N. Oil Co. v. VanDervort

• Decision Date: 06 October 1924
• Docket Number: No. 80.,80.
• Citation: 228 Mich. 516,200 N.W. 145
• Parties: NORTHERN OIL CO. v. VANDERVORT et al.
• Court: Michigan Supreme Court

228 Mich. 516

200 N.W. 145

NORTHERN OIL CO.

v.VANDERVORT et al.

No. 80.

Supreme Court of Michigan.

Oct. 6, 1924.

Error to Circuit Court, Berrien County; Charles E. White, Judge.

Action by Northern Oil Company against Guy Vandervort and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.

McDonald, Steere, and Fellows, JJ., dissenting.

Cady & Andrews, of Benton Harbor, for appellant.

Charles W. Gore, of Benton Harbor, for appellees.

SHARPE, J.

The defendants, residents of Berrien county, while on a hunting trip in northern Michigan, stopped at a filling station in Manistee to procure a supply of gasoline and oil. Ludlow carried his gun between his legs, while sitting in the front seat. Vandervort, who was driving the car, had laid his on the clothing and camp equipment in the tonneau. Both guns were loaded. While Vandervort was putting oil in the front part of the car, Ludlow got back into the front seat, and reached over to get his gloves from his coat in the tonneau. In doing so, he in some way, not clearly explained, moved Vandervort's gun, so as to cause its discharge through the back part of the car, and some of the shot penetrated the hand and side of Max Hornkohl, who had charge of the filling station for plaintiff. Plaintiff, who was operating under the provisions of the Workmen's Compensation Act (Comp. Laws 1915, §§ 5423-5495) settled with Hornkohl for his injuries, paying him, including hospital and surgeon's services, $703.50, to recover which it brought this action against the defendants. At the close of the plaintiff's proofs, a motion for a directed verdict as to Ludlow was granted. The jury found ‘no cause for action’ as to Vandervort. The judgment entered for both defendants is here reviewed by writ of error.

The assignments relate to the direction of a verdict as to Ludlow, and the refusal to give certain requests to charge as to Vandervort. These requests all embodied a positive direction to find a verdict for the plaintiff. The second one reads:

‘You are hereby instructed that the placing of a loaded gun in the rear of an automobile, and driving the same into a thickly populated community or city, is negligence, and you are instructed to return a verdict for the plaintiff in this cause.’

Plaintiff insists that ‘the evidence in this case is all undisputed,’ and that ‘whether or not the defendant is negligent is a question of law for the court, and not of fact for the jury.’

Vandervort was experienced in the use of firearms. The tonneau was partially filled with clothing and camp equipment. Was his act in placing his loaded gun thereon so palpably negligent that a court may say so as a matter of law, or was it a question for the jury? Since this accident happened, the Legislature by Act No. 41, Public Acts of 1923, has made it unlawful for any person to carry a loaded gun in an automobile. Counsel rely on the rule stated in Underhill v. Chicago & Grand Trunk Ry. Co., 81 Mich. 43, 45 N. W. 508, that where there is no conflict in the testimony in a negligence case it is for the court to decide whether negligence is proven. In many cases this rule will apply, but where, as here, the question turns on whether the injurious result should have been foreseen by a person of ordinary prudence, it must be submitted to the jury. The rule as to proximate cause was stated in Tozer v. Michigan Central R. Co., 195 Mich. 662, 162 N. W. 280, and Jaworski v. Detroit Edison Co., 210 Mich. 317, 178 N. W. 71, as follows:

‘If a man does an act and he knows, or...