Johnson v. Austin
| Decision Date | 25 June 1979 |
| Docket Number | Docket No. 60261,No. 3,3 |
| Citation | 280 N.W.2d 9,406 Mich. 420 |
| Parties | William P. JOHNSON, Administrator of the Estate of Mamie Jean Johnson, Deceased, Plaintiff-Appellant, v. Richard H. AUSTIN, Secretary of State, State of Michigan, Director of the Motor Vehicle Accident Claims Fund, Defendant-Appellee. Calendar406 Mich. 420, 280 N.W.2d 9 |
| Court | Michigan Supreme Court |
Posner, Posner & Posner, Detroit, for plaintiff and appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Joseph B. Bilitzke, Regina Ann King, Asst. Attys. Gen., Michigan Dept. of State, MVACF Legal, Lansing, for defendant-appellee.
Plaintiff, administrator of the estate of Mamie Jean Johnson, commenced this action for wrongful death against the Secretary of State pursuant to the unidentified owner/driver provision of the Motor Vehicle Accident Claims Act. 1
We granted leave to appeal to decide whether, in an action based upon that act, evidence of the unidentified driver's flight from the scene of an accident, in violation of the statutory duties to stop, give information and aid, and to make a report, 2 should give rise to a presumption of the driver's negligence. The trial judge held that evidence of flight was not probative of the driver's negligence and directed a verdict for the defendant at the conclusion of plaintiff's proofs. The Court of Appeals affirmed.
ii) as if the violation of those duties had not resulted in a loss of evidence concerning the circumstances of the accident, a loss that plaintiff cannot overcome because the victim is unable to testify and no other witness provides evidence of the circumstances of the accident, and
iii) as if the state had not declared a public policy of compensating the victims of unidentified drivers and the defendant Secretary of State were not obliged to do so.
The burden of producing evidence is not invariably allocated to the pleader of the fact to be proved. That burden may be otherwise allocated by the Legislature or judicial decision based, among other factors, on an estimate of the probabilities, fairness and special policy considerations, and similar concerns may justify the creation, judicially or by law, of a presumption to aid the party who has the burden of production. 3
The action of the driver in concealing his identity and in failing to provide information about the circumstances of the accident, in violation of his statutory duties, is akin to the deliberate destruction of or a failure to produce at trial evidence within a party's control. In such a case a presumption arises that the evidence, if produced, "would operate against him, and every intendment will be in favor of the opposite party." 4 On the same principle, an inference should arise, where the evidentiary gap is not closed by other evidence of the circumstances of the accident, that if the driver had complied with his statutory duties the evidence that would have been produced "would operate against him." That inference, together with the inference of consciousness of wrongdoing which may be drawn from flight when there is a statutory duty to remain at the scene, should, in our opinion, give rise to a rebuttable presumption that the driver was at fault, and a Prima facie case sufficient to avoid a directed verdict at the close of plaintiff's proofs.
If the victim or other witnesses can provide information concerning the circumstances of the accident, the driver's failure to stop and give information may not then result in a loss of evidence preventing the plaintiff from producing evidence of those circumstances. The inference drawn from the evidence of flight can be weighed with the circumstances of the accident as one of the factors in deciding whether the driver was negligent. A fair allocation of the burden of production of evidence does not then call for an evidentiary presumption.
Such a presumption should, however, arise in the atypical case where, as here, the circumstances of the accident are unknown because the victim is unable to testify there were no known witnesses to the accident, the driver is unidentified and unsuable and his failure to comply with his statutory obligations caused a loss of evidence which compliance would have provided.
The presumption is fair in that it arises where the driver's breach of statutory duties results in a loss of evidence that the plaintiff cannot otherwise provide. It is in accord with the probabilities as it is unlikely that a non-culpable driver would subject himself to a prison term on a hit-run charge. It serves the special policy considerations of compensating the victims of unidentified hit-run drivers implicit in the Motor Vehicle Accident Claims Act.
There was no evidence substantiating plaintiff's allegation that Mamie Johnson was killed while walking across a street, although there was evidence tending to show that she was killed as a result of being struck by a vehicle or of being involved in an automobile accident.
Mamie Johnson's body was apparently found by Hubert Ingram and transported to a hospital. An attempt was made to depose Ingram at a time when he was in the Wayne County Jail. He refused to cooperate and no effort was made to compel his testimony. No other witnesses came forward and no driver of an automobile that may have caused the injuries was identified.
An assistant Wayne County medical examiner described in detail the nature of the injuries laceration of the head, contusions of the scalp, abrasions on both knees, abrasions on back, fractured ribs, both lungs torn, liver lacerated, bleeding in abdominal cavity. 5 He concluded that her death was the result of an automobile accident: He did not remember any case "like it" except an automobile accident.
The trial judge said that the evidence was sufficient for the jury to find that Mamie Johnson was struck by an automobile but that evidence of flight was not alone sufficient to permit an inference that the fleeing driver was negligent. The Court of Appeals said that the medical examiner's opinion was an inference drawn without facts.
We all agree with the judge that there was evidence that Mamie Johnson's death resulted from an automobile accident. The Court of Appeals erred in concluding that the medical examiner's opinion was not factually supported. The medical examiner, a physician, had examined thousands of bodies over a ten-year period. He testified that he had made a careful examination of Mamie Johnson's body. What he learned in that examination and the sum of his experience from other examinations are facts. He was able to form an opinion, based on those facts, that Mamie Johnson's injuries were caused by an automobile accident. His opinion that her injuries were characteristic of an automobile accident was factually supported by what he observed and his experience regarding the meaning of those observations.
A more difficult question is whether it is reasonable to infer that Mamie Johnson's death was caused by the fleeing driver's negligence.
It was not shown whether Mamie Johnson's injuries were inflicted when she was struck by an automobile or while riding as a passenger in an automobile. In either circumstance, the driver of an automobile failed to provide statutorily required aid, assistance and information. If she were a passenger in an automobile, she must have been removed from the automobile and left to be found by others. If she was struck with sufficient force to cause serious injury or death, the jury could properly conclude that the driver knew that he had been involved in an injury accident. There was, in either event, "physical contact by the unidentified vehicle with" 6 Mamie Johnson, and its driver was obliged to give his name, address and registration number and to render reasonable assistance in securing medical aid or transportation and to make a report to police authorities. 7
In Dodd v. Secretary of State, 390 Mich. 606, 613, 213 N.W.2d 109, 112 (1973), this Court held that a Prima facie case against the Secretary of State under the Motor Vehicle Accident Claims Act was made on the plaintiff's testimony that he had looked both ways and had seen no traffic before crossing the street, and a witness's testimony that she saw no lights other than the tail lights on the hit-run car: "A jury could have found that the hit-run car was traveling without lights, in violation of our Motor Vehicle Code, and by so doing was negligently operated."
Three justices, concurring in the result, would have held that the driver's failure to stop and identify himself was itself a circumstance from which some negligence on the part of the driver could be inferred.
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