Christiansen v. Hilber

• Decision Date: 14 December 1937
• Docket Number: No. 43.,43.
• Citation: Christiansen v. Hilber, 282 Mich. 403, 276 N.W. 495 (Mich. 1937)
• Parties: CHRISTIANSEN v. HILBER.
• Court: Michigan Supreme Court

282 Mich. 403

276 N.W. 495

CHRISTIANSEN

v.HILBER.

No. 43.

Supreme Court of Michigan.

Dec. 14, 1937.

Action by Theodore Christiansen against Carl H. Hilber. From a judgment for plaintiff, defendant appeals.

Reversed and remanded, with directions to enter judgment for defendant. Appeal from Circuit Court, Gogebic County; George O. driscoll, judge.

Argued before the Entire Bench.

Ray Derham, of Iron Mountain (Charles F. Smith, of Wausau, Wis., of counsel), for appellant.

Thomas J. Landers, of Ironwood, for appellee.

POTTER, Justice.

Plaintiff, May 26, 1936, sued defendant for injuries alleged to have been suffered by reason of being struck on the highway by a Chevrolet logging truck belonging to defendant and driven by his son, Eugene Hilber. There was judgment for plaintiff in the sum of $7,000. Motion for new trial was made and an opinion filed affirming the judgment on condition plaintiff file a remittitur of $1,000. This was done and judgment entered for plaintiff for $6,000, and costs. Defendant appeals, alleging 19 reasons and grounds for appeal, and in appellant's brief 11 questions are said to be involved.

The statute, 1 Comp.Laws 1929, § 4648, 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.’

The statute under consideration provides, if a motor vehicle is being driven by a son or other immediate member of the family of the owner, it shall be presumed the motor vehicle is being driven with the consent or knowledge of the owner.

‘All presumptions, however, are liable to be contrary to the fact, but they attend us at every point in our examinations of facts, and it is impossible to dispense with them. They do not in general preclude the facts being brought forward to overthrow the presumptions, but they supply imperfections where the facts are not fully developed, and they determine in many cases which party shall take upon himself the burden of showing what are the facts bearing upon the point in controversy.’ Hutchins v. Kimmell, 31 Mich. 126, 18 Am.Rep. 164.

‘These presumptions of fact never obtain against positive proof, and are only introduced to supply the want of real facts.’ Hill v. Chambers, 30 Mich. 422.

‘Presumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts. When these appear, presumptions disappear.’ Lincoln v. French, 105 U.S. 614, 617, 26 L.Ed. 1189;Rousseau v. Brotherhood of American Yeomen, 186 Mich. 101, 152 N.W. 939.

‘A presumption operates to relieve the party in whose favor it operates from going forward in argument or evidence, and serves the purposes of a prima facie case until the other party has gone forward with his evidence; but, in itself, it is not evidence,and involves no rule as to the weight of evidence necessary to meet it.’ 1 Elliott on Evidence, § 93; Rousseau v. Brotherhood of American Yeomen, 186 Mich. 101, 152 N.W. 939.

‘It is the rule in this state that the presumption that a plaintiff is free from contributory negligence cab be said to apply only in cases where there is an absence of any direct evidence to the contrary.’ Baker v. Delano, 191 Mich. 204, 157 N.W. 427, 429.

‘It is now quite generally held by the courts that a rebuttable or prima facie presumption has no weight as evidence. It serves to establish a prima facie case; but, if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of weighing the actual evidence introduced, without giving any evidential force to the presumption itself.’ Gillett v. Traction Co., 205 Mich. 410, 171 N.W. 536, 538.

In Union Trust Co. v. American Commercial Car Co., 219 Mich. 557, 189 N.W. 23, 24, counsel for plaintiff claimed the court was in error in not submitting the case to the jury and in directing a verdict for the defendant, claiming plaintiff could have prevailed upon the presumption the truck was being driven with the consent or knowledge of defendant. The court said: ‘Presumptions lose all force and application when specific facts are shown.’

It cited 1 Elliott on Evidence § 91, and quoted from Gillett v. Traction Co., 205 Mich. 410, 171 N.W. 536, and concluded: ‘It would have been an idle ceremony, under the evidence, to have submitted the case to the jury, for the direct, positive, and uncontradicted evidence presented an issue of law for the court, and not an issue of fact for the jury.’

In Hanna v. McClave, 271 Mich. 133, 260 N.W. 138, 140, a presumption of negligence arising from defendant driving on the wrong side of the road was considered. This court said: ‘The presumption could not be considered by the jury because the facts, claimed by defendant, appeared and the presumption cannot be weighed against the facts.’

‘Presumptions disappear when the facts appear. The facts appear when the evidence is introduced from which the facts may be found. Presumptions cannot be weighed against evidence, for they fade out in the light of evidence, no matter how contradictory the evidence.’ Patt v. Dilley, 273 Mich. 601, 263 N.W. 749, 751, approved in Maki v. Wm. Bonifas Lumber Co., 278 Mich. 610, 270 N.W. 805.

Defendant testified his son Eugene drove the truck when there was hauling to be done, when it was necessary, when there was something to do; that the truck was bought for business purposes and he never permitted any one to use it for pleasure purposes, and gave no one permission to use it on the occasion in question. Eugene Hilber, the son, testified the truck was used at the camp for hauling supplies and he used it on the occasion in question, without permission, for pleasure purposes. While he was never instructed not to use it, he was told only to take it when ‘we needed it.’ There was no other testimony bearing upon appellant's consent. Fairly considered, this testimony shows the truck in question was bought, kept, and used for business purposes, and appellant never gave any one permission to use it for pleasure purposes, and that its use on the occasion in question was without appellant's consent or permission.

‘A plaintiff has always the burden of showing his cause of action. Every defendant is entitled to go clear unless made answerable by legal testimony. There are...