Laughlin v. Mich. Motor Freight Lines

• Decision Date: 02 September 1936
• Docket Number: No. 27,April Term.,27
• Citation: 276 Mich. 545,268 N.W. 887
• Parties: LAUGHLIN v. MICHIGAN MOTOR FREIGHT LINES.
• Court: Michigan Supreme Court

276 Mich. 545

268 N.W. 887

LAUGHLIN

v.MICHIGAN MOTOR FREIGHT LINES.

No. 27, April Term.

Supreme Court of Michigan.

Sept. 2, 1936.

Action by Hannah J. Laughlin against the Michigan Motor Freight Lines. From an adverse judgment, the defendant appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Adolph F. Marschner, judge.

Argued before the Entire Bench.

Freedman & Drexelius, of Detroit (Harold Helper, of Detroit, of counsel), for appellant.

Dohany & Dohany, of Detroit (George A. Porter, of Detroit, of counsel), for appellee.

BUSHNELL, Justice.

Edward A. Franklin and Vincent Sarah are joint owners of a Chevrolet tractor truck and semitrailer, which they were operating under written contract with defendant Michigan Motor Freight Lines hauling freight between Detroit, Mich., and Akron, Ohio. Plaintiff, Hannah J. Laughlin, George W. Laughlin, her husband, and their daughter Hannah, a trained nurse, all of Homestead, Pa., were returning to their home from a visit with friends in Highland Park, Mich., when Mr. Laughlin's car either struck or was struck by the trailer of Franklin and Sarah. The accident occurred about 10:30 a. m. on August 3, 1933, some 25 Miles east of Toledo, Ohio, near Elmore, on United States highway No. 102. The 18-foot concrete pavement, at this point, runs east and west with a dark line in its center; the day was rainy and foggy. The truck and trailer were going west at about 20 miles per hour and Mr. Laughlin was driving east at about the same speed. Miss Laughlin was seated at the right of her father and Mrs. Laughlin was at the right side of the rear seat. Mr. Laughlin testified he saw the truck coming out of the fog about 60 or 70 feet distant with its left wheels 2 1/2 to 3 feet over the center line of the road; he pulled to his right, bringing his right front wheel off the pavement when he was struck at his left center door post by some part of the trailer bed. He said he had applied his brakes and was thereafter traveling not over 15 miles per hour and from 2 1/2 to 3 feet south of the center line. The impact threw his car on its side in a ditch, severely injuring Mrs. Laughlin.

Mrs. Laughlin said the truck came up the wrong side of the road and their car was struck by the corner of the trailer. Miss Laughlin testified that ‘the truck kept coming towards us all the time,’ and that no part of her father's car was over the center line, but, on the contrary, was over the right shoulder of the road as far as they could go.

Vincent Sarah, who was driving the truck at the time, testified that he saw the Laughlin car 400 to 500 feet away ‘over on our side of the road. We always ride off the shoulder of the road-our left wheels were two or three feet from the center line of the highway-at least two or three feet. I kept edging over until the front of my tractor was on the edge of the pavement. He kept veering towards us. He didn't hit the truck. He collided with about the second post on the trailer. I heard the tinkle of glass or a lantern bounce on the road; knocked the lantern off the trailer. Franklin said, ‘Did you hear a noise?’ I said, ‘Yes.’ So we had to stop.'

Franklin was called by the plaintiff for cross-examination under subpoena duces tecum. He claimed to have misplaced his written contract with defendant. He was examined at length as to its details, much of which are similar to those stated in Hazard v. Great Central Transport Corp., 270 Mich. 60, 258 N.W. 210. He testified that defendant told him what to do, where to go, etc., collected the revenue and paid him 65 per cent. thereof ‘with deductions for pick-ups, for deliveries and insurance, P. U. c.'s (meaning Public Utility Commission charges) and a few other things. * * * The Michigan Motor Freight Lines gave me rules to observe in hauling freight for it. It gives a book of rules. I am required to observe those rules in my hauling. If I didn't observe them, they would dismiss me from their service.’ This and other testimony indicates a relationship between Franklin and defendant similar to that shown in the Hazard Case, supra.

Franklin's testimony regarding the collision was much like Sarah's. He further said: ‘I learned that I was in an accident only after an automobile passed by and then we heard this glass shattered.’

After finding a place to pull the tractor and trailer off the highway, the men went back, found their lantern lying in the center of the road; the Laughlin car in the ditch, undamaged except for a scratch on its left side and marks on the door handle. Marks were also found by them on the second post of the left side of Franklin's trailer.

The disputed facts were submitted to a jury who found for plaintiff, Hannah J. Laughlin, against the defendant company in the sum of $1,500 plus costs and by direction of the court, nothing as against Franklin, the declaration not alleging a cause of action as against him. Mr. Laughlin's action, submitted on the same record, resulted in a verdict of no cause for action.

In an attempt to secure the details of the missing written contract, plaintiff questioned Franklin regarding insurance on the cargo carried by defendant at the expense of the operator. Defendant objected to an answer and moved for a mistrial. The court took the answer, stating: ‘I understand you offer this evidence only as applying to whether or not it is an independent contract or whether he was employed by the defendant company.’ Defendant then objected to the materiality of the testimony and that the contract was the best evidence and this objection was sustained. The motion for mistrial was renewed, but no ruling was given on the motion.

The colloquy which followed does not indicate an insistence by counsel for a ruling, but rather that the court was asked to instruct the jury to disregard the matter, which was done.

Defendant cites Kerr v. National Fulton Brass Mfg. Co., 155 Mich. 191, 118 N.W. 925, and asserts error, but it did not make a sufficient record on this question and any possibility of error in this particular was cured by limiting the testimony to a purpose which could not have prejudiced the defendant. Runnells v. Village of Pentwater, 109 Mich. 512, 67 N.W. 558. The evidence was limited to cargo insurance and the court said: ‘There is no indication that the driver was insured * * * for any negligence he might have.’

Appellant claims insufficient proof of defendant's liability for the acts of Franklin and Sarah. Franklin, who was represented by appellant's counsel, was directed by subpoena to produce his written contract with defendant. He neither produced the original nor attempted to secure a copy.

‘Failure to produce evidence within a party's control raises the presumption that, if produced, it would operate against him, and every intendment will be in favor of the opposite party.’ Brandt v. C. F. Smith & Co., 242 Mich. 217, 218 N.W. 803, 804.

An independent contractor is defined in Marchand v. Russell, 257 Mich. 96, 241 N.W. 209, quoting from Zoltowski v. Ternes Coal & Lumber Co., 214 Mich. 231, 233, 183 N.W. 11. See, also, Hanisko v. Fitzpatrick Bros., 232 Mich. 593, 595, 206 N.W. 322, and cases cited.

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