Lahey v. Sharp , 23 Mich. App. 556 ( 1970 )

23 Mich. App. 556 (1970) 179 N.W.2d 195

LAHEY
v.
SHARP

Docket No. 6,592.

Michigan Court of Appeals.

Decided April 30, 1970.

Rouse, Selby, Dickinson, Shaw & Pike (Roger B. Mourad, of counsel), for defendant-appellee Sharp.

Plunkett, Cooney, Rutt & Peacock (William B. Booth, and Jeannette A. Paskin, of counsel), for defendant-appellants Avis Rent-A-Car, Inc., and Chrysler Leasing, Inc.

Before: QUINN, P.J., and J.H. GILLIS and O'HARA,^[*] JJ.

PER CURIAM.

This action arose out of an automobile accident involving three cars — one driven by plaintiff, Michael Lahey, one by defendant, William Sharp, and the third by an unidentified driver (who fled from the scene of the accident). The third automobile was owned by defendant Avis Rent-A-Car Systems, Inc. After a jury verdict of $5,500 in favor of plaintiff and against all defendants, and defendants Avis and Chrysler Leasing appeal.

Before commencement of trial, the court ruled that there was a rebuttable presumption in law that the third automobile was being driven with the owner's consent at the time of the accident. Since Avis had admitted ownership of the vehicle, it was allocated the burden of proving the lack of express or implied consent. Thereafter, Avis introduced testimony in an attempt to rebut the presumption of consent. At the close of Avis' proofs, the trial court refused to direct a verdict in favor of Avis, electing, rather, to leave the question of consent to the jury's determination.

The question for review is: Did the trial court commit error in refusing to grant defendant Avis' motion for directed verdict?

The civil liability act of owners and operators of motor vehicles states:

"The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law requires. The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of said injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family." MCLA § 257.401 (Stat Ann 1968 Rev § 9.2101). (Emphasis supplied.)

While the statutory presumption does not apply in the instant case because there is no evidence that the driver of the Avis car was a member of Avis' "immediate family" the common-law presumption of consent does apply. In Hatter v. Dodge Brothers (1918), 202 Mich. 97, 102, the Supreme Court said:

"In the absence of such statutory qualification the possession, use and control of an automobile in a public place fairly gives rise to the inference that the person so in control is the owner of such property or in lawful possession of it with the express or implied consent of the owner. By statute it is made a felony to take possession of and use a motor vehicle without authority (3 CL 1915, § 15341; PA 1917, No 220), and the presumption of innocence, in the absence of proof to the contrary, attends the driver. Unexplained and undisputed, the reasonable inference of consent by the owner and authority of the driver is such as common sense and common experience usually draws and applies to the possession of those driving automobiles along our highways. A prima facie case was made out by plaintiff's evidence, putting defendant to its proofs."

See, also, Detroit Automobile Inter-Insurance Exchange v. Gordon (1968), 15 Mich. App. 41.

In order to rebut this presumption there must be "positive, unequivocal, strong and credible" evidence to the contrary. Krisher v. Duff (1951), 331 Mich. 699, 706.

From the testimony of Avis' two witnesses it did not appear that the car had been reported stolen or missing or taken without the consent or knowledge of Avis at the time of the accident. Further, there was testimony (albeit conflicting) that there were keys in the vehicle at the time of the accident.

A prima facie case of consent was presented to the jury and properly left for their consideration. See In re Wood Estate (1965), 374 Mich. 278, 290, 294.

Affirmed, costs to defendant-appellee.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.