*1 Miсhigan Reports. Failing any them. find snob by was authorized we to infer in decline them. policy, limitations this of tbe court below is reversed and Tbe judgment a for. accord- entry judgment tbe ease remanded opinion. appellant. ance Costs witb this concurred with Smith, Voelker, Black, JJ., J. Edwards, in tbe J., concurred J.,C. Kelly, Dethmebs,
result. INTER-INSURANCE DETROIT AUTOMOBILE EXCHANGE POWE. Eye- Presumptions Through Highways — — —
Automobiles witnesses. southbound, part plaintiff’s de- Presumption due eare on presump- indulged like through highway whereas on cedent motorist on nonfavored of defendant’s eastbound part tion presenting rejected, circumstances highway where there are judge that decedent trial found fact and an issue of driving negligent in mid- ear was the driver defendant’s high speed; pas- rate of all toward intersection at afternoon girl except having killed one sengers been in both vehicles in the back reading seated while ear and she was knowledge or no seat, and had unconscious was rendered eyewitnesses were avail- nо occurrence and recollection at able the trial. J. Snow), from Huff (Eugene Appeal Sagiuaw; No. Calendar (Docket 25, 1957. 3, April Submitted Decided 1957. June No. 47,046.) [1] 5A Am Jur, References Automobiles for Points Highway Traffic 923. in Headnotes § 549’ 1957] Powe. Detroit Auto. Ex- Inter-Insurance Automobile Detroit Case against subrogee, corporation, change, damage property auto- caused Powe for Collins mobile ant *2 plaintiff. Judgment Defend- for collision. appeals. Affirmed. plaintiff. Purcell, &
Heilman Cartwright Wallcer, for de- MacKensie, & 'Stanton, fendant. subrogation a suit for J. This
Dethmers, C. damages resulting collision be- from an intersection being owned and 2 tween automobiles. One by plaintiff’s The other decedent-assured. driven belonged of its its minor аt was one who, time, to a financing occupants, related to but, for reasons major purchase, and relative of the a defendant, own- of title as named the certificate minor, was occupants killed the 2 automobiles were er. All except teenage girl, riding- survivor, 1. That a plaintiff’s assured’s automobile. in thе back seat just reading a had been' book that she She testified happen, was ren- had not it accident, before the seén no knowl- the collision and had dered unconscious edge manner of occurrence. or of the its recollection eyewitnesses at trial. No were available p. m.; occurrеd at 2:30 vision was. The collision assured had been Plaintiff’s clear and unobstructed. driving at from to 40 south, 35 miles- his automobile through high- highway per It a M-15. was on hour, stop- stop by highway way, M-81 on which intersected directing signs traffic thereon to were located crossing M-15. before travelling that he had been east testified A witness per hour, when, miles at at from 60 65 on M-81, point of the intersection a mile west a little over highways, a passed his automobile was of the Reports. occupied by automobiles, both 2 eastbound left Negroes, ap- apart travelling at about feet per he proximately A minute later 80 miles hour. pave- Standing off the intersection. arrived at automobile of corner was an ment in northwest just passed type him, oc- that had the same as one safety by Negroes, caught cupied in a steel cable pole. disen- The driver succeeded in which gaging a held away and drove with all its cable from the occupants, could thereafter be located whom none of produced further tes- The witness witnesses. beyond the intersection tified that southeast proved junk pile. This he like saw what looked a assured be the automobiles wrecked telephone pole defendant, one with sheared-off body pavement. resting lying near the on it. A Negro wrecked automobile contained Defendant’s occupants, including relative, the minor defendant’s *3 the owner and had defend- who was beneficial peo- permission operate to it. At that moment, ant’s gasoline ple began coming a out of station and from of a intersection to the scene the acci- house near the began that skid marks 6 feet dent. Proofs establish of M-15 in the intersection west the center line of southeasterly in a direction to the lo- and extended in evi- cation of the automobiles. Pictures wrecked show that scene, taken at the both automobiles dence, completely and indicate that a colli- were demolished great them with force and between sion occurred violence. by jury. was tried the without a
The court case Baking Relying 240 Mich Co., Clark Lawrence on v. Bradford, and Pentz 352; Wilkins by began Wetsman, the trial court indulging the the that drivers of both proceeded negligence were free from to vehicles to assured, therе respect that, no hold presumption. to overcome that was evidence 1957] v. Powe. Detroit. Auto. proof correct. There is that think was no we
That,
look,
or
not take
or failed to
did
did
either looked
he
proper precautions
to
and measures
reasonable
he either did or failed to
accident,
the
or that
avoid
negligence
anything
that
to
con-
which amounted
do
physical
doNor
the known
to the accident.
tributed
presumption of due care
the
overcome
facts
he
have
the 2
him.
could
should
seen
While
approaching
right,
speeding
from his
automobiles
stop
they
right
that
would
he had
assume
proofs
through highway,
no
M-15. There are
the
which a reasonable
or from
inference
show,
which
may
put
drawn,
that he
or should have been
be
early
anticipated, at
have
a time
on notice or should
permit
they,
enough
the
him to avert
that
accident,
stop sign.
fail
them,
either
would
to heed the
or
n At
plaintiff
phys-
worst,
concerned,
insofar as
proper
indicate
what
observation
ical facts
(cid:127)might
ap-
to him
l
have disclosed
automobile
pavement
pavement
proaching
and 1 off the
consequence
of M-81, with the
ion the north shoulder
appar-
or should have become
became,
Ithat when it
apprоaching
might
ent
him that the
automobiles
stop
intersection,
for the
one of them
not
subse-
may
quently
have been
with the
he
confronted
did,
deciding
how best to avert an accident
dilemma
the other of the
if it
with one or
automobiles,
possible
stopping
to do
whether
so,
then still
paved
being
intersection at the risk of
short
pavement,
attempting
the 1 north
struck
to
paved
through
intersection ahead
drive
being
by both at the risk of
other. The
struck
*4
physical
proofs
are not of a
facts
character
nothing
presumption
there is
the
because
overcome
may
that a
which it
be determined
reasonable
from
prudent driver under like
аfter
circumstances,
and
proper' observation, would have done otherwise than
any
plaintiff’s
did,
that
it was
nor even
assured
Michigan Reports.
longer possible
anything
for him to
avert the
do
ap-
became,
become,
accident once it
or should have
parent
approaching
the 2-
that one оr the other of
n automobileswould not
stop
before
intersection.
Distinguishable
cited
defendant in this
are cases
Sundeen,
connection. Marciniak v.
who, passengers plaintiff’s decedent, the automobile of right, that revealed he had not looked to the after passing approach- an obstruction, to see defendant’s ing passengers whiсh one of the automobile, saw Barry, express- feet from it the-intersection. In ly presumption applica- held that the was without availability tion because an the burden rests on the defendant as eyewitness. reiterating principle Cases that
plaintiff to establish his own contributory negligence freedom from burden is not sustained without the that that adducing proofs subject pres- are met in the instant case presumption ence of the care. of due plaintiff Did overcome the to de- prove negligence part? fendant’s decedent and We on his permit think the above facts recited suffice drawing the reasonable which inferences, when against preponderance drawn not are clear being- evidence, the driven east on M-81 failed to that defendant’s automobile high speed, at a rate of it stop required by law, for the intersection as negligence, that, a result of such it struck the automobile of assured.' The beneficial рerson permis- owner who had the title owner’s being occupant an sion to drive of defendant’s *5 1957] Detroit 553 v. Powe. Auto. time tbe at tbe the inference automobile collision, is either that he that another to be drawn drove or liability permission, to with his so that is be did imputed registered him and to defendant as own Lewis, er.* Kerns v. Parks v. Pere point Marquette R. Mich 38. Not in Mich 315 Co., Shelley, igan (1938 401 US Aero Club v. 750), negli AvR which involved 134, CCH Av airplane gent operation resulting of an in dam its occupants age, for the owner sued of its which proof, theory, on the negligent which failed of that he was the operator. element of an Absent was the owner-occupant, presumed who be either to must responsible operating toor have been for have been plaintiff operation. Furthermore, its there was the enjoying statutory airplane, no benefit owner against occupants accruing of the kind either its against plaintiff here the owner of another auto negligent opеration of its one because mobile driving knowledge and consent. with the owner’s Judgment plaintiff to it. affirmed, with costs JJ., concurred Kelly, Carr, Sharpe, C. J. Dethmers, (concurring affirmance). Aside from J. Black, “total to insistence that there is a addition support judge’s tending the trial lack of evidence” finding plaintiff the driver of car insured thаt contributory negligence, defendant free from was takes this position general in brief here: filed the record barren of that “Defendant submits any support any of the follow- that would evidence driving necessary ing the defendant’s That Willie Powe was facts: grant- had that Powe Willie vehicle; anyone vehicle; permission еlse to drive ed porter. [*] See CIjS § 257.401 (Stat Ana 1952 Rev § 9.2101). —Re- [June- Beports. pro- that the vehicle in which Powe found ceeding along highway any M-81; there was any part witness of act whatsoever on the of Willie- anyone privity
Powe, or with him. And the de- fendant further submits that there is insufficient evi- *6 support finding any negli- dence to of fact as to gеnce part on the of Willie Powe.” Welty fact-duplicate This case is a substantial of Estate, Estate v. Mich 408. There were no' Wolf oath-taking survivors, and no witnesses able to re anything searing late final about the moments. †neverthelessgave Proven circumstances* rise in the* authorizing court to fair below inferences conclusion proceeding high that the driver on the nonfavored way guilty negligence actionable and that the proceeding way guilty driver on the favored was not contributory fault. proceed So far as concerns the decedent driver ing physical east on nonfavored the M-81, circum opinion stances related in Chief Justice Dethmers’ justify fully finding guilt the of actionable on his part. presumption the True, of due care attended as, just approaching it driver, this did the driver way, yet nothing on the favored it established as a distinguished provisional matter of law from its ef typical questions in fect the solution of of fact. apply the trier of Thus, fаcts was entitled to the- presumption proceeding the to driver on the favored way deny application and to its to the driver re quired stop entering law to before the intersection of death.† * Pomerville, 49, Schneider paid In we to tribute
evidentiary physical verity worth of circumstances —once thereof is established —in motor accident cases. Welty, † present said, supra Three members of Court (p this report) : however, said, presumption attended', “It is of due care Agreed. driver in presumption ox>posed' this case. But by result -is a negligence part, circumstantial evidence of on his and the-i typical question disposed of fact- to be of under rules- y. 1957] Powe. Detroit Auto. * upon:
Turning relies now to tlie cases* defendant help; gives I concludes, him no con Marciniak enough before that “There was us, the case clude evidence relative place and character of the present an issue of fact defendant’s (cid:127)collision contributory negligence.” negligence and decedent’s Holley, presumption was nei of due care As to adjudged urged and the driver’s nor considered ther imputable negligence held decedent regard Barry, it fol matter of law. With as a Schillinger’s (without referring to Schil lows rule† disappears linger) of due care that the “eyewitness” presence an whose (cid:127)on account of concurring (see opinions has taken oath not been Duffy, 462-477). Hett result, disagreement then, the salient reason for Here, my part reasoning of the Justice. Chief Barry recognition hence, Schil- and, Continued — linger of the simply perpetuates indеfensible mutilation — *7 assumption by of due care naked person something.” are, that an unsworn “saw We respect I for of Gillett’s think, overdue renewal for summary application or re- time-tried of rules summary quot- jection presumption. That of such (p report): 421 ed as follows may rough classifica- the above serve аs “While presumption relative to the of the tion decisions that the real test in each case will be seen care, due tending con- or the evidence show is whether tributory negligence, not circumstantial, be it direct unprejudiced and that reasonable conclusive so be convinced decedent not fаil to minds could doubt, for reasonable If there is room careless. was the jury. question to the And be submitted must Gillett carefully opinion v. considered given in the useful Co., Michigan Traction Mich 410.” United 205 * Holley Sundeen, Farley, 407; v. Marciniak v. Elkin, Harry Reporter. Mich 427. — Schillinger Wyman, Mich 160. † Reports. jury, weighing may while the the evidence, not yet presumption, consider the if, uninfluenced presumption, they reach the conclusion that the evi- tending negligence dence to show decedent’s is not disregarded, pre- entitled to credit and should be sumption may remaining then he considered may necessary force so far as be establish fact proper that the decеased exercised care in all re- spects expressly not established the evidence. It entirely displaced, abeyance was not pending but remained in jury’s reaching preliminary this deci- given sion as to the credence to be the evidence on particular point negligence in which claimed.” plaintiff.
I concur in affirmance, with costs to We are constrained to from note, record this testimony case, that the certified to us contain ing “necessary the substance of that which is to a understanding testimony” full of said consists of printed pages; but 17 that trial of the case below adjourned commenced December 29, 1953, (on to March 8, which later date the trial was concluded), and that the case not decided until May delay 1, 1956. The is inexcusable.* We record lawyers observation the noted facts in order that judges may apprised example be of this latest adoption (effective cause for of Court Rule No 78 1956) impending March and of re-examination of responsibility our administrative under sections 4 (Const 1908). and 5 of article 7 Smith, Edwards, JJ., concurred and Voelker, *8 J. Black, * “Prompt imperative, decision on the merits justice delayed justice is often is better concession must be wrong denied. Sometimes quietly decision made right than a procrastination. decision after undue Some made the shortness of human (Foreword, life.” p 3, American Law Institute Model Code of Evidence.)