Donker v. Powers

• Decision Date: 03 April 1925
• Docket Number: No. 31,January Term, 1925.,31
• Citation: 230 Mich. 237,202 N.W. 989
• Parties: DONKER v. POWERS.
• Court: Michigan Supreme Court

230 Mich. 237

202 N.W. 989

DONKER

v.POWERS.

No. 31, January Term, 1925.

Supreme Court of Michigan.

April 3, 1925.

Error to Circuit Court, Kent County; Willis B. Perkins, Judge.

Action by John Donker, administrator of Martin Donker, deceased, against John E. Powers. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Jewell, Raymond & Face, of Grand Rapids, for appellant.

J. T. & T. F. McAllister, of Grand Rapids, for appellee.

SHARPE, J.

Plaintiff's minor son sustained injuries from which he died in an accident resulting from a collision with an automobile driven by defendant on June 1, 1922. He brings this action as administrator of the estate. The jury found for the defendant. The judgment entered thereon is reviewed by plaintiff by writ of error.

Plaintiff lived on a small farm on what is known as the Michigan road, a short distance east of the city of Grand Rapids. He had three children, Fred, aged 18, Alberta, aged 16, and Martin, aged 14. Near the hour of 8 o'clock in the evening the three took out their bicycles and started to ride towards the east along the Michigan road. Defendant was driving his automobile towards the west. A collision occurred. The bicycle Fred was riding was struck, but he jumped off and escaped without injury. That on which Martin was riding was also struck. He was thrown a considerable distance, and sustained injuries, from which he died the following day.

The only witnesses to the occurrence were Fred and Alberta and the defendant. Others who came upon the scene soon thereafter testified as to the then location of defendant's car, the tracks of the car and the bicycles, and the situation generally. It is the claim of the plaintiff that Alberta and Martin were riding on the right-hand side of the road (the south side), while Fred was on the other side and slightly in advance of them; that, when defendant's car struck Fred's bicycle, he swerved it suddenly to the left, towards the south, and it struck the wheel Martin was riding. The defendant claims that both Fred and Martin were riding on the north side of the road, and that the collision with Martin's wheel there occurred. There was testimony to support both claims, and they were fairly submitted to the jury.

The errors complained of will now be considered.

1. Soon after the collision a man named Tubbs came along in his car. Martin was placed therein. They drove to plaintiff's home, and he and his wife got into the car in the back seat with Martin, while defendant got in the front seat, and they started for the hospital. Plaintiff's counsel interrogated the father when a witness as to what Martin had said to his mother in answer to a question put by her as to how the accident happened. Error is assigned on the refusal of the court to permit an answer. The record, however, discloses that Martin's answers, ‘He done it purposely,’ and the ‘sucker steered right into me,’ got before the jury and were not stricken out, notwithstanding the court held them inadmissible. It is plaintiff's claim that he was entitled to prove what answers were made by Martin, and, if the facts stated were not then denied by the defendant, his silence might be considered by the jury as an acquiescence and an implied admission of their truth. Counsel rely on the rule stated in 1 R. C. L. 478, 479, as follows:

‘15. Silence as Importing Admissions. Intimately connected with admissions that are implied by the acts or conduct of the party are admissions by silence of acquiescence. If a statement is made in the hearing of another, in regard to facts affecting his rights, and he makes no reply, it may be a tacit admission of the facts stated; depending upon whether he hears and understands the statement, and comprehends its bearing, whether the truth of the facts embraced in the statement is within his own knowledge, whether the circumstances are such as to affored him an opportunity to act and speak freely, and whether the statement is made under such circumstances and by such persons as naturally to call for a reply if he did not intend to admit it.’ (The italics in the above quotation are ours.)

The rule as stated finds support in the many cases which appear in the note thereto. This court has on several occasions held such evidence to be admissible. Atwood v. Cornwall, 28 Mich. 336, 15 Am. Rep. 219;Evans v. Montgomery, 95 Mich. 497, 55 N. W. 362;Matthews v. Forslund, 112 Mich. 591, 70 N. W. 1105.

The reason for the rule is well stated in Wheat v. Croom, 7 Ala. 349:

‘This rule of evidence rests upon that universal principle of human conduct, which leads us to repel an unfounded imputation, or claim.’

To make such a statement admissible. we think it must fairly appear that it was made...