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Home > Journals > Michigan Law Review > MLR > Volume 36 > Issue 2 (1937)

 

Abstract

Before the advent of the "guest statutes," the decisions of all but a very few states recognized no degrees of negligence and measured the duty of the automobile host towards his non-paying guest by due care under all the circumstances-the "ordinary negligence" rule. In the few exceptional states, the decisions required the plaintiff to prove "gross," "wilful," or "wanton" negligence on the part of his host in order to maintain his action. And within the last decade nineteen states have adopted "guest statutes" which, with varying language, adopt the "gross negligence" rule. Since the rule of the lex loci delicti will often differ from the rule applicable under the law of the forum, some interesting conflict of law problems have arisen. (1) Have the state courts worked out a theory of "general jurisprudence" on this subject, or, conversely, how far will a state court feel itself bound by the lex loci delicti (a) if the action is at common law, or (b) if a statute is in question? (2) Have the federal courts worked out a theory of "general jurisprudence" in the guest cases? (3) What influence, if any, have the "guest statutes" had on the federal decisions? And (4) has the federal rule, following the doctrine of Swift v. Tyson, had any influence on the state decisions in bringing about changes toward the federal view?

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