Rinkevich v. Coeling

• Decision Date: 28 December 1955
• Docket Number: No. 50,50
• Citation: 74 N.W.2d 12,344 Mich. 493
• Parties: Genevieve RINKEVICH, Administratrix of the Estate of Peter Rinkevich, deceased, Plaintiff and Appellant, v. Russell COELING and Empire Lumber Company, a Michigan corporation, jointly and severally, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 12

74 N.W.2d 12

344 Mich. 493

Genevieve RINKEVICH, Administratrix of the Estate of Peter Rinkevich, deceased, Plaintiff and Appellant, v. Russell COELING and Empire Lumber Company, a Michigan corporation, jointly and severally, Defendants and Appellees.

No. 50.

Supreme Court of Michigan.

Dec. 28, 1955.

Schmidt, Smith & Howlett, Grand Rapids, for plaintiff and appellant.

Allaben & Davids, Grand Rapids, for defendants.

Warner, Norcross & Judd, Grand Rapids, of counsel, for defendant Empire Lumber Co.

Jay W. Linsey, Grand Rapids, of counsel, for defendant Russell Coeling.

Before the Entire Bench.

BUTZEL, Justice.

The parties to this action were residents of the city of Grandville, Kent County, Michigan. Plaintiff's decedent, Peter Rinkevich, was its chief of police. We shall refer to decedent as plaintiff, to defendant Russell Coeling as defendant, and the latter's employer, Empire Lumber Company, a Michigan corporation, as co-defendant. The company's principal office was located in Grandville and defendant solicited orders for it in neighboring cities and villages. Defendant was the sole owner of a two-door Lincoln automobile which he used when on business for the co-defendant who reimbursed him for gas and oil expenses. He was not an officer of the company. On April 18, 1951, defendant invited decedent to go with him on what the record indicates was a combination business and fishing trip. They first drove to Big Rapids where defendant made some business calls. They then bought some fishing bait and proceeded to the Muskegon river near Rogers Dam. After remaining there for from 20 to 30 minutes they found it raining too hard to fish and therefore started driving southward toward Rockford, Michigan, where defendant intended to call on the Rockford Lumber Company on business of the Empire Lumber Company. It was their further intent to proceed from Rockford to the Rogue river in order to continue their fishing activities. Rogue river according to the map is at or very near Rockford.

En route to Rockford they drove along highway U.S. 131, a rather heavily traveled black top road. Defendant admitted that it was raining steadily and that the road was slippery and that he knew that it was, and that he slowed down from 50 to 55 miles an hour to possibly 45. He testified that he was an experienced driver and that he had averaged some 50,000 miles of driving per year for the past 7 years. He was also familiar with this particular road, having traversed it about once a month. Defendant testified that just north of Cedar Springs as he drove up an incline toward the crest of a slight hill he noticed a car approaching from the opposite direction trespassing slightly over the line marking the center of the highway; that in order to avoid a collision he turned his car in the direction of the righthand shoulder which was muddy; that the front and rear right wheels went onto the shoulder and in his effort to get back onto the pavement one of the wheels was momentarily held back by the edge of the pavement and as a result the car turned or skidded toward the opposite side of the road in front of an oncoming Chevrolet car proceeding in northerly direction. The cars collided and as a result both were badly wrecked and decedent died from the injuries incurred. Defendant was also injured and received workmen's compensation. The wreckage of the cars, as shown by the exhibits, indicates that they met with great force.

A witness for plaintiff testified that while he (the witness) was driving south about a mile and seven-tenths north of the point of the accident a Lincoln car, which he tentatively identified as defendant's, passed him going at the rate of speed of about 70 miles per hour. Another witness for plaintiff who, while driving north had passed defendant's car just preceding the accident, testified that as defendant approached the point of collision he was 'coming at a high rate of speed, very high rate of speed * * * I would have judged between 80 and 90 miles an hour.' A third witness testified that somewher between 15 and 20 miles north of the point of collision, as the witness was driving his truck north on the same highway, he saw a Lincoln, to the best of his judgment, defendant's car, go off the road onto the shoulder momentarily and then come back onto the highway, coming within 25 feet or so of hitting the back end of the witness' truck. He was of the poinion that the Lincoln at that time was traveling at 50 miles per hour.

At the end of plaintiff's case the defendant and co-defendant moved for directed verdicts on the grounds that as a matter of law defendant was not guilty of gross negligence or wilful and wanton misconduct toward his guest, the decedent, and that under the principles of respondeat superior co-defendant was not liable. The court directed the jury to find no cause of action and a judgment granting the motions was entered. Plaintiff has appealed.

Before considering the facts and the law applicable to this case we must dispose of certain evidentiary objections. Defendants object to the testimony regarding the incident some 15 to 29 miles north of the point where the accident occurred. In view of its similarity to the events just preceding the collision, we do not think its admission an abuse of the judge's discretion in such matters, though its probative value is not particularly high. As regards the witness who testified concerning defendant's speed a mile and seven-tenths from the scene of the collision, we do not think its admission error in view of the contradictory testimony as to defendant's speed at about that time or a little later. See Shoemaker v. Trompen, 326 Mich. 120, 123, 124, 40 N.W.2d 92. Because of the limited time the witness who testified that defendant was going 80 to 90 miles per hour had to form this opinion, defendants argue that such testimony is inadmissible. While the peculiar circumstances further made judging difficult, the admission of this evidence was not an abuse of the discretion which is lodged in the judge in such matters. We cannot say that as a matter of law the witness had no real opportunity to make an observation of the circumstances and existing gonditions. Whether he could do it correctly or not was for the jury to decide. Defendant was cross-examined by plaintiff under the statute. Among other things he testified to, he stated that he slowed down on account of the slippery condition of the highway and that he was driving at a moderate rate of speed. Defendants contend that plaintiff is bound by this testimony as to defendant's intention and state of mind. To be sure his testimony must be considered as a whole. See Schaupeter v. Schaupeter, 317 Mich. 84, 26 N.W.2d 718. However, in a case such as this defendant's state of mind and intention is inextricably related to the speed at which he was traveling. That speed is a fact in dispute, and the testimony thereto being contradictory plaintiff is not bound by defendant's testimony. Swank v. Croff, 245 Mich. 657, 224 N.W. 393; Schaupeter v. Schaupeter, supra; In re Estate of Taylor, 271 Mich. 404, 260 N.W. 895.

The principal question is whether under the evidence, when considered in a light most favorable to plaintiff, a jury question was presented. The elements of 'gross negligence or wilful and wanton misconduct' upon which defendant's liability is predicated under the guest act, C.L.S.1952, § 257.401, Stat.Ann. § 9.2101, are set forth in Titus v. Lonergan, 322 Mich. 112, 119, 33 N.W.2d 685, 688:

"'(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm be ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another."'

We have said that under the circumstances of the case in order to establish gross negligence or wilful and wanton misconduct 'it is necessary for plaintiff to show that defendant continued to drive in reckless disregard of known and dangerous conditions after knowledge of the same.' Stolt v. Shalogian, 326 Mich. 435, 439, 40 N.W.2d 212, 213. While excessive speed of itself is insufficient to impose liability under the guest act, it may be considered in connection with other circumstances in determining whether the operator of the automobile was guilty of gross negligence or wilful and wanton misconduct. Titus v. Lonergan, supra.

We have reviewed a great many decisions involving the element of excessive speed when combined with other factors such as conditions of weather and highway. They are so numerous and in some instances so irreconcilable with other decisions that it would serve no purpose to here set forth in detail each one for the purpose of distinguishing or following it. It suffices that we note a few of them. See Piscopo v. Fruciano, 307 Mich. 433, 12 N.W.2d 329; Coppin v. Lippy, 299 Mich. 586, 1 N.W.2d 1; Hodge v. Beaman, 294 Mich. 442, 293 N.W. 710; Thompson v. Ross, 292 Mich. 450, 290 N.W. 864; Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883; Keilitz v. Elley, 276 Mich. 701, 268 N.W. 787; Rowe v. Vander Kolk, 278 Mich. 564, 270 N.W. 788; Pawlicki v. Faulkerson, 285 Mich. 141, 280 N.W. 141; Balcer v. Pere Marquette Ry. Co., 266 Mich. 538, 254 N.W. 198; In re Mueller's Estate, 280 Mich. 203, 273 N.W. 448. Though with the exception of one or two these cases do not involve speeds in excess of 80 miles per hour, some of them point to a result in defendants' favor. We must, however, take account of more recent decisions of our court. In so doing we find that in Cramer v. Dye, 328 Mich. 370, 43 N.W.2d 892; Kocks v. Collins, 330 Mich. 423, 47 N.W.2d 676; Price v. Western, 330 Mich. 680, 48 N.W.2d 149, and Cain v. Enyon, 331 Mich. 81, 49 N.W.2d 72, we held in effect that excessive speed...