Detroit Automobile Inter-Insurance Exchange v. Halsey

Per Curiam.

This appeal is taken by defendant Halsey from the denial by the trial court, sitting without a jury, of defendant’s motion to dismiss, made at the close of plaintiffs’ proofs (G-CR 1963, 514.2), and from a finding that defendant’s car was being driven with his consent when it illegally entered an intersection, and collided with a bus which in turn struck two parked cars insured by plaintiff, Detroit Automobile Inter-Insurance Exchange.

An automobile owner, to be held responsible under the civil liability act, CLS 1961, § 257.401 (Stat Ann 1960 Rev § 9.2101) must consent to or know of another’s use of his car. At the close of plaintiffs’ proofs, evidence indicated that the driver of the car had run from the scene of the accident and that no complaint of the vehicle’s theft had been made by the owner at the time of the accident. From these facts the trial court could infer that the car was lawfully in the possession of the driver with the express or implied consent of the owner. Hatter v. Dodge Brothers (1918), 202 Mich 97. In view of this, defendant Halsey’s motion for dismissal at that point was properly denied.

Halsey then failed to present clear, positive and credible proofs rebutting the permissible presumption^* that his car was lawfully possessed and driven with his knowledge or consent. See Baumgartner v. Ham (1965), 374 Mich 169. In addition, a review of the record convinces that sufficient evidence was elicited in the course of appellant’s defense to support the trial court’s finding that Halsey’s son was the driver, further establishing the owner’s consent. AVe find no reversible error.

Affirmed. Costs to appellees.

T. Gr. Kavanagh, P. J., and Holbrook and Beer, JJ., concurred.

* See Hatter, supra, p 102, for a discussion of the rules of evidence. Further analysis of the rule may be found in Monaghan v. Pavsner (1956), 347 Mich 511, Justice Black’s opinion for affirmance and Houseman v. Walt Neal, Inc. (1962), 368 Mich 631, Justice Souris’ opinion for affirmance, both opinions finding approval by a majority of the Court in Baumgartner v. Ham, (1965), 374 Mich 169.