Lachow v. Kimmich

• Decision Date: 16 May 1933
• Docket Number: No. 185.,185.
• Citation: 248 N.W. 531,263 Mich. 1
• Parties: LACHOW v. KIMMICH et al.
• Court: Michigan Supreme Court

263 Mich. 1

248 N.W. 531

LACHOW

v.KIMMICH et al.

No. 185.

Supreme Court of Michigan.

May 16, 1933.

Appeal from Circuit Court, Wayne County; Parm C. Gilbert, Judge.

Action by Mary Lachow against Ernest Kimmich and another. From a judgment for plaintiff, both defendants appeal.

Affirmed.

Argued before the Entire Bench.

NORTH, CLARK, and POTTER, JJ., dissenting.Angell, Turner, Dyer & Meek, of Detroit, for defendant and appellant.

Charles C. Conklin, of Detroit, for defendant and cross-appellant.

Miller and Knowles, of Detroit, for plaintiff and appellee.

McDONALD, Chief Justice.

This is an action to recover damages for injuries received in a collision between two automobiles owned and driven by defendants. Hilton and Kimmich. At the time of the accident which occurred at the intersection of Meyers and Plymouth roads in the city of Detroit, Mich., the plaintiff was an adult passenger in the car of Hilton who was a private carrier for hire. The case was tried by the court without a jury and judgment was rendered against both defendants. Both have appealed.

The defendant Hilton assigns as cause for appeal that there is no evidence of negligence on his part. The defendant Kimmich admits that he was negligent but says that Hilton was negligent also. He asks for a reversal on the theory that the negligence of Hilton should be imputed to the plaintiff and that the award of damages is excessive.

The accident occurred in the daytime at the intersection of two paved roads. The roads were wet from a recent rain. There was no other traffic at the intersection and as they approached the view of both drivers was unobstructed. Each driver saw the other approaching. There is testimony that they arrived at the intersection about the same time. As Hilton entered the intersection he increased his speed but did not look in the direction from which the other car was coming. He did not see it until the collision. If he had looked he would have seen the other car and realized his danger in time to have avoided the collision. His failure to look and see what was there to be seen was negligence. The trial court correctly so held.

The defendant Kimmich concedes that he was negligent, but urges in defense to the action that, as to him, there can be no recovery because at the time of the accident the plaintiff was a voluntary passenger in Hilton's car and his negligence is imputable to her.

The plaintiff, an adult woman, hired Hilton to drive her from Detroit to Ann Arbor. He was a private carrier for hire. In applying the rule of imputed negligence in this state, a distinction has been made between public carriers and private carriers but not as between private carriers for hire and private carriers not for hire. The question was before this court in Rogers v. Wober, 235 Mich. 180, 209 N. W. 165, where by an equal division of opinion we refused to extend the rule of imputed negligence to private carriers for hire. The question is again before us in this case. As to private conveyances, this court has always held that the contributory negligence of the driver is imputable to adult passengers. Notwithstanding the fact that the rule has no foundation in reason or justice and is contrary to the overwhelming weight of authority in this country and in England, our court has steadfastly though reluctantly adhered to it. It was first adopted without argument or citation of authorities in Lake Shore & Michigan S. R. Co. v. Miller, 25 Mich. 274. It has been said by a learned legal writer that adopting a rule of law without reasoning is the best method of reaching a conclusion directly opposed to common sense and to the decisions of other courts. But in Schindler v. Railway Company, 87 Mich. 400, 49 N. W. 670, 674, the court explained that the rule of the Miller Case was based on the idea that in trusting her safety with the driver of a private conveyance the passenger ‘identified herself with the driver, and, unless the driver was free from negligence, she could not recover.'

This doctrine of identification which simply means that in an action for negligence the passenger is compelled to occupy the same position as the driver has been repudiated by the English courts and by all but three of the American states. Shearman and Redfield on Negligence (6th Ed.) § 65, p. 164.

In a long line of cases from the Miller Case in 25 Mich. 274, to Holsaple v. Superintendents of Poor of Menominee County, 232 Mich. 603, 206 N. W. 529, no one has attempted to defend the rule. Since its adoption it never has had a friend at court. At times it has been vigorously assailed (Mullen v. City of Owosso, 100 Mich. 103, 58 N. W. 663,23 L. R. A. 693, 43 Am. St. Rep. 436), but the majority of the court has quite generally held that it has been too long settled to be disturbed.

The unjust results of the application of a rule admittedly erroneous and the frequency with which it is challenged in this court suggest the inquiry whether it would not be better to overrule it rather than to perpetuate the error.

We have high regard for the doctrine of stare decisis and recognize that it should be applied where it is properly applicable. In determining when to apply it, the settled practice is to consider the nature of the decision and the results which may follow from its overthrow. If it is of such a nature that it may have become a rule of property, if title to real estate may have been acquired under it, if parties may have entered into contracts in reliance on it, or if it may have given rise to standards affecting trade and commercial transactions, courts will apply the doctrine of stare decisis and refuse to overrule the decision though it be clearly erroneous.

The decision in question is not of that nature. No harmful results will follow if it is overruled. It will affect only the wrongdoer and that merely to the extent of preventing his escape from liability for injuries resulting from his negligence to one who was free from fault. In view of these facts and the fact that the decision is admittedly wrong, we do not regard it as a controlling precedent and, therefore, are at liberty to overrule it and get in harmony with current authority on the subject.

Our previous decisions holding that the contributory negligence of a driver of a private conveyance is imputable to an adult passenger are hereby overruled, except where it is shown that they are engaged in a joint undertaking or where the passenger has the right to control the driver by reason of their relation as master and servant or principal and agent.

Compliant is made that the judgment is excessive.

In awarding damages the trial court said: ‘She paid out $217.30 in actual expense and giving full credit to all the other testimony and the pain and suffering that the physicians testified to that would probably result from the injury referred to in progress of healing and having in mind whatever time she may have lost, I think that $3,000 is a sufficient amount to award her.'

As a result of the accident, the plaintiff suffered fractures of the collar bone, six ribs, and the left arm. The doctor who attended her testified that she ‘had a great deal of pain right along,’ that it was impossible for her to take a deep breath because of the pain in her chest, that it was necessary to administer sedatives, and that her pain may continue into the future. It is not necessary to make further reference to the testimony on the question of damages. The amount awarded is in line with the evidence. The judgment was not excessive.

The judgment against both defendants is affirmed, with costs to the plaintiff.

SHARPE, Justice (concurring in the result).

The negligence of the defendant Hilton, a private carrier for hire, was not imputable to the plaintiff, a passenger riding in his conveyance.

In my opinion, the rule of imputed negligence to passengers, other than for hire, which has been so consistently followed in this state (see Holsaple v. Superintendents of Poor of Menominee County, 232 Mich. 603, 206 N. W. 529), is not here involved, and should not be considered or passed upon in this case...