Karney v. Upton

• Decision Date: 15 July 1958
• Docket Number: No. 53,53
• Citation: Karney v. Upton, 353 Mich. 262, 91 N.W.2d 297 (Mich. 1958)
• Parties: Michael KARNEY, a minor, by June Macy, his next friend, Plaintiff and Appellant, v. Lloyd A. UPTON and Auto-Truck Rental Company, a Michigan Corporation, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 297

91 N.W.2d 297

353 Mich. 262

Michael KARNEY, a minor, by June Macy, his next friendPlaintiff and Appellant, v.Lloyd A. UPTON and Auto-Truck Rental Company, a Michigan Corporation, Defendants and Appellees.

No. 53.

Supreme Court of Michigan.

July 15, 1958.

Charles R. King, Detroit, for plaintiff and appellant.

Davidson, Kaess, Gotshall & Kelly, Detroit, for defendants and appellees.

Konred D. Kohl, Detroit (John R. Secrest, Detroit, of counsel), for defendantAuto Truck Rental Co.

Before the Entire Bench.

CARR, Justice.

Plaintiff herein, by his next friend, brought this action in circuit court to recover damages for injuries sustained by him in a traffic accident.The declaration filed alleged that on the 27th day of September, 1952, plaintiff was employed as a stable-boy at B Bar M Ranch in Macomb county, that at approximately 11 o'clock in the evening, or nighttime, of said day plaintiff, defendant Upton, and Orville Martin left the ranch for the purpose of going to a certain restaurant, that on the return trip defendant Upton insisted on driving the car which had been rented by him from the defendantAuto-Truck Rental Company, and that said Upton drove in a grossly negligent manner, at an excessive rate of speed, and in wanton disregard of the rights and safety of the plaintiff.It was further averred that Upton was under the influence of intoxicating liquor of which he had partaken during the day, and for that reason was incapable of operating the vehicle in a safe manner.After proceeding for approximately one and one-half miles from the restaurant the car struck the guard rail of a bridge, resulting in serious injuries to plaintiff and in the death of Martin.The pleading alleged that at the time of the accident plaintiff was a 'gratuitous passenger' in the automobile.

The defendants filed separate answers to the declaration, each denying plaintiff's right to recover damages.Thereafter Upton's attorneys withdrew from the case and at the time of the trial he was not present in court, nor was he represented by counsel.At the conclusion of plaintiff's proofs as to the conduct of Upton in the operation of the automobile a request for judgment was made on behalf of the defendantAuto-Truck Rental Company.Following argument based on the proofs submitted on behalf of plaintiff, the trial judge, hearing the cause without a jury, concluded that gross negligence, or wilful and wanton misconduct, on the part of Upton had not been established.The court further expressed the opinion that plaintiff was guilty of contributory negligence in riding with Upton if the latter was in such condition as to have been incapable of operating the vehicle in a proper manner.The judgment entered contained the following recital:

'The parties being in court and a trial by jury being waived by stipulation, the court heard the testimony and the arguments of counsel and thereupon finds that the defendants are not guilty as the plaintiff have complained against them.'

A motion for a new trial was subsequently made and denied, and plaintiff has appealed from the judgment.

At the outset of the trial counsel for defendantAuto-Truck Rental Company raised in its behalf the question whether gross negligence on the part of Upton, if such there was, imposed liability on it.The matter was again referred to after the closing of the proofs in connection with a discussion of the factual issues involved.The trial court did not pass on the legal issue thus presented.It may be noted that the recent decision of this Court in Peyton v. Delnay, 348 Mich. 238, 83 N.W.2d 204, is squarely in point.See, also, Wieczorek v. Merskin, 308 Mich. 145, 13 N.W.2d 239.

As appears from the judgment entered, the trial court based determination of the cause on the testimony as to how the accident occurred and the reasons therefor, insofar as disclosed by the testimony.At the time of the accident plaintiff was 13 years of age.His testimony indicates that he was in all respects a normal youth of such age.It is argued that he should have left the car when Upton insisted on driving.It may be noted in this connection that Martin also remained in the automobile.The record indicates that Martin was at the time past 21 years of age, and that Upton was approximately 25 years old.As we view the matter, however, it is unnecessary to consider on this appeal whether plaintiff was guilty of negligence and, if so, whether such fact would bar relief in the instant case.

No witness other then plaintiff testified as to the occurrence of the accident, or the condition of Upton at the time.The question presented is whether, construing the testimony in plaintiff's favor, the finding of the trial judge that gross negligence, or wilful and wanton misconduct, had not been established was against a preponderance of the proof.It appears that both plaintiff and Martin objected to Upton's driving the car on the return trip from the restaurant on the ground that he was not in proper condition to drive.However, Upton was responsible for the vehicle, he having rented it from the other defendant, and he was entitled to its control.It does not appear that he had any difficulty in starting the car, and he proceeded for approximately one ane one-half miles prior to the accident without becoming involved with any other vehicle.The following testimony of the plaintiff as to what occurred during that distance fairly indicates the claim made in his behalf:

'Q.During that time, what did you observe so far as Lloyd driving the car?A.Well, Lloyd was going fast.He was going from side to side on the road.He was sort of swerving back and forth on the road.

'Q.Was it dark at that time?A.It was dark out.

'Q.Did you make any further protest?A.Well, most all the way we was trying to talk him into letting Orville drive.

'Q.He wouldn't stop the car?A.One time I remember when he asked him, I think it was Orville said, 'Come on, let me drive because you are in no condition,' and Lloyd said to him, 'What do you want to do, get me killed?'

'Q.What is the last that you recall before the impact?A.Well, we were coming towards the bridge and I could see the headlights shining off the steel, and then I hollered, but he kept going straight for the bridge and hit it.

* * *

* * *

'Q.During this ride for approximately a mile and a half, were you racing any other cars?A.Not that I remember.

'Q.He just drove that way without any cars involved?A.Yes, sir.

'Q.How many times did you protest, if you recall?A.It was quite a few times, about 20 times or more.

'Q.In other words, the entire route of the trip?A.We were protesting about up to Chicago Road and then we give up.There was only about 500 feet to the bridge then.

'Q.Can you estimate his speed?A. I'd say he was going about 70 miles an hour.'

With reference to Upton's alleged intoxication plaintiff testified that about 4 o'clock in the afternoon Upton was 'pretty well drunk', and that he saw him drinking at some time before the parties left the ranch.He claimed further that while in the restaurant Upton went to sleep, expressing no opinion, however, as to whether such conduct was the result of drinking or because Upton was tired.Witness stated that he asked him to play a record, which Upton did but not the one for which plaintiff asked.It does not appear that there was any difficulty in awakening Upton when the parties were ready to start the return trip.

In indicating his conclusions from the bench, the trial court said in part 'The only testimony in ...