*1 531 Sec’y 1984] Berrien Comrs. ok State duty in- the mentioned to follow it is defendants’ plaintiff. from received structions accordingly the issued Court The order signatory approval hereto. of the Justices and O’Hara, Smith, Dethmers, Souris, Black, concurred. JJ., Adams, part took no in J., J., C. and Kavanagh, Kelly, case. decision PERIN PEULER. Rehearing. On op Appeal Law Not Reviewable —Issue 1. Questions Error — Brieps. Below — Raised court, may in law, not determined An issue raised the trial adequately Court, provided has been by Supreme such issue presented and briefed. op Negligent Entrustment Reviewable — 2. Questions Same — Automobile. automobile, its as owner for owner of liable Issue to whether for negligent is also liable operation statute, virtue of considered, driver, is entrustment ear to although raised adequately presented not is and briefed where it may quiet new court, fears that a trial and determination right prevent effort to arisen and assist of aetion had (CLS 1901, 257.401). carnage traffic § op Negligent Liability "Automobiles — Entrustment — Owner 3. Lender. duty or lender of a motor vehicle The common-law owner in- placing nnfit or from hands of a known refrain highways competent operation public driver for on [1, [3-6,10] [9] [7, [11] [12] Common-law 2] petent, 41 Am 5 Am Jur 5 Am Am Am 8 Jur, reekless or unlicensed Am Jur Jur, Jur, References 2d, Jur Witnesses 2d, Pleading Courts Appeal 2d, Appeal Automobiles based on § §§ § 150 et for Points and Error 623-627, Error et driver. seq. seq. entrusting § §§ 670. Highway 168 Headnotes et ALR 1364. 566. seq. automobile to Traffic 573. § incom- 373' impaired imposing liability upon the statute owner (CLS negligent operation for its 1961, 257.401). Negligence Liability Letting Inexperi- 4. —Common Law — enced Person Chattel. Use *2 An chattel, vehicle, may owner or lender of a a motor such as incompetent inexperienced to an person entrust or with- out, law, incurring negligent at liability resulting common for injuries others, to the owner’s or lender’s aris- then ing negligence from Ms permitting incompe- its use an inexperienced person knowledge or probable tent with consequences. 5. Same —Proximate Cause. recovery There no injury can be proximate for that not a consequence negligence complained of the of. Negligent 6. Automobiles — Entrustment —Burden of Proof. The is on plaintiff, seeking negligent burden to from recover entrustor, prove injuries to motor that which vehicle caused and owner, per- driven one not the driven with the authority lender, mission and of the the en- owner or that incompetent trustee inwas fact an driver, and that the owner or lender knew at the time of the entrustment en- incompetent unqualified operate veMele, trustee was or to knowledge or had facts such and circumstances would as imply knowledge part on the or owner lender sueh ineompeteney, plaintiff and mnst also show causal connection injury complains. between the entrustment and the which he 7. Constitutional Law —Courts—Bules and Pro- of Practice cedure. The enacting amending judicial practice function of rules of procedure exclusively Supreme has been committed to the Court, legislature may a function with not interfere may or acquiesce meddle adopt save the Court re- judicial (Const 7, 5; 1963, 1908, tention at will art Const art § 6, 5; 1963, 16). GOB § 8. Same —Courts—Bules of Evidence. judicial constitutionally empowers function the courts to procedure, ineluding make their own rules of of evi- rules dence, (Const subject only specific to limitations constitutional 6, 5; 7, 5; 16). GOB art Const art § Explanation—Discretion 9. Witnesses —Admission Crime — Court. A party witness or under who to con- cross-examination admits jury permitted viction of a crime crimes is offer to the Pebin Peuler. explanation, extenuating for if there are eireumstanees no readily can them, one else so judge being lodged recall the trial inquiry discretion to confine on such collateral matters to the explanation by admissions and witness, explanation being subject to cross-examination within trial judge’s discretion. Negligent 10. Automobiles — Entrustment —Evidence. A case of entrustment of an automobile is not confined proof of convictions for violation of motor traffic laws and knowledge thereof, owner-lender plaintiff’s pleading but where clarity lacks respect, the defendant be entitled to pleading more certain plaintiff that whieh prove. intends to Negligent 11. Same — Entrustment —Amendment oe Declaration. It was part reversible error judge deny plaintiff’s on of trial motion to amend pretrial declaration after but before trial in automobile accident ease so as to embrace as an additional part basis of on of defendant owner that he en- trusted although his car to his knowing son the son' was person an unfit car. drive the Rehearing. 12. Costs — *3 rehearing personal Costs on injury granted are case that plaintiff appellant they are limited to those costs as stood taxable by Supreme first decision Court, origi- where by nal Supreme determination Court is affirmed. JJ., dissenting. and Kelly, Dethmers J., O’Hara, dissenting part.
Appeal (Stuart), from Kent; Hoffius J. Submit- rehearing July (Calendar 31.) ted on Resubmitted 17, 1963. No. April rehearing (Calendar
on 9, 1964. 49,783.) No. rehearing 24, Docket No. on Decided September 1964. against Henry
Case Florenda Perin Peuler, Henry personal injuries Peuler J. for Sr., suf- fered automobile collision October 1959. Mo- incorporate charge tion to amend declaration negligence against actionable owner of automobile appeals. Rehearing denied. Plaintiff: granted Reversed. tip- and cause resubmitted. Prior decision held and cause reversed and remanded. Eaughey (Sherman E. Cone, of &
Mitts, Smith plaintiff. counsel), for (Grant Gruel, & Buchanan J.
Cholette, Perkins counsel), for defendants. Rehearing On 49,783), (Docket having No. This case J. Black, July 17,1963 resubmitted reheard, been ordered and case April together again like 9, 1964, on Corporation v. General Motors of Tortora pre- (Docket 49,435). Tortora In the main has No. questions as have been briefed sented argued same rehearing case. of the instant on to the Court jury fully that case tried to court and Tortora, what is to considered with read and was, should be opinions Case, Mich Tortora follow. See 563. disagreement (Perin previous Peuler, 369
Our
247) gave
a new issue defendants’
birth to
Mich 242,
rehearing. That
decide on
would have us
counsel
In-
Question
of Additional
headed “Statement
issue,
way:
submitted
volved,” is
liability
negligent entrustment
is
“There
no
pure-
owner whose
of'an automobile
provisions
statutory
ly
the civil liabil-
under the
(Stat
§
ity
Ann 1960 Rev
257.401
act, CLS
9.2101).”
having
quoted
raised
been
issue—not
While
opin-
signers
properly
of this
here,
below—is not
ion are
agreed
it,
decide
that the
should
Court
contemporary
quiet
Cassan-
fears of
better
right
may have been born
of action
that a new
dras
*4
majority opinions
legal
when the
out of
wedlock
Contracting
398,
Mich
Co., Elliott A. Smith
J.
supra,
handed down.
Peuler,
were
and Perin v.
-
apt
determine new
circumstances
That we
adequately
provided
legal
been
has
such issue
issue,
1964}
v. Peuleb.
Pekin
presented
again
briefed,
was settled
when Da
(19
Co.,
Ford
tion v.
Motor
Michigan’s dismally failing beset and prevent carnage. very may, effort traffic It at overindulgent parent awaken least, some to the fact beginning that, from the in instances disclosed as at personal, distinguished bar, have from vicarious, toes exposed heavy boot-step been of liabil ity whether he is owner lender motor car daughter that known-to-be unfit son or driven has causally injury to the actionable of another. We proceed accordingly. undersigned rehearing: hold, on duty
1. That the common-lav/ of the owner or lend placing er a motor refrain it vehicle to from incompetent the hands of a known unfit or driver operation public highways, our unim on stands paired Michigan’s 55-year-old owner-liability (PA § p 318, 3, 780; statute No 1909, 10, see, subd currently, 1961, §257.401; Ann 1960 Rev CLS Stat 9.2101). legislature When and decides to right eliminate the common-law of action which car, from of a arises entrustment motor say by reasonably explicit it doubtless will enact so yet, body so, ment. That done herein has not as Haring plainly Tanis, Elliott, cited tell us. applied unequivocally When Court—in 1933— (Tanis such common-law rule to lender motor car Eding, 94); century quarter v. Michigan’s Mich a full after owner-liability had ef statute become necessarily same conclusion came fective, years supreme later the Iowa court as did some Roofing Haegg 985, Iowa Co., Krausnick v. 1417). (20 434, 163 ALR NW2d support of the new text Krausniclc cited in direct *5 536 373 Highway Am Automobiles and 2d, Traffic, Jur entrusting incompetent “Effect of vehicle to or pp 127: driver,”
reckless ' though in “Even some States statutes have been general making enacted which have the effect of the injuries negligent- of a motor vehicle liable for owner ly operation owner as a result of the inflicted use of such by persons vehicle other than the himself, operation scope the of of the vehicle consent, within liability owner’s common-law operation entrusting the motor vehicle one’s to a incompetent superseded known driver is not there- by.” (Italics by present writer.)1 adopt quoted
We
such text and hold that the
new
negative.
issue should be
answered
definitely
rehearing,
2. That this
should,
Court
on
adopted
reaffirm its
Tanis,
adherence to the rule
supra, quoted
(Tanis
97):
at 96,
follows
precise question
“The
is new in
this State.
weight
overwhelming
authority supports
the fol-
lowing :
“
general
‘The
rule that an
owner of
automobile
negligence
is not liable for the
of one to whom the
application
automobile is loaned has no
in cases
where the owner
knowing
another,
lends
automobile to
incompetent,
that the latter
reckless,
is an
injuries
likely
or careless
to cause
driver,
others in of the automobile;
use
in such cases
injuries
the owner is held liable for
caused
negligence
ground
personal
borrower’s
on the
of his
person
entrusting
automobile to
apt
injuries
who he knows
is
cause
to another in
its use.’
permits inexperienced an or likely knowledge use his chattel with use is such injuries Apart to cause to others. from stat- such above, utes as that cited owner of a motor ve- may person it hicle not entrust to such a without liability resulting’ injuries negligent for to others. Lahr, 1137,1148; 216, 36 ALR 229 265 Mich 253 Mich Naudzius (74 Eding, 179); 1189, ALR Tanis 30 NCCA 96; Elliott v. A. J. Smith Con- tracting Co., 358 Mich 414. In circum- such liability part the owner’s stances, is also vicarious person for it cannot arise unless the with entrusted negligently; primary but, automobile uses for basis the owner’s to he own said his negligence incompetent permitting its use an inexperienced person knowledge prob- of the consequences.” able proceeding infra, Before to divisions 3 and some comment Tanis’ rule is in order. additional adoption we that Tanis’ First note thereof was setting of a case Avherethe defendant lender—a technically Sophie not, car at the time of dealer-—was injury, “owner” of had Tanis’ the car Yredeveld completed in to him otherwise turned Nonetheless this Court on an car deal. applied what it was a said supported by overwhelming weight “the of au- rule well applies as mere lenders
thority”; a rule negligence plaintiff in Thus to owner-lenders. owner-liability hold statute to rely upon operation negligent responsive the owner latter’s the same at another, motor vehicle quoted rely upon the owner rule hold time negligence arising personal out of responsive for pro- vehicle; motor of such entrustment negligence imputed statutorily such vided, course, causally negligence personal are connected and with pursues merely injury. reasoning plaintiff’s Such supra, at 411: Elliott, Simply plaintiff said here? has been “What liability: (1) defend- for defendant’s has theories entrusting alleged negligence ve- a motor ant’s (2) employee wheel, unfit to be at the hicle to an liability for the vicarious defendant’s acting scope employee employ- within perfectly ment. are valid theories.” These precedent For an instance where conduct of an *7 entrustee of motor to if that conduct was known car, entrusting during the at owner the time of or causally entrustment, continuation of the —if jury question personally of connected—make ac- part entrusting tionable on the of such supra. Case, owner, consider the Tortora definitely requires Second, the entrustment rule (or proof knowledge giving of of facts to an rise part knowledge), inference of on the of the owner incompetence or lender, of the or unfitness of the plaintiff perforce, prove driver. The must, entrusted allegation the essentials of what has become supreme the his burden. As court of Ohio concluded, factually the like case Gulla Straus, 154 Ohio (93 666): NE2d St “In a case such as the instant one, burden is the plaintiff upon the to establish that the vehicle motor Perin v. Peuler. permission authority driven with the was and incompetent that the owner; entrustee fact an and that driver; the owner knew at the time of the incompetent cntrustmont that the entrustee was unqualified operate knowledge vehicle, or had imply such facts circumstances as would knowledge part on the of the incom- owner peteney.” requirement precedent Third, addition to the knowledge (on part entrusting of the owner or lender) incompetence of the of the unfitness or causally the entrustment be entrusted must driver, injury plaintiff connected with the com- plains. sensibly contended, It for in- could be stance, driver, the entrusted known to be thus incompetent, any unfit or had chain of causa- started driver, tion back to in if the entrustor such entrusted operation car, of the had himself entrusted constituting committed no act or omission actionable might negligence. wholly drive, He be unfit might knowledge have the fact of of such unfitness entrusting proclaimed night by the been before plain- yet if on the lender, owner or occasion causally injury not himself such entrustee was tiff’s operation negligent car, no of the entrusted plaintiff right could arise of action in favor of such against or entrustor. The ele- either the entrustee connection entrust- ment of causal between injury lacking, much so as ment would per- negligence complained of should be that mitting car the entrustee to drive the entrustor’s plates See, license in violation of statute. without Phillips Taylor, Spencer point, Mich & 353. *8 cause of
In all
we consider here the
cases such as
proximately
plaintiff’s injury
connected
the
must be
for
either
omission
which
act or
some
responsible.
legally
the
or the entrustee is
entrustor
rule, first
in Lewis
Our
Flint & Pere
Rep 790),
injury
announced
Court
v.
Marquette
(52
Co.,
R.
proposes by way of amendment. limiting goes 3. That statute3 far too sub reception usually mission and of what and be permit of evidence value in civil cases. Should proscribing ted life, further admissible as evidence any unnecessary extent? think contro not, We versy injustice iniquitous application and in the having multiplied thereof thrust, ever since the statute was pertinently 1949, into then stable rules (PA 588). p § of evidence No 1949, 731, 300, years paused Not until recent has this Court position reflection its constitutional vis-a-vis legislative (Love Wilson, branch Mich 327; Buckley, 392) Darr 355 Mich when that branch practice procedure, to enact assumes rules of include, course, rules of evidence. rules step (then Yet as far back as 1931the Court took the 3)§ requi No Court Rule which was remains validity statutory to constitutional rules site practice that are consistent with court rules. current means, Rev hearing code or Section 731 of 9.2431), quoted post. of local ordinances course, determining complaints vehicle conviction code; “pertaining “Conviction,” CLS a court for violation to. the use motor vehicles.” -charged § employed in section 257.731 the motor vehicle (Stat Ann duty *9 Peuler. Perin (refer adoptive supra) Darr, Love rule to and in 1931: read, practice of heretofore forth in 3. Rules set “Sec. any any with these rules, in conflict to be in effect not statute, superseded by until be deemed shall adopted by ¡Supreme Court.”
rules
16):
(GrCR1963,
It
now
reads
practice
any
in
forth
statute,
set
“Rules of
any
rules,
shall be deemed
be
conflictwith
these
to
superseded by
adopted by
rules
in effect until
Supreme Court.”
protective
adoptive
If it
not for
and
Rule
were
would be vulnerable to constitu
16,
tional attack
up
section 7314
said
grounds
brought
were
as
same
Bushouse,
at
in Harker
the courts to only specific (subject cluding of evidence rules orig- Virtually limitations). all of the constitutional by the courts. were invented inal of evidence rules violation of this use action.” “Sec. motor vehicles 731. No evidence of the CLS chapter or shall 257.731 admissible (Stat Ann a local ordinance conviction of any any Rev court pertaining person for §9.2431). any to the civil any change usually But failed to courts rules which proved legislature undesirable, from time to time reformatory made statute, alterations ob- —thus scuring historically the natural function of the courts. just prerogative times,
“In recent the rules of the courts procedure to make their own has been vin- professional opinion; healthy dicted move- relegate generally procedure ment to has to the courts *10 long way. prerogative, been That under this power of the courts includes to formulate and ought to alter the rules of evidence not to be doubted.” (1 Wigmore pkt [3d ed], on Evidence §7, 1962 supp, p adding quotations text.) 51; these pocket
The supple- italics above are those ment text writer. wording
Let us consider the literal
of section 731
application
generally.
and its
civil
actions
Its
proscription applies to “convicted”
well
witnesses, as
parties.
It
they
tells the
courts
this State that
not,
shall
“in
civil
action,” receive “evidence of
any
person
any
the conviction of
for
violation
this
any
chapter
pertaining
or of a local ordinance
to the use
5
of motor vehicles.” The section does not—even
implication
prohibition against
its
admissibil
—limit
ity
may
to traffic
civil
accident
trials. The trial
damage
of a
action for
libel,
slander or
for assault,
pickax,
use
a firearm or
for fraud
privacy,
deceit,
for actionable invasion or the
may
like. The triable issue
arise in an action to set
a deed,
aside
or in certified
No
will contest.
matter
nature
the “civil action,” and no matter the
nature of the motor vehicular criminal record of the
party or
party
witness on the
that
stand,
witness
impeached
cannot—if section 731 left to
stand—be
credibility upon
or tested for
criminal
record.
Untied
[5]
For
Trucking Service,
similar
legislative
Summary observe now—the ease been tried having We al- plaintiff may prove —that be unable her entrustment; be, of negligent legation amendment, her plead when the defendants *11 the father actual or inferential knowledge by denied, claimed will record be boy’s making as that such record on that It also issue score. be case of unfitness fail to make a submissible will knowledge and owner-lender thereof. incompetence Bar and with view new force refers, standing. v. Mich 1963, § 257.731 [6] “.10 Goldberg, 277 Mich The bench and bar right of provision and 933, 528; During see 600.2158 the court administrator toward effect, [Stat the Court For the Van Cebuldk v. cross-examination the trial of Ann 1960 Eev Goosen (Stat section adoption, an amendment of GCE right of cross-examination known as has this Ann Lewis, 134; are 731 of civil actions the Barlum, respectfully advised Socony day GCR Rev § of intent notified the 9.2431]) Michigan Mich 710 214 Mich credibility, § Vacuum Oil Co. 27 A.2158).” 507.10, rules of to the vehicle (5 secretary 595, 599; Zimmerman to which this sub-rule shall remain that, ALR2d reading 1963, 507, evidence, Court contrary notwith code pursuing GCE of the State Marvin, as 186); (CLS including adding consider, follows: in full CLS [313] Michigan Reports. suggestion possible avoid As to this last see the —to appears prejudice conclusion of at the our —which supra. opinion Tortora, here consider all On the other we fear- hand, plaintiff forebodings, by- proving some succeeds preponderance amendatory allegation, due defendant her
parent stoically take all should bitters parents neglectfully like for themselves. brew When personal without and constant attention to father, junior’s public personal training for the well as driving, hazard of motorcar and without like atten- junior’s ensuing driving boy tion to habits, lets after 1 continue use father’s car or more con- adjudged knowledge, have victions been to father’s and bothers not from that discipline on to time train with due occurs,
before the inevitable he boy certainly boy’s not the victim of his and the — negligence “prejudicial” bear the conse- —should quences. negligent The common-lawrule of entrust- ment is both time tried and valuable, and we are not disposed assigned ground to dilute worth on its proof junior’s the sad record of court-conviction parental knowledge “prejudice thereof will jury.” entrustor and the entrustee before the Pro- always requisite proof (refer vided is made back Quila quotation p 538), “prej- to the at Mich solely udice” is due to the of those who decry prejudice it. That kind of no manufactures judicial error, reversible or otherwise. we can- And adding not resist from Tanis in 1933 that, and at least until enactment 1949 of said section 731, courts of seem in these entrust- dispensed jus- ment cases to have a fair measure of having tice without created the resultant and wide- spread prejudice they counsel tell us see ahead.
Arriving necessarily opin- lengthy at the end aof point ion, we consider the foremost defendants have *12 Perin v. Peuler. opinion They any argument. aver in oral made history a known which even hints Court, of this “previous in accidents” make out involvement will re- entrustment, a quire case of submissible complete of each the causes in suit a trial consequen- previous also that such accidents; such upon tial trial courts an result will call down our impossible burden. impressive. point very always It
The
has
is not
party
that,
been
law
or
when a witness
under
cross-examination
to conviction of a crime or
admits
permitted
right
jury
he of
“to offer to
crimes,
(Leland
explanation”
Kauth,
his
Finner
v.
Plaintiff’s for motion leave to amend her declara- according quoted tion, to and as in Perin aforesaid previously at 247, was denied below. As held, denial constituted reversible error. The circuit court’s order should therefore reversed and record be remanded to the Kent should circuit granting plaintiff’s entry of order motion. said *13 546 373 only costs,
Plaintiff should have but such as stood upon decision here. taxable first may, to course, Defendants move strike or for pleading, having appear more certain been made to uncertainty respect plain- exists some with to pleading previous tiff’s previous “accidents” rather than By
“convictions.” we do mean say that a submissible ease entrust- only by proof ment of automobile can made of “convictions” for violation of motor traffic laws and owner-lender
knowledge thereof. a Such case possibly proof upon could be made of known unfit- arising ness from other and events, facts such as partially person, a entrustment to known-to-be blind visibly person, or a intoxicated or a known insane person, person wholly otherwise known-to-be upon public ways. unfit to drive car our We do that, mean the in the context of this Perin where Case, plaintiff rely upon seems a record of convic- yet pleaded specific clarity, tion7 has not the de- may well plead- fendants be entitled to more certain ing plaintiff of that prove which intends under proposed her “necessary amendment. See the rea- sonably requirement to inform” GrCR 111.1.
What been has written above, and what has been majority signing supra, written for Tortora, detailed [7] The “record” in her brief as follows: plaintiff seemingly proposes rely “conviction 3. 4. 6. 5. 8. 9. Ace. 7. 2. 1. Acc. 10/28/57 12/20/58 Warning Suspension 10/ 9/56 DATE 1/15/58 9/11/57 Rep. Rep. letter 10/ 3/57 Kent Kent Zeeland. Grand Grand Hudsonville Grand place County County Rapids Rapids Rapids 2/17/58 through ARREST ACCIDENT OR 10/ 4/59 12/14/58 10/ 7/56 10/ 7/56 10/23/57 9/ 2/57 1/13/58 3/16/58 DATE improper habitual improper passing speeding speeding fail to 1 vehicle, vehicles, DEPT. injured” OFFENSE keep right ACTION turn [2] injured OR v. Peuler. Pekín supersedes replaces (Perin our former decision 242). Peuler, 369 Mich J., and Kavanagh, C. and Adams, Souris, Smith, JJ., J. concurred with Black, (dissenting). J. This Court’s awareness Kelly, importance question presented of the and the decision to he made is evidenced journey the unusual up through this case has taken to now our *14 Court.
July plaintiff 19, 1961, filed her declaration county against Henry circuit court for the of Kent Henry Sr., and minor his Peuler, son, Peuler, Jr., alleging injured she was when a in which was car she passenger by was a collided with a car owned Peuler, by and driven Sr., Peuler, Jr. Peuler, Sr., filed admitting being by answer that the driven car was knowledge his son his and consent.
Pretrial filed 17, 1961, statement was October following plaintiff sought December 21st leave to following: by adding her declaration amend proximate “That a further cause of said collision negligence Henry of defendant Peuler, Sr., was Henry operate permitting in his Peuler to defendant J. Henry vehicle, he that aforesaid when knew said guilty repeated Peuler had J. been traffic viola- prior had tions, accidents, had, been involved shortly prior undergone temporary thereto, sus- pension operator’s negli- of his for habitual license gence.” denying plaintiff’s (January In motion to amend 8,1962), Judge Iloffius attention Stuart called to the prohibiting introducing previous statute1 the driver’s statutory subsequent or ordinance in a convictions necessity civil there action; stated was no for an CLS 257.731 (Stat Ana Rev § 9.2431). Michigan Reports. by amendment because defendant-owner Ms filed answer admitted Ms son. drove the car with Ms knowledge thereby and consent and made himself negligence, liable for his purpose son’s said: “The sole only proposed bring amendment driving thereby in the record of defendant-driver and jury.” influence the ruling appealed grounds
Plaintiff on the court’s holding A. in Elliott v. J. that was contra to our Smith Contracting Co., Inc., Mich and con- protected that the defendant-driver could be tended from prejudicial instruction harm a court bearing upon past no record of the driver has solely considered in this case and “is to be negli- determining or not the owner whether entrusting gent him.” the vehicle to original opinion (4 Justices) majority in our 242) (Perin hearing Peuler, 369 Mich this case only being to “evi- directed the statute construed 246) (p “facts and declared of the conviction” dence past statute,” are not barred .of occurrences point by stating, emphasized “a whole series and of might past be shown other events accidents or to the con- they to lead a nature as of such were wheel and at the was unfit to be son clusion *15 knowledge having drive, him to father allowed the opinion majority concluded was so.” The that this denying plaintiff in by finding erred that the court right the amendment. to file the Justices) minority opinion (3 contended The interpreted in opinion an majority the statute the interpretation given way entirely than the different majority by Elliott; that the in to that statute by prejudice protected from not be would driver evidence allow that to court; instruction in would “involved” was defendant-driver accidents type in trial” “approving 251) new auto- (p a be Pebin v. Peuleb. upon jury “where cases we call mobile hearing responsibility for 2 or in 1 more to decide during period that occurred an extended accidents” legislative using mandate, that “the terms time; ” ‘any ‘any person,’ ‘any action,’ civil is defi- court,’ “any change and that in this mandate broad, nite and legislature by judicial from the and not should come legislation.” dissent concluded The that the court denying the amendment. did not err granted arguments Eehearing and oral were was July on this own and, heard on Court’s rehearing the third was ordered and second motion, argument April 9,1964. in this case was held oral ownership liability the enactment of the stat- Since question we not and decided the ute have considered employed negligent entrustment of whether plaintiff alleged at bar where such as that a case ownership lia- is liable under a defendant-owner bility admits he is the owner-defendant statute and negligence, for the driver’s liable under the statute negligent. found the driver is negligent entrustment cases cited Justice contention that the trial court to sustain his Black clearly denying dis- amendment' are all erred presented tinguishable. all His 3 cited cases situa- ownership application in which the tions being disputed statute defendant- was prior did the owner these cases owner. In none of agree case, owner in this as does the answer, plaintiff’s owner was that the assertion with within the statute’s
application. none, therefore, In pro- statutory plaintiff rely solely could the liability. presumed owner visions Eding, Mich this Court In Tanis v. granting
reviewing motion to dis of defendant’s present defend case, Unlike a declaration. miss yet had not ad- answered had ant-owner *16 Michigan Reports. Sept. [ mitted that the applied statute to him. In that case operated defendant Eding a sales and service garage and in the course of his business took a car in for a new exchange one, but failed to secure a deliv- ery of certificate of title. He then allowed one Brower to take the car out garage drive it was and, he it, alleged, knew when he gave car to Brower that Brower was a careless, reckless, and incompetent driver.
In determining Eding’s responsibility, this Court 96): (p held was not “Eding liable, under 1 CL 1929, 4648, as owner car, because he had not received certificate of title. Eding, Kimber v. Mich 670.” Court, however, went on to say that the precise question presented in Tanis —liabil- ity a lender of an automobile to one known to be a careless new to the driver, Court, but the Court adopt would from 36 ALR following 1148: “ ‘The general rule that an owner of an automobile is not liable for the negligence of one to whom the automobile is loaned no has in application cases where the owner lends the automobile to another, the latter knowing incompetent, reckless, driver, careless and likely to cause injuries others the use of the automobile; such cases the owner is held liable for injuries caused borrower’s negligence who he use.’ on ground personal intrusting to a person automobile apt injuries knows is to cause to another in its
” Tanis, Thus, our Court clearly stated there was not responsibility under the statute as the Court decided it would attach under responsibility theory. common-law entrustment
Attention is called to the fact that not more than Haring 18 months this Court considered ago Myrick, presently 368 Mich and 7 of the seated Petjlee. 55Í Pekín *17 (the opinion included), writer of Justices with- quotation out reservation, attested to the therefrom opinion. set forth in Justice Black’s To establish without doubt that our Court in Haring, Tonis, inas was with facts that confronted recovery negligence did not for a allow under the ownership liability quote Haring I statute, from the paragraphs syllabi: decision, from the averring “Declaration that defendant owner had permitting failed use due in care an unskilled and n inexperiencedperson operate, use, maintain, repair car, and that as a result of in gas plaintiff blowing gasoline sprayed out the line was with ignited by heating appliance was inexperienced using, thereby defendant’s son was severely burning plaintiff, stated a cause action against at common law the owner.” imposing liability upon “The statute owner for injuries negligent person inflicted another apply negligent driver of a car does not to action for injuries being inflicted when the car driven at was (CLS §257.401 [Stat time fire occurred Ann § 9.2101]).” 1960 Rev “The owner of a chattel it to who loans another incompetent inexperienced who is is liable for resulting injuries to others whatever the intended long competence use of the chattel so as the user’s inadequate therefor is and known to the owner.” Haring My supra, again In rick, this Court appeal considering from a dismissal the trial court of 2 declarations the motion of defend opinion expressly ant. Our in that case stated opinion place and dismissal took before answer; ownership liability also, while the statute was pleaded by plaintiff, syllabi-summary as the above question shows, the facts were occurrences quite clear such that was that the statute did not apply. The trial court and this Court held stat-
‘552 again, clearly apply and, defendant- did not ute application admitting the far from owner, vigorously (and ownership suc- statute, was cessfully) attacking it. these did this Court hold
Thus, cases, neither of namely, opinion which I contends, what the dissent pur entrustment that common-law ownership liability statutory applies. sued where Haring, approved While, both Tonis Court theory, plaintiffs’ negligent the Court entrustment plain agreed attack the owners’ had first tiffs fore, statutory liability; pleading wrong there were Myrich Eding Haring cases and Tanis v. proposition authority *18 clearly that not for the are proved negligent pleaded and entrustment ownership liability be applies, clearly where the statute apply. defendant to admitted and, fact, is analy- with at war Iowa case2is not The cited pleading approve the of the did sis. case While negligent to- entrustment, of action common-law liability gether pleading the owner- under the authority ship liability not for case is statute, the present pleading allowing in the case. such double Iowa the the matter was before In the Iowa case interlocutory appeal supreme from defend- on court negligent entrustment the ant’s motion to strike plaintiff’s petition. theory case, In the Iowa from yet having admitted.or denied with defendant not liability ownership statute, the he fell under whether point pains taking out to with the Iowa court and apply ownership liability not statute does that the plaintiff have should clear the situations,3 all is 432, 434, 435, 163 ALR liability. for the owner the a driver when Krausnick v. Owner ear for different or liability by and the driver Haegg Roofing Co., the 1413, 1417). unauthorized Iowa statutes is on a accident specific occurs while purposes, 236 Iowa is restricted trip then there at the the direction to driver negligence of is no owner (20 NW2d using and Petjler. Pekín protect by pur- he to himself allowed, as was, been statutory theory suing common-law both liability, at least until the time of defendant- owner present If the case had come answer. before owner’s posture similar to that in which in a this Court we would hold as court, came before Iowa case only However, the Iowa decision the Iowa court. did emphasizes distinguishing controlling factor present before us. In this case there in the case now pursue the common-law en- is no need theory no need for this Court to allow trustment possibly prejudice plaintiff defendants’ rights hearing fair as has been em- because, to a ownership part phasized, of this case was pleadings. completed all, After at the termination purpose pleadings: To remove from this is disputed. Because stat- trial those issues that he would admission defendant-owner’s ute and not in this plaintiff’s only escape task statute, able negli- present to establish the driver’s case is plaintiff day gence and in the incident in on the injured. claims she legislative as amended PA enactment, [Stat (CLS § Ann 1960 257.731 No 60 9.2431]), providing: evidence of the con “No
Rev chap person any any of this violation viction pertaining use local ordinance ter or motor vehicles shall any court be admissible challenged any in our Court was not action,” civil *19 pass upon upon to we were 1960when called before Contracting Co., Smith Elliott v. A. in J. the statute legislative recognized supra, only not where we gave right provide reasons for this but Court’s to so 413): (p provision, propriety follows of such sought the stat- principal to cured evils “The way: been convicted A driver has in in this ute arise a traffic connection with offense a criminal Beports. civilly respect he sued addition, In is accident. danger There is a that the the same accident. permitted, jury might, if consider the criminal civil negligence in ac- conviction as evidence civil negligence prior that in a cases, in civil case tion, or, regarded negligence in will be as evidence of a later principally, are what case. the statute seeks These, (3d ed), prevent. Wigmore, Evidence 987.” February, attempt Our determine this present appeal Perin Peuler, did Mich repudiate above-quoted not ment and Elliott our I960 state statutory challenge provision,
did proof only prohibiting but construed it as of convic tion. rehearing,
Now, it is recommended for the provision per- first time that this should not “be mitted further life.”
The clear terms of the statute are discussed in Elliott writer’s dissents and in Perin the first opinions hereby v. Peuler Both decision. are re- recently thought affirmed. toAs advanced the statute “void,” is also the writer submits that this argument extreme fails own its statement. Evidence acts or incidents to establish char- disposition acter or is almost unani- mously improper by held to be courts and evidence provisions law commentators, and to show that the question pre- of the statute in are not contra vailing following: I law, cite the “Admissibility,
20 ALB2d under annotation in civil motor vehicle accident evidence case, previous driver was or was not involved in acci- : dents”
“General rule. generally “It is held that evidence of a driver’s previous accidents inadmissible in a civil action arising out of a motor vehicle since accident, *20 Peuleb. Pekin in the determination immaterial evidence question.” negligence the occasion on driver’s of Institute, Evidence, Model Code Law American pp 184, 185: 306, 4, ch Rule concerning person’s tend- a character as “Evidence * * * prove ing to his conduct. person’s with character a trait of a of “Evidence respect is inadmissible his conduct or both the lack of either care or skill or quality prove tending of as specified a occasion.” on of Commis- of National Conference Handbook (1953), Laws Uniform State sioners on Uniform p 191: Rule Evidence, Rules of Shill—Inadmissible Trait Care or “Character Quality of trait of to Prove a Conduct. Evidence a respect person’s to care or skill is character prove tending quality of his as inadmissible specified a occasion.” conduct on 20 ALR2d under annotation “Cross-examina- respect tion of automobile driver to civil action with previous conviction for traffic arrest or offenses”: speaking, “Generally have refused to courts permit of a driver in civil cross-examination prior convictions for traffic actions as arrests or ground offenses on the that the introduction of of collateral evidence would lead to consideration bearing question having on the issues no negligence driver’s the accident under considera- tion.” (2d Michigan Callaghan’s Pleading and Practice 1964), pp
ed, 188: §36.269, purpose establishing on the “For the part vehicle, operator a machine the driver incompetent or or he be shown that was operation regards that he was reckless injury, driving in a where case and, time of at the employee operator of the de- or driver was negli- purpose establishing for the fendant and *21 employee, may retaining gence it in such the latter of knew or must have that the defendant be shown known incompetent. employee was that his “Generally, particu- to inadmissible as evidence is incompetency or of recklessness on lar instances person’s general occasions, as to character other respect incompetent being reputation with or or general driving, of reckless, or as to his method purpose establishing of at time an accident.” (5th ed), p on Evidence §190, Jones 331: repu- excluding “The rule evidence of character or prove applies special tation to force in conduct,
negligence cases.” policy What this writer considers to behind holding evidence inadmissible well summar- in a ized McCormick discussion his work on p § 152, ch 16, 319, as follows: Evidence, may danger unduly “The that the facts offered jury’s prejudice, hostility arouse the emotions * ** sympathy; probability proof that the provokes may answering it evidence that unduly jury create a side-issue will distract the * * * from main issues; the likelihood that counter-proof the evidence offered and the will con- (and sume undue amount of time” other consider- here). ations relevant These considerations have been summarized in the p comment under Rule 303, 181, American Law In- Model
stitute, Code as Evidence, follows: “(1) may The time to be consumed be out all proportion (2) to the value of the the con- evidence; [the over the existence test fered or nonexistence of of- may jury believing evidence] mislead into major importance; (3) it an issue of the evidence as Pekin v. Peuler. [the fact] offered or nonexistenec the existence present as snch of subordinate issues number jury.” confuse puts “disputes Wigmore it, as over other Or, care- Wig- main would soon obscure the lessness issue.” (3d ed), p on Evidence more 678. §199, Why, then, there is no need to establish liable, entrustment order hold the owner does present expend plaintiff in the seek to the time, case money obtaining effort and involved and in- troducing proof link al- to establish this ready exist admitted to because statute? proof yesterday’s
Is accidents will be helpful today’s responsibilities, to determine plaintiff’s supplemental claimed in brief: (plaintiff) recognize *22 requesting, “What she is is however, persons that the court that certain a have tendency their negligent driving by toward as evidenced previous driving history, long a and that cur- history rent of accidents or does a convictions have bearing only upon direct not the likelihood that a person given was in a situation, but also upon degree particular the of care which a driver ought to exercise under the circumstances.” plaintiff’s Is it because the amount of verdict enlarged by showing proof would be the of the previous negligence, meeting jury’s driver’s thus large against reluctance to render verdict proof (plaintiff’s supplemental owner without such brief) ? opinion
Or, is the answer to be found in the thought which I placing expressed dissent, where is responsibility damages for added accountability upon the owner, would awaken him to (owner’s) personal, fact distinguished that “his exposed from vicarious, heavy toes have been to the bootstep liability”? from differs request instant case in the Plaintiff’s only plaintiff
plaintiff’s request Elliott where not a was driver that the fact owner. The sued the emphasized Elliott, only party not suit was prej- protecting from necessity the driver but emphasized. udice was also would be claim that defendant-driver
Plaintiff’s protected prejudicial instruc- a court harm from only past con- record could that the driver’s tion against jury an- the owner as sidered original (369 decision in the dissent our swered 249) an instruction follows: “Such Mich purpose appellant accomplish claims not would namely, jury insuring not ‘con- that the will it, past ‘bearing sider the record of the driver’ as ” particular in this accident.’ prejudice protection against The is driver opinion importance not considered of in the to which following I and the therein seems dissent, statement prove point: neg- “The rule of common-law ligent entrustment both valuable, is time tried and disposed arewe to dilute its worth on as- signed ground proof junior’s that the sad record parental knowledge of court-conviction and thereof ‘prejudice will the entrustor and the entrustee before ” jury.’ disagree I with such a conclusion. re-emphasize dissenting I what was said in the opinion (p 251) original in the case in re the uncer- tainty of the word “involved” and the confusion that plaintiff granted will result if what seeks, she my opinion grants, namely: what Brother’s *23 right prove to that defendant driver “had been in- prior in volved accidents.” quote approval
I following with from the trial court’s denial of the motion: usually opinion
“I am of the that a motion such pleadings as to granted, amend the this, should be Petjler. Perin providing prejudice rights not does of defend- though pretrial ant, even issue, case is at and has appears any been It held. that at amendment this stage proceedings usually permit oppos- would ing adequately prepare counsel to to meet pleading. pur- amended in However, this case, the pose proposed appears of the solely amendment to introducing driving that of influence the record would jurors’ decision in connection with the alleged negligence [CLS of defendant driver. § (Stat 9.2431)], 257.731 Ann specifically 1960Eev provides that no evidence of the conviction of a chapter for a driver violation under or of a local any ordinance shall in be admissible court in a civil action. proposed goes only “The amendment to the liabil- ity of defendant-owner will who be liable as owner operation defendant-driver was in the appears, It his automobile. purpose therefore, sole proposed bring only amendment is to driving in the record of defendant-driver and there- jury. influencethe Since defendant has admitted being knowledge
that the car was driven with consent of defendant-owner, the defendant-owner negligent.” will be liable if defendant-driver is length I written at in have this dissent because I trial lead believe confusion reversal court would injustice precedent and create a of this shared no State Union. appellees.
The order should be affirmed. Costs to J. concurred J., Kelly, Dethmers, impelled part). (dissenting I am O’Hara, J. separately certain of the case because write this developed logically language Mr. Justice Black’s sign my opinion To conclusions. is inconsonant with only only “concurring me, in the result” presenting the same in all cases but case writing Justice problem, a disservice *24 through and, bar, to the bench, to the circuit valueless litigant. parties are not we who Unless to the them, specify opinion given our complete a accord with leave nothing would those who to which we reasons, change a urge law, in cases of divided in our case a particularity. can refer court, opinions agree case and I First: Corporation, Mich Motors General Tortora v. 563, together, because and considered be read should question presents only really of discre- a case this tionary (complaint). a declaration to amend leave reversibly my er- view, turns, Tortora jury. charge However, both cases in to the roneous application legal involve the their substance motor vehicle. entrustment of a doctrine legal agree a new I we consider Second: presented” “adequately under briefed and issue particularly proper here where circumstances, supplementarily and reheard. briefed case is says disagree Black when he with Mr. Justice I “unequivocally applied [negli- that this Court gent entrustment] car common-law rule to a motor Eding, 94); quar- (Tanis full Mich lender emphasis] Michigan’s century [his owner- ter after not so effective.” I do had become statute apply my not Court, view, did read Tanis. This “unequivocally.” Actually the was Court the statute that: careful to note owner]
“Eding [the liable, not under CL had not re- because he car, as owner of of title.” ceived certificate proposi- for the me not the case for stands
Thus
urges
but for its con-
tion that Mr. Justice
Black
point
precise
believe,
It
I
stands,
verse.
which I
"
urge
Negligent
of a
entrustment
herein.
party
injured
in those
available to an
motor vehicle is
reason is
for whatever
where
owner
cases
Peuler.
Pekin
ownership
and his
statute
vicarious
Tinder
liable
of his entrustee become
responsibility for the acts
the statute.
responsibility dehors
distinguish
I
the same basis
on
manner and
like
In
*25
(20
Proofing
Haegg
Co.,
power to make is Its obvious of the State. negligent acts for the liable owners automobiles they Lia- entrust their vehicles. to whom those by bility law tests not limited the common- is the statute under applicable relation- to the master-servant ship. under the common-law action that a The fact (and preceded the statute doctrine master-servant exception any exists) from the not create still does employers in favor of as a class.” terms of statute supplied.) (Emphasis carefully noted that “consent” Iowa court
The pur- specific their meant consent for a statute under pose: placed automobile] [the in the driver’s “If it specific trip purpose,
possession liability no there is for injury of the under the statute owner * * * negligent operation results from being and unauthor vehicle while used for different m * * holding purpose. ized in see no reason We of lia latter rule case that common-law against bility might if he of a the owner not be invoked negligently placed vehicle in the hands (Em incompetent.” supra, 989. Krausnick, known phasis supplied.) Michigan Reports. dichotomy between Mr. Justice Black
myself occurs when he would allow the assertion negligent the common-law doctrine of entrustment proofs incompetence and the admissions of the ownership incident thereto in cases where and con- operate alleged sent to our under statute are pre- not denied. For in such a ease we truth do cisely judge what the trial said we do—allow the ground liability “solely assertion of this to in- jury.” unimpaired fluence the Thus I leave would the doctrine of entrustment a motor vehicle in our I State but would restrict its use to liability those cases wherein of the owner not al- ready alleged opera- and admitted reason of the tion of our statute. plaintiffs
Thus in cases where the could statutory dual, i.e., reason of entrustment, relating are free to choose their basis the acts of *26 the driver to the owner. can- Defendants likewise they not have their defense cake and eat it too. If by ownership put controvert a denial of consent plaintiff proof, may prove to he his his case of liability by any proof prior of the driver’s incom- petence necessary and his scienter thereof. unimpaired right
Third: I would leave of any in cross-examination case under the established right evidence, of rules to cross-examination concerning prior “prohibitory of convictions traffic subject super- law or ordinance” to the tidal court’s relevancy point specifically vision as to in time. I reject “past admission evidence of accidents”' proneness” or “accident obvious reason of' objectionable relating proximate their nature to proof necessary ingredient of tort cause, total liability, in case. Thus a motor vehicle accident agree extent I with Mr. Justice Black coequal legislative en- branch when our coordinate Pjetjler. Pekin procedure practice rules “rules acts * * * which are at vari- of evidence” rules include prescribed by rule within we have what ance with our judicial constitutionally inviolate area join power, they Mr. Justice are void. I Black of our intent and the bar” bench his “advice delay an amendment GrCB. to consider without suggests along footnote. lines he af- detailed, I would For I have here the reasons right judge of the. firm the trial and his denial upon the issues for trial amend. I would remand pleaded with the or denied consistent to be admitted Appellees tax forth. limitations herein set costs. CORPORATION.
TORTORA GENERAL MOTORS
Employee
op
Driving
Corporations—Bad
Record
1. Automobiles —
op Proop.
—Burden
corpora-
Plaintiff,
injured by
with defendant
reason of collision
claiming damages
employee,
by an
tion’s car that was driven
entrustment,
proving
by
had burden
reason
allegation
knowledge
bad
express or
of driver’s
inferred
driving record.
Employee
Driving
op
—Evidence—Knowl-
2. Same —Bad
Record
edge op Owner —Instruction.
against corporation
ear was
whose
Evidence adduced
action
jury
driving
that the
employee
driven
sueh
with a
record
finding
for entrustment
would be
him to be unfit
warranted
owner,
failed to show
but which
with a motor vehicle
driving
and was
employee’s bad
record
the owner knew of the
thereof,
permit
allow-
duty
instruction
under no
to learn
did
employer
ground
had
ing jury
to find
liable on
defendant
*27
por
in Headnote
References
Points
[1,2]
2d,
Highway Traffic
898.
8 Am Jur
Automobiles and
§§
Liability
to whom car is loaned
of owner for
of one
1008,