Krisher v. Duff

• Decision Date: 03 December 1951
• Docket Number: No. 74,74
• Citation: Krisher v. Duff, 331 Mich. 699, 50 N.W.2d 332 (Mich. 1951)
• Parties: KRISHER v. DUFF et al.
• Court: Michigan Supreme Court

Page 332

50 N.W.2d 332

331 Mich. 699

KRISHER v. DUFF et al.

No. 74.

Supreme Court of Michigan.

Dec. 3, 1951.

Harris, Stein & Hooberman, Detroit, for appellant.

Davidson, Kaess, Gotshall & Kelly, Detroit (Roy P. Nelson, Detroit, of counsel), for appellees.

Before the Entire Bench.

BUTZEL, Justice.

On August 19, 1945, at about 5:45 p. m., Clarence Krisher, plaintiff, suffered injuries through an accident arising out of the negligent operation of a Mercury car belonging to Michael and driven by his brother, John Duff, defendants herein. A judgment against John is not appealed from. The jury found in Michael's favor and plaintiff appeals. He contends that the court erred in its charge to the jury and in denying a motion for a new trial. We herein refer to Michael as the defendant.

John admitted his negligence but testified that at the time of the accident he was driving the car without either the knowledge or consent of Michael; that he had found a duplicate set of keys, which he used, in Michael's overalls in a closet. John previously while driving the Mercury had bent one of the fenders. Some time later and about three months prior to the time plaintiff was injured, John received a ticket for violation of traffic laws and the Mercury was impounded. When Michael recovered his car, John testified that he was forbidden its further use and that he thereafter was never given permission to drive the car, nor did he drive it until the day of the accident. Michael testified that he used the car every day to drive to and from his place of work which is about 15 miles distant from his home; that his day's work was over at 5:00 p. m. when he drove home but that he frequently used the car in the evenings; that after he arrived home the car was parked in a driveway alongside the home; that he was reasonably sure, but not positive, that John did not drive the car during the several months prior to the time of the accident; that he had expressly forbidden John to drive the car. Lauri John Johnson, a neighbor living near the Duff home, and a wholly disinterested witness, testified that during the months immediately preceding the accident he had seen John driving the car at 5:00 p. m. past the witness' house five days a week and also sometimes on Saturday. He thus specifically denied the testimony that John had not driven the car during the time it is alleged he was forbidden to do so. It was summertime and daylight when Michael arrived home from his work. Windows and doors are usually open in the summertime and it would seem improbable that Michael would not have seen that the car was gone. A fair inference from the testimony makes it very doubtful that during all this period John could have driven the car without his brother's knowledge or consent.

At the close of the proofs, counsel for plaintiff requested the court to charge the jury that there is a statutory presumption that the car was driven with the knowledge and consent of the owner, and that the defendant (owner) was required to produce clear, positive and credible proof to overcome such a presumption. The trial court refused to so charge but instead charged as follows:

'At the beginning of the case the plaintiff made out enough of a case to require the defendant to come in with an explanation of all the facts, by simply proving that John was the brother of Michael, and that Michael then owned the car in question. That is what we call a prima facie case. 'Frist appearance'--that is what prima facie means; and that required the defendant, Michael Duff, to come in and bring all the evidence in that had a bearing on whether John Duff was driving the 1941 Mercury car with his consent. The first issue before you is, does that testimony fairly and reasonably convince you that John Duff had Michael Duff's consent on that day to drive that car? It you are fairly satisfied by a fair preponderance of the evidence that you heard that John Duff did have Michael Duff's consent, either express or implied, to drive the car, then you have a right to hold Michael Duff liable for whatever damages are the proximate result of the negligence * * * if the best answer you can make * * * is, 'We don't know; the evidence does not convince us, and we don't know whether John Duff had Michael Duff's consent to drive his car on that day,' then the burden of proof has not been sustained, and you are not entitled to return a verdict * * *

'* * * You are the sole judges of the evidence in the case, and you have to find from the evidence, and nothing else, affirmatively that John Duff was driving his car with the consent of Michael Duff. If you are able to say that the evidence fairly preponderates in favor of that conclusion, then you are entitled to say that the burden of proof has been sustained. * * * If the best answer you can make is 'We don't know, the evidence is not clear and convincing enough to prove it to us,' then you are entitled to say that the case is not proved * * *.'

Plaintiff, on appeal, contends that it was error for the trial court to refuse to charge as requested, and that the charge actually given was more favorable to the defendant than the law permits. The latter part of the quoted charge bears out appellant's claims. Our first inquiry then must be directed to the effect of the statutory presumption on which plaintiff relies. C.L.1948, § 256.29, Stat.Ann. § 9.1446, after providing that the owner of a motor vehicle shall be liable for injuries occasioned by the negligent operation of his vehicle, further states: 'The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of said injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family'.

As the word 'conclusively' which was originally in the statute was removed by the legislature, it is evident that this presumption was intended to have the effect of a rebuttable presumption. For the statutory history, see Cebulak v. Lewis, 320 Mich. 710, 723, 32 N.W.2d 21, 5 A.L.R.2d 186.

It has been well settled in this State that the effect of a rebuttable presumption is to make out a prima facie case at the beginning of a trial. Having established the original prima facie case, the presumption then casts the burden of proof on the opposite party. Presumptions cannot be weighed against other credible evidence, for they have no value as evidence unless no other credible evidence whatsoever is introduced in regard to the presumed fact. As a rule they disappear if and when credible evidence is introduced from which the facts may be found.

The following cases fully support the above statements as to rebuttable presumptions: presumption of undue influence when beneficiary draws will, In re Cochrane's Estate, 211 Mich. 370, 178 N.W. 673; presumption of undue influence when property devised to one in a confidential or fiduciary relationship, In re Cotcher's Estate, 274 Mich. 154, 264 N.W. 325; Hill v. Hairston, 299 Mich. 672, 1 N.W.2d 34; presumption of delivery of deed raised by recording, Gibson v. Dymon, 281 Mich. 137, 274 N.W. 739; Blodgett v. Snobble, 295 Mich. 374, 295 N.W. 192; presumption of freedom from contributory negligence, Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N.W. 536; Thompson v. Southern Michigan Transp. Co., 261 Mich. 440, 246 N.W. 174; Heckler v. Laing, 300 Mich. 139, 1 N.W.2d 484; Essmeister v. Roadway Transit Co., 275 Mich. 387, 266 N.W. 391; presumption against suicide, Stuckum v. Metropolitan Life Ins. Co., 283 Mich. 297, 277 N.W. 891; presumption of continuous employment, Klat v. Chrysler Corp., 285 Mich. 241, 280 N.W. 747; presumption concerning adverse possession, City of Grand Rapids v. Pere Marquette Ry. Co., 248 Mich. 686, 227 N.W. 797; negligence in striking the rear of a car presumed (statutory), Patt v. Dilley, 273 Mich. 601, 263 N.W. 749; presumption from tax records of taxes dud and owing (statutory), City of Muskegon v. S. K. Martin Lumber Co., 86 Mich. 625, 49 N.W. 489.

The presumption of consent or permission by the owner of an automobile arising through its use by the party causing the injury exists in practically every State in the Union including Michigan and is a rebuttable presumption as well. Generally speaking, the evidence to make this presumption disappear should be positive, unequivocal, strong and credible. The presumption is given more weight because of the dangerous instrumentality involved and the danger of permitting incompetent driving on the highway; and because the proof or disproof of consent or permission usually rests almost entirely with the defendants. The defendant owner frequently may be the only witness and not disinterested. In many States, including Michigan, statutes exist which specify that the owner shall be liable for negligent operation of a car being driven with his permission or consent, but we find nothing said as to proof of consent. It is stated in the case of Wehling v. Linder, 248 Mich. 241, at page 243, 226 N.W. 880, at page 881:

'One who is driving a motor vehicle incident to the owner's business is presumed to be duly authorized to so drive the vehicle; but it is the established law in this state that such a presumption prevails in favor of the litigant relying thereon only so long as that phase of the case is not covered by testimony to the contrary. Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N.W. 536; Union Trust Co. v. [American Commercial] Car Co., 219 Mich. 557, 189 N.W. 23; Depue v. Schwarz, 222 Mich. 308, 192 N.W. 713; and Noonan v. Volek, 246 Mich. 377, 224 N.W. 657. If the testimony opposed to the presumption is clear, positive, and uncontradicted, it becomes the duty of the trial judge to direct a verdict if the issue is a...