Leebove v. Rovin

• Decision Date: 21 September 1961
• Docket Number: No. 60,60
• Citation: 363 Mich. 569,111 N.W.2d 104
• Parties: Janet LEEBOVE, Plaintiff and Appellant, v. Marcelle ROVIN and Harry Rovin, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 104

111 N.W.2d 104

363 Mich. 569

Janet LEEBOVE, Plaintiff and Appellant, v. Marcelle ROVIN and Harry Rovin, Defendants and Appellees.

No. 60.

Supreme Court of Michigan.

Sept. 21, 1961.

Hugh K. Davidson, Detroit, for appellant.

William J. Eggenberger, Detroit, for appellees.

Before the Entire Bench.

EDWARDS, Justice.

Plaintiff sued for injuries she received in an automobile accident when a car driven by defendant Marcelle Rovin, and owned by defendant Harry Rovin, went out of control on the Indiana turnpike. The 2 ladies involved were friends and they were returning from a furniture shopping trip to Chicago as to which they had agreed upon a 'kitty' to share expenses.

Issues as to whether or not plaintiff was a guest passenger within the meaning of the Indiana statute, Burns' Ann.St. § 47-1021, and whether or not defendant Marcelle Rovin was guilty of negligence, were submitted to a jury in Wayne circuit court. The jury returned a general verdict of no cause for action. Plaintiff appeals, claiming reversible error in the judge's instructions on the 2 issues and in rulings by which he excluded some proffered testimony.

Other undisputed facts include that the accident occurred June 28, 1957, at about 8:35 p. m. while defendant Marcelle Rovin was driving east approaching mile post 66 of the Indiana turnpike. It was raining. Her car had tires which had been driven 23,000 miles. Plaintiff, Janet Leebove, was asleep. The car went out of control and struck a guardrail. Plaintiff was thrown out of the car by the impact and suffered serious injuries.

As to the negligence issue, we have only defendant Marcelle Rovin's version of the accident, plus some references to the condition of the tires. Mrs. Rovin testified that she was driving at 50 miles per hour--well within the speed limit, that she made no sudden turn or acceleration, that she had full control of the car and was fully conscious when the skid began.

She couldn't account for the accident:

'Q. What is your version of the occurrence of this accident? A. I don't know what happened. The car just seemed to go out of control very suddenly. There was no noise or anything.

'Q. When it went out of control you were going substantially in an east direction toward Detroit? A. That is right.

'Q. And when it went out of control did the back wheels skid? A. Did the back wheels skid?

'Q. Yes. Did the back of the car turn around and start going--A. The back of the car did not turn. The front of the car went directly in the direction in which we were coming from. It turned right around, yes.

'Q. So that the back of the car came east and hit the guardrail? A. That's right.

'Q. And you can't account for that happening at all? A. No, I cannot.'

Concerning negligence, plaintiff complains of that portion of the judge's charge which said:

'I further instruct you, as requested by defendant, and under the laws of the State of Indiana and a Michigan, that sudden skidding of an automobile in and of itself, standing alone, unattended by prior negligence from which such skidding proximately results, does not in and of itself constitute negligence.'

Plaintiff's counsel asserts that this charge amounts to an instruction that 'sudden unexplained skidding was not evidence of negligence.' Actually, the charge is carefully qualified, and is followed by an instruction which flatly told the jury it could infer negligence form the facts of the skid and accident.

We find no error in the portions of the charge which dealt with the negligence issues.

The law of the State where the claimed wrong occurred determines whether plaintiff has suffered a legal injury. Bostrom v. Jennings, 326 Mich. 146, 40 N.W.2d 97; Goodrich, Conflict of Laws (Hornbook Ser., 3d Ed.), p. 260; 1 Restatement, Conflict of Laws, § 378. The instruction complained of is consistent with and, indeed, appears to be based on Indiana case law. See Lee Bros., Inc. v. Jones, 114 Ind.App. 688, 713, 54 N.W.2d 108, 118.

Appellant's complaint with this instruction, however, does not stop here. She not only complains about what was given bearing on the substantive definition of negligence, but also about what was not. Specifically, she asserts that she was entitled to an instruction under the res ipsa loquitur doctrine.

We do not, however, find any record that she requested such an instruction. See Court Rule No. 37, § 9. Nor do we find that she objected to the next portion of the judge's charge which followed immediately after that complained of:

'As requested by the plaintiff in his written request to charge, I charge you, Ladies and Gentlemen of the Jury, that in this case the defendant claims that as she was driving her automobile along the toll road, it suddenly began to skid, turned around and struck the guardrail. Some steel posts were knocked down by the impact. No explanation is made by the driver as to why this occurred.

'Negligence, like any other fact, may be inferred from circumstances. We have the testimony of Mrs. Rovin and the physical fact the automobile started to skid without being subjected to any unusual circumstances. A reasonable inference supporing the plaintiff's claim of negligence may properly be drawn by you, since the happening of this accident under those circumstances has raised a question as to whether the defendant driver was negligent.'

The rules pertaining to whether or not sufficient evidence has been presented for submission of the question of negligence to the jury are matters of procedure to be determined by the law of the forum. Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11; 2 Harper and James, The Law of Torts, § 30.2.

We believe the portion of the judge's charge quoted above is consistent with Michigan case law in that it clearly allowed the jury (if it had seen fit to do so) to draw an inference of negligence from the established facts. Alpern v. Churchill, 53 Mich. 607, 19 N.W. 549; Higdon v. Carlebach, 348 Mich. 363, 83 N.W.2d 296; Indiana Lumbermens Mutual Insurance Company v. Matthew Stores, Inc., 349 Mich. 441, 84 N.W.2d 755; Mitcham v. City of Detroit, 355 Mich. 182, 94 N.W.2d 388.

Plaintiff-appellant also complains about 3 portions of the trial judge's charge dealing with plaintiff's claim that she was not a guest passenger within the meaning of the Indiana guest passenger act.

The declaration under which this case was tried alleged:

'2. That the plaintiff and defendant, Marcelle Rovin, were riding to Detroit after a business trip to Chicago, Illinois, which trip was for the mutual benefit of the parties, in which each contributed one-half of the out-of-pocket expenditures, and during which each assisted the other in the selection of furniture at the wholesale houses located in Chicago. Plaintiff further says that she was not a guest passenger of the defendant, Marcelle Rovin.'

The charge given by the trial judge was lengthy:

'The defendant has asked that the following charges be given to you.

'That the plaintiff in this case contends that she was a joint venturer with Mrs. Rovin, and therefore it is necessary for her to prove only that defendants were guilty of negligence or want of due care under the circumstances.

'Now, I charge you that since plaintiff claims that she was a joint venturer, she must show either that the host and guest relationship did not exist in order to prove her cause of action, or that the plaintiff was in the vehicle primarily for the benefit of the defendant. The burden of proof is upon plaintiff to show by a preponderance of evidence that she was not a guest, but was a joint venturer.

'This instruction invokes consideration of the Indiana guest statute, which I referred to your consideration earlier, and which, as you know, was placed in evidence and reads as follows:

"The owner, operator, or person responsible for the operation of the motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor, in or upon such motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle.' ¹

'Defendant further requests, and I charge, the purpose of the guest statute which I have just read to you is to absolve the owner or operator of a motor vehicle from liability for damages or injury of a guest passenger, except such as are caused by the wilful or wanton misconduct of the driver. One who rides as a guest in an automobile assumes the risks of all ordinary hazards and negligence, and it is not sufficient to justify recovery of damage that the plaintiff establish that the defendant was negligent in the operation of his automobile, or by more careful operation he might have avoided the accident.

'Defendant requests, and I charge, that if plaintiff was a guest, then under the law of Indiana, plaintiff may recover only if plaintiff can show by a preponderance of the evidence that Marcelle Rovin was guilty of wanton or wilful misconduct. In this case it is neither claimed nor was it shown that Mrs. Rovin was guilty of wanton and wilful misconduct, therefore, you must eliminate this from your mind and the only basis upon which Mrs. Leebove can recover damages is:

'1. If she was a joint venturer, and that plaintiff, Mrs. Leebove, was in the vehicle primarily for the benefit of Mrs. Rovin, the defendant.

'And, further, if Mrs. Rovin was guilty of some act of negligence which was a proximate cause of the accident which resulted in Mrs. Leebove's injuries.

'The plaintiff has requested, and I charge, that the legal relationship existing between a plaintiff and defendant requires the selection of legal principles set by the common law in order to determine the rights and duties of the parties. If Janet Leebove was a guest passenger of Marcelle Rovin, the driver, the plaintiff, under the law of this...