This is an action brought by Erma M. Godley, administratrix of the estate of Gordon F. Godley, against the estate of Bernhardt F. Mueller for the negligent killing of Godley who was a guest passenger in a car driven by Mueller. *Page 205
May 17, 1935, Mueller, Godley and others attended a banquet at the Black River Country Club located about one mile beyond the city limits of the city of Port Huron. During the afternoon Mueller played golf and at the banquet made an address. After the banquet he played cards and at about 11 p. m. invited Elgin Parker, Gordon Godley and Albert Hoffmeier to go for a ride in Mueller's Chrysler Airflow car. Mueller drove the car, Parker sat in the front seat on the right side, Godley was in the rear seat on the left side and Hoffmeier was on the right side of the rear seat. The party proceeded to what is called Bunce Creek at the south end of Port Huron. Mueller drove the car southwesterly on the Gratiot Turnpike, also known as U.S. highway No. 25. This highway is a three-lane concrete highway, each lane being 10 feet wide, with a curvature of 2 degrees, 30 minutes, the deflection of the curve from a straight line being 2.18 feet in the distance of 100 feet. While the parties were driving on this highway, there was no conversation except a discussion between Mueller and Parker as to the manner in which the radio in the car was operating. Just before the accident, Mueller was driving the car at a rate of speed varying between 90 and .100 miles per hour. The car traveled about 700 feet from the north end of the curve when it suddenly swerved to the right and went into a ditch on the right-hand side of the road. The car hit the embankment on the edge of the right of way at a point 100 feet from where it left the concrete and then traveled about 87 feet before coming to rest. As a result of this accident, Godley was instantly killed, Mueller was seriously injured and died a few days thereafter. Parker and Hoffmeier were both injured but survived. *Page 206
After the death of Mueller, the administratrix of the Gordon F. Godley estate filed a claim in the probate court against the estate of Bernhardt F. Mueller. The claim was in the nature of a declaration divided into two counts, one count being a claim under the death act (3 Comp. Laws 1929, § 14061) and the other under the survival act (3 Comp. Laws 1929, § 14040). The claim was denied because of insufficient evidence. The cause was appealed to the circuit court and during the trial plaintiff elected to proceed under the death act. Defendant's counsel then moved the court for judgment for the reason that under the death act, any action for the wrongful death of Godley did not survive the death of Mueller. At the conclusion of plaintiff's proofs and again at the conclusion of all proofs, defendant moved for a directed verdict on the ground that plaintiff's decedent was a guest passenger and that plaintiff had failed to establish wilful and wanton misconduct on the part of Mueller; and that plaintiff's cause of action had abated upon the death of Mueller. The trial court reserved decision on the motion under the Empson act (3 Comp. Laws 1929, § 14531), and submitted the case to the jury which rendered a verdict for plaintiff. Defendant's motion for judgment notwithstanding the verdict was denied. Defendant appeals.
Plaintiff contends that the facts show that Mueller was guilty of wilful and wanton misconduct in the operation of his automobile prior to and at the time of the accident; that plaintiff's cause of action did not abate upon the death of Mueller; and that defendant not having raised the question of abatement in the answer to the declaration filed in the probate court has waived the same.
The first question for determination is whether or not Bernhardt F. Mueller was guilty of wilful *Page 207 and wanton misconduct. The evidence shows that the accident happened on a gradual curve on a highway. The curve was uniform and Mueller had traversed more than 700 feet of it, traveling at a rate of speed estimated at between 90 and 100 miles per hour, when the car for reasons unknown left the highway on the right-hand side of the road, hit the embankment at a point approximately 100 feet from where it left the concrete, and came to rest 87 feet from where it hit the embankment. The record also shows that none of the occupants of the car at any time made any protest as to the manner in which or the speed at which the car was being driven. We also find that Mueller was familiar with this highway and had driven over it frequently for some years since it had been built.
In Turney v. Meyer, 266 Mich. 87, the defendant was driving down a hill approaching a curve at a speed of 60 miles per hour against the protest of his guest passengers. In attempting to make the curve at the bottom of the hill, the car skidded, turned over and injured the plaintiff. We held that this case was governed by Elowitz v. Miller, 265 Mich. 551, where we held that the failure of an automobile driver to see a curve in time to have slowed down to make the turn safely did not constitute wilful and wanton misconduct.
In LeGroh v. Bennett, 271 Mich. 526, the defendant was driving his car at 50 to 60 miles per hour on a slippery road in a heavy fog, when it was dark and rainy; and when objects were discernible only a few feet away. Defendant in attempting to pass a car ahead of him, swerved to the left, hit a trailer on the left-hand side of the road, and injured plaintiff, a guest passenger in defendant's car. We held that this case was governed by Wyma v. Van Anrooy, 260 Mich. 295, where we said, "It is not enough, *Page 208 under the guest act, that defendant was careless, and, by the exercise of forethought, could have stopped his car, or, by more careful operation, have avoided the second collision."
In Fink v. Dasier, 273 Mich. 416, the defendant, between 1 and 2 o'clock in the morning was driving his car 70 miles per hour over the protest of his passenger. He failed to see a car ahead of him in time to pass. We there said:
"It must also be held as a matter of law that at most it was only ordinary negligence for defendant, who was very familiar with this highway, to drive his automobile at the rate of 70 miles per hour under the circumstances surrounding him as he approached the point of accident and before he was aware of the presence of the other car preceding him down the hill."
In Holmes v. Wesler, 274 Mich. 655, defendant, while driving a car between 70 and 75 miles per hour approached a curve, went off the pavement into the gravel, came back on the pavement, began to swerve and collided with a telephone pole on the left-hand side of the road. The court said:
"It is not claimed, nor is there any testimony tending to show, that defendant intentionally drove too near to and off the right-hand side of the paved portion of the highway. It may be conceded that defendant was driving his car carelessly and that this regrettable accident would not have occurred had defendant not carelessly driven his automobile off the right-hand side of the pavement; but in doing so he was guilty only of ordinary negligence, not of gross negligence, or wilful or wanton misconduct. When the car was returned to the paved portion of the highway, it was wholly out of defendant's control, and the accident was then unavoidable. It was caused by ordinary negligence, nothing more." *Page 209
In Keilitz v. Elley (syllabus), 276 Mich. 701,
"Driver of automobile held, not guilty of wilful and wanton misconduct allowing recovery for death under guest passenger act where in spite of warning by decedent's brother to slow down, defendant drove at excessive speed of 62 miles an hour at 2 a. m. on gravel road with which he was not very familiar and car went over embankment at unmarked curve after crossing railroad track."
In Riley v. Walters, 277 Mich. 620, defendant approached a curve at a rate of speed between 65 and 70 miles per hour. We there held (syllabus):
"Negligence of automobile driver in making turn on dry road bed in warm weather at high speed notwithstanding conversation of plaintiff guest passenger and another with defendant indicating the former's desire for slower speed held, not wilful or wanton misconduct entitling plaintiff to recovery under guest passenger act."
In this cause one Elgin Parker, a witness produced by the plaintiff, testified as follows:
"I didn't notice any difference between his driving the night in question and any other time I had ridden with him. I have told you all that I noticed of the driving that night down to the place of the accident, as far as I can remember, and I didn't notice anything that would be alarming until the time of the accident. I didn't notice any more than the natural swerve of any car driving along the highway before the time of the final swerve which ended in the accident. * * *
"Throughout the ride, up to the point where I noticed the speed of the car, I hadn't noticed anything unusual about Mr. Mueller's driving. Nothing called my attention to the speedometer other than the time when I looked just before the accident." *Page 210
In this cause the record shows that when the car left the concrete highway, it did so on its four wheels and that when it ended up its tires were still intact. There is no positive evidence that the speed of the car was the cause of its going off the road, and we are constrained to hold that Mueller was not guilty of gross negligence and wilful and wanton misconduct within the meaning of the so-called guest passenger law (1 Comp. Laws 1929, § 4648).
Plaintiff next contends that it was the duty of defendant to plead affirmatively in the probate court and that his failure so to plead constitutes a waiver of the defense that Mueller was not guilty of wilful and wanton misconduct.
In Bauman v. Bean, 57 Mich. 1, we said:
"If a declaration fails altogether to set out a substantial cause of action, and is incapable of being made good by amendment, the objection may be taken at any stage of the proceedings.
Judgment is reversed, without a new trial. Defendant may recover costs.
FEAD, C.J., and NORTH, WIEST, POTTER and CHANDLER, JJ., concurred with SHARPE, J.