Kolehmainen v. E. E. Mills Trucking Co.

• Decision Date: 06 April 1942
• Docket Number: No. 40.,40.
• Citation: 301 Mich. 340,3 N.W.2d 298
• Parties: KOLEHMAINEN v. E. E. MILLS TRUCKING CO., Inc.
• Court: Michigan Supreme Court

301 Mich. 340

3 N.W.2d 298

KOLEHMAINEN

v.E. E. MILLS TRUCKING CO., Inc.

No. 40.

Supreme Court of Michigan.

April 6, 1942.

Action by Ina Kolehmainen, administratrix of the estate of William Kolehmainen, deceased, against E. E. Mills Trucking Company, Incorporated, and another, for damages for death of deceased in automobile accident. From a judgment in favor of the plaintiff against the named defendant, the named defendant appeals.

Affirmed.Appeal from Circuit Court, St. Joseph County; Theo T. Jacobs, judge.

Before the Entire Bench, except WIEST, J.

Hemphling & Smith, of South Bend, Ind., for appellant.

Robert P. Polleys, of Constantine, and Jacob W. Hirvela, of Hancock, for appellee.

NORTH, Justice.

This is an appeal from a judgment of the circuit court of St. Joseph county, entered in favor of Ina Kolehmainen, as administratrix of the estate of her husband, William Kolehmainen, deceased, on the verdict of a jury awarding plaintiff the sum of $12,151.85.

In this action plaintiff alleged negligence on the part of defendant E. E. Mills Trucking Company, Inc., in the operation of its truck, which negligence she charged led to a collision between defendant's vehicle and deceased's automobile, resulting in fatal injuries to plaintiff's decedent.

The accident occurred on US-112, about 3 1/2 miles west of Mottville, Michigan, at about 11 o'clock on the night of December 21, 1939. Plaintiff's decedent was driving a Ford sedan. With him were four passengers. The collision took place in a depression between two hills, where US-112 runs east and west. The east hill, down which plaintiff's decedent was driving, is about 1500 feet long. The west hill, down which defendant's truck, driven by Harvey Smith, was proceeding, is about the same length. Approximately 700 to 750 feet west of the point of collision the road curves toward the south. The pavement is 18 feet wide, and the berm is of gravel and asphalt. Guard rails, about 3 feet high and with posts about 16 to 18 feet apart, are on both sides of the road, extending east and west of the point of collision.

The night was clear, but the road was covered with a sheet of ice, over which was a layer of show about one-quarter to one-half inch thick. Over the summit of the east hill plaintiff's decedent passed a truck of Commercial Carriers, Inc. Decedent increased his rate of speed to about 35 or 40 miles an hour to effect the passing, then immediately returned to his right side of the road and reduced his speed to about 30 miles an hour. Meanwhile, the tractor and trailer of the Mills company, traveling about 20 miles an hour, rounded the curve, which was approximately 750 feet from the point of collision, and continued down the west hill. When the Mills' truck was about 150 to 200 feet from the Kolehmainen car, the truck driver Smith lost control, his equipment skidded several times back and forth over the center line of the highway, went off the pavement, knocked down three guard rails on the south side, and was deflected almost directly across the pavement. It hit the left front fender of decedent's automobile and came to a stop against the north guard rail, blocking the way to the west. The front end of the Kolehmainen vehicle came to a stop against the right door of the Mills' truck cab.

When about 150 to 200 feet from the Mills' truck, Kolehmainen noticed that it was encroaching upon his side of the road, and he immediately took his foot off the accelerator, reduced his rate of speed from 30 miles per hour to 20 or 25 miles per hour, and drove off the pavement as far onto the berm as the guard rail would permit. Because of the probability of skidding, he did not apply his brakes. Approximately two seconds after he collided with the Mills' truck, the Commercial Carrier's vehicle struck the Ford from the rear. Plaintiff's decedent was taken to a hospital, where he died three days later as a result of his injuries.

As administratrix of her husband's estate, plaintiff brought this action against the E. E. Mills Trucking Company, Inc., and against the Commercial Carriers, Inc., alleging decedent's freedom from contributory negligence, charging specific acts of negligence on the part of each defendant and that such negligence had caused decedent's injuries, suffering, and death, and asking damages in the sum of $100,000. The Mills company moved to dismiss on the pleadings for misjoinder of parties, but the motion was denied. Answers were filed, denying the material allegations of plaintiff's declaration and alleging plaintiff's decedent had been guilty of contributory negligence.

At the trial plaintiff sought to prove negligence on the part of both defendants, and both offered evidence in rebuttal. At the end of plaintiff's proofs the two defendants renewed their motion to dismiss for misjoinder, but the trial court declined to grant said motion. Defendant Mills company then made motion for a directed verdict on the grounds that no negligence was shown on the part of defendant Mills company; that its negligence was not shown to be the proximate cause of decedent's death; that plaintiff's decedent was guilty of contributory negligence as a matter of law; that the evidence adduced does not show a joint tort of the two defendants; that plaintiff should have been required to elect which defendant she would proceed against in the case; that the evidence did not establish which of the motor vehicles inflicted the injuries and caused the death of plaintiff's decedent.

At the conclusion of all proofs defendant Mills company again raised the question of misjoinder of parties by motion to dismiss. The trial court refused the motion, and after charging the jury submitted to them the question of defendants' negligence. They were also instructed to answer the following questions: (1) Did the death of William Kolehmainen result solely from the collision with the truck operated by Commercial Carriers, Inc.? (2) Did the death of William Kolehmainen result solely from the collision with the truck operated by E. E. Mills Trucking Company, Inc.? The jury answered the first question in the negative and the second in the affirmative. Plaintiff was awarded damages in the amount of $12,151.85 against the Mills company, and judgment was entered thereon; but as to Commercial Carriers, Inc., the jury's verdict was not guilty.

Defendant Mills company made motion for a new trial on substantially the same grounds offered as reasons for its previous motions and, in addition, that the verdict was grossly excessive. The trial court refused to grant this motion. The Mills company appeals, raising the following questions of law: (1) Did the trial court err in refusing to grant defendant's motion to dismiss upon the pleadings and upon the evidence for misjoinder of parties? (2) Does the evidence show that as a matter of law there was no negligence on the part of appellant which was the proximate cause of the injuries to and death of plaintiff's decedent? (3) Was the plaintiff's...