Petrosky v. Dziurman

• Decision Date: 10 September 1962
• Docket Number: No. 35,35
• Citation: 367 Mich. 539,116 N.W.2d 748
• Parties: Harold PETROSKY and General Accident, Fire and Life Assurance Corporation, Ltd., a Pennsylvania corporation, Subrogee of Harold Petrosky, Plaintiffs and Appellants, v. Michael DZIURMAN, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 748

116 N.W.2d 748

367 Mich. 539

Harold PETROSKY and General Accident, Fire and Life

Assurance Corporation, Ltd., a Pennsylvania

corporation, Subrogee of Harold

Petrosky, Plaintiffs and Appellants, v. Michael DZIURMAN, Defendant and Appellee.

No. 35.

Supreme Court of Michigan.

Sept. 10, 1962.

Albert Lopatin, Harry T. Ward, Jr., Detroit, for plaintiffs and appellants.

Ward, Plunkett & Cooney, Detroit, for defendant and appellee.

Before the Entire Bench.

Davanagh, Justice.

Plaintiffs--Harold Petrosky and his subrogee, the General Accident, Fire and Life Assurance Corporation, Ltd.--appeal from the trial court's order granting a motion by defendant for directed verdict.

The record discloses the following facts: On June 25, 1958, at about 5:00 p. m., plaintiff Petrosky and defendant were both traveling in a westerly direction on Five Mile road in the township of Redford, Wayne county. The weather was hazy the pavement was wet. Plaintiff stopped for a traffic light at the intersection of Five Mile road and Beech Daly road. He was facing west behind another vehicle, waiting for the light to change. He observed defendant's vehicle approaching about 150 to 200 feet behind, but paid no attention to it, believing defendant would stop. Plaintiff's vehicle was struck in the rear by defendant's vehicle and plaintiff was rendered unconscious by the force of the collision.

After the plaintiff regained consciousness, he asked defendant what had happened. Defendant stated, 'I slid into you.' Nothing was said at the time about any brake failure.

The Redford township police department was called to investigate the accident. Defendant testified he told the police his brakes wouldn't grab. However, plaintiffs' exhibit 16, which is defendant's statement in his own handwriting to the police at the scene of the accident stated, 'Step on brake--brake did grab.'

The officer who investigated the accident testified that if defendant had told him of brake failure, he would not have permitted defendant to drive his car from the scene of the collision. The officer also testified defendant had been drinking.

Defendant testified he had spent the afternoon at the Detroit race track, had consumed 3 bottles of beer, watched 3 races, and left the track about 4:30 p. m. After leaving the track, defendant drove to a friend's home to borrow money, but did not find his friend at home. He then decided to try to borrow from someone else and was on his way to the other person's home when he struck plaintiff's automobile.

Defendant also testified that his story of how he got home from the accident was hard to believe, but that following the accident he got in his car and drove it without any brakes from the scene of the collision to Center Line, Michigan, a distance of over 20 miles; that the next day he tried to start his car to drive it to a garage and it failed to start; that he had it towed to a garage for repairs.

The special defense of brake failure was not raised or pleaded for approximately 1 1/2 years after the accident. No evidence of brake failure was offered by an expert witness, nor was there any other testimony or evidence presented corroborating dfefendant's testimony.

At the close of plaintiffs' proofs, the trial judge directed a verdict for defendant.

The trial judge in his opinion granting the motion for directed verdict found that the presumption of the statute with reference to a rear end collision was in plaintiffs' favor at the conclusion of plaintiffs' testimony. He found that plaintiffs, having called defendant under the statute for examination, were bound by that testimony. The court concluded defendant's testimony indicated he was free from negligence. The court said:

'Now, he (the plaintiff) could have by simply resting, without anything more, had the benefit of the presumption and then placed the burden on the defendant to show that the brake failure was the reason for overcoming a presumption, and the case could have gone to the jury on that theory. But the theory is no longer present. It is no longer possible to say that the burden in on the defendant to show this affirmative defense because the plaintiff has accepted that as a part of his case and has made it a part of his case and is bound by the testimony. As I see it, there has been nothing to show anything to the contrary.'

Defendant's statement on cross-examination was that he had been using his brakes just prior to the collision and had no reason to suppose they would not hold when normally applied; that he had his brakes lined about 8 months before and had them checked periodically when he had his battery checked. This the court apparently considered as evidence of defendant's freedom from negligence.

Plaintiffs appeal, claiming that a jury question was raised in this case from defendant's own testimony of his actions.

The stated question on appeal is:

'Is the uncorroborated testimony of the defendant regarding an alleged brake failure sufficient to rebut the statutory presumption of prima facie negligence in a rear end collision so as the entitle the defendant to a directed verdict at the close of the plaintiffs' proofs?'

The rule applicable to the elimination of a statutory presumption as a matter of law from the jury's consideration is set forth in Garrigan v. LaSalle Coca-Cola Co., 362 Mich. 262, page 264, 106 N.W.2d 807, page 808, where Justice Souris, writing the majority opinion for this Court, said:

'When the trial court undertakes to eliminate a statutory presumption as a matter of law from the jury's consideration, at the very least there must be clear, positive, and credible evidence opposing the presumption. (Citing cases.)'

Justice Black in a concurring opinion in Garrigan traced the history of this evidentary question and concluded that this Court has apparently settled in favor of the rule of Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N.W. 536, that an applicable presumption vanishes or does not vanish depending on jury appraisal of testimony which assertedly and possible has rebutted the presumption. Justice Black said (362 Mich. page 270, 106 N.W.2d page 811):

'When the judge, presiding at jury trial of a negligence case, assumes to instruct that an admittedly applicable presumption has vanished, he should have before him 'direct, positive, and credible rebutting evidence' on the basis of which he really may pronounce death sentence for the presumption. Otherwise the question whether such presumption has been overcome should be settled--on proper instruction of course--in the jury room.'

Justice Carr, in his dissenting opinion in the Carrigan Case, said (362 U.S. page 283, 106 N.W.2d page 818):

'We are not confronted by a situation in which the proofs were merely circumstantial or of such nature as to raise a serious question as to their credibility.'

The rule of law is equally clear where a plaintiff under the statute (C.L.1948, § 617.66 [Stat.Ann. § 27.915]) calls the opposite party for cross-examination, the plaintiff is not bound by such testimony where there is other evidence which directly disputes it.

In the consideration of defendant's testimony, the trial court may not select isolated portions thereof and claim a force and effect for such portions of his testimony which the whole of his testimony does not warrant. The testimony of the opposite party as a witness must be treated as a whole. In re Estate of Taylor, 271 Mich. 404, 260 N.W. 895; Fleegar v. Consumers Power Co., 262 Mich. 537, 247 N.W. 741. In the Fleegar Case the Court held that the testimony of the defendant when called under the statute 'must be weighed and considered the same as that of any other witness.'

In Cebulak v. Lewis, 320 Mich. 710, page 724, 32 N.W.2d 21, page 27, 5 A.L.R.2d 186, this Court said:

'The statutory presumption now under consideration in the instant case can be overcome only by evidence that is clear, positive and credible. (Citing cases.) This would seem to cast upon the defendants here the burden of producing clear, positive and credible proof to overcome the presumption * * *.'

Was such 'clear, positive and credible evidence' shown in the instant case so that the trial court was justified in removing the statutory presumption from the jury as a matter of law?

Defendant argues that this 'clear, positive and credible evidence' was the fact that the defendant was in the habit of having his automobile checked frequently for such things as oil and brake changes and adjustments; further, that he had the brakes repaired the previous October or November and the brake fluid was checked when he put...