Kieszkowski v. Odlewany

• Court: Michigan Supreme Court
• Writing for the Court: BUSHNELL
• Citation: Kieszkowski v. Odlewany, 280 Mich. 388, 273 N.W. 741 (Mich. 1937)
• Decision Date: 07 June 1937
• Docket Number: No. 102.,102.
• Parties: KIESZKOWSKI v. ODLEWANY.

280 Mich. 388

273 N.W. 741

KIESZKOWSKI

v.ODLEWANY.

No. 102.

Supreme Court of Michigan.

June 7, 1937.

Action by Herbert Kieszkowski, a minor, by his next friend, Walter Kieszkowski, against Stanley Odlewany. Judgment for plaintiff, and defendant appeals.

Reversed and remanded for entry of judgment for defendant.Appeal from Gircuit Court, Wayne County; Harry B. Keidan, judge.

Argued before the Entire Bench.

Harold S. Knight, of Detroit (Linsey, Shivel & Phelps, of Grand Rapids, of counsel), for appellant.

Morris Luskin and Wm. Cohen, both of Detroit, for appellee.

BUSHNELL, Justice.

Plaintiff, a minor, by his next friend, recovered a $500 judgment for injuries claimed to have been inflicted through the negligent operation of a truck owned by defendant and driven by another.

On October 26, 1935, defendant, who does business in the city of Hamtramck, permitted John Wandor to use his truck to deliver a load of wood; Bruno Jasinski, a minor, accompanied Wandor. Jasinski had received small sums of money from time to time for helping the defendant in the latter's beer store, but was not his employee. Wandor delivered the wood and then surrendered the keys of the truck to Jasinski, instructing him to return it to defendant's store.

Jasinski did not select the shortest route by which to return to Odlewany's store because, as he stated, ‘I was afraid I would get in an accident on Joseph Campau (which is the principal business street of Hamtramck), it was too busy a section.’ Instead, he chose to drive on Conant avenue, which is several blocks east but runs in the same direction as Joseph Campau, as this would not require driving in traffic on Joseph Campau.

It is admitted that, while driving on Conant, Jasinski turned west on Norwalk and proceeded about one-half block on the latter street to call on a friend, who was not at home. Jasinski then turned the truck around and headed back toward Conant, but, before reaching Conant, struck some sand in the street, lost control of the truck, which ran up and over the curbing and injured plaintiff. The finding of the trial judge that Jasinski was negligent is not disputed.

Jasinski was driving the truck with the knowledge and consent of defendant.

‘At the time of the accident the car was being used by John, who was riding in it, but was being driven by Walter. Does the essential consent mentioned in the statute [1 Comp.Laws 1929, § 4648, 8 Mich.Stat.Anno. 9.1446] relate to the driver, or to the vehicle ‘being driven’? The statute makes the owner liable if the ‘motor vehicle is being driven with his or her express or implied consent or knowledge,’ and we cannot read into it the restriction that the particular driver must be known by and his driving consented to by the owner. The statute may be drastic, but we cannot rneder it less so by any permissible construction.' Kerns v. Lewis, 246 Mich. 423, 224 N.W. 647, 648.

Was Jasinski deviating from his route to defendant's store when the accident occurred? Was the deviation of such a nature as to relieve defendant from liability?

The trial court held:

‘Bruno did not take the most direct route to defendant's place of business. He could have taken a shorter one. He testified that he took that route in order to avoid the congested traffic on Joseph Campau Avenue. The deviation on Norwalk Avenue was not more than three blocks. When the accident happened Bruno had turned around on Norwalk Avenue and was on his way back to defendant's store.

‘It is my opinion and I so find that at the time of the accident the truck was being driven within the limits of the permission given by the defendant. I think it would be unreasonable to hold that a driver who deviates three blocks from his route to see his friend is without the scope of the permission given by the owner.’

For clarity, it must be shown that, when Jasinski turned from Conant onto Norwalk, he was proceeding in the general direction of defendant's store, but when he turned around and started back toward Conant, at which time the accident occurred, he was going away from defendant's store. Jasinski testified:

‘Q. And you drove west on Norwalk almost to Gallagher to see this boy friend? A. Yes, sir.’

Our holding in Irwin v. Williamson Candy Co., 268 Mich. 100, 255 N.W. 400, 401, controls the question of the effect of Jasinski's deviation to visit a friend. We said in that case:

‘The effect of appellant's agreement would be to construe ...