Ensign v. Crater

• Court: Court of Appeal of Michigan
• Writing for the Court: TARGONSKI
• Citation: Ensign v. Crater, 200 N.W.2d 341, 41 Mich.App. 477 (Mich. App. 1972)
• Decision Date: 26 June 1972
• Docket Number: Docket No. 11314,No. 2,2
• Parties: Eli ENSIGN, Next Friend of Terry Lee Ensign, a minor, and Eli Ensign, individually, Plaintiffs-Appellees, v. Bernard CRATER and Robert Leon Smith, Defendants-Appellants

Page 341

200 N.W.2d 341

41 Mich.App. 477

Eli ENSIGN, Next Friend of Terry Lee Ensign, a minor, and Eli Ensign, individually, Plaintiffs-Appellees, v. Bernard CRATER and Robert Leon Smith, Defendants-Appellants.

Docket No. 11314.

Court of Appeals of Michigan, Division No. 2.

June 26, 1972.

Rehearing Denied Aug. 8, 1972.

Released for Publication Sept. 15, 1972.

Leave to Appeal Granted Nov. 2, 1972.

Richard F. Biringer, Coldwater, for Crater.

William J. Kelly, Kelly, Kelly & Kelly, Jackson, for plaintiffs-appellees.

Before McGREGOR, P.J., and BRONSON and TARGONSKI ^*, JJ.

TARGONSKI, Judge.

Defendant Bernard Crater was the owner of a 1967 Plymouth automobile that in the early morning hours of September 26, 1967, was being operated by defendant Robert Smith. Defendant Crater's 17-year-old daughter was given permission to use the family car until midnight for the purpose of driving her younger brother to a fair. Colleen Crater, the daughter, was given explicit instructions that she was to have the car home before midnight, and that no one else was to drive the automobile.

While at the fair, Colleen met a boyfriend and together they used the car for the purpose of driving to Ohio to obtain beer. About five or ten minutes before midnight, Colleen dropped her younger brother off at home, and she and some of her friends went to a lake lot owned by Bernard Crater where they had a beer party. At approximately 2:00 A.M., the party broke up and nine or ten people got into the Crater car which at that time was being driven by defendant Robert Smith.

Smith was driving the car at a high rate of speed, and when someone in the group thought a police car was following them, the defendant accelerated to a higher rate of speed, ran a stop sign, and failed to negotiate a curve in the road. The car rolled over and hit a railroad embankment. Plaintiff Terry Ensign was seriously injured in the accident.

The present suit was begun and defendant Robert Smith defaulted. The case went to trial before a jury and at the conclusion of the plaintiffs' case, defendant Crater made a motion for a directed verdict on the grounds that he was not liable to the plaintiffs in that there had been no showing that the car was being driven with his express or implied consent. His motion was denied, but was renewed at the end of the defendant's case. This motion was also denied, and the jury returned a verdict against both defendants in the sum of $60,000. Following the jury verdict, the defendant made a motion for a new trial and, in the alternative, for a judgment notwithstanding the verdict. This motion was denied and consequently, we granted leave to appeal to defendant Bernard Crater. ¹

The sole issue for our consideration is whether defendant Crater was entitled to a directed verdict, or to a judgment notwithstanding the verdict, on the ground that the car was being operated by Robert Smith at the time of the accident without his knowledge or consent.

The civil liability act of owners and operators of motor vehicles states, in pertinent part:

'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 requires. 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 * * *.' M.C.L.A. § 257.401; M.S.A. § 9.2101 (Emphasis added).

While the statutory presumption of knowledge and consent to the ues of a motor vehicle does not apply in the instant case because the motor vehicle at the time of the accident was not being operated by a member of the immediate family of defendant Crater, the common-law presumption that the operator of the vehicle at the time of the accident was driving with the consent and knowledge of the owner does apply. Lahey v. Sharp, 23 Mich.App. 556, 179 N.W.2d 195 (1970). See also Detroit Automobile Inter-Insurance Exchange v. Gordon, 15 MichApp. 41, 165 N.W.2d 923 (1968); Houseman v. Walt Neal, Inc., 368 Mich. 631, 118 N.W.2d 964 (1962). In Lahey v. Sharp, Supra, 558--559, 179 N.W.2d 196, quoting from Hatter v. Dodge Brothers, 202 Mich. 97, 102, 167 N.W. 935 (1918), the Supreme Court said:

'In the absence of such statutory qualification the possession, use and control of an automobile in a public place fairly gives rise to the inference that the person so in control is the owner of such property or in lawful possession of it with the express or implied consent of the owner. By statute it is made a felony to take possession of and use a motor vehicle without authority ((3 C.L.1915, 15431; P.A.1917, No. 220)), and the presumption of innocence, in the absence of proof to the contrary, attends the driver. Unexplained and undisputed, the reasonable inference of consent by the owner and authority of the driver is such as common sense and common experience usually draws and applies to the possession of those driving automobiles along our highways. A Prima facie case was made out by plaintiff's evidence, putting defendant to its proofs.'

In the normal case of a presumption, the presumption itself cannot be weighed as evidence against other credible evidence introduced into the case. As a rule a presumption disappears when evidence is introduced from which facts may be ascertained. Krisher v. Duff, 331 Mich. 699, 50 N.W.2d 332 (1951). The Court in Krisher v. Diff, Supra, 705, 50 N.W.2d 336, said:

'It has been well settled in this State that the effect of a rebuttable presumption is to make out a Prima facie case at the beginning of a trial. Having established the original Prima facie case, the presumption then casts the burden of proof on the opposite party. Presumptions cannot be weighed against other credible evidence, for they have no value as evidence unless no other credible evidence whatsoever is introduced in regard to the presumed fact. As a rule they disappear if and when credible evidence is introduced from which the facts may be found.'

However, in cases involving the liability of an auto owner under the civil liability act of owners and operators of motor vehicles, courts have made the presumption stronger due to the high degree of danger involved in the operation of a motor vehicle and because defendants are usually the only persons who know the true facts regarding consent. As a result, in order to rebut either the statutory or common-law presumption against consent and knowledge, there must be 'positive, unequivocal, strong and credible' evidence to the contrary. Lahey v. Sharp, Supra; Krisher v. Duff, Supra; Houseman v. Walt Neal, Inc., Supra; Detroit Automobile Inter-Insurance Exchange v. Gordon, Supra. For a more informative definition as to what constitutes 'positive, unequivocal, strong and credible' evidence we again turn to Krisher v. Duff, Supra, 710, 50 N.W.2d 338, in which our Supreme Court said:

'What constitutes clear, positive and credible evidence? It has been held that uncontradicted evidence given by defendants alone is sufficiently clear, positive and credible to rebut the presumption and justify a directed verdict for the defendant. Christiansen v. Hilber, Supra; ² Brkal v. Pletcher, Supra. ³ On the other hand, if any doubt has been cast on the testimony of the defendants or their witnesses, either by evidence in rebuttal or by question as to the witnesses' credibility, the evidence is not clear, positive and credible, and the issue of whether or not the presumption of consent has been overcome should be submitted to the jury. Transcontinental Insurance Co. v. Berens, Supra; ⁴ Karl v. Gary, Supra; ⁵ Cebulak v. Lewis, Supra. ⁶ The result must necessarily vary as to the circumstances of each case.

The above process is entirely a determination as to whether or not the defendnts have met the burden of going forward with the evidence which is cast upon them by the statutory presumption. If the defendants fail to meet this burden and overcome the presumption, a verdict for the plaintiffs must follow. If the defendants do present clear, positive and credible evidence to overcome the presumption they have not prevailed on the issue of consent but have merely succeeded in casting the burden of proof as to consent on the plaintiff. It will be seen, therefore, that this process involves two separate determinations:

'1. Whether or not the presumption of consent has been overcome by clear, positive and credible proof;

'2. If it has been overcome, whether or not the plaintiffs can prove all the issues of the case, including consent, by a preponderance of the evidence.'

Turning now to the instant case and relying on the aforementioned principles, we find that the plaintiffs had the benefit of the common-law presumption that the operator of the car, Smith, at the time of the accident was driving with the knowledge and consent of the owner, Crater. But if defendant Crater produced positive, unequivocal, strong and credible evidence, and uncontradicted, that the car was being driven by Smith at the time of the accident without the owner's knowledge and consent, then plaintiffs must prove by a preponderance of the evidence tht the car was being driven by Smith with the owner's knowledge and consent. If the plaintiffs failed to meet that burden, the verdict against defendant Crater cannot stand.

To begin with, plaintiffs presented five witnesses, including plaintiff Terry Ensign, to offer testimony. ⁷ But at no time was anything brought out, or said concerning knowledge or consent. Plaintiffs then rested their case.

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