Anderson v. Gene Deming Motor Sales, Inc.

• Decision Date: 10 October 1963
• Docket Number: 55,Nos. 54,s. 54
• Citation: Anderson v. Gene Deming Motor Sales, Inc., 371 Mich. 223, 123 N.W.2d 768 (Mich. 1963)
• Parties: Charles U. ANDERSON and Lorraine Anderson, Plaintiffs and Appellees, v. GENE DEMING MOTOR SALES, INC., a Michigan Corporation, Defendant and Appellant. Gary ANDERSON, by his next friend, Lorraine Anderson, Plaintiff and Appellee, v. GENE DEMING MOTOR SALES, INC., a Michigan Corporation, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 768

123 N.W.2d 768

371 Mich. 223

Charles U. ANDERSON and Lorraine Anderson, Plaintiffs and Appellees, v. GENE DEMING MOTOR SALES, INC., a Michigan Corporation,

Defendant and Appellant.

Gary ANDERSON, by his next friend, Lorraine Anderson, Plaintiff and Appellee, v. GENE DEMING MOTOR SALES, INC., a Michigan Corporation,

Defendant and Appellant.

Nos. 54, 55.

Supreme Court of Michigan.

Oct. 10, 1963.

Burton A. Hines, Cadillac, for appellant.

Edward W. TenHouten, Cadillac, for appellees.

Before the Entire Bench.

KAVANAGH, Justice.

These cases, arising under the guest passenger statute, ¹ were, by stipulation, consolidated for trial in the lower court and here on appeal.

In the one case Gary Anderson, a guest passenger, 16 years of age, brought his action in the circuit court for Wexford county, by his next friend, seeking to recover damages from defendant, Gene Deming Motor Sales, Inc., a Michigan corporation, owner of the automobile involved, for injuries allegedly caused by the gross negligence and wanton and wilful misconduct of Jerry Kanouse, the driver of the automobile.

On jury trial a verdict was rendered in favor of plaintiff in the amount of $100. The trial court set aside the verdict as being grossly inadequate. Plaintiff seeks to have the new trial limited to damages only.

In the other case the parents of the guest passenger, Charles U. Anderson and Lorraine Anderson, brought action against the defendant owner of the automobile driven by Jerry Kanouse to recover for medical care and hospitalization expenses arising out of the injuries to their minor son. They allege their damage was the direct result of the gross negligence and wanton and wilful misconduct of Jerry Kanouse, driver of the vehicle in which Gary Anderson was injured.

In this case the jury rendered a verdict in favor of plaintiffs in the amount of $6,500.

Motion for directed verdict, originally made at the end of plaintiffs' proofs in both cases, was renewed at the conclusion of the trial, and denied.

Defendant moved for a judgment notwithstanding the verdict, which was denied. Defendant appeals.

In August, 1961, Mildred Kanouse purchased an automobile from defendant Gene Deming Motor Sales, Inc., for her 18-year-old son Jerry. Within 2 weeks of the purchase, the car developed trouble and was returned to defendant for repairs. Defendant's agent loaned Jerry Kanouse another car to use during the repairs. It was this car Kanouse was driving when Gary Anderson was injured.

About 3:30 in the afternoon of October 4, 1961, Jerry Kanouse picked up his friend Gary Anderson at school in Tustin, Michigan. They went to a pool hall in Tustin and remained there until approximately 5:30 p. m., when they left for the Kanouse home at Dighton, Michigan. Jerry drove east on old M-61 for about 2 miles, turned south 1 mile, and then turned east, proceeding toward Dighton. They were traveling on a 2-lane gravel road when the car began veering to the right. It scraped a tree located on the right shoulder of the road and caromed across and down the highway in an easterly direction to the opposite side of the road, where it collided with a tree on the north side, hit another tree, and finally careened off and struck a large boulder just prior to being wrapped around still another tree in such fashion that it pinned Gary Anderson in the car. The engine ended up 56 feet east of the tree in which the car was imbedded.

There were no witnesses to the accident other than the occupants of the car. It was daylight; the road was straight and level; the weather was good; and the driver had not been drinking. There was a rough spot described as 'kind of washboardy' a short distance west of where the accident took place. The speed limit on the highway is 65 miles per hour.

At the trial, a witness, living approximately a mile west of the location of the accident, testified he observed the car from inside his home about 100 feet from the road. He estimated the speed at 70 miles per hour. Another witness, who lived about 1 1/4 miles west of the point of the accident, testified he was out on his lawn and observed the car. He recognized the driver as Jerry Kanouse and estimated the speed of the car at 80-plus miles per hour when it went by his home.

Two State troopers, who arrived at the scene more than an hour after the accident, without objection, ² estimated the speed of the car to be at least 70 miles per hour. The troopers also testified there were no skid marks, that the tire marks veered or angled gradually into the tree on the right side of the road. One of the troopers testified that Gary Anderson told him he 'couldn't see where Jerry was driving in any reckless manner or doing anything wrong.'

A statement made by Gary Anderson on October 12, 1961, while in the hospital, was admitted into evidence. In it he stated that prior to the accident he was relaxing with his eyes closed, there was a slight weaving, and then the accident happened; that he had no knowledge or realization of any danger just before the accident.

At the trial Gary Anderson, claiming not to remember making the prior statements, testified that after they turned east, Kanouse 'opened it up,' increasing his speed very rapidly until he was driving at a speed of '80 or 85, 90, some place in there.' He further testified he asked Kanouse to slow down, but he disregarded the warnings and just kept right on going. He described Kanouse as having 'kind of an I-don't-care expression on his face. Just kind of a wild look, as close as I can tell.' 'He just didn't seem to care.'

Kanouse admitted at the trial that he had been keeping company with a girl who lived on the road on which the accident occurred and they had broken up just a short time previous to the accident. He further testified that this breaking-up bothered him.

Plaintiffs argue Kanouse's 'state of mind' was due to the fact he was upset over breaking-up with his girl friend, whose house he passed just before the accident. This contention as to state of mind is supported by testimony of friends and relatives of Gary Anderson who visited him in the hospital and were told by Gary this was what was wrong with the driver. ³

On plaintiffs' motion the trial judge granted a new trial in the Gary Anderson case on the grounds the verdict was grossly inadequate. On appeal, there was no statement of the trial judge certifying that the Gary Anderson suit involved more than $500.

Plaintiffs ask that the appeal in the Gary Anderson case be dismissed because of failure of the trial judge to certify the controversy involved more than $500.

On appeal, defendant contends (1) that the trial court erred in denying defendant's motion for directed verdict at the close of plaintiffs' proofs, and (...