Detroit Automobile Inter-Insurance Exchange v. Powe

83 N.W.2d 292, 348 Mich. 548, 1957 Mich. LEXIS 448

• Court: Michigan Supreme Court
• Decided: June 3, 1957
• Docket: Docket 25, Calendar 47,046
• Status: Published

Opinions

Dethmers, C. J.

This is a subrogation suit for damages resulting from an intersection collision between 2 automobiles. One was owned and being driven by plaintiff’s decedent-assured. The other belonged to a minor who, at the time, was one of its occupants, but, for reasons related to financing its purchase, the defendant, a major and relative of the minor, was named in the certificate of title as owner. All occupants of the 2 automobiles were killed except 1. That survivor, a teenage girl, was riding-in the back seat of plaintiff’s assured’s automobile. She testified that she had been' reading a book just before the accident, had not seén it happen, was rendered unconscious by the collision and had no knowledge or recollection of the manner of its occurrence. No eyewitnesses were available at trial.

The collision occurred at 2:30 p. m.; vision was. clear and unobstructed. Plaintiff’s assured had been driving his automobile south, at from 35 to 40 miles-per hour, on highway M-15. It was a through highway, intersected by highway M-81 on which stop-signs were located directing traffic thereon to stop before crossing M-15.

A witness testified that he had been travelling east on M-81, at from 60 to 65 miles per hour, when, at a point a little over a mile west of the intersection of the 2 highways, his automobile was passed on the left by 2 eastbound automobiles, both occupied by Negroes, travelling about 20 feet apart and at approximately 80 miles per hour. A minute later he arrived at the intersection. Standing off the pavement in the northwest corner was an automobile of the same type as one that had just passed him, occupied by Negroes, caught in a steel safety cable which held a pole. The driver succeeded in disengaging it from the cable and drove away with all its occupants, none of whom could thereafter be located or produced as witnesses. The witness further testified that beyond and southeast of the intersection he saw what looked like a junk pile. This proved to be the 2 wrecked automobiles of plaintiff’s assured and defendant, one with a sheared-off telephone pole resting on it. A body was lying near the pavement. Defendant’s wrecked automobile contained Negro occupants, including defendant’s relative, the minor who was the beneficial owner and had defendant’s permission to operate it. At that moment, people began coming out of a gasoline station and from a house near the intersection to the scene of the accident. Proofs establish that skid marks began 6 feet west of the center line of M-15 in the intersection and extended in a southeasterly direction to the location of the wrecked automobiles. Pictures in evidence, taken at the scene, show that both automobiles were completely demolished and indicate that a collision occurred between them with great force and violence.

The case was tried by the court without a jury. Relying on Clark v. Lawrence Baking Co., 240 Mich 352; Wilkins v. Bradford, 247 Mich 157; and Pentz v. Wetsman, 269 Mich 496, the trial court began by indulging the presumption that the drivers of both vehicles were free from negligence and proceeded to hold that, with respect to plaintiff’s assured, there was no evidence to overcome that presumption. That, we think was correct. There is no proof that he either looked or failed to look, did or did not take reasonable and proper precautions and measures to avoid the accident, or that he either did or failed to do anything which amounted to negligence that contributed to the accident. Nor do the known physical facts overcome the presumption of due care as to him. While he could and should have seen the 2 speeding automobiles approaching from his right, he had a right to assume that they would stop for the through highway, M-15. There are no proofs which show, or from which a reasonable inference may be drawn, that he was or should have been put on notice or should have anticipated, at a time early enough to permit him to avert the accident, that they, or either of them, would fail to heed the stop sign. ■At worst, insofar as plaintiff is concerned, the physical facts indicate that what proper observation •might have disclosed to him was l automobile approaching on the pavement and 1 off the pavement ion the north shoulder of M-81, with the consequence Ithat when it became, or should have become apparent to him that the approaching automobiles might not stop for the intersection, as one of them subsequently did, he may have been confronted with the dilemma of deciding how best to avert an accident with one or the other of the 2 automobiles, if it was then still possible to do so, whether by stopping short of the paved intersection at the risk of being struck by the 1 north of the pavement, or attempting to drive through the paved intersection ahead of both at the risk of being struck by the other. The proofs of physical facts are not of a character to overcome the presumption because there is nothing from which it may be determined that a reasonable and prudent driver under like circumstances, after proper' observation, would have done otherwise than plaintiff’s assured did, nor even that it was any longer possible for him to do anything to avert the accident once it became, or should have become, apparent that one or the other of the 2- approaching ■automobiles would not stop before the intersection. Distinguishable are cases cited by defendant in this connection. Marciniak v. Sundeen, 278 Mich 407; Holley v. Farley, 289 Mich 676; Barry v. Elkin, 332 Mich 427. In Marciniak, the presumption was not involved because eyewitnesses were present to testify and their testimony disclosed that plaintiff’s decedent driver did nothing to avert the accident. The presumption was not involved in Holley and surviving eyewitnesses, who, as in Marciniak, were passengers in the automobile of plaintiff’s decedent, revealed that he had not looked to the right, after passing an obstruction, to see defendant’s approaching automobile, which one of the passengers saw 125 feet from the-intersection. In Barry, it was expressly held that the presumption was without application because of the availability of the defendant as an eyewitness. Cases reiterating the principle that the burden rests on plaintiff to establish his own freedom from contributory negligence and that that burden is not sustained without adducing proofs on the subject are met in the instant case by the presence of the presumption of due care.

Did plaintiff overcome the presumption as to defendant’s decedent and prove negligence on his part? We think the facts recited above suffice to permit drawing the reasonable inferences, which when drawn are not against the clear preponderance of the evidence, that defendant’s automobile was being-driven east on M-81 at a high rate of speed, that it failed to stop for the intersection as required by law, and that, as a result of such negligence, it struck the automobile of plaintiff’s assured.' The beneficial owner or person who had the title owner’s permission to drive it being an occupant of defendant’s automobile at tbe time of tbe collision, the inference to be drawn is either that he drove or that another did with his permission, so that liability is to be imputed to him and to defendant as registered owner. Kerns v. Lewis, 246 Mich 423; Parks v. Pere Marquette R. Co., 315 Mich 38. Not in point is Michigan Aero Club v. Shelley, 283 Mich 401 (1938 US AvR 134, 1 CCH Av 750), which involved the negligent operation of an airplane resulting in its damage, for which the owner sued 1 of its 2 occupants on the theory, which failed of proof, that he was the negligent operator. Absent was the element of an owner-occupant, who must be presumed either to have been operating or to have been responsible for its operation. Furthermore, plaintiff there was the owner of the airplane, enjoying no statutory benefit against either of its occupants of the kind accruing to plaintiff here against the owner of another automobile because of its negligent operation by one driving with the owner’s knowledge and consent.

Judgment for plaintiff affirmed, with costs to it.

Sharpe, Kelly, and Carr, JJ., concurred with Dethmers, C. J.