Kohn v. Mandell

17 Mich. App. 653 | Mich. Ct. App. | 1969

Per Curiam.

The plaintiff Harry W. Kohn commenced this action to recover for damages sustained in an automobile collision between an automobile operated by the plaintiff and one operated by the defendant Stephen R. Mandell. Plaintiff joined as a codefendant the Continental Assurance Company, claimed by the plaintiff to be Mandell’s employer.

The trial judge granted Continental’s motion for summary judgment on the ground that there was no genuine issue as to any material fact. GrCR 1963, 117.2(3).^* Continental relied on Mandell’s deposition testimony that he was not engaged in any business activity for Continental. Mandell testified that he was an insurance agent employed by a general agent of Continental. On the day of the accident he left his office for the day at 2 p.m. and stopped on personal errands at Becker Brothers Printing Company and at an electric supply company before the accident occurred. He had not planned on conducting any additional business until after he reached home. The deposition of another witness showed that a number of years before the accident Mandell had written a group insurance policy for Becker Printing Employees with Continental. However, there was nothing by way of affidavit or deposition contradicting Mandell’s sworn testimony that his visit to Becker Printing on the day of the accident was to inquire about printing for his Masonic lodge and was in no way connected with the writing of insurance.

"While it is true that a question which turns on the credibility of witnesses may not be resolved on a motion for summary judgment (American Parts Co., Inc. v. American Arbitration Association [1967], 8 Mich App 156, 170), mere disbelief of Mandell would not justify a conclusion that the opposite of what he testified to was the fact. People v. Matthews (1969), 17 Mich App 48, footnote 5, and cases therein cited.

There being no evidence upon affidavit or deposition whatsoever that Mandell was within the scope of his employment at the time of the accident the plaintiff failed to frame a genuine issue as to scope of employment in response to Continental’s motion for summary judgment and the trial judge did not err in granting Continental a summary judgment.

The pretrial summary (GCR 1963, 301.3) did not contain a statement that Continental intended to defend on the ground that Mandell was not acting within the scope of his employment at the time of the accident. Plaintiff asserts that Continental was thereby precluded from defending against plaintiff’s claim on that basis. However, in neither its answer nor in the pretrial summary did Continental admit plaintiff’s allegations that Mandell was one of its employees and that he was acting within the course of his employment at the time of the accident.

The trial judge has the power to modify the pretrial summary. If the trial judge’s action in granting the summary judgment is viewed as constituting a modification of the pretrial summary, he did not, in our opinion, thereby abuse his discretion.

Affirmed. Costs to appellee.

* The judgment entered "by the trial judge contained the recital required by OCR 1963, 518.2 and, thus, this appeal was properly taken as of right although the judgment disposed of less than all the claims against all the parties. See Hope v. Weiss (1968), 12 Mich App 404.