LEVIN, J. (to reverse).
Plaintiff, administrator of the estate of Mamie Jean Johnson, commenced this action for wrongful death against the Secretary of State pursuant to the unidentified owner/driver provision of the Motor Vehicle Accident Claims Act.
"Where the death of or personal injury to any person is occasioned in this state by a motor vehicle but the identity of the motor vehicle and of the driver and owner thereof cannot be established, any person who would have a cause of action against the owner or driver in respect to the death or personal injury may bring an action against the secretary, either alone or as a codefendant with others alleged to be responsible for the death or personal injury. In any action commenced under this section, physical contact by the unidentified vehicle with the plaintiff or with a vehicle occupied by the plaintiff, is a condition precedent to such action." MCL 257.1112; MSA 9.2812.
The act applies to accidents occurring November 1, 1965 through January 1, 1976. MCL 257.1131; MSA 9.2831; MCL 257.1133; MSA 9.2833. Mamie Johnson died January 7, 1972.
The no-fault automobile liability act, effective October 1, 1973, provides that a person may obtain personal protection insurance benefits through an assigned claims plan if no personal protection insurance applicable to a motor-vehicle caused accidental bodily injury can be identified.
We granted leave to appeal to decide whether, in an action based upon that act, evidence of the unidentified driver's flight from the scene of an accident, in violation of the statutory duties to stop, give information and aid, and to make a report, should give rise to a presumption of the driver's negligence. The trial judge held that evidence of flight was not probative of the driver's negligence and directed a verdict for the defendant at the conclusion of plaintiff's proofs. The Court of Appeals affirmed.
Section 617 of the Michigan Vehicle Code requires the driver to stop and to fulfill the requirements of § 619:
"(a) The driver of any vehicle who knows or who has reason to believe that he has been involved in an accident upon either public or private property, when such property is open to travel by the public, resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident and shall remain thereat until he has fulfilled the requirements of section 619. Every such stop shall be made without obstructing traffic more than is necessary.
"(b) Any person failing to stop or to comply with said requirements under such circumstances shall upon conviction be punished by imprisonment in the county or municipal jail for not less than 30 days nor more than 1 year, or in the state prison for not less than 1 nor more than 5 years, or by fine of not less than $100.00 nor more than $5,000.00, or by both such fine and imprisonment." MCL 257.617; MSA 9.2317.
Section 617 was amended by 1975 PA 170 to, among other things, reduce the penalty to imprisonment for not more than 2 years, or a fine of not more than $2,000 or both.
Section 619 requires the driver to give his name, address and registration number and to render to any person injured reasonable assistance, including aid or transportation:
"The driver of any vehicle who knows or who has reason to believe that he has been involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address, and the registration number of the vehicle he is driving, also the name and address of the owner, and exhibit his operator's or chauffeur's license to the person struck or the driver or occupants of any vehicle collided with and shall render to any person injured in such accident reasonable assistance in securing medical aid or transportation of injured person or persons." MCL 257.619; MSA 9.2319.
Section 622 requires the driver to report the accident forthwith at a police station or to a police officer. The statute provides that the investigating officer shall prepare and complete a report in full on forms supplied by the Director of the State Police:
"The driver of every motor vehicle involved in an accident resulting in injury or death of any person or total damage to all property to an apparent extent of $200.00 or more shall forthwith report such accident to the nearest or most convenient police station or police officer. The officer receiving such report or his commanding officer shall forthwith forward each individual report to the director of state police on forms prescribed by him which shall be completed in full by the investigating officer. The director of state police shall analyze each report relative to the cause of the reported accident and shall prepare for public use the information compiled from the reports. A copy of the report required under sections 621 and 622 of this act shall be retained for at least 3 years at the local police or sheriff's department or local state police post making the report." MCL 257.622; MSA 9.2322.
One can agree with our colleagues that
i) flight from an accident scene, taken alone, does not prove negligence,
ii) violation of the statutory duties to stop, give information and aid, and to make a report, is not civilly actionable, absent proof of resultant aggravation of injury or death, and
iii) the mere happening of an accident is not evidence of negligence, and in an action against the Secretary of State, as in one against a hit-run driver if he is identified and can be sued, the plaintiff has the burden of proving negligence, without agreeing with their conclusion that the burden of producing evidence should be allocated
i) as if the unidentified driver had not violated those statutory duties,
ii) as if the violation of those duties had not resulted in a loss of evidence concerning the circumstances of the accident, a loss that plaintiff cannot overcome because the victim is unable to testify and no other witness provides evidence of the circumstances of the accident, and
iii) as if the state had not declared a public policy of compensating the victims of unidentified drivers and the defendant Secretary of State were not obliged to do so.
The burden of producing evidence is not invariably allocated to the pleader of the fact to be proved. That burden may be otherwise allocated by the Legislature or judicial decision based, among other factors, on an estimate of the probabilities, fairness and special policy considerations, and similar concerns may justify the creation, judicially or by law, of a presumption to aid the party who has the burden of production.
McCormick, Evidence (2d ed), §§ 338, 343; pp 788, 806.
The action of the driver in concealing his identity and in failing to provide information about the circumstances of the accident, in violation of his statutory duties, is akin to the deliberate destruction of or a failure to produce at trial evidence within a party's control. In such a case a presumption arises that the evidence, if produced, "would operate against him; and every intendment will be in favor of the opposite party". On the same principle, an inference should arise, where the evidentiary gap is not closed by other evidence of the circumstances of the accident, that if the driver had complied with his statutory duties the evidence that would have been produced "would operate against him". That inference, together with the inference of consciousness of wrongdoing which may be drawn from flight when there is a statutory duty to remain at the scene, should, in our opinion, give rise to a rebuttable presumption that the driver was at fault, and a prima facie case sufficient to avoid a directed verdict at the close of plaintiff's proofs.
Brandt v CF Smith Co, 242 Mich. 217, 222; 218 N.W. 803 (1928); similarly, see Fontana v Ford Motor Co, 278 Mich. 199, 203-204; 270 N.W. 266 (1936); Griggs v Saginaw FR Co, 196 Mich. 258, 265-266; 162 N.W. 960 (1917); Leeds v Masha, 328 Mich. 137, 140; 43 N.W.2d 92 (1950); Long v Earle, 277 Mich. 505, 516; 269 N.W. 577 (1936).
If the victim or other witnesses can provide information concerning the circumstances of the accident, the driver's failure to stop and give information may not then result in a loss of evidence preventing the plaintiff from producing evidence of those circumstances. The inference drawn from the evidence of flight can be weighed with the circumstances of the accident as one of the factors in deciding whether the driver was negligent. A fair allocation of the burden of production of evidence does not then call for an evidentiary presumption.
Such a presumption should, however, arise in the atypical case where, as here, the circumstances of the accident are unknown because the victim is unable to testify, there were no known witnesses to the accident, the driver is unidentified and unsuable and his failure to comply with his statutory obligations caused a loss of evidence which compliance would have provided.
The presumption is fair in that it arises where the driver's breach of statutory duties results in a loss of evidence that the plaintiff cannot otherwise provide. It is in accord with the probabilities as it is unlikely that a non-culpable driver would subject himself to a prison term on a hit-run charge. It serves the special policy considerations of compensating the victims of unidentified hit-run drivers implicit in the Motor Vehicle Accident Claims Act.
I
There was no evidence substantiating plaintiff's allegation that Mamie Johnson was killed while walking across a street, although there was evidence tending to show that she was killed as a result of being struck by a vehicle or of being involved in an automobile accident.
Mamie Johnson's body was apparently found by Hubert Ingram and transported to a hospital. An attempt was made to depose Ingram at a time when he was in the Wayne County Jail. He refused to cooperate and no effort was made to compel his testimony. No other witnesses came forward and no driver of an automobile that may have caused the injuries was identified.
An assistant Wayne County medical examiner described in detail the nature of the injuries — laceration of the head, contusions of the scalp, abrasions on both knees, abrasions on back, fractured ribs, both lungs torn, liver lacerated, bleeding in abdominal cavity. He concluded that her death was the result of an automobile accident: "[T]he injuries that I see in this case are such that are seen by me and my colleagues in the cases of car accidents * * *. [T]his injury that I see here is very characteristic to the automobile accident." He did not remember any case "like it" except an automobile accident.
He said that she had been drinking; blood alcohol was .11.
The trial judge said that the evidence was sufficient for the jury to find that Mamie Johnson was struck by an automobile but that evidence of flight was not alone sufficient to permit an inference that the fleeing driver was negligent. The Court of Appeals said that the medical examiner's opinion was an inference drawn without facts.
We all agree with the judge that there was evidence that Mamie Johnson's death resulted from an automobile accident. The Court of Appeals erred in concluding that the medical examiner's opinion was not factually supported. The medical examiner, a physician, had examined thousands of bodies over a ten-year period. He testified that he had made a careful examination of Mamie Johnson's body. What he learned in that examination and the sum of his experience from other examinations are facts. He was able to form an opinion, based on those facts, that Mamie Johnson's injuries were caused by an automobile accident. His opinion that her injuries were characteristic of an automobile accident was factually supported by what he observed and his experience regarding the meaning of those observations.
A more difficult question is whether it is reasonable to infer that Mamie Johnson's death was caused by the fleeing driver's negligence.
It was not shown whether Mamie Johnson's injuries were inflicted when she was struck by an automobile or while riding as a passenger in an automobile. In either circumstance, the driver of an automobile failed to provide statutorily required aid, assistance and information. If she were a passenger in an automobile, she must have been removed from the automobile and left to be found by others. If she was struck with sufficient force to cause serious injury or death, the jury could properly conclude that the driver knew that he had been involved in an injury accident. There was, in either event, "physical contact by the unidentified vehicle with" Mamie Johnson, and its driver was obliged to give his name, address and registration number and to render reasonable assistance in securing medical aid or transportation and to make a report to police authorities.
See fn 2, supra.
See fn 2, supra.
II
In Dodd v Secretary of State, 390 Mich. 606, 613; 213 N.W.2d 109 (1973), this Court held that a prima facie case against the Secretary of State under the Motor Vehicle Accident Claims Act was made on the plaintiff's testimony that he had looked both ways and had seen no traffic before crossing the street, and a witness's testimony that she saw no lights other than the tail lights on the hit-run car: "A jury could have found that the hit-run car was traveling without lights, in violation of our motor vehicle code, and by so doing was negligently operated."
Three justices, concurring in the result, would have held that the driver's failure to stop and identify himself was itself a circumstance from which some negligence on the part of the driver could be inferred.
"Even without the specific requirements of the foregoing statute [requiring a driver to stop and give information and aid], it would be safe to say that an ordinarily prudent person has an obligation to stop and render assistance to a fellow human being who has been injured in a collision with his motor vehicle. It would be most unenlightened for the law to countenance an advantage to the hit-and-run driver arising out of his violation of a statutory and common-law duty to stop. The failure to stop is inconsistent with an assumption that the hit-and-run driver was exercising due care at the time of the collision. Failure to stop creates an inference in the minds of reasonable people that the driver does not wish to be identified and that his wish to be unidentified stems from a fear of the consequences of being known. This line of reasoning comports with the ordinary experiences of people in their everyday lives." Dodd v Secretary of State, supra, pp 618-619 (BRENNAN, J.) (emphasis supplied).
The trial judge correctly observed that the separate opinion was not precedentially binding because a majority of the Court had not signed it. He said further that the view there stated was "not legally sound". This Court, he said, has wavered in criminal cases regarding the admissibility of evidence of flight, and the only case concerning the question whether evidence of flight alone was sufficient held that it was not.
See Negri v Slotkin, 397 Mich. 105; 244 N.W.2d 98 (1976).
He referred to People v Harter, 244 Mich. 346; 221 N.W. 302 (1928); and People v MacCullough, 281 Mich. 15; 274 N.W. 693 (1937).
There is no need to seek to reconcile decisions in criminal and civil cases or, indeed, to determine whether flight alone is probative of consciousness of wrongdoing.
We do not maintain that an inference of negligence may be drawn from flight alone. Since an automobile driver may not lawfully leave the scene of an automobile accident, flight does not stand alone. One who flees from the scene of an accident violates the statutory obligations to stop, give information and aid, and to make a report, and thereby subjects himself to the imposition of a severe prison term. It is reasonable, therefore, to draw inferences from the flight of a driver involved in an automobile accident that might not be appropriate in another case.
To be sure, it is possible that for personal reasons, innocent as far as the law is concerned, a driver may wish to avoid identifying himself. A person may flee for reasons other than culpability in the accident — because of fear, to avoid "becoming involved", or to avoid publicity and embarrassment in being at the scene. Nevertheless, because violation of the statutory duties may subject a fleeing driver to severe penalty and it is unlikely, weighing the probabilities, that there would be a reason unrelated to culpability in the accident that would outweigh the risk of that penalty, it is reasonable to draw the inference that he fled to avoid revealing such culpability.
Courts in other jurisdictions have said that flight permits an inference of negligence. In Jones v Strelecki, 49 N.J. 513, 519; 231 A.2d 558, 561 (1967), the New Jersey Supreme Court declared in an action to recover for injuries caused by a hit-run driver under a statute similar to the Michigan statute:
In the cited case, other facts and circumstances were shown, such as the location of the body, but these in and of themselves were not dispositive. We read the case as holding that the inference of fault was reasonable because of flight.
"The purpose of this section of the Motor Vehicle Act is to prevent a driver from evading his responsibility by escaping from the scene. [Citation omitted.] More specifically, in the context of this case, the failure to stop permits an inference of consciousness of lack of care and of liability for the occurrence. For example in Vuillemot v August J Claverie Co, 12 La App 236; 125 So. 168, 169-170 (1929), the court said:
"`Then, too, since the accident was caused by a truck and since no truck stopped, either the driver of the truck which caused it was not keeping a proper lookout, or he drove away in an effort to avoid being caught. If he had been keeping a proper lookout, surely he would have noticed that the truck struck the young lady with its front fender. If he was not keeping a proper lookout, he was negligent. If he did know that he struck the young lady and did not stop, then his action in attempting to escape was tantamount to an admission of guilt. We have therefore come to the conclusion that, although the evidence as to the facts of the accident is very meager, there is sufficient in the record to warrant the finding that the young lady was killed by a truck and that the driver of the truck was at fault.'"
Other courts have also recognized that an inference of negligence may be drawn from a driver's flight from the scene of an accident.
See Shaddy v Daley, 58 Idaho 536; 76 P.2d 279 (1938); Lynch v McGovern, 270 So.2d 770 (Fla App, 1973); Busbee v Quarrier, 172 So.2d 17 (Fla App, 1965); Kotler v Lalley, 112 Conn. 86; 151 A 433 (1930); State v Ford, 109 Conn. 490; 146 A 828 (1929); Battle v Kilcrease, 54 Ga. App. 808; 189 S.E. 573 (1936); Harrington v Sharff, 305 F.2d 333 (CA 2, 1962); Brooks v E J Willig Truck Transportation Co, 40 Cal.2d 669; 255 P.2d 802 (1953).
Our colleagues state that the cases from other jurisdictions are distinguishable because in those cases there was other evidence of the circumstances of the accident. The deficiency in this plaintiff's proofs which they identify may, however, properly be attributed to the driver's failure to comply with the statutory obligations to stop, give information and aid, and to make a report. If the driver had done so, it is likely that there would have been evidence of the "width, location, direction and surface of the roadway where the accident occurred, the weather conditions and the time of day of the accident, and the location and position of the injured person".
The rule is well established that where there is a deliberate destruction of or failure to produce evidence in one's control a presumption arises that if the evidence were produced it would operate against the party who deliberately destroyed or failed to produce it. In the ordinary civil case a party may be under no legal obligation to produce evidence and yet such a presumption arises. The policy reasons for creating such a presumption are more compelling where the evidence is withheld in violation of a statutory duty to produce it.
See fn 4, supra.
III
We are of the opinion that the inference of culpability flowing from the willingness of the driver to incur the severe penalties which attach to non-compliance with the statutory duties to stop, give information and aid, and to make a report, should be coupled with the adverse inference which arises from destruction or nonproduction of evidence to create a presumption of negligence that relieves the plaintiff of the burden of producing evidence of the circumstances of the accident in those cases where the loss of such evidence may properly be attributable to the driver's breach of his statutory duties and the plaintiff is not otherwise able to produce evidence of such circumstances.
The presumption is, of course, rebuttable; the inference of negligence is mandatory only in the absence of evidence tending to prove due care. If the defendant can produce evidence, for example, that the driver skidded on an oil slick, or the victim walked in front of the car, or the driver lost control due to a blowout, the inference ceases to be mandatory and the trier of fact can choose whether to infer negligence.
The law is replete with presumptions and inferences drawn from other facts. Human experience tells us that often a state of facts is likely to exist although it cannot be directly proven. A presumption eases the proponent's burden of production on the ultimate fact and allows a meritorious case to be established on proof of facts which justify an inference of the ultimate fact. If the trier of fact finds the fact which supports the presumption, the ultimate fact must be found in the absence of evidence to the contrary. If contrary evidence is offered, the trier is free from the compulsion of the presumption and weighs all the evidence, including the evidence of the basic fact. The trier is free to infer the existence of the ultimate fact, but the law does not require it.
In re Wood Estate, 374 Mich. 278, 290-292; 132 N.W.2d 35; 5 ALR3d 1 (1965); Kar v Hogan, 399 Mich. 529, 541; 251 N.W.2d 77 (1976).
Courts create presumptions for a variety of reasons: to avoid an impasse where evidence of the presumed fact is lacking, as where a person's unexplained absence of seven years creates a presumption of death; to produce a result in accordance with human experience, as where a child born in wedlock is presumed to be legitimate; to reach a result deemed to be socially desirable, as where long possession of real estate creates a presumption that the possessor holds under a lost grant. In such cases the law aids the party making use of the presumption in proving his case. He cannot produce evidence of the presumed fact, but evidence of other facts puts in issue the existence of the presumed fact and demands evidence of its non-existence.
Morgan, Basic Problems of Evidence (4th ed), pp 31-34; Tracy, Handbook of the Law of Evidence, pp 29-35; 1 Jones on Evidence (6th ed), § 3:1, p 125; 9 Wigmore on Evidence (3d ed), §§ 2487, 2491, 2494, pp 278-284, 288-292, 293-300.
Analogous is "the presumption of law" concerning the defendant's state of mind and, hence, culpability, that arises from "the act of killing" "that it was done with malice aforethought" which was said to obtain "where there was an entire absence of qualifying or explanatory evidence involved in, or deducible from, the manner of the killing", a presumption which permits the people to make a prima facie case without producing evidence regarding the defendant's state of mind.
People v Potter, 5 Mich. 1, 9 (1858). Similarly, see Perkins, Criminal Law (2d ed), p 50. But see LaFave Scott, Criminal Law, § 68, p 539, fn 36. Compare People v Haack, 396 Mich. 367, 377-378; 240 N.W.2d 704 (1976).
Providing a presumption of negligence in a case such as this is a fairer allocation of the burden of producing evidence than to impose the entire burden on the plaintiff and to relieve the Secretary of State, who stands in the shoes of the defaulting driver, of any burden whatsoever.
The plaintiff proved that the unidentified driver killed Mamie Johnson and in violation of the statute did not stop, give information and aid and make a report, but fled. But for such violation Mamie Johnson may have survived to testify and, even if she was killed instantly, the circumstances of the accident would have been timely investigated and developed and the evidentiary gap which our colleagues say distinguishes this case from Dodd and cases from other jurisdictions would have been eliminated.
Because the evidentiary gap is substantially attributable to the driver's failure to comply with his statutory duties and because, in light of the severe penalties for not doing so, he would probably have complied if he were not culpable, a presumption of negligence is both fair and in accord with the probabilities. There is greater risk that a meritorious case will fail due to insistence on the usual allocation of the burden of producing evidence than that a jury will bring in a favorable verdict in a non-meritorious case.
The Motor Vehicle Accident Claims Act is remedial. One of its purposes is to provide a remedy to the victim of an unidentified hit-run driver.
The unwitnessed fatal accident is a likely cause for claim under the statute. If the accident is witnessed or the victim survives, the driver is more likely to be identified. It would be incongruous if the very circumstance which makes this case appropriate for recovery from the accident claims fund should operate to preclude recovery.
The purposes of the statutes requiring a driver to stop and give information and aid and to make a report and of the statute providing a source of recovery for injuries caused by a hit-run driver support the inference of negligence derived from flight and non-compliance with such statutory obligations.
We reverse and remand for a new trial.
KAVANAGH, WILLIAMS, FITZGERALD, and BLAIR MOODY, JR., JJ., concurred with LEVIN, J.