Cebulak v. Lewis

• Decision Date: 05 April 1948
• Docket Number: No. 4.,4.
• Citation: 32 N.W.2d 21,320 Mich. 710
• Parties: CEBULAK v. LEWIS et al.
• Court: Michigan Supreme Court

320 Mich. 710

32 N.W.2d 21

CEBULAK

v.LEWIS et al.

No. 4.

Supreme Court of Michigan.

April 5, 1948.

Appeal from Circuit Court, Saginaw County; Robert T. Holland, judge.

Action by Roman Cebulak against Henry C. Lewis and Betty Lewis for personal injuries. From the judgment, defendants appeal.

Affirmed.

Before the Entire Bench.

Irving M. Hart, and H. Monroe Stanton, both of Saginaw, for plaintiff-appellee.

Heilman & Purcell, of Saginaw, for defendants-appellants.

BOYLES, Justice.

This is an automobile personal injury damage case tried by jury, resulting in verdict and judgment for the plaintiff in the sum of $5,000. During the trial, and also after verdict, the defendants made appropriate and timely motions for a directed verdict, for judgment notwithstanding verdict, and for a new trial, all of which were in due course denied. On this appeal, the defendants are seeking reversal claiming that such motions should have been granted, or that defendants should be granted a new trial, on the grounds (1) that the proofs showed plaintiff to be guilty of contributory negligence as a matter of law, (2) fail to show that the automobile was being driven by defendant Betty Lewis, the daughter of defendant Henry C. Lewis, with his knowledge or consent, (3) improper statements of plaintiff's counsel in opening the case and in his argument to the jury, (4) error in permitting certain questions on cross-examination of the defendant Betty Lewis.

On January 25, 1944, the plaintiff was struck and injured by an automobile owned by defendant Henry C. Lewis while being driven by his daughter Betty, then 17 years of age. Plaintiff and the defendant Betty Lewis both were employees of Wilcox-Rich Corporation, a manufacturing concern which had two plants on opposite sides of Rust street running east and west in Saginaw. About a half hour before midnight on said January 28th the plaintiff left that plant of his employer which was situated on the south side of Rust street, went east along the south sidewalk to a private driveway which led from the sidewalk to the street, said driveway being the outlet of a parking lot owned by the Raymond Products Company. The plaintiff claims that he then looked both ways along said driveway, and then proceeded down the driveway for the purpose of crossing Rust street and entering another parking lot on the opposite side. While in this driveway plaintiff was struck by the automobile of the defendant Henry C. Lewis, driven by the defendant Betty Lewis. She was driving the automobile out of the Raymond parking lot down said driveway, between the sidewalk and the curb line of Rust street, for the purpose of entering Rust street. Thus far the facts are not in dispute.

1. Plaintiff's Contributory Negligence.

The plaintiff testified that he and his companion, who was a fellow-employee of Wilcox-Rich, turned into the Raymond driveway from the sidewalk, walked the three or four feet to reach the curb, and stepped in the driveway near the curb, that they waited there for two or three cars to pass on Rust street, that plaintiff did not see any automobile coming down from behind him in the driveway, did not hear any horn or see any lights coming back of him, and while standing there was struck by the defendants' automobile coming down the driveway behind him. He testified that when he entered the driveway he looked both ways, no automobile was coming out of the parking lot, that they walked down the driveway about three feet and stopped at the curb. His testimony was corroborated by that of his companion, who testified that he was also hit by the automobile and ‘spun around’ but not knocked down. This witness testified that the automobile continued on across the street, that the plaintiff was carried by it across the street, that the headlights and tail-light of the automobile were not turned on, and that no horn was sounded. He testified that he and the plaintiff had made a square turn from the sidewalk into the driveway, that they did not cut across the corner, and that they were in the driveway when struck.

The testimony of the defendant Betty Lewis is to the contrary. She testified that she finished working at 11:30 p. m., got into the automobile, turned on the lights and motor, drove out to the sidewalk, stopped, then started again. As to how the accident happened, she testified:

‘I stopped right by the sidewalk just when I got to the sidewalk, and then I didn't see anybody and I started again. After I had stopped before I got to the sidewalk, I started again, and there was 2 men that ran, they started right in front of the car, and I couldn't stop. They were running. I don't remember what gear I was in, but I was just starting up there. I was excited. When they ran in front of the car I tried to stop, but I couldn't. I just couldn't stop. I became excited and confused and I just couldn't move. * * *

‘I didn't see the plaintiff until he ran in front of the car. When he ran in front of it, my car was about half-way down the driveway. The first time I saw him, he was in front of the car and I don't remember seeing the other man. The first time I saw the plaintiff here, he was right in front of my car, and I can't say how far the plaintiff was in front of my car when I saw him first. This all happened in an instant, and there wasn't very much time, and when I saw him in front of my car, I became confused then, and I didn't move my foot. I couldn't move. I tried to, but I couldn't apply my brakes. * * * I don't know which way the plaintiff was facing when I saw him there first. The only thing I actually know is that he was there in the driveway when I saw him first, and he was running. He was running toward the other parking lot across the street.’

Obviously both stories could not be true. The driveway where the accident occurred was a private driveway. It was the duty of Betty Lewis to come to a full stop before entering Rust street. 1 Comp.Laws 1929, § 4713, as last amended by Act No. 318, Pub.Acts 1939, Stat.Ann.1947 Cum.Supp. § 9.1581. The trial court properly refused to direct a verdict for the defendants, or to set aside the verdict on defendants' motion for judgment notwithstanding the verdict on the ground that the plaintiff was guilty of contributory negligence as a matter of law. Under the conflicting testimony in the case, its credibility and the question whether plaintiff was guilty of contributory negligence was for the jury.

2. Knowledge or Consent of the Owner.

At the trial this question became the controlling issue in the case and is now mainly relied upon by the defendants for reversal. Admittedly the defendant Henry C. Lewis was the owner of the automobile and at the time of the injury it was being driven by his daughter Betty Lewis. The applicable statute, 3 Comp.Laws 1929, § 4648 Stat.Ann. § 9.1446, provides: ‘The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law require. The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of said injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family.’

At the time of the accident defendant Henry C. Lewis was in Florida. Obviously his daughter Betty was driving his automobile on the night in question without his personal knowledge. The precise question therefore is whether she was driving the automobile at that time with his consent, express or implied. There is some question whether Betty had his express consent to use the car in going to and from her work. They both specifically testified that he had told his daughter not to drive the car except for an emergency, but there is some testimony to the effect that she might use the car to go to work if she was late, and Betty admitted that she was late for work on the night in question. He admitted that he left the automobile, the keys and the title with his daughter. He stated that he wanted his daughter to be able to drive the car or dispose of it if a fatal accident happened to him on his journey to Florida. Although he knew she had no driver's license he left the automobile in her charge. It was in good running order, had gasoline, all that his daughter needed to do was put the key in and run it. He knew Betty had driven the car before, without his consent. On cross-examination he admitted that he ‘left her in complete charge of the car and the title. * * *

‘Q. So you more or less left her with the understanding that if an emergency happened that she could use it? A. I don't remember using words to that effect, but if you put it that way, it might be.’

Betty testified she was late for work that day, and her father admitted that his daughter being late for work might be termed an emergency. At the conclusion of all the testimony, counsel for the defendants moved for a directed verdict for the defendant Henry C. Lewis on the ground that there was no testimony to show that he had given his consent to the daughter to use the automobile. The court reserved decision, and after the verdict denied the motion.

Appellants claim that the court was in error in submitting to the jury the question whether Betty was driving the automobile with the implied consent of her father, that a judgment of no cause of action should have been entered for both the defendants notwithstanding the verdict; or that in any event a judgment of no cause of action should be entered in favor of the defendant Henry C. Lewis and a new trial granted as to the defendant Betty. Appellants claim that the...