This action was brought by the plaintiff as administratrix of the estate of Emma LaFave, deceased, to recover damages resulting to the estate which it is claimed were caused by the negligence of Curtis Micheau, the driver of a truck belonging to the Gannon Grocery Company.
At the time of the accident, the decedent with her husband and others was riding in an automobile driven by one Theodore Nault. They were going from Ishpeming, Michigan, to Iron Mountain. Their way led across the Michigamme river, which is there spanned by a bridge 16 feet wide and 90 feet long. They approached the bridge from the north, and as they were within 100 feet of it they saw the defendant's truck coming from the south and about to enter on the bridge. Believing that there was not sufficient room for the two vehicles to pass, the driver of the automobile says that, when he came to within 10 or 15 feet of the bridge, he drove off the right side of the road and came to a full stop to await the passing of the truck. It is claimed that the truck came forward at an excessive and unreasonable rate of speed, and, instead of making a curve which is at the end of the bridge, drove straight off into the automobile. The time was about 10: 30 o'clock in the morning of November 8, 1926. The plaintiff's decedent sustained injuries from which she died in the following January.
The negligence alleged is that the truck was being driven at an unreasonable and unlawful speed, that the driver did not have it under control, that he saw *Page 547 or should have seen the automobile, and that he did not use such care to avoid the accident as a driver of ordinary prudence would have used under the circumstances. The declaration also charges wilful, wanton, and reckless conduct on the part of the driver of the truck.
The defendants deny all allegations of negligence, and claim that the accident was solely due to the negligence of the driver of the automobile in stopping it on the wrong side of the road.
The plaintiff recovered a verdict for $8,000. The court denied a motion for a new trial, on condition that the plaintiff should remit $3,000 from the verdict. A remittitur was filed, and judgment entered for the plaintiff in the sum of $5,000. The defendants have brought error.
The assignments of error relate to the charge of the court, to the exclusion of testimony, and the denial of a motion for a new trial.
It is first contended that the court erred in submitting the question of subsequent negligence to the jury because its submission was not warranted by the pleadings.
In the declaration there is no reference by name to subsequent negligence. Counsel who drafted it, incorrectly used the words "wilful, wanton, and reckless conduct." But, as pointed out by Mr. Justice CLARK in Gibbard v. Cursan,225 Mich. 311, courts and text-writers frequently are guilty of the same error. The courts in this State have classed such conduct as negligence. So there is no doubt as to the meaning and effect of the declaration in alleging that the conduct complained of was:
"In wilfully, wantonly, and recklessly failing to stop said truck and avoid injuring said Emma LaFave after said Micheau discovered or after said *Page 548 Micheau should have discovered the position of his automobile."
This was a sufficient allegation of subsequent negligence to admit evidence thereof and to justify the court in submitting the question to the jury. In their brief, counsel for the defendants for the first time raised the question of concurring negligence. It was not referred to in the charge of the court. Throughout the trial there was no suggestion that concurring negligence was an issue in the case. It was not presented in any request to charge, was not referred to in the motion for a new trial, and is not covered by any assignment of error. It is not here for our consideration.
Error is alleged on the refusal of the court to permit the witness Curtis Micheau, the driver of the car, to testify as to the transaction on the ground that it involved matters which if true were equally within the knowledge of the deceased.
It is contended by the defendants that the statute, 3 Comp. Laws 1915, § 12553, relative to the exclusion of matters which if true must be equally within the knowledge of the deceased, does not apply to the testimony of Mr. Micheau, because the subject-matter of his proposed testimony was "apparently open and notorious to other witnesses."
The prohibition of the statute is not so limited. In Perkins, Evidence by Survivor, § 34, it is said:
"Nor will the bar of the statute as to the competency of the opposite party be removed by the fact that third persons were present. He still remains disqualified."
Was objection to his testimony waived? Mr. Micheau was a defendant in the case. He was not an heir, assign, devisee, or legatee, and therefore *Page 549 was not a protected party. The Statute prohibited his testimony, and it was properly excluded unless objection to its competency was waived by allowing the plaintiff to call the husband of the deceased, Alfred LaFave, who was financially interested in the estate, and who testified fully in regard to the accident. There can be no waiver except by the testimony of one incompetent to testify to matters equally known to the deceased. The husband was a protected party under the statute. In a case such as this where the opposite party is a stranger to the estate and therefore is not a protected party, the husband of the deceased, though an interested witness, is not prohibited from testifying to the transaction. As there can be no waiver by admitting the testimony of a witness competent to testify, there was no waiver in this case, and the court did not err in excluding the testimony of Mr. Micheau.
This question is very clearly discussed by Judge Perkins in his work on Evidence by Survivor. In section 80, the author says:
"It is thus seen that the purpose of the statute is to protect heirs, assigns, devisees, and legatees, as well as personal representatives of a deceased person, and that this purpose has, in large measure, been met and accomplished by the decisions of the court. It is also apparent that the estate itself has no greater right to call in its behalf an interested witness as against the heirs, assigns, devisees, and legatees, than have the heirs, assigns, devisees, and legatees the right to call such witness whenever they or any of them, are in opposition to the estate.
"The rule, however, is otherwise when the oppo site party is a person not so protected by the statute as, a claimant, or other third party in interest. In such case there is no limitation of the right of either the representative or the other protected parties to *Page 550 testify in their own or in the estate's behalf, or to call other interested witnesses for that purpose. This distinction is important. The language of the amendment itself emphasizes it: 'When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party' shall not be permitted to testify. Therefore, whenever any of the protected parties are on one side of the controversy and a person not so protected is on the other, the latter is the 'opposite party' and excluded as a witness; but under such circumstances the statute does not prohibit the representative or the other persons protected from either testifying or calling interested witnesses to testify in their behalf. They are not opposite parties. Besides, the amendment is for their protection." Also, see section 88.
We find no reversible error in the record. The judgment of the lower court should be affirmed, with costs to the plaintiff.
FELLOWS and SHARPE, JJ., concurred with McDONALD, J.