Shepherd v. Barber , 20 Mich. App. 464 ( 1969 )

20 Mich. App. 464 (1969) 174 N.W.2d 163

SHEPHERD
v.
BARBER

Docket No. 6,494.

Michigan Court of Appeals.

Decided December 4, 1969.

Marcus, McCroskey, Libner, Reamon, Williams & Dilley (Vernon D. Kortering, of counsel), for plaintiff.

Varnum, Riddering, Wierengo & Christenson (Jon F. De Witt, of counsel), for defendant.

Before: FITZGERALD, P.J., and R.B. BURNS and BRONSON, JJ.

BRONSON, J.

Plaintiff-administrator filed this wrongful death action to recover damages resulting from the death of Johnny Joe Sanchez, age 19. Defendant loaned Sanchez his truck. Sanchez drove the truck at a high speed, lost control, left the road and crashed to his death. At trial, evidence disclosed that defendant knew Sanchez had no driver's license and could not read or write. There was a clear dispute as to whether Sanchez was competent to operate defendant's truck, although he had driven it alone a few times and had had some driver training by defendant and Sanchez' mother. There was also evidence which, if believed, would establish that defendant had been told by the parents not to let their son drive the truck. Defendant filed a motion during trial for summary judgment, contending that only ordinary negligence, if any, was involved and, therefore, that no jury question concerning gross negligence or wilful misconduct was presented. The motion was denied and the case was submitted to the jury. From a verdict for plaintiff, defendant appeals.

The common-law remedy against an owner for negligent entrustment stands unimpaired by Michigan's 55-year-old owner liability statute.^[*] See Chapman v. Buder (1968), 14 Mich App 13.

The existence or absence of gross negligence or of wilful and wanton misconduct on the part of the defendant may be decided as a matter of law if the evidence unquestionably shows, or fails to show, their existence. However, in an action for injury or death, where evidence has been introduced which tends to show negligence or misconduct on the part of the defendant, then a determination on such evidence remains a question of fact to be decided by the jury.

Evidence was produced at the trial which, if believed, could sustain a jury determination that defendant was in fact guilty of wilful misconduct according to the above rules. Defendant admittedly knew that Sanchez did not have a driver's license, was unable to read and write, that the driving instructions by defendant and the boy's mother left much to be desired, and that there was evidence that he had been told by the boy's parents not to loan Sanchez the truck. Under these circumstances, did defendant exercise ordinary care and diligence to avoid injury by loaning the truck? The standard now employed by the law is whether a reasonably prudent man acting under the same or similar circumstances would do the same. Whether or not the standard has been attained is, normally, a jury question. If honest differences of opinion between men of average intelligence might exist, the issue should not be resolved by the court alone. McKinney v. Yelavich (1958), 352 Mich 687. Defendant had the ability to avoid the resulting harm by refusing to let Sanchez drive the truck. Under the circumstances outlined above, it could be obvious to an ordinary mind or a reasonably prudent person that such entrustment could lead to trouble, injury and even death.

"``Whether the given motion for instructed verdict tests the sufficiency of evidence as proving ordinary negligence (or disproving contributory negligence) on the one hand, or as proving wilful and wanton misconduct under the statute on the other, the doubtful case in each instance calls for jury instruction and jury verdict rather than a verdict by order of the court.' Tien v. Barkel (1958), 351 Mich 276, 283." Coon v. Williams (1966), 4 Mich App 325, 333.

Considering the totality of circumstances, we conclude that reasonable minds could differ on the classification of such tortious conduct as being either ordinary negligence or wilful misconduct but under the controlling decision of Chapman v. Buder, supra, the point is mooted. We are persuaded the trial court properly submitted the question of liability to the jury.

Affirmed.

All concurred.

NOTES

[*] MCLA § 257.401 (Stat Ann 1968 Rev § 9.2101).