Hekman Biscuit Co. v. Commercial Credit Co.

• Decision Date: 19 December 1939
• Docket Number: No. 52.,52.
• Citation: 291 Mich. 156,289 N.W. 113
• Parties: HEKMAN BISCUIT CO. v. COMMERCIAL CREDIT CO. et al.
• Court: Michigan Supreme Court

291 Mich. 156

289 N.W. 113

HEKMAN BISCUIT CO.

v.COMMERCIAL CREDIT CO. et al.

No. 52.

Supreme Court of Michigan.

Dec. 19, 1939.

Action by the Hekman Biscuit Company, for the use and benefit of the Royal Indemnity Company, against the Commercial Credit Company and another, to enforce a claim to a right of subrogation to the rights of the dependents of a deceased employee to whom benefits had been paid under the Workmen's Compensation Act. Judgment for the defendants, and the plaintiff appeals.

Judgment affirmed.

Appeal from Circuit Court, Kent County; Leonard D. Verdier, judge.

Argued before the Entire Bench.

Russell Van Kovering, of Grand Rapids, for appellant.

Travis, Merrick & Johnson, of Grand Rapids, for appellees.

McALLISTER, Justice.

Stephen Wierenga and Earl T. Rogers were employed by the Hekman Biscuit Company, Rogers as sales manager, and Wierenga as a salesman. On July 18, 1935, they were riding in an automobile owned by Wierenga, but being driven on the business of the company in Montcalm county. Wierenga was driving the car, while Rogers was directing him as to routes and towns where customers were to be called upon. They were traveling in a southerly direction on the Fishville road toward county highway No. 510, an east and west road, at a rate of speed, according to Wierenga, of about 35 miles per hour. As he approached the county highway, Wierenga testified that he reduced his speed to 25 miles per hour, and at another time he stated that he reduced it more than half. After looking to the east and west, he proceeded into the intersection. When he had crossed over the first half of the county highway, his automobile was struck by a car coming from the east and driven by Joseph Garceau, an employee of the Commercial Credit Company. In the collision Rogers was killed. After the accident, it appeared from skid marks that Wierenga had applied his brakes about 25 feet before he had come into the intersection and apparently had released the brakes when within three or four feet of the highway. The accident occurred about 3:30 in the afternoon of a bright clear day. Both roads were of graveled surface and dry. At the northeast corner of the intersection, shrubbery, brush and willows grew to about the height of a car and boughed out over the road. Until they arrived in the intersection, it was impossible for Wierenga, coming from the north to see Garceau approaching from the east; and likewise, impossible for Garceau to see Wierenga approaching from the north. Wierenga testified that his car arrived at the intersection first. When the Wierenga car was struck it was driven a distance of about 25 feet to the south and west and was badly wrecked. There was testimony that Garceau shortly before the collision had been traveling at 50 miles per hour; other witnesses testified that both cars were traveling at about the same rate of speed. Wierenga testified that he would have to be right at the intersection to see 30 feet down the road to his left. The widow of Rogers elected to take benefit payments under the workmen's compensation act, Comp.Laws 1929, § 8407 et seq., in lieu of suing Garceau and his employer. This action was brought by the Hekman Biscuit Company against Garceau and the Commercial Credit Company under a claimed right of subrogation to the rights of the dependents of deceased to bring such suit.

The case was tried without a jury and a judgment of no cause of action was entered by the trial court. In deciding the case, the court stated the following in the course of its findings:

‘Now, the only question in this case is whether or not Wierenga, driving the plaintiff's car, was also guilty of negligence, and I am satisfied that he was. On his trip to this store on the north and south road at a point about a half mile north of this intersection-on his trip to this store he had been told by Mr. Rogers, his passenger, that that intersection was a bad corner. As he came from the store going south of this road, Wierenga could not help but appreciate that this bank of willows or brush absolutely obscured his vision as to any traffic coming from the east on the east and west road. ...