Worth v. Dortman

• Decision Date: 05 December 1979
• Docket Number: Docket No. 78-328
• Citation: 94 Mich.App. 103,288 N.W.2d 603
• Parties: Ronnie WORTH and Donna Worth, Plaintiffs-Appellants, v. Larry Allen DORTMAN and Roger J. Au & Sons Construction Company, Defendants- Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 603

288 N.W.2d 603

94 Mich.App. 103

Ronnie WORTH and Donna Worth, Plaintiffs-Appellants, v. Larry Allen DORTMAN and Roger J. Au & Sons Construction Company, Defendants- Appellees.

Docket No. 78-328.

Court of Appeals of Michigan.

Dec. 5, 1979.

Released for Publication Feb. 28, 1980.

Robert A. Grimes, Flint, for plaintiffs-appellants.

Robert P. Roth, Bloomfield Hills, for defendants-appellees.

Before DANHOF, C. J., and V. J. BRENNAN and CARROLL, ^* JJ.

V. J. BRENNAN, Judge.

By complaint filed October 2, 1973, the plaintiffs, Ronnie Worth and Donna Worth, brought a personal injury action against defendants, Larry Allen Dortman and Roger J. Au and Sons. The complaint alleged that plaintiff Ronnie Worth sustained severe and permanent injuries resulting from a motor vehicle accident on October 22, 1970, involving a truck owned by defendant Au and driven by defendant Dortman. Plaintiff Ronnie Worth was a passenger in the vehicle. The complaint alleged that Dortman was willfully and grossly negligent in causing the truck to leave the road and crash into a tree. Plaintiffs allege several specific instances of negligent conduct on Dortman's part including operation of a vehicle while under the influence of intoxicating liquor.

Defendant Au answered and asserted that plaintiff Ronnie Worth was contributorily negligent. Defendant Dortman filed a handwritten general denial. On September 26, 1974, the default of defendant Dortman was entered based on his failure to fill out and return to the court a pretrial discovery questionnaire. A second default was entered against Dortman on September 16, 1976, based on his failure to attend a pretrial conference held on September 26, 1974.

At trial, plaintiff Ronnie Worth testified that on the date of the accident he was employed as a foreman by defendant Au. Ronnie Worth testified that as partial compensation for his work he received the use of the truck involved in the accident. Plaintiff Ronnie Worth was responsible for the maintenance of the truck.

Plaintiff Ronnie Worth related that he went to the Palace Gardens, a bar, at approximately 5:30 p. m. on the evening of the accident. Defendant Dortman was present at the bar when the plaintiff arrived. Plaintiff Ronnie Worth loaned Dortman $20 to buy drinks. Plaintiff Ronnie Worth drank beer and whiskey and played pool during the ensuing 4 hours. Plaintiff Ronnie Worth testified that upon leaving the bar, Dortman advised him that he, Dortman, would drive because the plaintiff was too drunk. Plaintiff Ronnie Worth consented, got into the truck and went to sleep. It appeared to plaintiff Ronnie Worth that Dortman was capable of driving. The next recollection of plaintiff Ronnie Worth was the truck rolling with himself being thrown through the windshield.

On cross-examination, Ronnie Worth testified that he had previously instituted a cause of action against Palace Gardens and had accepted $75,000 in settlement of his claim.

Defendant Au called Sergeant Robert Darling of the Michigan State Police. Darling testified that he administered a Breathalyzer test to defendant Dortman after the accident. The plaintiffs objected to the admission of the test results on the ground that such results cannot be used in an action unrelated to a drunk driving prosecution. The trial court admitted the evidence on the ground that the objection raised by the plaintiffs could only be raised by defendant Dortman. Sergeant Darling testified that he had administered two Breathalyzer tests to Dortman and obtained results of .16 and .17% By weight of alcohol in the blood. The witness further testified that at the time of the accident, .15% Was considered the point of intoxication by statute.

Defendant Au also proposed to read into evidence the deposition testimony of Larry Dortman which was taken in the earlier dramshop action. Plaintiffs objected to the admission of Dortman's deposition. The trial court admitted the evidence.

Dortman's deposition testimony indicated that he consumed 10 to 12 drinks while at the Palace Gardens on the evening in question. Dortman stated that Worth asked him to drive. Dortman admitted that he might have been going over the speed limit and that he may have been a little sleepy. Dortman testified that he was not used to the road and missed a turn.

At the close of defendant's proofs the plaintiffs moved for a directed verdict of defendant Au's liability on the ground that the negligence of the operator of the vehicle, Dortman, had been established by Dortman's default and that the owner of the truck, defendant Au, had no further standing to contest its liability under the owner's liability act. The trial court denied the motion.

The jury returned a verdict of "no amount" against defendant Dortman and a verdict of no cause of action against defendant Au. Plaintiffs appeal by right.

Plaintiffs first argue that in this action brought under the vehicle owner's liability statute, M.C.L. § 257.401; M.S.A. § 9.2101, the lower court erred by denying plaintiffs' motion for a directed verdict against defendant owner where defendant operator had previously defaulted thereby admitting liability. We disagree.

It is well established that the vehicle owner may assert the defense of contributory negligence on the part of the injured passenger in a suit brought under the owner liability statute. Toomer v. Steiner, 43 Mich.App. 12, 202 N.W.2d 808 (1972). See Hoag v. Paul C. Chapman & Sons, Inc., 62 Mich.App. 290, 233 N.W.2d 530 (1975). See also Tarnowski v. Fite, 335 Mich. 267, 55 N.W.2d 824 (1952); Cacavas v. Bennett, 37 Mich.App. 599, 194 N.W.2d 924 (1972).

While a default operates as an admission of liability, the admission is binding only upon the defaulting party. As stated in Klimmer v. Klimmer, 66 Mich.App. 310, 313, 238 N.W.2d 586, 587 (1975):

"An admission predicated upon a default only operates against the particular party who defaults; it does not bind a codefendant who appears and contests the litigation. 47 Am.Jur.2d, Judgments, § 1195, p. 212. Cf. City Finance Co. v. Baldwin, 326 Mich. 174, 40 N.W.2d 107 (1949)."

Here the plaintiffs are predicating the owner's liability on the operator's default, thus denying the owner of the defenses available to it. The default of the codefendant operator cannot be so construed. The lower court's ruling in this regard was proper.

Plaintiffs next argue that the admission of the deposition of defendant Dortman taken by plaintiffs in the previous dramshop action was improper. We find no error. Dortman, who operated the vehicle at the time of the accident, was unavailable for trial. At the time of trial the admission of the deposition in question was governed by the rule enunciated in Pontiac School Dist. v. Sachse, 274 Mich. 345, 264 N.W. 396 (1936). The criteria for admission are set forth as follows: (1) unavailability of the witness, (2) testimony taken under oath in a prior proceeding, (3) substantially the same subject matter in both the former and present proceeding, and (4) the party objecting to the introduction had the opportunity of full cross-examination in the first action.

Plaintiffs argue that criterion number 3 was not met. We disagree. The subject of the deposition in the dramshop action was the number of drinks consumed by Larry Dortman and Ronnie Worth at the Palace Gardens Bar. This was the same subject raised by defendant Au in its assertion of contributory negligence. In any event, if the matter were to be tried again, the deposition would be admissible under MRE 804(b)(1).

Plaintiffs next cite McNitt v. Citco Drilling Co., 397 Mich. 384, 245 N.W.2d 18 (1976), and argue that the trial court erred in admitting over objection the results of the Breathalyzer test administered to defendant Dortman pursuant to the implied consent statute. M.C.L. § 257.625c; M.S.A. § 9.2325(3). Defendant Au contends that plaintiffs lack standing to raise this objection. We agree with defendant Au.

M.C.L. § 257.625c; M.S.A. § 9.2325(3) provides that a person who operates a motor vehicle is deemed to have given consent to a blood alcohol test if he is arrested for driving under the influence of intoxicating liquor or while his ability to drive has been impaired due to the consumption of intoxicating liquor.

In People v. Keen, 396 Mich. 573, 242 N.W.2d 405 (1976), the Supreme Court construed the "implied consent" set forth above and concluded that results of a blood alcohol test administered pursuant to the statute were not admissible in a criminal prosecution other than for driving while under the influence of intoxicating liquor or for driving while impaired. The Court at pp. 585-586, 242 N.W.2d at p. 412 reasoned:

"It would exceed the scope of the consent given to allow test results obtained on the representation that they will be used in prosecutions where the maximum penalty for a first offender is 90 days imprisonment to be used in prosecutions for a felony with a maximum penalty of 15 years.

"A police officer has no statutory authority to request that a driver submit to a blood alcohol test unless the arrest is for driving under the influence of intoxicating liquor. The officer is required to advise the driver that if he consents to a test, the test...