Basmajian v. City of Detroit, 1.

• Citation: 256 Mich. 539,240 N.W. 87
• Decision Date: 04 January 1932
• Docket Number: No. 1.,1.
• Parties: BASMAJIAN v. CITY OF DETROIT (three cases).
• Court: Supreme Court of Michigan

256 Mich. 539

240 N.W. 87

BASMAJIAN

v.CITY OF DETROIT (three cases).

No. 1.

Supreme Court of Michigan.

Jan. 4, 1932.

Appeal from Circuit Court, Wayne County; Alfred J. Murphy, Judge.

Separate actions by Richard Basmajian, administrator of the estate of Beatrice Basmajian, deceased, by Rose Basmajian, and by Richard Basmajian, against the City of Detroit, which actions were consolidated. Judgment for defendant, and plaintiffs appeal.

Affirmed.

Argued before the Entire Bench.

Ernest N. Pappas, of Detroit, for appellants.

Raymond J. Kelly and Albert Bonczak, both of Detroit, for appellee.

CLARK, C. J.

Beatrice Basmajian, a child of four years, propelled her little wagon into the street, and was run over and killed by a street car of defendant. Suit was instituted by administrator to recover under the Death Act (Comp. Laws 1929, §§ 14061, 14062). Her mother, who rushed into the street to save or aid the child, also averring injuries by the street car, brought suit. The husband and father also sued to recover burial expenses of the child, and cost of medical treatment, loss of services, etc., of the wife.

The three suits were consolidated, and tried together, and are likewise presented for review.

In a trial without a jury, findings of fact and law were made and judgment for defendant entered thereon. Plaintiffs have appealed.

A preliminary question is refusal of jury trial.

Suits were commenced May 3, 1926. Plea followed promptly. On December 5, 1929, demand for trial by jury was filed, and later was refused.

We quote article 2, § 13, State Constitution: ‘The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law.’

And former Circuit Court Rule 39: ‘A party desirous of a trial by jury shall make his demand for a jury in writing and file such demand with the clerk within ten days after the issue is joined in the cause, otherwise he shall be deemed to have waived his right to a jury. But the court may in its discretion transfer any case to the jury calendar, although the demand for a jury was not filed as herein provided.’

The circuit court rule had not been enforced in the county for considerable time, and recognizing that the court, having determined to enforce it, ought not to change attitude suddenly to the inconvenience of parties and counsel, the Wayne circuit court caused to be published in the Detroit Legal News, daily from October 14, 1929, to November 30, 1929, the following:

‘On and after December 1st, 1929, the circuit court rule requiring filing of notice for demand for jury trial will be strictly enforced. Until that time notices of demand for jury trial in pending cases will be received.

‘Dated October 14, 1929.’

‘Ira W. Jayne, Executive Judge (69).’

It will be observed that here the demand for trial by jury was filed after December 1, 1929.

We think correction of delinquency under rule 39 was made reasonably. No other different or better method has been suggested, nor is it claimed the notice was not sufficient. Attempt is made to show that it escaped attention of plaintiffs' then counsel, but it did not impress the trial court, and avails nothing here. Permitting jury trial was within the discretion of the court, and we find no abuse of that discretion in refusing it until the circumstances.

The trial judge found defendant guilty of no actionably negligence. We reach the same conclusion, and adopt a part of his opinion in the suit by the administrator:

‘The eyewitnesses to the unfortunate killing of the child Beatrice are but three in number, the mother, who is the plaintiff in the case under immediate consideration, and the surviving motorman, and the conductor of the street car. Other witnesses in behalf of each of the parties relate circumstances immediately following the happening of the accident.

‘I am convinced that the child, Beatrice, while propelling her little wagon from the sidewalk, with one foot in the wagon and one upon the sidewalk, precipitated it in front of a parked automobile on the north side of Baker street out into the highway. It should be remembered that the distance between the northerly rail and the curbstone is only 10 feet 7 inches. Thus, having passed the parked automobile, which it is fair to assume occupied approximately a space upon the highway 5 feet in width, the child entered into the free space of the highway, which could have been but little more than 6...