FLYNN v. Kramer

• Decision Date: 17 May 1935
• Docket Number: No. 102.,102.
• Citation: 261 N.W. 77,271 Mich. 500
• Parties: FLYNN v. KRAMER et al.
• Court: Michigan Supreme Court

271 Mich. 500

261 N.W. 77

FLYNN

v.KRAMER et al.

No. 102.

Supreme Court of Michigan.

May 17, 1935.

Action by Jeremiah Flynn against Raymond Kramer and Paul Bernstein. From a judgment for plaintiff for $25,000, defendants appeal.

Judgment against Kramer dismissed, and judgment against Bernstein reversed and new trial granted, unless remittitur of damages in excess of $10,000 is filed, whereupon judgment for reduced amount shall stand affirmed.

POTTER, C. J., dissenting in part.

Appeal from Circuit Court, Berrien County; Charles E. White, judge.

Argued before the Entire Bench.

Charles W. Stratton, of St. Joseph, and L. H. Vogel, of Chicago, Ill. (Kerr, Lacey & Scroggie, of Detroit, of counsel), for appellant Paul Bernstein.

Mason, Alexander, McCaslin & Cholette, of Detroit, for appellant Raymond Kramer.

Elizabeth H. Forhan and Charles W. Gore, both of Benton Harbor, for appellee.

BUSHNELL, Justice.

This action arose out of a collision between three automobiles which occurred on US-31 some distance north of Benton Harbor on July 23, 1933. It had been raining that day and at the time of the accident, 7 p. m., the pavement was still wet in spots, but the weather had cleared; it was still daylight and the visibility was good. The highway is 40 feet wide and has a 20-foot concrete pavement with gravel shoulders on either side, the west towards Lake Michigan being protected by a guardrail of posts and heavy wire situated about 18 feet from the edge of the concrete. The roadway at the scene of the accident is level and straight, rising to a hill at the north where the road curves to the east. There is a hill to the south and a curve in the road to the east.

From the disputed testimony it would seem that Flynn, coming from the south, saw a number of cars approaching from the north, and he claims that although he was entirely on his own side of the road, the first car, Bernstein's, was over the center line, and the second car, Kramer's, being driven by Kovarsky, appeared to be trying to pass Bernstein. Flynn, relying on both cars resuming their side of the road, maintained his course until he realized that he was in danger, when he took his foot off the accelerator and moved farther to the right. The shoulder of the road was, in his judgment, not sufficiently safe for travel. Bernstein, however, claims Flynn was over the center line and (Bernstein) swerved further towards his right to avoid the collision. It is not too clear how these two cars collided. Bernstein claims he was struck by the front of Flynn's car, while Flynn claims Bernstein's left rear wheel struck the left rear part of his car. Flynn was thrown across the road to the west where Kramer's car then struck Flynn's, tipping it over. Kramer claims his car was completely off the road when it was struck by Flynn.

After the accident, Bernstein's car was on the east side of the road, headed north, with its wheels locked and left rear fender, wheel, and housing smashed, but no occupant seriously injured. Flynn's car was on its side, wheels to the south; its front, headed northwesterly, was partly on the pavement; its gas tank was knocked loose and struck the car traveling behind that of Kramer's. The Kramer car was against the west guard rail, and both it and the Flynn car were completely demolished. Kovarsky and Mrs. Kramer died shortly after the accident. Flynn's son, who was riding on his running board unknown to Flynn, was killed outright, and Flynn's frontal bones were crushed, his right eye knocked out, and knee cap smashed. Other passengers in Flynn's car were injured, but they are not in this case except as witnesses.

The confused testimony may be accounted for by the fact that every one's attention was centered on the injured and dying rather than the details of the collision.

Flynn sued Bernstein and Kramer jointly; the latter filing a cross-declaration after denial of his motion to dismiss on the grounds of improper service. The jury, in returning a verdict for Flynn for $25,000 as against both defendants, answered two questions with special findings to the effect that neither Bernstein's nor Kramer's cars were entirely west of the center of the highway at the time and place of the actual impact.

The first matter requiring our attention is Kramer's question as to service of process; he being a nonresident of the state. Section 4790, Comp. Laws 1929, authorizes service upon the secretary of state in certain instances. The question was before us in Brown v. Cleveland Tractor Co., 265 Mich. 475, 251 N. W. 557, a discussion of which is found in 13 Michigan Bar Journal (May, 1934) 194. See, also, ‘Process in actions against non-resident motorists, 32 Michigan Law Review (January, 1934) 325, at page 336.

Our Legislature has not seen fit to amend the act in question, as did the New York Legislature following the decision in O'Tier v. Sell, 252 N. Y. 400, 169 N. E. 624. We can only repeat: ‘The statute is in derogation of common right, must be strictly construed, and cannot be extended by implication to include persons not coming within its terms. * * * The word ‘operate’ signifies ‘a personal act in working the mechanism of the car.’' Brown v. Cleveland Tractor Co., supra, 265 Mich. 475, pages 478, 479,251 N. W. 557, 558.

We did not decide the Brown Case until December 19, 1933, and we note the opinion which denied Kramer's motion to quash service was filed December 8, 1933, and we assume the trial court did not have the benefit of our views at that time. Nevertheless, we cannot extend the language of the statute; that function must be left to the wisdom of the legislative branch of government. The filing of a general appearance and cross-declaration, after denial of a motion to quash, does not waive the right to object to jurisdiction. Rule 18, Michigan Court Rules (1933).

Kramer was not driving his car at the time of the accident, but was a passenger in another which followed a considerable distance in the rear. He was not an eyewitness to the collision, but arrived shortly thereafter. The situation thus presented is controlled by the Brown Case, supra, and the cause must be dismissed as to defendant Kramer.

Was plaintiff guilty of contributory negligence? The general use of automobiles and the multitudinous situations which arise out of the daily operation of a tremendous number of cars on the streets and highways of the state, with their attending accidents, simple and serious, in the opinion of the writer, forces the conclusion that it is an impossibility to...