Tortora v. General Motors Corp.

• Decision Date: 01 June 1963
• Docket Number: No. 21,21
• Citation: 373 Mich. 563,130 N.W.2d 21
• Parties: Raymond TORTORA, Plaintiff and Appellee, v. GENERAL MOTORS CORPORATION, a Corporation, Defendant and Appellant. ,
• Court: Michigan Supreme Court

Page 21

130 N.W.2d 21

373 Mich. 563

Raymond TORTORA, Plaintiff and Appellee, v. GENERAL MOTORS CORPORATION, a Corporation, Defendant and Appellant.

No. 21, June Term, 1963.

No. 25, April Term, 1964.

Supreme Court of Michigan.

Sept. 2, 1964.

Peter F. Cicinelli and Eugene D. Mossner, Saginaw, for plaintiff-appellee.

Cartwright, Walker & Stenglein, Saginaw, for defendant-appellant.

Before the Entire Bench.

BLACK, Justice (for reversal).

This suit for negligence resulted from a collision of 2 automobiles, driven respectively by plaintiff and defendant's employee-driver, one Jacob F. Boike. The collision occurred on U.S. 23, near the intersection of that highway with White Lake road, in Livingston county, during the evening of October 10, 1959. The 2 cars were proceeding in opposite directions. Each driver testified that the other negligently invaded his rightful driving portion of the highway. For present purposes it is sufficient to say that the proof portrayed typical questions of fact, for the jury, as to plaintiff's allegation of causal negligence of Boike and defendant's countering allegation of plaintiff's contributory negligence. The jury returned a verdict for plaintiff in the sum of $42,500, upon which verdict judgment was entered. The defendant, owner of the car driver by its said employee, moved for a new trial. The motion was denied. Defendant appeals.

The reader will understand without difficulty the salient reviewable question upon perusal of appellant's statement and appellee's counterstatement thereof:

Appellant's Statement

'Did the trial court err in instruction the jury that it would be an act of negligence if the defendant, General Motors Corporation, permitted Jacob Boike to drive one of its automobiles when it knew, or should have known, the nature and extent of his driving record, and to charge the jury further that, as a matter of law, General Motors Corporation could have inspected public records and determined the driving record of its employee, had it chosen to do so?'

Appellee's Counter-Statement

'Did the trial court err in allowing plaintiff to plead the theory of negligent entrustment of a motor vehicle against the corporate defendant and in allowing plaintiff to present the careless driving record of defendant's driver to the jury in support of such theory?'

The recent case of Perin v. Peuler, 369 Mich. 242, 119 N.W.2d 552, (reheard and decided anew in Mich., 130 N.W.2d 4), is amply introductive. The principal difference between the so-called negligent entrustment case considered there, and the present like case, is that in the former the Court dealt only with the plaintiff's motion for leave to amend, before trial, so as to plead such negligent entrustment by the defendant father; whereas in the present case we test for reversible error a judgment entered upon trial and jury verdict.

Plaintiff's proof of the alleged unfitness of Boike, for entrustment with an automobile to be driven on public ways, disclosed these facts: From the time the Secretary of State commenced (after the effective date of P.A.1953, No. 215; § 204a; C.L.S.1956, § 257.204a) keeping an 'individual historical driving record' of each licensed motor vehicle operator, and continuing through the moving violation which immediately preceded the collision of Octover 10, 1959, Boike had been arrested and convicted of speeding 11 times and convicted once of reckless driving; also that he had 'been called in twice by the Secretary of State's office' and warned 'each time to change his driving habits' on penalty of loss of his operator's license. The proof also showed, with respect to the collision of October 10, 1959, persuasively what the jury could have and presumably did find; that Boike was driving from a football game, after dark, while under the influence of intoxicants.

Getting directly to the posed question of erroneous instruction, it is ruled that the foregoing proof, that Boike had been convicted of 'moving' violations of the Michigan vehicle code 12 times during a period of less than 5 years just preceding the date of the Tortora collision, would fairly warrant a finding by fact-triers that Boike was an unfit driver; unfit that is for entrustment of a motor car on our highways by any owner or lender having knowledge, express or implied, of all or a substantial part of such record of violation and conviction. The important question, then, is whether there is any proof that Boike's record--in whole or in part--was known to the defendant owner-lender prior to the collision of October 10, 1959.

Boike, for a number of consective years preceding the Tortora collision, was employed by defendant General Motors as a 'school instructor for the regional sales.' He described his duties as instructing 'dealership personnel in methods and modes of selling parts and accessories' and 'teaching our own men in the sales field.' He drove company cars from dealership to dealership in the course of his assigned work, and also drove them in the course of pleasure driving and driving for personal off-duty, purposes. Since the date of the Tortora collision Boike had been transferred by the defendant employer from Michigan to Ohio. There his new position is that of 'District Manager for Chevrolet,' working 'Out of the Cleveland zone sales office.'

Such in essence is the proof on which plaintiff relied below to make a jury question of the issue whether the defendant employer 'knew or shuld have known' that Boike was an unfit driver. Plaintiff bore the burden of proving such allegation of express or inferred knowledge (see Perin v. Peuler, supra on rehearing at 130 and 6). His proof on that point was legally insufficient, and it is accordingly held that the jury instructions of which defendant complains (presently quoted) were reversibly erroneous.

The defendant employer may indeed have known that employee Boike was consistently finding it difficult to obey the traffic code as he drove its cars on business and pleasure. It may be, too, that the company learned sooner or later that Boike had become a chronic convict in such regard. But the record shows no proof of such knowledge, and no proof from which the jury might with propriety have inferred that the employer became possessed of such knowledge prior to the date of Mr. Boike's 13th dereliction; referring to that which occurred October 10, 1959. All plaintiff offers in support of his burden is allegation that, since the records maintained under said section 257.204a are public records (citing C.L.S.1956, § 257.208), the defendant employer was under legal duty to keep abreast of such records and to act preventively upon finding what it would have found respecting the transgressions of employee Boike in the use of its cars. No authority for such contention has been cited. Counsel simply say (quoting what was said to the trial judge after reference to said section 257.208):

'* * * all records of the department, meaning the secretary of state here, shall be opened to public inspection, and these are open to General Motors, and whether they examined this public record or not, there is no testimony to that effect, but from the presence and the existence of these statutes which makes it--these records of employees of a corporation available to them at a time either before, during or after entrustment of an automobile to them, if they are interested, since they are held responsible for the driving of a person to whom they consent to drive their vehicle, we claim it is their duty to check these records, the driving record of this man, and--so that--in any event, even if they had not, they had the duty to do so, and that's a jury question. So, our position is that at the very least they should have known of this man's record. It was available...