*1 Rеports. 242 employee relationship at the time of the accident was finding not established. The trial court erred relationship snch existed. oregoing, necessary f view the it is not to dis- question dealing
cuss
final
with wilful and wanton
gross negligence.
misconduct or
judgment
The
of the trial court as to defendant
LeSage is
reversed, and mаtter is referred to the
entry
judgment
trial court for the
of a
of no cause
LeSage.
for action
judgment
as to defendant
of $26,000
amount
defendant McCleaf
LeSage only
is affirmed. Defendant
costs.
have
Carr,
J.,C.
and Dethmers, Kellt,
Black,
Souris,
M.
JJ.,
concurred.
Otis
Smith,
part
took no
J.,
decision of this case.
O’Hara,
PERIN v. PEULER.
Negligence
Permitting
Oр-
Automobiles —
Unfit
1.
Person
Car.
erate
may
guilty
rule that an owner of
neg-
automobile
ligence
entrusting
operate
the ear to
unfit
one
to an
employer
action wherein the relation
confined
employee
concerned,
parent
but extends to the
and child
operate
if the latter
is unfit to
the ear.
[1]
[2]
[3]
[4]
Commоn-law
Common-law
Am Jur
reckless, or unlicensed driver.
Case Peuler, Florenda Perin against Henry Sr., Henry and J. Peuler for injuries suf- personal fered automobile collision. Motion to amend declaration of actionable incorporate charge negligence against owner of automobile denied. Plaintiff appeals. and remanded. Reversed Cone, оf (Sherman H.
Mitts, Smith & Haughey for rehearing), plaintiff. counsel on application Gruel, of Buchanan J. Cholette, Perkins & (Grant for defendants. counsel),
2M Reports. regularly assigned J. This case was Black, leaving former Justice Adams. Prior to his opinion, adopt, bench the which I was prepared by him and submitted other members the Court. passenger in an
Plaintiff, automobile, sufferеd injuries riding when the serious car in which she was Henry collided with one owned defendant Peuler, operated by Henry Sr., and defendant Peuler, J. minor son. alleged specific
The declaration acts of part part the motor violations vehicle code on the Henry Liability of defendant J. Peuler. Henry solely of of Peuler, wаs Sr., claimed on the basis imputation of the driver’s under the ownership liability statute. pretrial pleadings statement indicated that the complete
were issue. *3 Subsequently plaintiff procured driving the the thereupon of record amend her the minor and son moved to incorporate specific declaration to charge negligence of part actionable on of the Peuler, Sr., entrusting defendant-owner, his vehicle to a incompetent by driver known him to be of reason bad record. The court motion, denied the stating: usually “I am the that motion such as pleadings pro- granted, to the this, amend should be viding prejudice rights defendant, does the though prеtrial even issue, the is at and has case appears any held. been It that amendment this stage proceedings usually permit of the would opposing adequately prepare to counsel meet the pleading. pur- case, amended However, this the pose proposed appears of the tо be amendment solely introducing driving that of which record jurors’ would influence the decision connection alleged negligence with the of defendant driver. Petjlek. v. Pekin n CLS 9.2431), § (Stat Eev Ann 1960 1956, 257.731 provides of the convic- specifically that no evidence chapter for a violation under a driver tion of admissible local ordinance be or of a in a civil action. only goes proposed lia- to the amendment “The bility owner liable as who will be of defendant-owner operation negligent in the defendant-driver if appears, that the therefore, It of his automobile. only proposed purpose of the amendment sole driving bring of defendаnt-driver record the thereby jury. ad- defendant has Since influence being with the driven car was mitted that knowledge defendant-owner, the de- and consent liable if defendant-driver will be fendant-owner negligent.” Contracting Inc., Co., In Elliott v. A. J. Smith against a con- in an action Mich it was held company might company tracting have been n guilty a motоr vehicle employee at the wheel. unfit be n plaintiff go to was allowed to solely against theory, being the em- the action ployer employee against truck driver. laid down to do not conceive rule there be We n confined solely employer-employee relation- ship. might alleged therein also parent occur between a if the child was and child present unfit to be at the wheel. If had action solely parent, been directed child and the joined not also had as there would defendant, no distinction Elliott between and this case. provi- problem consider the arises when we (Stat Ann 1960 Eev sions CLS 257.731 *4 9.2431), reads as follows: whiсh person any for “No conviction of evidence the .any chapter of a local ordinance violation of or Beports. pertaining the of motor use vehicles be ad- any civil action.” missible language of
Is the the statute so broad to bar as regard past all evidence with to a driver’s actions? Wе think not. The statute directs itself to “evidence nothing of the conviction” further. Conviction implies, judgment a and, fact, place. an occurrence that taken has This is un- doubtedly prohibition. statutory the reason past However, the occurrences are facts barred the statute. Neither would the results flowing therefrom such as a revocation of driver’s Contracting Elliott v. license, Inc., A. J. Co., Smith supra, only but “evidence of the conviction.”
Conceivably, whole series accidents or might they other events be shown if were such nature as to lead to the conclusion that the son was unfit to be at the wheel and the father allowed him to having knowlеdge Liability drive, that this was so. under such a situation is no more unusual than the liability might result from a car to a pistol drunken man aor loaded to an infant. prohibition think it "We clear that of the statute is not as broad as it was trial construed be judge. is not a This case where the motion to amend simply because, denied trial judge, progressеd the case has so that, far as matter of fairness, the motion should be denied. ordinarily such a situation we would not interfere judge’s trial discretion. Here, however, was conceded the time motion to amend was posture made that the case that the ordinarily granted. motion would be The motion was denied tó a due mistaken construction of substantive law led which the conclusion rights prejudiced. of one of the would defendants We have seen that this is Moreover,. case. *5 247 v. Peulek. Pekín plaintiff prejudiced in that rights of the were -the presenting prevented to the plaintiff from was consonant of the case his theories all of developed upon The trial. could he facts that the trial court denying the decision was in Its error. granted. The motion is is vacated. motion to amend proceedings in further matter remanded for appellant. opinion. Costs accordance with this JJ., con- M. Smith, Otis Souris, Kavanagh, J. curred Black, (dissenting). Appellant’s contention J. Kelly, ruling Elliott v. judge’s is contra the trial that Contracting 398, Mich is with- Co., 358 J. Smith A. (hereinafter merit, out and Justice Black’s “opinion”) intro- would allow to as the referred partici- driver’s the defendant of evidence duction pation contrary previous the statute. accidents therefore, dissent. I, pretrial and after was at issue After sought her dec- plаintiff amend leave to conference, paragraph: adding laration proximate of said collision cause a further “That Henry Sr., Peuler, of defendant operate Henry permitting Peuler to defendant J. Henry said when he knew vehicle, his aforesaid J. repeated guilty viola- traffic Peuler had been prior accidents, had, tions, had involved temporary shortly prior undergone sus- thereto, negli- operator’s pension for habitual of license gence.” 27.838]) § [Stat (CL Ann 616.1 statute may permit provided amendments trial justice, terms as shall “for on such the furtherance of just.” * Ann 1962 Rev § [*] See revised 27A.2301]).—Repori’er. judicature act of (CL 600.2301 [Stat Michigan Reports. contends
Appellant court’s failure Co., supra, Elliott v. A. Smith follow J. Contracting a clear constitutes failure exercise if discretion, not, fact, abuse of discretion.
The majority opinion (the in Elliott writer of this opinion wrote the opinion) was dissenting based *6 servants, agents, employment and of improper per- sons, and the majority opinion that discloses not an a question such as deciding pre- is sented this as is appeal, evidenced the following- quotation from that opinion (pp 413, 414): of
“Appellant claims that admission evidence concerning employee’s past its record vio- driving lated following statute: “ ‘No evidence of рerson the conviction of any any violation of a or of local ordinance chapter pertaining the use of motor ad- vehicles be (CLS missible in any court civil action.’ anv 9.2431].) § 257.731 Ann '[Stat 1957 Cum Supp § The above previously statute has been construed by this Court.
“Even assume, we were to without though de- that in ciding, a negligence аgainst action the driver himself, evidence of mentioned, supra,, the type is ‘evidence of the conviction’ driver thus of the within legislature, of proscription an assumption would not answer here problem presented.
“The principal evils sought be cured statute way: arise in this A driver has con- of criminal victed offense in сonnection with civilly traffic accident. he addition, sued is respect to the same accident. There is danger that the civil jury if might, permitted, consider the criminal conviction as in the negligence evidence civil action, or, that in a cases, civil negligence prior regarded case will as evidence in a lаter case. are These, what principally, v. Peuler. Perin (3d Wigmore, prevent. Evidence seeks statute ed), § 987. is the suit Here such a case. not have do “We against himself but
brought the driver theory: per totally his employer different on a his operation aof negligence in sonal truck totally incompetent it. person to handle to a Eding, 213 of Mich 94. Section v. Tanis See (2d), principle Agency states the Restatement upon terms: in the relied “ activity through person conducting serv- ‘A liability subject agents for harm or other is ants negligent resulting or reck- if is from conduct he * ** : less “ ‘ employment improper persons (b) or in the involving of harm to risk instrumentalities ivork ” othеrs.’ danger finding there majority in Elliott that prior regarded as “negligence will be ease is a case,” in a later evidence sharp prevent,” danger “the seeks statute position appellant’s untenable contrast *7 “following in this of such evidence introduction the past jury rec- that the instructed the should be case, bearing upon his no the driver has ord of particular con- it is to be but that accident, in this solely determining the whether or not sidered in negligent to him. the vehicle in owner proper purpose, for its would allow the evidence This making uphold inad- the such evidence but statute against driver.” defendant missible accomplish an instruction would nоt Such namely, insuring appellant purpose it, for claims past jury record of will not “consider the upon “bearing in this the driver” as particular accident.” presented question in this on
We did not rule “opinion” appeal from I dissent Elliott, in and the Reports. this statement, does not contradict as is disclosed by paragraph “оpinion” calling in the attention merely Elliott that an allowed the to determine employer’s negligence employing in an unfit truck “solely against driver; that the action was the em- ployer employee truck driver,” go awith conclusion that we should further present case now before us than we did Elliott by the statement that “We do not conceive the rule solely employer- there laid down to be confined to the employee relationship.”
Appellant why failed to disclose we reason judge should reverse the trial and the denial of the motion should affirmed. “opinion” carry seeks to have this Court “employer-employeerelationship”
from Elliott’s rule and for the first such as are relationships time include facts and
presented appeal. in this commenting upon inadvisability Before adopting such course, I want to make it clear majority that if the so I decide, believe it would be unfair claim anticipat- the trial court erred ing departure past. advance from the “opinion” endeavors to reconcile such action provisions with the adopting of the statute interpretation different of the statute than we did Elliott, as disclosed from the “opinion”: language “Is the of the statute so as to broad bar regard all evidence with to a driver’s actions! not; We think The statute directs itself to ‘evidence nothing of the conviction’ and further. Conviction judgment implies, and, fact, place. to an occurrence that has taken This is un- doubtedly statutory prohibition. the reason *8 However, the occurrences are barred facts by the statute.” v. Peuler. Perin legis- a construction to cannot subscribe I proof necessary prevent of to it deemed lature an occurrence has “judgment to with judicial by duly place” officer authorized taken clanger allowing hearing saw no but a fair after the subsequent to jury review all civil case in a previous I accident, and awith facts connected “opinion” construction the new contrast the more that the namely, interpretation logical Elliott, possibility prevent statute seeks prior as evi- will be considered evidence in a in a later case. dence right “opinion” grants appellant the proofs requested in her amendment and
introduce that includes
proof driver “had that defendant prior is meant accidents.” What this involved mean driver was word “involved?” Does driving 1 of the auto- it mean he was fault, or can another automobile? Are that collided with mobiles upon type approving a where we call new of trial we responsibility hearing for 2 or in 1 to decide separated or a week, month, more accidents period of time? “any per legislative using mandate, terms * “any' “any very definite
son,” action,” civil court,” change very Any mandate should broad. by judicial legis legislature come from the and not plaintiff’s motion lation. The trial denial court’s discre amend did not constitute a failure use of discretion. tion or abuse appellee. The order should affirmed. Costs to J., concurred J., C. Dethmers, Carr, J. Kelly, of this case. decision took no O’Hara, J., part * .—Reporter. 9.2431) Rev (Stat Ann 1960 CLS 257.731