Bias v. Ausbury, s. 3-5

• Decision Date: 07 March 1963
• Docket Number: Nos. 3-5,s. 3-5
• Citation: 120 N.W.2d 233,369 Mich. 378
• Parties: Zernie BIAS, Plaintiff and Appellee, v. Harold G. AUSBURY and Dorothy C. Ausbury, Defendants and Appellants. D. Dean LUCE, Administrator of the Estate of Gregory Bias, Deceased, Plaintiff and Appellee, v. Harold G. AUSBURY and Dorothy C. Ausbury, Defendants and Appellants. D. Dean LUCE, Administrator of the Estate of Elsie Bias, Deceased, Plaintiff and Appellee, v. Harold G. AUSBURY and Dorothy C. Ausbury, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 233

120 N.W.2d 233

369 Mich. 378

Zernie BIAS, Plaintiff and Appellee, v. Harold G. AUSBURY and Dorothy C. Ausbury, Defendants and Appellants.

D. Dean LUCE, Administrator of the Estate of Gregory Bias, Deceased, Plaintiff and Appellee, v. Harold G. AUSBURY and Dorothy C. Ausbury, Defendants and Appellants.

D. Dean LUCE, Administrator of the Estate of Elsie Bias, Deceased, Plaintiff and Appellee, v. Harold G. AUSBURY and Dorothy C. Ausbury, Defendants and Appellants.

Nos. 3-5.

Supreme Court of Michigan.

March 7, 1963.

Harold Helper, Detroit, Touma, Watson & Andresen, Port Huron, for appellants.

Peter E. Bradt, Port Huron, for appellees.

Before the Entire Bench, except BLACK, J.

O'HARA, Justice.

This basic legal issue here involved relates to the jury verdicts in 4 negligence cases consolidated for trial. The facts necessary to an understanding of that issue are as follows: Zernie Bias was the owner and operator of an automobile in which his wife Elsie, his daughters Connie and Judy (Bias) Hicks, and his sons Johnny and Gregory, were passengers. Mr. and Mrs. Bias, and the infant son, Gregory. occupied the front seat; daughters Judy and Connie and the other son, Johnny, the rear. Plaintiff Zernie stopped for a traffic light, red against him, at the intersection of highways Ohio 303 and US 21 in West Richfield Township, Ohio. Between the Bias car and the stop light was another auto and a pickup truck, not otherwise identified in the record.

Traveling in the same direction, north on US 21, and immediately back of the Bias car was an automobile owned and occupied by Harold and Dorothy Ausbury, husband and wife, defendants below and appellants here. Defendant Harold was driving. There is testimony that the stop light is just beyond a 'rise,' a 'hill' or a 'grade.' Whatever the topography, defendant, Mr. Ausbury, was unable to, or at least did not, stop. Under his testimony, he locked his brakes, turned to the right and slid into the right rear corner of the Bias car. Admittedly, the impact caused property damage, and occasioned, according to plaintiff's allegations, personal injury to wife Elsie, and son Gregory. Mr. Bias' car was covered by collision insurance with the usual deductible feature.

Four actions were started in consequence of the foregoing event. The first was a suit by the father in his own right seeking damages for the permanent deprivation of the normal companionship of his son Gregory; damages for an alleged requirement to support Gregory beyond the age of 21; for the necessity of furnishing the son medical and hospital expenses for life, and for his care and support for life. All these allegedly were proximately occasioned by permanent injury to the son. There are other damages claimed which are beyond the purview of the father's right to recover, if any, and no claim is made in the declaration as filed for medical and hospital expense for the wife, nor for loss of her companionship. A second suit by the wife and mother, Elsie, sought damages for her own injury, for the deprivation of the son's 'normal' companionship, and for the mother's necessity of supervising, feeding and caring for the son for life, again presumably by reason of the son's arrested development. The third suit was instituted on behalf of the minor son by his next friend. The child was a victim of unrelated cerebral palsy and had not developed normally. The damages claimed were for pain, suffering, medical attention, and in a general way for the loss of future earnings due to the claimed accentuation of the arrested development. A fourth suit for subrogated property damage by the Emmco Insurance Company was not appealed and is mentioned here in order to explain the item of damage in the jury verdict. Before submission of the cases to the jury, the question of plaintiff Zernie Bias' contributory negligence was eliminated by stipulation.

The issues submitted to the jury related to the defendants' negligence, proximate cause, and damage. No error is claimed in the trial court's charge under the lex loci--Ohio. The jury returned the following verdict:

'Foreman: The jury agreed that Reverend Ausbury was negligent in the operation of his car. In the case of Gregory, no cause for action. In the case of Mrs. Bias, no cause for action. Mr. Bias is awarded ten thousand dollars; the insurance company, $265.84.'

Defendants promptly moved for judgment notwithstanding the verdict, raising in the court below the issue of the derivative nature of plaintiff Zernie Bias' alleged cause of action. The trial court denied...