Perin v. Peuler

130 N.W.2d 4, 373 Mich. 531, 1964 Mich. LEXIS 242

• Court: Michigan Supreme Court
• Decided: September 2, 1964
• Docket: Calendar No. 31. Calendar No. 24, Docket No. 49,783
• Status: Published

Opinions

Kelly, J.

(dissenting). This Court’s awareness of the importance of the question presented and the decision to he made is evidenced by the unusual journey this case has taken up to now through our Court.

July 19, 1961, plaintiff filed her declaration in the circuit court for the county of Kent against Henry Peuler, Sr., and his minor son, Henry Peuler, Jr., alleging she was was injured when a car in which she was a passenger collided with a car owned by Peuler, Sr., and driven by Peuler, Jr. Peuler, Sr., filed an answer admitting that the car was being driven by his son with his knowledge and consent.

Pretrial statement was filed October 17, 1961, and the following December 21st plaintiff sought leave to amend her declaration by adding the following:

“That a further proximate cause of said collision was the negligence of defendant Henry Peuler, Sr., in permitting defendant Henry J. Peuler to operate his aforesaid vehicle, when he knew that said Henry J. Peuler had been guilty of repeated traffic violations, had been involved in prior accidents, and had, shortly prior thereto, undergone a temporary suspension of his operator’s license for habitual negligence.”

In denying plaintiff’s motion to amend (January 8,1962), Judge Stuart Iloffius called attention to the statute¹ prohibiting introducing the driver’s previous statutory or ordinance convictions in a subsequent civil action; stated there was no necessity for an amendment because defendant-owner by Ms filed answer admitted Ms son. drove the car with Ms knowledge and consent and thereby made himself liable for his son’s negligence, and said: “The sole purpose of the proposed amendment is only to bring in the driving record of defendant-driver and thereby influence the jury.”

Plaintiff appealed the court’s ruling on the grounds that it was contra to our holding in Elliott v. A. J. Smith Contracting Co., Inc., 358 Mich 398, and contended that the defendant-driver could be protected from prejudicial harm by a court instruction that the past record of the driver has no bearing upon his negligence in this case and “is to be considered solely in determining whether or not the owner was negligent in entrusting the vehicle to him.”

The majority opinion (4 Justices) in our original hearing of this case (Perin v. Peuler, 369 Mich 242) construed the statute as being directed only to “evidence of the conviction” and declared (p 246) “facts .of past occurrences are not barred by the statute,” and emphasized this point by stating, “a whole series of past accidents or other events might be shown if they were of such a nature as to lead to the conclusion that the son was unfit to be at the wheel and the father allowed him to drive, having knowledge that this was so.” The majority opinion concluded by finding that the court erred in denying plaintiff the right to file the amendment.

The minority opinion (3 Justices) contended that the majority opinion interpreted the statute in an entirely different way than the interpretation given to that statute by the majority in Elliott; that the driver would not be protected from prejudice by an instruction of the court; that to allow evidence of accidents defendant-driver was “involved” in would be (p 251) “approving a new type of trial” in automobile negligence cases “where we call upon a jury to decide in 1 hearing responsibility for 2 or more accidents” that occurred during an extended period of time; that “the legislative mandate, using terms ‘any person,’ ‘any court,’ ‘any civil action,’ ” is definite and broad, and that “any change in this mandate should come from the legislature and not by judicial legislation.” The dissent concluded that the court did not err in denying the amendment.

Eehearing was granted and oral arguments were heard on July 17, 1963, and, on this Court’s own motion, a second rehearing was ordered and the third oral argument in this case was held April 9,1964.

Since the enactment of the ownership liability statute we have not considered and decided the question of whether negligent entrustment may be employed in a case such as that at bar where plaintiff alleged a defendant-owner is liable under the ownership liability statute and the owner-defendant admits he is liable under the statute for the driver’s negligence, if the driver is found negligent.

The negligent entrustment cases cited by Justice Black to sustain his contention that the trial court erred in denying the amendment' are all clearly distinguishable. His 3 cited cases all presented situations in which the application of the ownership liability statute was being disputed by the defendant-owner. In none of these prior cases did the owner agree in his answer, as does the owner in this case, with the plaintiff’s assertion that the owner was within the statute’s application. In none, therefore, could the plaintiff rely solely upon the statutory provisions of presumed owner liability.

In Tanis v. Eding, 265 Mich 94, this Court was reviewing the granting of defendant’s motion to dismiss a declaration. Unlike the present case, defendant-owner had not yet answered and had not admitted that the statute applied to him. In that case defendant Eding operated a sales and service garage and in the course of his business took a car in exchange for a new one, but failed to secure a delivery of certificate of title. He then allowed one Brower to take the car out of the garage and drive it, and, it was alleged, he knew when he gave the car to Brower that Brower was a careless, reckless, and incompetent driver.

In determining Eding’s responsibility, this Court held (p 96): “Eding was not liable, under 1 CL 1929, § 4648, as owner of the car, because he had not received certificate of title. Kimber v. Eding, 262 Mich 670.” The Court, however, went on to say that the precise question presented in Tanis — liability of a lender of an automobile to one known to be a careless driver, was new to the Court, but the Court would adopt the following from 36 ALR 1148:

“ ‘The general rule that an owner of an automobile is not liable for the negligence of one to whom the automobile is loaned has no application in cases where the owner lends the automobile to another, knowing that the latter is an incompetent, reckless, or careless driver, and likely to cause injuries to others in the use of the automobile; in such cases the owner is held liable for injuries caused by the borrower’s negligence on the ground of his personal negligence in intrusting the automobile to a person who he knows is apt to cause injuries to another in its use.’ ”

Thus, in Tanis, our Court clearly stated that there was not a responsibility under the statute as the Court decided it would attach responsibility under the common-law entrustment theory.

Attention is called to the fact that not more than 18 months ago this Court considered Haring v. Myrick, 368 Mich 420, and 7 of the presently seated Justices (the writer of this opinion included), without reservation, attested to the quotation therefrom set forth in Justice Black’s opinion.

To establish without doubt that our Court in Haring, as in Tonis, was confronted with facts that did not allow for a recovery for negligence under the ownership liability statute, I quote from the Haring decision, 3 paragraphs from the syllabi:

“Declaration averring that defendant owner had failed to use due care in permitting an unskilled and ■inexperienced person to use, maintain, operate, and repair his car, and that as a result of negligence in blowing out the gas line plaintiff was sprayed with gasoline which was ignited by a heating appliance defendant’s inexperienced son was using, thereby severely burning plaintiff, stated a cause of action at common law against the owner.”

“The statute imposing liability upon owner for negligent injuries inflicted by another person as driver of a car does not apply to action for negligent injuries inflicted when the car was not being driven at time fire occurred (CLS 1956, §257.401 [Stat Ann 1960 Rev § 9.2101]).”

“The owner of a chattel who loans it to another who is incompetent or inexperienced is liable for resulting injuries to others whatever the intended use of the chattel so long as the user’s competence therefor is inadequate and known to the owner.”

In Haring v. Myrick, supra, this Court again was considering an appeal from a dismissal by the trial court of 2 declarations upon the motion of defendant. Our opinion in that case expressly stated that the opinion and dismissal took place before answer; also, while the ownership liability statute was pleaded by plaintiff, as the syllabi-summary above shows, the facts of the occurrences in question were such that it was quite clear that the statute did not apply. The trial court and this Court held the statute clearly did not apply and, again, defendant-owner, far from admitting the application of the ownership liability statute, was vigorously (and successfully) attacking it.

Thus, in neither of these cases, did this Court hold what the opinion to which I dissent contends, namely, that common-law negligent entrustment may be pursued where statutory ownership liability applies. While, in both Tonis and Haring, the Court approved plaintiffs’ negligent entrustment theory, the Court had first agreed with the owners’ attack that plaintiffs were wrong in pleading statutory liability; therefore, the Haring v. Myrich and Tanis v. Eding cases are clearly not authority for the proposition that negligent entrustment may be pleaded and proved where the ownership liability statute clearly applies, and, in fact, is admitted by defendant to apply.

The cited Iowa case² is not at war with this analysis. While that case did approve the pleading of the common-law action of negligent entrustment, together with the pleading of liability under the ownership liability statute, the case is not authority for allowing such double pleading in the present case. In the Iowa case the matter was before the Iowa supreme court on interlocutory appeal from defendant’s motion to strike the negligent entrustment theory from plaintiff’s petition. In the Iowa case, with defendant not having yet admitted.or denied whether he fell under the ownership liability statute, and with the Iowa court taking pains to point out that the ownership liability statute does not apply in all situations,³ it is clear the plaintiff should have been allowed, as he was, to protect himself by pursuing both the statutory and common-law theory of owner liability, at least until the time of defendant-owner’s answer. If the present case had come before this Court in a posture similar to that in which the Iowa case came before that court, we would hold as did the Iowa court. However, the Iowa decision only emphasizes the distinguishing and controlling factor present in the case now before us. In this case there is no need to pursue the common-law negligent entrustment theory and no need for this Court to allow the plaintiff to possibly prejudice the defendants’ rights to a fair hearing because, as has been emphasized, the ownership liability part of this case was completed at the termination of pleadings. After all, this is the purpose of pleadings: To remove from trial those issues not disputed. Because of the statute and defendant-owner’s admission that he would not be able to escape the statute, plaintiff’s only task in this present case is to establish the driver’s negligence on the day and in the incident in which plaintiff claims she was injured.

The 1949 legislative enactment, as amended by PA 1953, No 60 (CLS 1961, § 257.731 [Stat Ann 1960 Rev § 9.2431]), providing: “No evidence of the conviction of any person for any violation of this chapter or of a local ordinance pertaining to the use of motor vehicles shall be admissible in any court in any civil action,” was not challenged in our Court before 1960 when we were called upon to pass upon the statute in Elliott v. A. J. Smith Contracting Co., supra, where we not only recognized the legislative right to so provide but gave this Court’s reasons for the propriety of such a provision, as follows (p 413):

“The principal evils sought to be cured by the statute arise in this way: A driver has been convicted of a criminal offense in connection with a traffic accident. In addition, he is sued civilly with respect to the same accident. There is a danger that the civil jury might, if permitted, consider the criminal conviction as evidence of negligence in the civil action, or, in civil cases, that negligence in a prior case will be regarded as evidence of negligence in a later case. These, principally, are what the statute seeks to prevent. 3 Wigmore, Evidence (3d ed), § 987.”

Our February, 1963, attempt to determine this present appeal in Perin v. Peuler, 369 Mich 242, did not repudiate our I960 Elliott above-quoted statement and did not challenge the statutory provision, but construed it as only prohibiting proof of conviction.

Now, in this rehearing, it is recommended for the first time that this provision should not “be permitted further life.”

The clear terms of the statute are discussed in the writer’s dissents in Elliott and in the first Perin v. Peuler decision. Both opinions are hereby reaffirmed. As to the recently advanced thought that the statute is also “void,” the writer submits that this extreme argument fails in and by its own statement.

Evidence of acts or incidents to establish a character or disposition of negligence is almost unanimously held to be improper by courts and evidence law commentators, and to show that the provisions of the statute in question are not contra to prevailing law, I cite the following:

20 ALB2d 1210, under annotation “Admissibility, in civil motor vehicle accident case, of evidence that driver was or was not involved in previous accidents” :

“General rule.

“It is generally held that evidence of a driver’s previous accidents is inadmissible in a civil action arising out of a motor vehicle accident, since such evidence is immaterial in the determination of the driver’s negligence on the occasion in question.”

American Law Institute, Model Code of Evidence, ch 4, Rule 306, pp 184, 185:

“Evidence concerning a person’s character as tending to prove his conduct. * * *

“Evidence of a trait of a person’s character with respect to care or skill or the lack of either or both is inadmissible as tending to prove the quality of his conduct on a specified occasion.”

Handbook of the National Conference of Commissioners on Uniform State Laws (1953), Uniform Rules of Evidence, Rule 48, p 191 :

“Character Trait for Care or Shill — Inadmissible to Prove Quality of Conduct. Evidence of a trait of a person’s character with respect to care or skill is inadmissible as tending to prove the quality of his conduct on a specified occasion.”

20 ALR2d 1217, under annotation “Cross-examination of automobile driver in civil action with respect to arrest or conviction for previous traffic offenses”:

“Generally speaking, the courts have refused to permit the cross-examination of a driver in civil actions as to prior arrests or convictions for traffic offenses on the ground that the introduction of such evidence would lead to a consideration of collateral issues having no bearing on the question of the driver’s negligence in the accident under consideration.”

4 Callaghan’s Michigan Pleading and Practice (2d ed, 1964), §36.269, pp 187, 188: the operator or driver was an employee of the defendant and for the purpose of establishing negligence of the latter in retaining such employee, it may be shown that the defendant knew or must have known that his employee was incompetent.

“For the purpose of establishing negligence on the part of the operator of a machine or the driver of a vehicle, it may be shown that he was incompetent or that he was reckless as regards his operation or driving at the time of the injury, and, in a case where

“Generally, evidence is inadmissible as to particular instances of incompetency or recklessness on other occasions, as to a person’s general character or reputation with respect to being incompetent or reckless, or as to his general method of driving, for the purpose of establishing negligence at the time of an accident.”

1 Jones on Evidence (5th ed), §190, p 331:

“The rule excluding evidence of character or reputation to prove conduct, applies with special force in negligence cases.”

What this writer considers to be the policy behind holding such evidence inadmissible is well summarized by McCormick in a discussion in his work on Evidence, ch 16, § 152, p 319, as follows:

“The danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility or sympathy; * * * the probability that the proof and the answering evidence that it provokes may create a side-issue that will unduly distract the jury from the main issues; * * * the likelihood that the evidence offered and the counter-proof will consume an undue amount of time” (and other considerations not relevant here).

These considerations have been summarized in the comment under Rule 303, p 181, in American Law Institute, Model Code of Evidence, as follows:

“(1) The time to be consumed may be out of all proportion to the value of the evidence; (2) the contest over the existence or nonexistence of [the offered evidence] may mislead the jury into believing it an issue of major importance; (3) the evidence as to the existence or nonexistenec of [the offered fact] may present snch a number of subordinate issues as to confuse the jury.”

Or, as Wigmore puts it, “disputes over other carelessness would soon obscure the main issue.” 1 Wig-more on Evidence (3d ed), §199, p 678.

Why, then, if there is no need to establish negligent entrustment in order to hold the owner liable, does the plaintiff in the present case seek to expend the time, effort and money involved in obtaining and introducing proof to establish this liability link already admitted to exist because of statute?

Is it that proof of yesterday’s accidents will be helpful to determine today’s responsibilities, as claimed in plaintiff’s supplemental brief:

“What she (plaintiff) is requesting, however, is that the court recognize that certain persons have a tendency toward negligent driving as evidenced by their previous driving history, and that a long current history of accidents or convictions does have a direct bearing not only upon the likelihood that a person was negligent in a given situation, but also upon the degree of care which a particular driver ought to exercise under the circumstances.”

Is it because the amount of plaintiff’s verdict would be enlarged by showing the proof of the driver’s previous negligence, thus meeting a jury’s reluctance to render a large verdict against the owner without such proof (plaintiff’s supplemental brief) ?

Or, is the answer to be found in the opinion to which I dissent, where the thought is expressed that placing such responsibility for added damages and accountability upon the owner, would awaken him to the fact that “his (owner’s) personal, distinguished from vicarious, toes have been exposed to the heavy bootstep of liability”?

Plaintiff’s request in the instant case differs from plaintiff’s request in Elliott where the plaintiff only sued the owner. The fact that the driver was not a party to the suit was not only emphasized in Elliott, but the necessity of protecting the driver from prejudice was also emphasized.

Plaintiff’s claim that defendant-driver would be protected from prejudicial harm by a court instruction that the driver’s past record could only be considered by the jury as against the owner was answered in the dissent in our original decision (369 Mich 242, 249) as follows: “Such an instruction would not accomplish the purpose appellant claims for it, namely, insuring that the jury will not ‘consider the past record of the driver’ as ‘bearing upon his negligence in this particular accident.’ ”

The protection of the driver against prejudice is not considered of importance in the opinion to which I dissent, and the following statement therein seems to prove that point: “The common-law rule of negligent entrustment is both time tried and valuable, and we are not disposed to dilute its worth on assigned ground that the sad proof of junior’s record of court-conviction and parental knowledge thereof will ‘prejudice the entrustor and the entrustee before the jury.’ ” I disagree with such a conclusion.

I re-emphasize what was said in the dissenting opinion (p 251) in the original case in re the uncertainty of the word “involved” and the confusion that will result if plaintiff is granted what she seeks, and what my Brother’s opinion grants, namely: The right to prove that defendant driver “had been involved in prior accidents.”

I quote with approval the following from the trial court’s denial of the motion:

“I am usually of the opinion that a motion such as this, to amend the pleadings should be granted, providing it does not prejudice the rights of defendant, even though the case is at issue, and pretrial has been held. It appears that any amendment at this stage of the proceedings would usually permit opposing counsel to adequately prepare to meet the amended pleading. However, in this case, the purpose of the proposed amendment appears to be solely that of introducing a driving record which would influence the jurors’ decision in connection with the alleged negligence of defendant driver. [CLS 1961, § 257.731 (Stat Ann 1960 Eev § 9.2431)], specifically provides that no evidence of the conviction of a driver for a violation under that chapter or of a local ordinance shall be admissible in any court in a civil action.

“The proposed amendment goes only to the liability of defendant-owner who will be liable as owner if defendant-driver was negligent in the operation of his automobile. It appears, therefore, that the sole purpose of the proposed amendment is only to bring in the driving record of defendant-driver and thereby influence the jury. Since defendant has admitted that the car was being driven with the knowledge and consent of defendant-owner, the defendant-owner will be liable if defendant-driver is negligent.”

I have written at length in this dissent because I believe a reversal of the trial court would lead to confusion and injustice and create a precedent shared by no State of this Union.

The order should be affirmed. Costs to appellees.

Dethmers, J., concurred with Kelly, J.

1 CLS 1961, § 257.731 (Stat Ana 1960 Rev § 9.2431).

2 Krausnick v. Haegg Roofing Co., 236 Iowa 985, 989 (20 NW2d 432, 434, 435, 163 ALR 1413, 1417).

3 Owner liability by Iowa statutes is restricted to negligence of a driver when the driver is on a specific trip at the direction and for the owner and if the accident occurs while the driver is using the ear for different or unauthorized purposes, then there is no owner liability.