Rebentisch v. Korda
| Decision Date | 03 December 1951 |
| Docket Number | No. 77,77 |
| Citation | 331 Mich. 656,50 N.W.2d 192 |
| Parties | REBENTISCH v. KORDA. |
| Court | Michigan Supreme Court |
Frank J. Powers, Grand Rapids, for appellant.
Clem H. Block, Searl, White & Block, Grand Rapids, for appellee.
Before the Entire Bench, except BUTZEL, J.
Plaintiff sued the defendant to recover damages for assault and battery. Her declaration alleges: 'That on the early morning of January 3, 1950, the defendant threw the plaintiff into a ditch on Saranac road near M-21 in the vicinity of Ionia and left her there to die.'
The defendant denied having molested her in any way, claimed that they both were drunk, and that he did not know how she got out of the automobile into the ditch. On jury trial plaintiff had a substantial verdict and judgment and the defendant appeals.
At the close of the testimony for plaintiff and again at the close of all testimony the defendant moved for a directed verdict on the ground that there was no proof that the defendant had assaulted or in any way harmed the plaintiff, beat her, or that he was liable for her injuries. The trial court reserved decision on the motions and after verdict for plaintiff the defendant moved for judgment non obstante veredicto, which was denied, and judgment entered on the verdict. The controlling question on the appeal is whether the court should have set aside the verdict and entered judgment for the defendant on the ground alleged.
The tale is a sordid one. Plaintiff was 37 years of age, divorced, with a 14-year-old daughter, and they lived with plaintiff's mother. Plaintiff worked at a place with a bar, where food and intoxicating liquors were sold. The defendant was a married man with 2 children. For several months before the alleged assault and battery these parties had been associating together in what is admitted to be a 'vicious and immoral' relationship. Much of their time together was spent in taverns and bars, getting drunk and otherwise consorting together, taking various trips out of town, sleeping together at various places as husband and wife. Plaintiff's counsel claims she did not know that the defendant was a married man, but the plaintiff in her testimony admitted that she knew it on December 12, 1949, on which day they left on a two weeks' trip to New York and other places in the East where they stayed together. On December 27, 1949, they were arrested by the local Grand Rapids vice squad at her apartment for immorally living together and both pleaded guilty. After that occurrence the defendant went back to living with his family.
The time of the alleged assault is fixed as the night of january 3, 1950. Practically all of the defendant's testimony as to what occurred is not disputed. About noon, the defendant by prearrangement went to the home of plaintiff's mother and got the plaintiff. They went to a tavern, drank 3 or 4 whiskies, went back about two o'clock to get plaintiff's daughter, went sough from Grand Rapids for a ride, drank beer in Middleville, went back to Grand Rapids to take the daughter to a show, then went to a tavern at Comstock Park near Grand Rapids where they stayed between 3 and 1 hours and drank whiskey during that time. They returned to Grand Rapids to pick up plaintiff's daughter, thence to a tavern about 8 p. m. where they had 2 or 3 whiskies. The daughter did not drink, they took her back to her grandmother's home about 9 o'clock and then started out again, about 9:30 or 10:00 o'clock. They drove around, and the defendant told plaintiff he wanted to call it quits, that he wanted to go back home to his family and forget the whole thing. Plaintiff was excited, threatened suicide, the defendant says she tried to jump out of the car going 50 miles an hour but was prevented by the defendant holding her around the neck. The plaintiff testified, however, that she did not at any time 'try to jump from a moving automobile.' Plaintiff asked the defendant to get a divorce and marry her but he said it wouldn't work. On the trip they drove around, first went west towards Coopersville, stopped at a tavern on the belt line about 15 miles west of Grand Rapids where they stayed until closing time about 12:30 or 1:00 o'clock. From there they went southeast, then south on the belt line, driving almost to Cutlerville, 16 or 18 miles. She testified that he hit her on the jaw 'on the belt line.' This is the only testimony in the record which in any way tends to show that the defendant assaulted, beat or molested the plaintiff. He denies it happened. If it did, it was many miles distant from and some considerable time before the time and place where the plaintiff did leave the car and got into the ditch.
From the belt line near Grand Rapids they went east on dirt roads and wound up near Saranac and M-21 about 2 or 3 o'clock in the morning. Defendant claims that the plaintiff had climbed over and into the back seat. This she denies. But she did not testify at all as to the manner in which she left the car and got into the ditch. Her failure to so testify is claimed by her counsel to be because she was unconscious from the time she was hit on the jaw while they were on the belt line. The record does not support the claim. It is...
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Capital Airlines, Inc. v. Barger
...governed by the lex fori.' While it appears that the Courts of Michigan have rejected the term 'res ipsa loquitur,' Rebentisch v. Korda, 331 Mich. 656, 50 N.W.2d 192, 194, nevertheless, the Courts of that State have recognized and applied the principle in numerous cases under the circumstan......
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Pattinson v. Coca-Cola Bottling Co. of Port Huron
...to permit a finding of actionable negligence. The doctrine of res ipsa loquitur has not been adopted in this State. Rebentisch v. Korda, 331 Mich. 656, 661, 50 N.W.2d 192. This does not mean, however, that such an inference may not properly be drawn from facts and circumstances surrounding ......