This is a claim arising out of an automobile accident. The claim of a different plaintiff, who was injured in the same accident, was before the court in Kieszkowski v. Odlewany,280 Mich. 388. We do not repeat the facts recited in that case. In the Kieszkowski Case the trial was conducted by the circuit judge without the aid of the jury, and the parties on appeal submitted an agreed statement of facts. In the case now before us there was a jury trial.
At the close of the proofs, the applicability of theKieszkowski Case was argued before the court in the absence of the jury. The court granted defendant's motion for directed verdict and informed the jury that the former decision left no room for question as to the facts or the law applicable to those facts. Plaintiff appeals from a judgment entered upon the directed verdict.
The factual background of the two cases is the same, but theKieszkowski Case cannot be considered res judicata of this plaintiff's rights because he was not a party thereto. It is, however, a controlling precedent as to the law inasmuch as the facts in the former case are similar to those in the instant case. We must take the testimony in its most favorable light to plaintiff and determine whether any evidence *Page 687 has been introduced which should be considered by a jury in the light of our decision in the earlier case.
There is testimony in the record now before us that after Bruno Jazinski, who was then driving the truck, turned off Conant street onto Norwalk street for the purpose of visiting a friend, he could have continued westerly on Norwalk to Gallagher and south on Gallagher to Holbrook, to defendant Odlewany's store. Jazinski testified, on cross-examination, that, when he got to Gallagher, he found automobiles "parked on the sides and trucks crossing over there," and that he "turned around and started back east on Norwalk, toward Conant." All this was after he had stopped at his friend's house. Some of this testimony was in the earlier case. Although Jazinski has added another reason for his return on Norwalk to Conant, there still remains in the case the deviation from the route for the personal purpose of visiting a friend on Norwalk. The most that can be said for the new testimony is that the trucks and traffic on Gallagher delayed the time when Jazinski could have been said to have abandoned his personal use of the truck. Whether or not it can be said that he could have abandoned his personal use by going down Gallagher is of little importance as he did not take advantage of this possibility. It cannot be established from any of the new testimony, taken in its most favorable light to plaintiff, that Jazinski was on Norwalk for any other purpose than that of visiting his friend. Such use of the truck, being beyond the "express or implied consent or knowledge" of Odlewany, does not impose liability upon him. 1 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446). This factual difference would not justify the affirmance of a judgment entered upon a jury's verdict contrary to the result stated in the Kieszkowski *Page 688 Case. See quotation in the former decision from Irwin v.Williamson Candy Co., 268 Mich. 100.
Appellant's brief quotes other portions of the testimony in support of his argument that he was entitled to go to a jury but these fall within the facts of the Kieszkowski decision. As to other quoted testimony, we repeat what was said in the former case:
"The deciding factor is not the degree of the deviation, but rather, whether the owner impliedly consented to the route taken. With this distinction in mind, it can be seen, that in a legal sense, there can be no such thing as slight deviation. Either there is, or there is not, a deviation."
No new facts were presented which would make the law of theKieszkowski Case inapplicable.
It is argued that plaintiff's claim under the second count of his declaration is controlled by Tanis v. Eding, 280 Mich. 440; that since neither Jazinski nor Wandor had a driver's license and Odlewany had knowledge that Jazinski was incompetent, reckless and careless, there is liability on the part of Odlewany. The defendant in the Tanis Case was not the owner of the car involved in that accident. Its rule is inapplicable here because such knowledge on the part of an owner is within the purview of the language of the statute. See 1 Comp. Laws 1929, § 4648 (Stat. Ann. § 9.1446).
Plaintiff also seeks a new trial because of the claimed improper admission and exclusion of certain testimony. Upon cross-examination of defendant, the court properly did not permit inquiry into the fact as to whether or not Wandor was a licensed driver. Wandor was not driving the truck or even present at the time of the accident. Nor was it improper for the court to bar certain hearsay testimony. Upon cross-examination of Jazinski, plaintiff's counsel questioned him concerning his former *Page 689 testimony. Plaintiff insists the court went too far and permitted defendant, on re-direct examination, to ask leading and suggestive questions. The court gave counsel on both sides wide latitude in their examination of this witness as to his former statements. Without determining whether or not this was error, the action of the court in this particular could not be held prejudicial to either party.
The judgment entered upon the directed verdict is affirmed, with costs to appellee.
BUTZEL, C.J., and WIEST, SHARPE, CHANDLER, and NORTH, JJ., concurred with BUSHNELL, J.