiff’s alleged cause of action to the jury.

Because this court agrees with the second contention of plaintiff in error, it is unnecessary and would be mere obiter dicta to decide the first contention, although in passing it may be observed that counsel for plaintiff in error have filed with the court an exceptionally well-prepared brief on the subject, citing many authorities in support of the contention made.

The statute of Michigan, which is the basis of Miss Herrell’s cause of action, reads in part as follows:

“No person, transported by the owner or operator 0/ 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 motor vehicle and unless such gross negligence or wiful and wanton misconduct contributed to the injury, death or loss for which the action is brought.” Compiled Laws of Michigan (1929), Section 4648.

A great many of the opinions of the Supreme Court of Michigan relating to cases involving the foregoing statute were pleaded by Hickok in his answer and received in evidence. These various authorities relate to more or less differentiating evidential facts, discussing generally the intent, purpose and meaning of the statute, and then decide whether a particular set of facts and circumstances create a cause of action. It is rather difficult for this court to harmonize all that is said in these various opinions and formulate therefrom, with any degree of certainty, any uniformly adopted rule that will determine what facts and circumstance the evidence in a particular case must tend to prove to permit its submission to the jury. Nor shall we assume the burden of attempting to analyze and harmonize those decisions, but shall content ourselves with referring to two or three of them which in our judgment solve the problem in so far as concerns the instant case.

I am assuming that by substantive law, in the sense we are here called upon to apply it, is meant the rules of law announced by courts of a state or country which are applicable uniformly to all causes of action of the same class, rather than to decisions determining whether or not the evidence in a particular case is of sufficient probative value prima facie to support an alleged cause of action.

In most, if not all, of the opinions of the Supreme Court of Michigan relating to the foregoing quoted statute, we find repeated, and sometimes it would seem conflicting, statements as to what is meant by the terms gross negligence, wilful and wanton misconduct, and subsequent and other kinds of negligence, but each of them primarily is concerned with determining whether or not evidential facts and circumstances in particular cases are sufficient to permit a jury to determine the existence or non-existence of an alleged cause of action. And in De Shetler v. Kordt, 43 Ohio App., 236, 183 N. E., 85, this court sought to solve the problem there presented by applying to the facts in evidence the general rules and definitions announced by the Supreme Court of Michigan as applicable to that class of cases, and applying those rules and definitions, as we understand them, to the evidence, concluded that no facts were alleged in the amended petition or shown by the evidence “ ‘lifting the automobile owner’s fault above ordinary negligence’ ”, ordinary negligence being a phrase frequently used by the Supreme Court of Michigan in these various decisions.

So, in the instant case, it is our problem to decide whether, under these announced general rules and definitions, there are facts and circumstances in evidence lifting Hickok’s fault above “ordinary negligence”, of which even in Michigan, on the record before us, he surely was guilty.

In Finkler v. Zimmer, 258 Mich., 336, 241 N. W., 851, it is said, at page 341, that “each case must be decided on its own facts”, and upon that premise we shall proceed. It seems to us that from the evidence presented it was for the jury to say whether Hickok was or was not guilty of wilful and wanton misconduct on the occasion in question. Driving at a speed of 65 to 70 miles an hour, on a road with which he was in all respects familiar, — its width, curves and character, — his continuing with a laugh, as the evidence tends to show, over the protest of his guests, at an increasing rate of speed toward a second known curve, his loss of control of his automobile on a dry pavement in the daytime, are all facts and circumstances from which a jury in any court in any state might find the consequent injuries to Miss Herrell to have been prosimately caused by the wilful and wanton misconduct of Hickok.

In Bobich v. Rogers, 258 Mich., 343, 241 N. W., 854, the facts seem to have been that the plaintiff, who was riding as a guest in the automobile of defendant, received injuries by the overturning of the automobile, which left the road at a railroad crossing, the approach to which was by a right angle turn. Defendant testified that he made the turn, but something happened to his car at the railroad crossing and he lost control of it. In the opinion, at page 345, it is said:

“Plaintiff recovered on the claim that defendant drove his automobile at such a high rate of speed that he was unable to make a sharp turn without losing control of his car, and, as a consequence, the car left the roadway and overturned. * * * We cannot, draw a line beyond which mere speed in making a turn departs from negligence and becomes wilful and wanton misconduct. Conceding that defendant was negligent in making the turn at high speed, it would not constitute wilful and wanton misconduct. ’ ’

We are unfamiliar with the rules of practice of the courts of Michigan, but it is significant that the court found that the trial court “should have granted a new trial”, and upon this ground reversed the judgment and ordered a new trial.

As we read and analyze it, the case of Boos v. Sauer, 266 Mich., 230, 253 N. W., 278, confirms our view that the judgment in the instant case should be reversed and a new trial ordered. In this case it was held that a truck driver’s merely falling asleep while driving a truck was not such wilful and wanton misconduct as would create a liability to a guest passenger for injuries sustained by the truck colliding with a telephone pole.

“To constitute gross negligence”, says the court, (the term ‘gross negligence’ as used in the statute being synonymous in effect with wilful and wanton misconduct), “in falling asleep while driving there must have been such prior warning of the likelihood of sleep that continuing to drive constitutes reckless disregard of consequences. There must be an appreciation of the danger of falling asleep or circumstances which would cause a reasonably prudent person to appreciate it and proceed in defiance of results. It has been held that prior warning may be by way of having before gone to sleep or dozed off.”

By parity of reasoning, it would seem that the difficulty experienced by Hickok at the first curve was sufficient prior warning of the danger of continuing in the same manner as theretofore, and that the facts and circumstances in evidence are such as “would cause a reasonably prudent person to appreciate it”.

In our judgment, a jury might find that the evidence adduced at the trial of the instant case was sufficient to lift Hickok’s fault above “ordinary negligence”, and, therefore, because of the error of the trial judge in directing a verdict, the judgment is reversed and the cause remanded to that court for a new trial.

Judgment reversed and cause remanded.

Richards and Williams, JJ., concur.  