Merritt v. Huron Motor Sales, Inc.

• Court: Michigan Supreme Court
• Writing for the Court: NORTH
• Citation: Merritt v. Huron Motor Sales, Inc., 282 Mich. 322, 276 N.W. 464 (Mich. 1937)
• Decision Date: 14 December 1937
• Docket Number: No. 105.,105.
• Parties: MERRITT v. HURON MOTOR SALES, Inc., et al.

282 Mich. 322

276 N.W. 464

MERRITT

v.HURON MOTOR SALES, Inc., et al.

No. 105.

Supreme Court of Michigan.

Dec. 14, 1937.

Action by Joseph Merritt against Huron Motor Sales, Incorporated, a Michigan corporation, and others. From an adverse judgment, named defendant appeals.

Reversed in so far as appealed from. Appeal from Circuit Court, Wayne County; DeWitt H. Merriam, judge.

Argued before the Entire Bench.

Lightner, Crawford, Sweeny, Dodd & Toohy, of Detroit, for appellant.

Davis & Kleber, Benjamin B. Gordon, and Vandeveer & Vandeveer, all of Detroit, for appellee.

NORTH, Justice.

This is an action to recover for personal injuries received by plaintiff in an automobile accident. The suit was instituted against the Olds Motor Works, J. G. Clemmons, Huron Motor Sales, Inc., Thomas Schuon, and Madeline Neumaier. Before verdict there was discontinuance as to the Olds Motor Works and J. G. Clemmons. The jury rendered a verdict in the sum of $9,000 against each of the three remaining defendants, Huron Motor Sales, Inc., the owner, Thomas Schuon who borrowed the automobile and was an occupant at the time of the accident, and Madeline Neumaier, who was driving. Motion for judgment notwithstanding the verdict was made by the defendant Huron Motor Sales, Inc. Its motion was denied, and defendant Its motion was denied, and this defendant

Appellant contends that: (1) The plaintiff was guilty of contributory negligence as a matter of law, and (2) that the undisputed testimony shows the automobile at the time of the accident was not being driven with the express or implied knowledge or consent of appellant, the owner. Because we deem it controlling, we consider herein only the second of the above contentions.

The accident happened at about 2 o'clock on the morning of February 2, 1936, on Grand boulevard in the city of Detroit. As noted above, it is urged in support of appellant's motion for judgment non obstante veredicto that the uncontradicted testimony established that the car was being driven at the time of the accident in violation of a specific agreement which expressly limited the use of the car to a particular purpose and for a stated time and, therefore, the court should have held as a matter of law that the defendant Huron Motor Sales, Inc., was not liable in accordance with the following statutory provisions: ‘The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge.’ 1 Comp.Laws 1929, § 4648.

Testimony upon which appellant relies established that J. G. Clemmons, employed as sales manager for the Huron Motor Sales, Inc., loaned the Oldsmobile involved in the accident on the evening of February 1, 1936, to defendant Schuon at Ann Arbor for the purpose of visiting a sick friend in a hospital at Brighton. The loan of the car was made on condition that the same would be returned to Mr. Clemmons at his home by 10 o'clok p. m. so that he could call for his daughter, who was to attend a school party that night. It is claimed the failure of defendant Schuon to return the car after his trip to Brighton and within the time limit set, and his violation of the agreement by driving the car to Detroit with three other companions, brings appellant within the protection of the above statutory provision. These limitations of the use of the car were testified to by defendant Schuon, defendant Clemmons, and his wife, who testified to overhearing the conversation between her...