Roy v. Kirn, No. 76.

CourtSupreme Court of Michigan
Writing for the CourtSTONE
Citation208 Mich. 571,175 N.W. 475
Decision Date23 December 1919
Docket NumberNo. 76.
PartiesROY v. KIRN.

208 Mich. 571
175 N.W. 475

ROY
v.
KIRN.

No. 76.

Supreme Court of Michigan.

Dec. 23, 1919.


Error to Circuit Court, Wayne County; Clyde I. Webster, Judge.

Action by James M. Roy against Alfred Kirn. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before BIRD, C. J., and MOORE, STEERE, BROOKE, FELLOWS, STONE, KUHN, and SHARPE, JJ.

[175 N.W. 475]

William J. Bane, of Detroit, for appellant.

Henry C. L. Forler, of Detroit, for appellee.

[175 N.W. 476]


STONE, J.

This case was originally begun against Alfred Kirn and Henrietta M. Glazier, there being two counts in the declaration. The first count alleged negligence of the defendant Kirn, and the second count alleged negligence of defendant Glazier.

Upon the trial, and at the close of the plaintiff's evidence, the court directed a verdict and judgment for the last-named defendant, and the trial proceeded against defendant, Kirn, resulting in a verdict and judgment for the plaintiff in the sum of $2,000, damages and costs.

The first count of the declaration alleges; That on March 3, 1916, defendant owned and had in his possession an automobile, and that on that date, at the special instance and request of the said defendant, the plaintiff became and was a passenger in, and an occupant of, said automobile, while being driven by said defendant in a northerly direction on Woodward avenue in the city of Detroit and the village of Highland Park. That said defendant, in violation of his duty and of the statute, and of the ordinances of the village of Highland Park, drove the said automobile at a high rate of speed, contrary to the statute of the state, and in violation of said ordinances. That at the intersection of Grand avenue and Woodward avenue in the village of Highland Park the said defendant, while driving the said automobile at a high and reckless rate of speed, ran into and collided with the automobile belonging to the defendant, Henrietta M. Glazier, which latter automobile was then and there crossing Woodward avenue at the intersection of Grand avenue. That the automobile of the said defendant ran into the said automobile of Henrietta M. Glazier with such force and violence that the plaintiff was thrown out of the car upon the pavement, suffering serious and permanent injuries, as follows:

That when thrown from the said automobile to the pavement, as aforesaid, plaintiff struck on his head, fractured his skull, and was otherwise injured in and about the body, arms, and legs; that the injury to his skull then and there sustained was permanent and incurable, and as a result thereof his eyesight has been affected and his health permanently impaired; that he suffers as a result of the said injuries severe and painful headaches, spasms, and convulsions; and because of said injuries his health is destroyed.

The plea of the general issue of the defendant, Kirn, was filed on June 7, 1917. At the opening of the trial, which occurred June 25, 1918, the said defendant moved to amend his plea of the general issue by giving notice of a compromise and settlement, with release, which motion was granted.

Without detailing the evidence here, it is sufficient to say that there was a sharp conflict in the evidence as to the rate of speed of the car of the defendant immediately before the collision, the rate of speed varying by the testimony from 15 to 40 miles an hour; and there was evidence of the intoxication of the defendant, which was denied. A reading of the evidence satisfies us that it was sufficient upon the subject of the negligence of the defendant to carry the case to the jury and to sustain the verdict and judgment.

At the close of the plaintiff's testimony counsel for said defendant moved for a directed verdict in his favor, on the grounds that defendant owed no duty to an occupant of his car, who was not a passenger for hire, to maintain such a slow rate of speed that he might have avoided the accident when he saw the danger; that there was no evidence of a willful, malicious increasing of the danger, or the creation of a new danger. Said motion was denied, and exceptions duly taken, and the defendant introduced the testimony of numerous witnesses in the case. In his defense the defendant offered in evidence two papers reading as follows:

‘Detroit, Mich., October 19, 1917.

‘To Whom It May Concern: In the auto accident that occurred on March 11, 1916, I hold no blame whatever to Mr. Al. Kirn, and am bringing suit against Mr. Glazier, and am bringing suit only against Mr. Glazier. Mr. Kirn was at no blame whatsoever for accident.

‘[Signed] James Roy.’

Also the following:

‘October 19, 1917. Received of Alfred Kirn $35 for full settlement of all claims against him on account of an accident that occurred at Grand Ave. and Woodward Ave. on March 3, 1916.

[Signed] James Roy.

‘Witnesses:

‘W. K. Knipprath.

‘John Darby.’

The defendant testified that he paid the plaintiff $35 for a release of his said claim, and that plaintiff signed the release and receipt and delivered them to him.

The plaintiff testified and offered proof to show that he had no knowledge or recollection of having signed said papers, although he thought the signatures were his; that if he did sign them it was on an occasion, detailed by him, when he was so intoxicated that he did not know what he was doing. He also testified that he had not knowingly received any money in settlement. This testimony of the plaintiff was objected to by defendant's counsel because no offer had been made to return the $35 to the defendant, the language of counsel being as follows:

‘I object to his impeaching this release for the reason that Mr. Roy has not returned the $35, and he cannot object to the contract and retain the money he has received.’

This objection was overruled, and the testimony pro and con with reference to said papers and payment was received in evidence

[175 N.W. 477]

and submitted to the jury. Upon that subject the court charged the jury as follows:

‘(20) If this receipt or release that has been introduced in evidence was entered into by him knowingly, that is, understandingly, knowing what it was, then he cannot recover in this action, even though he had a right of action, and you are also not concerned with the amount or the size of that release, the $35, because no matter how good an action he had, or how much money he would be entitled to recover, if he knowingly releases that right of action for $35, he has got a right to do that, and the defendant has-and the defendant is entitled to the protection of it, and the plaintiff is bound by it. On the other hand, if he has a right of action against the defendant and the defendant secures the release from him through any means of fraud, or because the plaintiff was intoxicated, or for any condition of the plaintiff he did not understand what he was doing, or did not know what he was doing, why then of course the release would have no binding force or effect upon him. So that you must determine that proposition in this case, as well as the other. If he knowingly and understandingly executed this release, he cannot recover in this action, no matter how good a claim he has got, and your verdict should be no cause of action. On the other hand, if you believe that the release was secured from him while he was in a condition not to understand what he was doing, then he is not bound by the release, and you may bring in a verdict for the plaintiff.

‘(21) Now, that leaves the one further-and I charge you in that regard on behalf of the defendant that a release understandingly made for a consideration is a bar to an action for the injury for which same is given. The amount paid does not affect the validity of a release.’

Upon the main questions in the case the court charged the jury, in part, as follows:

‘(4) As to the defendant, did the defendant do what an ordinarily prudent person would do under similar circumstances? Or, did he fail to do what an ordinarily prudent person would under similar circumstances? That is a good test. Because, if he did, then he is not liable, and your verdict should be no cause of action. And if he did not do, as he approached this corner in driving this car, if he did not do or act as an ordinarily prudent person would under similar circumstances, then he is guilty of an act of negligence, and the plaintiff may be entitled to recover, providing you also find the other elements that I will explain to you.

‘(5) Now, in this particular case, the rule, as I say, is somewhat different than in the ordinary case, because this plaintiff was either a guest or a licensee, and as I view the law the rule is no different whether he is a guest or a licensee, so...

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29 practice notes
  • Boscaglia v. Michigan Bell Telephone Co., Docket Nos. 68327
    • United States
    • Supreme Court of Michigan
    • 28 Diciembre 1984
    ...234. At common law, however, a guest injured in an automobile accident could recover against a host for ordinary negligence. Roy v. Kirn, 208 Mich. 571, 175 N.W. 475 (1919); Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883 (1936). Washington v. Jones holds simply that by limiting the preexis......
  • Goodyear v. Davis, 24,503
    • United States
    • United States State Supreme Court of Kansas
    • 10 Noviembre 1923
    ...principle of law which has been frequently announced by this and other courts. (Lewis v. Kimball, 103 Kan. 173, 173 P. 279; Roy v. Kirn, 208 Mich. 571, 175 N.W. 475; Kilby v. Charles City W. R. Co., 191 Iowa 926, 183 N.W. 371.) It requires that the settlement be made in good faith, which me......
  • Phelps v. Benson, Nos. 37278
    • United States
    • Supreme Court of Minnesota (US)
    • 29 Mayo 1958
    ...invited chance pedestrians, or those who deliberately solicit rides. Since the rule of liability was announced in Roy v. Kirn, 208 Mich. 571, 175 N.W. 475, there has been considerable litigation between guests and hosts. Some between husband and wife or other close relatives has found its w......
  • Degenstein v. Ehrman, No. 8218
    • United States
    • United States State Supreme Court of North Dakota
    • 13 Octubre 1966
    ...invited chance pedestrians, or those who deliberately solicit rides. Since the rule of liability was announced in Roy v. Kirn, 208 Mich. 571, 175 N.W. 475, there has been considerable litigation between guests and hosts. Some between husband and wife or other close relatives has found its w......
  • Request a trial to view additional results
29 cases
  • Boscaglia v. Michigan Bell Telephone Co., Docket Nos. 68327
    • United States
    • Supreme Court of Michigan
    • 28 Diciembre 1984
    ...234. At common law, however, a guest injured in an automobile accident could recover against a host for ordinary negligence. Roy v. Kirn, 208 Mich. 571, 175 N.W. 475 (1919); Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883 (1936). Washington v. Jones holds simply that by limiting the preexis......
  • Goodyear v. Davis, 24,503
    • United States
    • United States State Supreme Court of Kansas
    • 10 Noviembre 1923
    ...principle of law which has been frequently announced by this and other courts. (Lewis v. Kimball, 103 Kan. 173, 173 P. 279; Roy v. Kirn, 208 Mich. 571, 175 N.W. 475; Kilby v. Charles City W. R. Co., 191 Iowa 926, 183 N.W. 371.) It requires that the settlement be made in good faith, which me......
  • Phelps v. Benson, Nos. 37278
    • United States
    • Supreme Court of Minnesota (US)
    • 29 Mayo 1958
    ...invited chance pedestrians, or those who deliberately solicit rides. Since the rule of liability was announced in Roy v. Kirn, 208 Mich. 571, 175 N.W. 475, there has been considerable litigation between guests and hosts. Some between husband and wife or other close relatives has found its w......
  • Degenstein v. Ehrman, No. 8218
    • United States
    • United States State Supreme Court of North Dakota
    • 13 Octubre 1966
    ...invited chance pedestrians, or those who deliberately solicit rides. Since the rule of liability was announced in Roy v. Kirn, 208 Mich. 571, 175 N.W. 475, there has been considerable litigation between guests and hosts. Some between husband and wife or other close relatives has found its w......
  • Request a trial to view additional results

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