Hendershott v. Rhein

• Decision Date: 27 May 1975
• Docket Number: Docket No. 18055,No. 2,2
• Citation: 61 Mich.App. 83,232 N.W.2d 312
• Parties: Arnold HENDERSHOTT, Individually and as next friend of Christine Hendershott, a minor, Plaintiffs-Appellants, v. Steve RHEIN et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 312

232 N.W.2d 312

61 Mich.App. 83

Arnold HENDERSHOTT, Individually and as next friend of

Christine Hendershott, a minor, Plaintiffs-Appellants, v. Steve RHEIN et al., Defendants-Appellees.

Docket No. 18055.

Court of Appeals of Michigan, Division No. 2.

May 27, 1975.

Released for Publication Sept. 4, 1975.

Goodman, Eden, Millender, Goodman & Bedrosian by Charles J. Barr, Detroit, for plaintiffs-appellants.

William J. Drillock, Marlette, for defendants-appellees.

Before D. E. HOLBROOK, P.J., and DANHOF and KAUFMAN, JJ.

KAUFMAN, Judge.

At the close of plaintiff's proofs during a jury trial in Lapeer County Circuit Court, defendants moved for and were granted a directed verdict. Plaintiffs appeal as of right.

On an appeal from a directed verdict, the reviewing court must view the facts presented at trial in the light most favorable to the opposing party. Kieft v. Barr, 391 Mich. 77, 214 N.W.2d 838 (1974), Peterson v. Schuitema, 56 Mich.App. 255, 224 N.W.2d 55 (1974). The action arose out of injuries incurred by plaintiff's minor daughter Christine in an automobile accident which occurred in the early morning hours of March 28, 1971. At the time the accident took place, the car, which was owned by defendants Steve and Mary Rhein, was being driven by defendant John Putnik. Plaintiff's daughter, Steve Rhein, John Putnik and others had been driving around the Lapeer and Flint area the previous evening. There was a case of beer in the car, and all the occupants had been drinking.

At about eleven o'clock, the group decided to drive north to Onaway. Soon after starting the drive, the car's power steering stopped functioning and the power steering belt was replaced. The steering, however, continued to malfunction. At this point, State Rhein, who had been driving, turned the driving over to John Putnik. Over the course of the evening, Rhein had consumed about seven bottles of beer, and at the time he began to drive, Putnik, according to Christine Hendershott's estimate, had finished about nine or ten bottles. From the time Putnik started driving to the time of the accident, a period of about four or five hours, plaintiff's daughter and Steve Rhein were asleep. Plaintiff's daughter testified that, at some point, she woke up, saw that the car was traveling 110 m.p.h., told Putnik to slow down, and went back to sleep. Putnik testified that he had, at one time during the evening, been driving at 80 to 90 m.p.h. and had been driving at 70 to 75 m.p.h. on the expressway on which the accident occurred. No evidence was presented concerning the posted speed limit on the expressway. Putnik stated that the expressway was generally clear, with patches of ice. Putnik also testified that, while he was driving, the car's power steering 'kept going in and out'. The only testimony as to how the accident occurred was from Putnik who claimed that he lost control of the car when it hit a patch of ice and that the car swerved into a snowbank.

Based on these facts, plaintiff claims that the trial court erred by directing verdicts on the alternative issues he raised at trial: (1) whether the actions of defendant Putnik constituted gross negligence and (2) whether the actions of defendant Steve Rhein constituted negligent entrustment. Whenever reasonable minds could differ on the existence of a contested issue, the issue is for the jury to decide. Washington v. Jones, 386 Mich. 466, 192 N.W.2d 234 (1971), Mackey v. Island of Bob-Lo-Co, 39 Mich.App. 64, 197 N.W.2d 151 (1972).

I

Because plaintiff sued defendant owners under the Michigan guest-passenger statute, he could only recover if the accident was caused by the 'gross negligence or wilful and wanton misconduct' of the driver. M.C.L.A. § 257.401; M.S.A. § 9.2101. In Kieft v. Barr, supra, the Supreme Court quoting from the case of Tien v. Barkel, 351 Mich. 276, 88 N.W.2d 552 (1958), described the elements necessary to show gross negligence:

"(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another." 391 Mich. 77, 80, 214 N.W.2d 838, 839.

Although not specifically required by Kieft, it would appear that the sum total of the facts must also show that the driver had 'an affirmatively reckless state of mind with intent to depart from careful driving'. Brooks v. Haack, 374 Mich. 261, 265, 132 N.W.2d 13, 15 (1965). This showing has been required by prior cases, most notably by Tien v. Barkel, supra, and by those other cases cited as standards in Kieft. ¹ Reasonable inferences from the evidence may, of course, be used to make the requisite showing. Stevens v. Stevens, 355 Mich. 363, 94 N.W.2d 858 (1959). The prior conduct of a driver may be used to demonstrate a driver's later state of mind and to prove that it was 'affirmatively reckless'. Cramer v. Dye, 328 Mich. 370, 43 N.W.2d 892 (1950), Anderson v. Lippes, 18 Mich.App. 281, 170 N.W.2d 908 (1969). As the Court in Cramer v. Dye, supra, noted,

'In determining whether or not a host motorist was guilty of wilful and wanton misconduct, the jury could properly consider his reckless state of mind and also his persistently reckless course of conduct during the trip from its commencement the the point of the accident.' (Citation omitted.) 328 Mich. 370, 376, 43 N.W.2d 892, 894.

Evidence in the instant case was clearly sufficient to show that defendant John Putnik may have been driving recklessly several hours before the accident. He had consumed from 8 to 10 bottles of beer and, at various times, was driving at between 70 and 80, at one point 110, m.p.h. on roads which he knew to have patches of ice and in a car with a steering problem. The trial court, however, felt that Putnik's earlier activity was too remote to allow an inference that he was driving recklessly at the time of the accident. We disagree. Defendant Putnik admitted that, at the time the accident occurred, he had been driving all night after having consumed a significant amount of alcohol and that he was driving 70 to 75 m.p.h. on a road which he knew to have icy spots. These admissions, viewed in light of evidence of his earlier reckless driving, presented an issue of gross negligence for the jury. The jury could reasonably have inferred from Putnik's description of the accident that his reckless conduct had continued.

The trial court, in granting a directed verdict, relied on the case of North v. Trowbridge, 39 Mich.App. 10, 197...