Chapman v. Buder

• Decision Date: 24 October 1968
• Docket Number: Docket No. 1222,No. 2,2
• Citation: 14 Mich.App. 13,165 N.W.2d 436
• Parties: Harry R. CHAPMAN, Administrator of the Estate of Thomas L. Chapman, Deceased, Plaintiff-Appellant, v. A. Matthew BUDER and A. Matthew Buder, Jr., jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 436

165 N.W.2d 436

14 Mich.App. 13

Harry R. CHAPMAN, Administrator of the Estate of Thomas L Chapman, Deceased, Plaintiff-Appellant, v. A. Matthew BUDER and A. Matthew Buder, Jr., jointly and severally, Defendants-Appellees.

Docket No. 1222.

Court of Appeals of Michigan, Division No. 2.

Oct. 24, 1968.

Leave to Appeal Denied Jan. 21, 1969.

Released for Publication March 11, 1969.

Max Dean, Leitson, Dean, Dean, Abram & Segar, Flint, for plaintiff-appellant.

A. Matthew Buder, in pro. per.

William J. Hayes, Flint, for A. Matthew Buder, Jr.

Before QUINN, P.J., and KAVANAGH and LEVIN, JJ.

LEVIN, Judge.

Plaintiff's son perished in an automobile collision on April 16, 1960, while a passenger in an automobile owned by A. Matthew Buder, Sr., then being driven by Buder, Jr. Plaintiff appeals a directed verdict in the defendants' favor following the conclusion of the plaintiff's proofs. We reverse and order a new trial.

The jury could properly have found from the evidence that Buder, Jr.'s gross negligence caused the death of the plaintiff's son.

We have also concluded that the proviso added by amendment in 1929 (P.A.1929, No. 19) to the civil liability act (C.L.S.1961, § 257.401, Stat.Ann.1960 Rev. § 9.2101), ¹ which proviso requires a guest passenger to prove gross negligence, does not apply where recovery from the owner of the automobile is sought on the theory that he negligently entrusted it to the driver; hence, plaintiff need only show ordinary negligence, not gross negligence, in the entrustment.

Finally, we hold that the trial judge erred in refusing to allow use of Buder, Jr.'s discovery deposition at the time of the trial.

I.

There was sufficient evidence to go to the jury on the issue

of the driver's gross negligence.

Buder, Jr. and the plaintiff's son were schoolmates, both 17 years of age at the time of the accident. After school had let out on the day of the accident, they, together with one other boy, went for a ride in Buder, Sr.'s car. The evidence, viewed in the light most favorable to the plaintiff (Prentkiewicz v. Karp (1965), 375 Mich. 367, 372, 134 N.W.2d 717) showed that the Buder car came up from behind the vehicle with which it collided and for no apparent reason drove into the rear of that vehicle. That vehicle had stopped on the highway 10--20 seconds before the accident to make a left turn and was signaling the intended turn. There was no competing traffic and there was ample room--one witness said, enough for a 'semi-tractor and trailer'--for the Buder vehicle to have passed safely to the right of the stopped vehicle. A witness testified that at the moment of impact the Buder automobile may have been traveling at 35 miles per hour.

Another witness testified to seeing the Buder automobile approximately 1 mile from the collision point and described the auto as 'roaring down at a high speed' and 'slid(ing) over the gravel' when executing a curve:

'Well, when I saw this car roaring down at a high speed, I expected the car either to jump the curb onto the tennis court or if it tried to make a turn I expected the car to overturn fully and completely. He chose to make a turn to the left--that is north--but because Lincoln Drive has a gentle curve as it curves into Cambridge, he negotiated the curve. He slid over the gravel and he kept on going north.'

Still another witness testified that just minutes before the collision the Buder car, going 50 miles per hour or more in a 30 mile per hour zone, passed a car in which the witness was riding on the right side of that car and cut back in front of it 'sooner than a car should.'

The Buder car smashed into the right rear corner of the car with which it collided. There was testimony that the brakes of the Buder car were not applied until after the collision.

In our opinion there was sufficient evidence to go to the jury. The jury could have properly inferred from the evidence that immediately before and at the time of the fatal accident Buder, Jr. was indulging in a display of driving prowess by dodging cars and other dangerous driving feats and that plaintiff's son met his death when Buder, Jr. miscalculated and instead of a near miss there was a collision. A finding of willful and wanton misconduct, of gross negligence, may be based on just such a showing of deliberately reckless acts wholly disassociated from the ordinary incidents of operating a motor vehicle. Compare Goree v. Russell (1967), 7 Mich.App. 79, 151 N.W.2d 176; Rowe v. Vander Kolk (1936), 278 Mich. 564, 569, 270 N.W. 788; Schlacter v. Harbin (1935), 273 Mich. 465, 469, 263 N.W. 431. The jury would have been entirely justified in concluding from the totality o the facts and circumstances that Buder, Jr.'s conduct exhibited an affirmatively reckless state of mind with intent to depart from careful driving.

'The thread which seems to run through all is a showing that the driver had 'an affirmatively reckless state of mind with intent to depart from careful driving.' Sorenson v. Wegert (1942), 301 Mich. 497, 511, 3 N.W.2d 857, 862; Greimel v. Fischer (1943), 305 Mich. 45, 8 N.W.2d 906. Such wilful and wanton misconduct may be shown by a sum total of factors.' Brooks v. Haack (1965), 374 Mich. 261, 265, 132 N.W.2d 13, 15.

That the permissible conclusion just stated would have been an inference from other facts, and was not the subject of direct testimony, does not affect its validity. The inferences that the jury would have had to draw to reach that conclusion were reasonable inferences from the plaintiff's proofs.

'Whether the driver of a motor vehicle has proceeded recklessly in the face of a traffic hazard that is or should be apparent to him, with a wilful and wanton disregard of the safety of a possenger, is, generally speaking, a question of fact for determination by the trier of the facts. Obviously involved is the state of mind of such driver, which is necessarily a matter of inference from the facts in each case.' Karney v. Upton (1958), 353 Mich. 262, 270, 91 N.W.2d 297, 301. ²

II.

Gross negligence need not be shown in an action by a guest

passenger against the owner for negligent entrustment.

In Naudzius v. Lahr (1931), 253 Mich. 216, 234 N.W. 581, 74 A.L.R. 1189, the plaintiff alleged the owner's ordinary negligence or, in the alternative, his gross negligence, in permitting the driver to operate his car. The Supreme Court held that the guest passenger amendment added in 1929 to the civil liability act did not deny due process and equal protection of the laws to non-paying passengers of motor cars, and that the legislature had not acted unconstitutionally in determining it should have emergency status and become effective immediately upon enactment. The Court concluded (p. 230, 234 N.W. p. 586):

'The declaration must properly charge defendant's (owner's) fault both as gross negligence or wanton and wilful misconduct and as a proximate cause of the accident or (the driver) with gross negligence or such misconduct causing the injury.'

The foregoing ruling of our Supreme Court assumes that an injured guest passenger may not recover on the theory of negligent entrustment unless he proves a grossly negligent act.

However, plaintiff's counsel in Naudzius did not contend that the guest passenger amendment to the civil liability act does not apply where it is sought to hold the owner for negligent entrustment. ³ And it is a well-settled principle that a point 'assumed without consideration is, of course, not decided.' Allen v. Duffie (1880), 43 Mich. 1, 11, 4 N.W. 427, 434, ⁴

'When a question necessarily involved in a case and answered by our holding was neither considered by the court nor discussed in our opinion, the answer thus arrived at is not binding as a precedent.' Bostrom v. Jennings (1949), 326 Mich. 146, 156, 157, 40 N.W.2d 97, 102.

Naudzius's declaration quoted above having been made on the uncontested Assumption that the guest passenger amendment applies to a suit against the owner for negligent entrustment, such declaration is not binding precedent. Accordingly, we are free to consider and ourselves to decide the question assumed, but not considered, and therefore no decided in Naudzius.

In this connection we note that in Perin v. Peuler (1964), 373 Mich. 531, 535, 130 N.W.2d 4, 6, the majority of the Court declared that the common law remedy against the owner for negligent entrustment 'stands unimpaired by Michigan's 55 year old owner-liability statute.' ⁵ That declaration speaks as loudly to us as does Naudzius. But just as the issue now under consideration was not considered in Naudzius, so too it was not considered in Perin.

The guest passenger amendment of the civil liability act requiring proof of gross negligence was added as a Proviso to that which preceded it (for text see footnote 1). It is a general rule of statutory construction that the 'office of a proviso is to limit, modify, or explain the main part of the section to which it is attached, rather than to enlarge its provisions, unless it is clearly apparent that the Legislature intended a more comprehensive meaning.' Luce v. State Highway Commissioner (1914), 181 Mich. 599, 603, 148 N.W. 381, 383.

'It is elementary that a proviso in a statute, unless expressly stated to be otherwise, or by context clearly so, has relation to preceding matter only and cannot be construed to be independent legislation.'

Erdelyi v. Erdelyi (1937), 279 Mich. 282, 284, 271 N.W. 759, 760.

That which precedes this proviso in the section to which it was appended are provisions concerning the liability of the driver and the vicarious liability of the owner for negligent Operation of a motor vehicle. There is nothing in the section to which the proviso was added upon which an injured party could base a claim for negligent Entrustment. The first sentence of the section speaks of claims base upon 'a violation of any of the provisions of this act by the owner or operator.' But the gist of the...