Socony Vacuum Oil Co. v. Marvin

• Decision Date: 04 March 1946
• Docket Number: Jan. Term, 1946.,No. 4,4
• Citation: 313 Mich. 528,21 N.W.2d 841
• Parties: SOCONY VACUUM OIL CO., Inc., v. MARVIN.
• Court: Michigan Supreme Court

313 Mich. 528

21 N.W.2d 841

SOCONY VACUUM OIL CO., Inc.,

v.MARVIN.

No. 4, Jan. Term, 1946.

Supreme Court of Michigan.

March 4, 1946.

Appeal from Superior Court of City of Grand Rapids; Thaddeus B. Taylor, Judge.

Action by Socony Vacuum Oil Company, Inc., against Albert J. Marvin to recover for the loss by fire of plaintiff's truck and semi-trailer after a collision with defendant's automobile. Judgment for plaintiff, and defendant appeals.

Reversed and new trial granted.

Before the Entire Bench.

Allaben & Wiarda, of Grand Rapids (Craig E. Davids, of Grand Rapids, of counsel), for defendant and appellant.

McCobb & Heaney, of Grand Rapids, and W. D. Gowans, of Detroit (Arthur R. Snell, of Grand Rapids, of counsel), for plaintiff and appellee.

CARR, Justice.

This case arose out of an accident occurring about four o'clock in the afternoon of August 1, 1942, on US-16, in Ottawa county. Immediately prior to said accident plaintiff's truck with semi-trailer attached, operated by plaintiff's driver, James Janninga, was proceeding in an easterly direction towards the city of Grand Rapids with a load of gasoline and other petroleum products. The total weight of plaintiff's equipment was approximately 20 tons, and the combined length of truck and trailer was approximately 40 feet. The pavement at the point of the accident was 16 feet in width, and the over-all width of plaintiff's equipment was eight feet.

The defendant, operating a Plymouth automobile, followed plaintiff's driver for some distance and then undertook to pass. In the course of such attempt defendant's vehicle came in contact with the left front corner of plaintiff's truck. The exact point of impact on the truck is not clearly established by the evidence but it is conceded that the vehicles came together, although the impact was not of great force. Thereupon the truck, with semi-trailer attached, left the pavement, proceeded some distance and finally struck a cement culvert on a crossroad with such force as to crack the culvert. It is the claim of plaintiff's driver that, after the impact, he was unable to keep his vehicle on the road, to control its course, or to bring it to a stop. Immediately on the stopping of the truck and semitrailer by the culvert plaintiff's driver jumped out of the cab and ran upon or across the highway. He claims that he expected an explosion immediately. Observing that there was no fire the driver then undertook to return for the purpose of turning off the ignition. As he was about to do this fire started in the vicinity of the fuel tank on the truck and he was prevented from accomplishing his purpose. The equipment and load were practically destroyed by the fire.

At the close of the proofs on the trial, defendant moved for a directed verdict, claiming that the evidence had not established negligence on the part of defendant Marvin, and that plaintiff's driver was guilty of contributory negligence as a matter of law. The motion was denied. The jury returned a verdict in favor of plaintiff on which judgment was entered. Thereupon defendant moved for a new trial. This motion was also denied and defendant has appealed.

Plaintiff's driver testified on the trial that immediately prior to the accident he was operating the truck and semi-trailer at a speed of approximately 30 miles an hour. He was, therefore, violating the statutory limitation of 25 miles an hour, as prescribed by 1 Comp.Laws 1929, § 4766, as amended by Act No. 253, Pub. Acts 1933, and Act No. 330, Pub. Acts 1937, Stat.Ann. 1945 Cum.Supp. § 9.1643. The trial court submitted to the jury the question of whether such negligence contributed to the accident Defendant insists this was error and that the motion for directed verdict should have been granted on the theory that plaintiff's driver was guilty of contributory negligence as a matter of law.

It has been repeatedly recognized by this court that the mere fact that a party, in a case arising out of an accident, was guilty of negligence does not necessarily establish that such negligence was a contributing factor to the accident and injury. In Arvo v. Delta Hardware Co., 231 Mich. 488, 204 N.W. 134, it was claimed by the defendant that plaintiff could not recover because of failure to comply with the statute requiring a light to be displayed on the left side of the vehicle driven by plaintiff's decedent. The trial court, however, left it to the jury to determine whether there was any “causal connection between the statutory violation or the doing or omitting to do the act and the injury.” In approving such instruction it was stated in the opinion of this court that the instruction merely stated the law. The general rule was quoted from 1 Cooley on Torts, 3d Ed., 269, as follows:

“The principle is, that to deprive a party of redress because of his own illegal conduct, the illegality must have contributed to the injury.”

In Transcontinental Ins. Co. v. Daniels, 266 Mich. 562, 254 N.W. 205, the facts were analogous to those in the case at bar. There plaintiff's truck was driven at a rate of speed in excess of that permitted by statute (1 Comp. Laws 1929, § 4766, Stat.Ann. § 9.1643), and as a result the driver was admittedly guilty of negligence. The trial court held that such negligence did not contribute to the injury and the finding was sustained.

Likewise, in Losey v. Wetters, 278 Mich. 422, 270 N.W. 735, 736, in commenting on a like situation it was said:

‘If we assume that the Dodge truck was traveling at a rate of speed in excess of 30 miles per hour in contravention to [1 Comp. Laws 1929, § 4766, as amended by] Act No. 253, Pub. Acts 1933, then we think it presents a question of fact for a jury's determination as to whether or not the excessive speed was the proximate cause of the accident. We cannot say as a matter of law that exceeding the statutory speed in the manner and under the circumstances involved in this case was the proximate cause of the accident.’

See, also, Reid v. Coon, 243 Mich. 37, 219 N.W. 613;Bernstein v. Brody, 256 Mich. 512, 240 N.W. 62;Fitzcharles v. Mayer, 284 Mich. 122, 278 N.W. 788;Waling v. City of Detroit, 308 Mich. 163, 13 N.W.2d 246.

The trial court was correct in holding that it was a matter for the jury to determine whether the negligence of plaintiff's driver in exceeding the speed limit contributed to the accident.

The claim is also made that plaintiff's driver failed to keep his equipment on the right side of the center line of the road. Whether he had so failed was, under the conflicting testimony of the witnesses, for the jury to decide. The trial court charged the jury, in substance, that failure to comply with the statute (1 Comp. Laws 1929, § 4703, as amended by Act No. 318, Pub.Acts 1939, Stat.Ann. 1945 Cum.Supp., § 9.1571) in this regard would constitute negligence. Whether plaintiff's driver was guilty of such negligence, and whether the negligence, if there was such at any time while defendant was undertaking to pass plaintiff's vehicle, bore any causal relation to the accident were properly left to the jury as issues of fact. On the record before us, it cannot be said that plaintiff was guilty of contributory negligence as a matter of law. If follows that the motion for directed verdict was properly denied.

Defendant further claims that he is entitled to reversal of the judgment against him and a new trial because of errors in the admission of evidence and in the charge of the court. On cross-examination of the defendant, and for the purpose of impeaching his testimony, counsel for plaintiff was permitted to inquire, over objections of defendant's counsel, if defendant had been given a traffic summons, in connection with this accident, to appear before a justice of the peace at Coopersville; and if he had so appeared and paid a fine. Defendant testified as follows:

‘I don't remember what day it was. I had a summons to appear on a certain day; I think two or three days after. I appeared that day. I did not plead guilty. I paid a fine of $5.00 and costs to the justice, but I did not plead guilty. The justice said it was a ticket, the same as any ticket, to pay the fine would be the easiest way out. He said it would not be an admission of guilt. I told the justice I would not pay the fine if it was an admission of guilt. He said it would make no difference with anything in the future; the best way would be to pay and save trouble. I paid it.’

The justice before whom defendant appeared was called as a witness and testified to the fact that defendant appeared before him and paid a fine. The justice further testified that defendant was accompanied on the occasion in question by another person and the questions of counsel for defendant on cross-examination indicate that such other person was an attorney from counsel's office.

The claim by counsel for defendant in his brief that the sum of money referred to was deposited with the justice as ‘bail’ is not supported by the record. Clearly, defendant understood that he was paying a fine and on the trial plaintiff was entitled to show such act on the theory that it was inconsistent with the testimony of defendant as to how and why the accident happened. A similar situation was presented in Zimmerman v. Goldberg, 277 Mich. 134, 268 N.W. 837, 838. There defendant testified that he had been convicted and fined for reckless driving, the charge arising out of the accident involved in the suit. Subsequently, the trial court struck out the testimony. Following comment on the general rule that a witness may be cross-examined as to prior convictions for the purpose of impeaching his credibility, it was said:

‘In the instant case it must be borne in mind that the cross-examination of defendant was not one pertaining to a collateral matter and bearing only upon his credibility. Instead it was cross-examination concerning defendant's plea of guilty to a charge of reckless driving arising out of the very accident involved in...