Kube v. Neuenfeldt

• Decision Date: 12 June 1958
• Docket Number: No. 41,41
• Citation: 353 Mich. 74,90 N.W.2d 642
• Parties: Joann KUBE, Plaintiff and Appellee, v. Fred NEUENFELDT and Duane Neuenfeldt, Defendants and Appellants, and Otto Tessin, Defendant.
• Court: Michigan Supreme Court

Page 642

90 N.W.2d 642

353 Mich. 74

Joann KUBE, Plaintiff and Appellee, v. Fred NEUENFELDT and Duane Neuenfeldt, Defendants and Appellants, and Otto Tessin, Defendant.

No. 41.

Supreme Court of Michigan.

June 12, 1958.

Maurice Black, Saginaw (Bruce H. Mellinger, Saginaw, of counsel), for plaintiff and appellee.

Ryan, Doozan & Scorsone, Saginaw (Curry & Curry, Saginaw, of counsel), for defendants and appellants.

Before the Entire Bench.

CARR, Justice.

Plaintiff brought this action in circuit court to recover damages for injuries, sustained by her in an automobile accident, which she claimed resulted proximately from the negligence of defendant Duane Neuenfeldt. Liability on the part of the other defendants was asserted on the basis that one of them was the owner of the vehicle driven by Duane. On the trial of the cause in circuit court a motion to dismiss as to defendant Tessin was made and granted, and the jury returned a verdict against defendants Neuenfeldt. Motions for judgment notwithstanding the verdict and for a new trial were denied, and defendants Neuenfeldt have appealed from the judgment entered on the verdict.

The accident in question occurred on August 9, 1950, between 8:30 and 9 o'clock in the morning. Defendant Duane, who was the minor son of Fred Neuenfeldt, was driving a Ford automobile in a southerly direction on North Gleaner road in Saginaw county. Plaintiff was riding as a passenger in a Chevrolet car driven by her brother in a westerly direction on an intersecting highway. The vehicles came in forcible contact in the intersection, and the driver of the Chevrolet lost control thereof. In consequence said car traversed a distance of 85 feet or more following the impact, rolling over at least once while so doing. Plaintiff was thrown out and sustained serious injuries to her person. The Ford car driven by Duane proceeded across the intersection, stopping on the highway.

At the time of the trial plaintiff was unable to recall the accident or incidents pertaining thereto. There were no immediate witnesses other than the driver of the car in which she was riding and the driver of the Ford. Their versions of the occurrence, and responsibility therefor, differed widely. Duane Neuenfeldt testified in substance that as he approached the intersection he observed the Kube automobile, that he showed down to a speed of between 10 and 15 miles per hour, and came to a full stop approximately one and one-half feet from the traveled portion of the intersecting road. He claimed further that the driver of plaintiff's car was proceeding at a speed between 50 and 60 miles per hour, that the Chevrolet 'hooked' the left end of the front bumper on the Ford, pulling that car across the road and leaving it headed in a southwesterly direction. It was his testimony that the Ford was pulled between 20 and 25 feet.

The driver of the car in which plaintiff was a passenger claimed that when he was 25 feet from the intersection the Ford was approximately 75 feet therefrom on North Gleaner road, that he concluded that he had time to pass safely through the intersection, and that he accelerated his speed somewhat in the attempt to do so. He insisted that when he observed the Ford its rate of speed was 40 to 50 miles per hour. He stated that he expected it to slow down but, according to his testimony, it did not do so. It was the claim of the witness that the Ford struck the Chevrolet with such force as to deflect it from its course and to cause the subsequent events.

In moving for a directed verdict on the ground that plaintiff had failed to establish negligence on the part of the driver of the Ford, it was argued that the physical facts were such as to indicate that the collision could not have occurred in the manner claimed by plaintiff. A like argument was made in support of the motion for judgment notwithstanding the verdict, and the claim is renewed on the appeal to this Court. With reference to such facts emphasis is placed on the condition of the front bumper of the Ford following the accident. The bolt securing the left end of said bumper was broken. It is appellants' theory that this condition resulted from the Chevrolet hooking the bumper as it passed in front of the Ford. However, the bumper apparently was bent in rather than being pulled out, and it was a matter for the jury to consider, in determining responsibility for the accident, if the Ford car could have been pulled for a distance of between 20 and 25 feet in the manner claimed by defendants without doing greater damage to the front bumper than the proofs indicate. One of the exhibits returned to this Court with the record is a picture of the Ford taken following the collision. From the situation thus disclosed different inferences are quite possible. In view of the conflicting testimony in the case the questions as to the negligence of defendant Duane Neuenfeldt and the proximate cause of the accident were properly left to the jury for determination.

The decisions in Blair v. Consolidated Freight Company, 327 Mich. 167, 41 N.W.2d 512, and Carlson v. Brunette, 339 Mich. 188, 63 N.W.2d 428, are not of controlling significance here. The facts involved in those cases are readily distinguishable from the situation in the case at bar. On the record before us it may not be said that the physical facts necessarily negatived plaintiff's right to recover damages, or that such facts render incredible the testimony of the driver of the Chevrolet and of other witnesses who, to a certain extent, corroborated the claim of said driver as to the place where the impact occurred within the intersection.

On behalf of defendant Fred Neuenfeldt it is insisted that the motion for a directed verdict in his favor should have been granted on the ground that plaintiff had failed to establish that he was the owner of the car driven by Duane within the meaning of the Michigan vehicle code. ¹ The testimony relating to this phase of the controversy is not materially in conflict. On the 10th of July, 1950, defendant Otto Tessin was admittedly the owner of the Ford. Prior thereto, according to the testimony of Tessin on the trial, defendants Neuenfeldt had come to his home and negotiated for the purchase of the car for the sum of $75. On the date mentioned Duane and his mother came to Tessin's home, the agreed purchase price was paid, and the car was taken by them. Tessin further testified that it was agreed that the title should be transferrred to Fred Neuenfeldt, Duane being a minor. Tessin took the certificate to a notary public who filled out the assignment thereon, whereupon he mailed the instrument to the Department of State at Lansing together with the license plate registration certificate. The witness further claimed that at the time payment for the car was made he handed the certificate of title to Duane's mother who signed her husband's name thereon and returned it to him so that he might forward it to the State Department.

It is not disputed that Tessin forwarded to Lansing the certificate of title and the registration certificate. It is likewise undisputed that the papers were received by the Department of State. For some reason, however, not clearly established by the proofs in the case, a new certificate of title was not issued to Fred Neuenfeldt who was, as Tessin testified, designated in the assignment as transferee. The document was not returned to Tessin but was forwarded to Neuenfeldt and received by him. According to his testimony, he...