Waltanen v. Wiitala

105 N.W.2d 400, 361 Mich. 504, 1960 Mich. LEXIS 344

• Court: Michigan Supreme Court
• Decided: October 13, 1960
• Docket: Docket 46, Calendar 48,502
• Status: Published

Opinions

Smith, J.

The point here is a narrow one. It has to do with a directed verdict by the trial judge upon the ground of assumption of risk.

The suit arises out of an automobile accident. The plaintiff, Felix Waltanen, was a passenger in a car driven by bis friend, defendant Wilmer Wiitala. The ride during which the accident occurred followed an evening of drinking, and followed, as well, a pattern of conduct that bad been established for some time. Plaintiff’s, .statement of' facts tells us that, during the spring and summer of 1956, the young men (another friend, Wesley Maki,. was included) made a practice of going out together] in the evenings in the pursuit .of pleasure and ex-¡ citement: “They frequented bars and taverns and had a mutual interest in the pursuit of female companionship.”

On the evening in question, plaintiff and Mr. Maki started drinking about 9:30 p.m. in a bar in Toivola, Michigan. They enjoyed beer and whiskey together until about 11 p.m., when they were joined by ■defendant. The 3 friends then drank beer and rum and cokes. Towards closing time they “were downing them real fast.” As plaintiff: put it, “We were just putting them down the hatch,” trying to beat the clock. When the waitress told them it was closing time they ordered more drinks, 2, or maybe 3, of rum and coke. ■ They left about 2:30 a.m. with a ■case of 24 bottles of beer. Defendant drove them to a gasoline station nearby, where they met other friends, and the beer was drunk. Defendant does .not remember having anything to drink at the filling station. Other testimony credited him with from '2 to 4 or 5 bottles.

The friends.now left the station. Shortly after they left it, defendant increased the speed of the ■car. Just prior to the accident he was driving at .a speed of from 95 to 100 miles per hour, steering with one hand, tuning the car radio with the other, and looking down at the radio. They approached a gradual curve. This particular stretch of the road was wavy and rather bumpy. The right wheels of the automobile left the pavement. In regaining the pavement, the automobile rolled over, and skidded 171 feet on its top. Plaintiff was injured. At the conclusion of all the testimony the court ruled that plaintiff had assumed the risk as a matter of law and could recover nothing.

Plaintiff’s appeal argues that the jury should have been permitted to pass upon the question of assumption of risk, stating that “all of the Michigan cases -which .have .been involved .with the question of the legal defense of assumption of the risk appear to-have been jury questions,” citing several cases, including Davis v. Hollowell, 326 Mich 673 (15 ALR2d 1160). In the Davis Case we did approve the sending of the case to the jury, but' the facts were not. as extreme as those of this case. Here, in the trial-court’s words, the plaintiff entered defendant’s ear “with full knowledge of the driver’s past record of careless and reckless conduct in the operation of his motor vehicle.”' What happened on the night in question, up' to the time of the accident, was merely a repetition of what had been going on every Saturday night for some time, getting “pretty well lit,” driving around the area at speeds up to 85 miles per hour, often while adjusting the radio, all without objection by plaintiff. Moreover, plaintiff knew when defendant first entered the bar that night that defendant was under the influence of liquor,¹ a condition that could not have improved, with respect to sobriety, as the evening wore on and inore drinks were consumed. Despite these circumstances, aiid plaintiff’s knowledge of defendant’s driving habits upon previous Saturday nights, plaintiff re-entered defendant’s car at the filling station and drove with him. He obviously assumed the risk of what happened. There is nothing peculiar about the doctrine of assumption of risk as regards a court’s direction of a verdict with respect to it upon defendant’s motion. Here, as elsewhere in the law, the question is simply whether or not, taking that view of the evidence most favorable to plaintiff, reasonable mfen could differ in respect of the question. Dalton v. Grand Trunk Western R. Co., 350 Mich 479; Glinski v. Szylling, 358 Mich 182. Upon the facts before us, we agree with the trial judge, we have a very clear case. Verdict was properly directed.

There is a suggestion by plaintiff that assumption of risk is not a defense to wanton and gross negligence, but no reason in principle why it should not he is argued by plaintiff. It is true in Teeter v. Pugsley, 319 Mich 508, 510, there is a statement that: “In view of the rule stated in Gibbard v. Cur-san, 225 Mich 311, 320, defendant’s claim of error with respect to contributory negligence and assumption of risk must be denied.” The statement, however, contains an error. There is no “rule” stated in the Gibbard Case concerning assumption of risk. We made this clear later, in Davis v. Hollowell, 326 Mich 673 (15 ALR2d 1160), in sending an assumption of risk question to the jury. The Gibbard Case, we pointed out, Id. at p 681, “contained no reference or circumstance pertaining to assumed or incurred risk.”

Assumption of risk, of course, is a defense to negligence, whether it be ordinary “mere” negligence, or such negligence “plus a wilful and wanton disregard for public safety,”² which go to make up the statutory “gross negligence or wilful and wanton misconduct” required under the guest passenger act.³ Volenti non fit injuria. Whether the defendant’s Conduct was reckless or merely casually negligent is immaterial, for the gist of the defense is that the plaintiff took his chances. See 4 Restatement, Torts, § 893.' Here the individualism of the common law is once more at work. See Bohlen, Voluntary Assumption of Risk, 20 Harv L Rev 14.

There is an overlap between the defenses of contributory negligence and assumption of risk. But they are distinct—they respond to different considerations and they are different in application. Thus the habitual baseball enthusiast who is, one day, injured by a batted ball, has doubtless assumed this particular risk of injury but could not reasonably be held to have been guilty of contributory negligence in going to the ball game.4 Should the facts before us be so analyzed as to constitute contributory negligence, plaintiff’s case is not advanced, for, although' “mere” contributory negligence is not a defense to wanton conduct,5 nevertheless' wanton conduct on the part of the plaintiff will be a defense to wanton conduct on the part of the defendant. The Restatement of Torts puts the principle in these words: “An actor whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the actor’s safety is a contributing cause of the actor’s bodily harm.”6 In the case before us the same knowledge of past and present excesses that justified holding plaintiff to have assumed the risk, justifies holding him to be in reckless disregard of his own safety, all as a matter of law. As we pointed out in Glinski v. Szylling, supra, just as there is a constitutional right to trial by jury there is also a constitutional right not to have a question go to the jury under certain circumstances, of which this case is another example.

Since, the court’s decision was squarely placed upon the ground of assumption of risk as a matter of law it is unnecessary to discuss other aspects of the case.-

Affirmed. Costs to appellee;

• Dethmers, C. J., and Carr, Kelly, Edwards, Kav-anagh, and Souris, JJ., concurred with Smith, J.

1 Plaintiff testified as follows:

“Q. Now, you mentioned when you used the words ‘good spirits* as describing how Mr.-Wiitala felt when he came into the K & K bar. Will you tell what you mean? .

“A. Good spirits; what' I'refer to is kind of like feeling good when a person drinks lots, they get in a kind of a happy mood. That’s what I mean by high spirits. That’s my way of saying it. I mean feeling good.” • .

2 Stevens v. Stevens, 355 Mich 363, 372.

3 CLS 1956, § 257.401 (Stat Ann 1952 Rev § 9.2101).

4 See Keeton, Personal Injuries Resulting from Open and Obvious Conditions, 100 U of Pa L Rev 629, 633.

5 See eases cited in Sun Oil Company v. Seamon, 349 Mich 387.

6 2 Restatement, Torts, § 503(2). See, also, Chief Justice Grant’s dictum in Redson v. Michigan Central R. Co., 120 Mich 671, 672, wherein he hypothesizes an injury to the train crew (who had been charged with wanton conduct) arising out of plaintiff’s wanton conduct. He then goes on to state the law applicable in these terms:

“It would then be gross negligence against gross negligence, wilful misconduct against wilful misconduct, and intent against intent; and in such ease the law leaves both parties where they have placed' themselves, and gives recovery to neither.”