Welty's Estate v. Wolf's Estate

• Decision Date: 02 April 1956
• Docket Number: No. 47,47
• Citation: 76 N.W.2d 52,345 Mich. 408
• Parties: ESTATE of Allen WELTY, Deceased, by Opal Pauline Welty, Administratrix, Plaintiff and Appellant, v. ESTATE of George WOLF, Deceased, Marjorie L. Grace, Administratrix, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 52

76 N.W.2d 52

345 Mich. 408

ESTATE of Allen WELTY, Deceased, by Opal Pauline Welty Administratrix, Plaintiff and Appellant, v. ESTATE of George WOLF, Deceased, Marjorie L. Grace Administratrix, Defendant and Appellee.

No. 47.

Supreme Court of Michigan.

April 2, 1956.

Carroll B. Jones, Marcellus, for plaintiff-appellant.

Richard A. Wade, Three Rivers, Reagh, Denifield & Reid, Lansing, for defendant-appellee.

Before the Entire Bench.

KELLY, Justice.

Justice BLACK'S opinion herein states:

'No witness of cause or immediately precedent fact survives and we are left with presumption and circumstance for determination of reviewable questions.'

If there is circumstantial evidence opposing the presumption of due care, such evidence is confined to proof of skid marks on the pavement and on the ground between the pavement and the tree.

The quoted testimony in Justice BLACK'S opinion in regard to skid marks is from the testimony of Kenneth Duane Rimes. He was the only witness who gave any testimony in regard to same.

The accident occurred on September 17, 1954. Over 9 months elapsed before the case was called for trial. Rimes did not take any measurements of skid marks or tracts until the day of trial, as is evidenced by his testimony, as follows:

'I did not measure the skid marks myself, until this morning before the trial, but I was with an officer in charge who measured them, after the accident. Today I approximated it, then paced it off. I went out to the scene of the accident with Attorney Henry Theiss this morning to recollect what happened and recreate the scene in the presence of the attorney. My testimony is based both upon what I saw this morning and what I saw the day of the accident. Part of the testimony about skid marks is based upon what I observed this morning.'

No explanation is offered in the record as to why the officer in charge after the accident, and who took the measurement of the skid marks was not called as a witness.

Justice BLACK lists 6 cases involving skid marks, with the claim that said marks were considered as evidence of negligence 'in circumstances similar to those shown here.' I disagree with the conclusion that the circumstances were similar to those in the case we are considering. In all 6 of the cited cases testimony was offered in regard to the course of the vehicle before and at the time of the accident. The skid marks merely added proof to these facts. No case has been called to this Court's attention in either appellant's brief or in Justice BLACK'S opinion, and the writer fails to find any case, where proof confined to skid marks was considered adequate to sustain plaintiff's claim of negligence.

Justice BLACK'S opinion states: 'No traffic was in the vicinty at the time.' I do not believe the record sustains such a conclusion. If it does, it must be sustained by the only witness--Rimes--, who gave any testimony from which this fact, or any other fact in regard to the accident, could be inferred.

The deceased's car and Rimes' car were traveling in the same direction, and while Rimes testified that he did not see the car leave the road and hit the tree, his testimony does show that he arrived at the scene immediately thereafter while the seath car was still reacting to its impact with the tree. On direct examination he stated:

'As I broke over the hill, about a mile or mile and half north of Edwardsburg, there was a car that had just wrapped itself around the tree. There was still motion to the car, and the door was still swinging.'

On cross-examination, this witness testified:

'When I came upon the scene, there was still motion; the car was still jiggling and the door waving. There was no dust, as it was raining. The door was still jiggling. I came upon the car that quick after it happened. The door that was jiggling was the right hand door.'

Rimes brought his car to a stop as soon as he could, but another car was in such close proximity to the death car as it left the road that its occupants stopped before Rimes. Rimes' testimony in this regard is:

'As soon as I came upon the accident, I stopped my car and parked it and immediately went to the car. There were other people about, not police officers at that time. Other persons had stopped there before I did. They were ahead of the car, and had apparently seen them in the mirror. They were ahead of the car that was wrecked. I did not get their names.'

There is no further testimony in the record in regard to this car that was 'ahead of the car that was wrecked,' and said car will be referred to in this opinion as the 'mystery car.'

Justice BLACK'S opinion states that 'no factor excepting inferable excessive speed on a slippery pavement was shown as cause of the driver's lack of control.' If the car in which deceased Welty and Wolf were riding was traveling at an excessive rate of speed, then there is evidence, by the following testimony of Rimes, that his car was probably traveling at a greater rate of speed. He said:

'I don't know how fast I was travelling in this rain as I proceeded north out of Edwardsburg. I did not see Mr. Wolfe or Mr. Welty pass me between where I stopped and the scene of the accident, that I recall. If they would have passed me, I would not have recognized their car. I do not remember whether any one else passed me. It was too long ago. There was just moderate traffic coming in the other direction in this mile and a half. It wasn't raining hard, just a light mist. It was daylight. I had no one else riding with me. I could have been driving 50 miles an hour or faster. It could be assumed that either there was not much of a margin of distance at the time of the impact, or that I was travelling at a higher rate of speed, than they were.'

Rimes describes a hill in close proximity to the tree, as follows:

'As I came over the hill, I saw this situation. There was a hill in close proximity to the tree * * *. Maybe it would be 250 yards, something like that from the crest of the hill to the tree. * * * As you come over the crest of the hill, you break off the hill, then there is a straightaway.'

It would not take any appreciable length of time for a car driven at an excessive rate of speed to travel 250 yards. The testimony of Rimes establishes that the occupants of the 'mystery car' could not have observed the death car for more than 250 yards after it came over the top of the hill. If the death car was traveling at such an excessive rate of speed, the question arises: How did the occupants of the 'mystery car' make the observation of approach of the death car so that they could being their car to a halt, in close proximity to the tree, and practically at the moment the death car hit the tree?

Did the 'mystery car' crowd the death car off the road? Did the 'mystery car' pass and sideswipe the death car as it passed? No one testifies that the death car was crowded off the road or was sideswiped. No one eliminates that possibility, and we must keep that in mind as we decide that on circumstantial evidence of skid marks sufficient proof was offered to justify a trial judge submitting the case to the jury.

Who was driving the death car? To prove this point, plaintiff offered only one witness. Again this same Mr. Rimes. He testified on direct examination:

'Mr. Welty was on the ground on the right hand side of the car. I knew Mr. Welty, but not Mr. Wolfe. Mr. Welty had his head hanging out the door, the upper half of the body. The other man was laying right on top of him; Wolfe's left leg was pinned between the firewall and the left door, because afterwards we had to pull the car apart to free him.'

On re-direct examination, witness Rimes testified:

'When I went up to the car, I saw the two men laying one atop of the other. One was further out the door than the other one. Mr. Welty was the one further out the door. Mr. Wolfe's leg was pinned between the left door and the firewall on the left hand side of the car. The firewall is the panelling immediately under the clutch and brake pedal. On account of the condition of the car it would be hard to tell what the spot was, but it was in the general area of where the door is, inside the car.'

In addition to Rimes, plaintiff called 4 other witnesses. The wife of deceased Allen Welty testified but offered no proof on either the question as to how the accident occurred or the question as to whether her husband was a guest passenger or a passenger for hire. The other 3 witnesses, namely, Cooper, Helwig and Young, gave no testimony in regard to the accident, and their testimony can only be considered on the question as to whether plaintiff's decedent (Welty) was a passenger for hire.

The trial court in granting the motion for a directed verdict stated:

'I am in agreement with counsel for the defense that if this matter is submitted to a jury for determination, that the jury would be obliged by speculation to fill in a number of important factors that are not shown by the evidence. This question as to the guest relationship between Mr. Welty and Mr. Wolfe involves only one question, and that question is a legal question, and that is whether or not in such case, negligence of ordinary caliber would be grounds for an action or whether it would have to be negligence that was gross. I don't think it's necessary for this court to make a decision on the point as to whether the relationship of a paying guest existed between these two men.'

The trial court was correct in granting the motion, even though the testimony in this case was sufficient to create a question of fact as to whether Welty was a passenger for hire in Wolf's car.

In Bredeweg v. Boyce, 322 Mich. 298, 33 N.W.2d 801, this Court held that under the guest act a plaintiff who relies upon ordinary negligence must show that the host-guest relationship did not exist in order to sustain his cause of action, and that this element of the case places upon the plaintiff the...