Bliss v. Kaplan

• Decision Date: 07 February 1963
• Docket Number: No. 89,89
• Citation: 119 N.W.2d 533,369 Mich. 293
• Parties: Truman, BLISS, Plaintiff and Appellant, v. Phillip KAPLAN, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 533

119 N.W.2d 533

369 Mich. 293

Truman, BLISS, Plaintiff and Appellant, v. Phillip KAPLAN, Defendant and Appellee.

No. 89.

Supreme Court of Michigan.

Feb. 7, 1963.

Seymour I. Rosenberg, Muskegon, van Benschoten & van Benschoten, Saginaw, of counsel, for plaintiff-appellant.

Otto & Otto, Saginaw, for defendant-appellee.

Before the Entire Bench.

KELLY, Justice.

Plaintiff's action to recover damages for injuries suffered in a motor vehicle collision resulted in a jury verdict of no cause of action. Plaintiff appeals, claiming the court erred in submitting the defense of contributory negligence; in failing to restrict the testimony of State police officers who investigated the accident; by instructing in regard to the assured clear distance rule, and by rulings that unduly restricted and prejudiced plaintiff's case.

December 4, 1957, at approximately 8:00 p. m., plaintiff was driving his automobile in a westerly direction on M-57 (a 2-line, 28-foot wide road) in Saginaw county. Defendant was driving his truck in the opposite direction, and the 2 vehicles collided on or near a bridge that was 26 feet long and 18 feet wide.

Two signs, on either approach to the bridge, indicated 'One Lane Traffic' and reflectorized paint made both the signs and the bridge as discernible at night as in the daytime.

Plaintiff admitted he did not see or know the bridge was there until he was 'awfully close' but contended that the collision occurred because defendant's truck was not properly lighted and the unlighted portion of the truck extended over the center line, thus invading plaintiff's half of the road or bridge.

Defendant answers plaintiff's claim by stating that his truck was properly lighted; that he entered upon the bridge before plaintiff and the collision occurred as he was leaving the bridge; that the collision could not have occurred as claimed by plaintiff because there was no evidence of contact with the side of his truck, the only damage being to the left rear dual wheels.

Plaintiff claims the court erred in allowing defendant to amend the pleadings after both sides had rested, thereby creating a new claim of contributory negligence.

Under the heading of 'Affirmative Defense' in defendant's answer, defendant claimed the accident happened because the plaintiff 1) approached the bridge 'at an excessive rate of speed'; 2) and 'failed to observe signs * * * that the bridge was a '1-way bridge"; 3) 'and failed to observe' that defendant's truck was 'being driven on said highway and bridge'; 4) 'and failed to observe that said * * * truck * * * entered said bridge and was about to leave said bridge when plaintiff discovered the same and apparently became excited and confused and lost control of his car'; 5) 'drove off the north side of the highway'; 6) 'and struck a highway post located on the north side of said highway'; 7) 'which accident caused him to drive his automobile across the highway into the side of the truck.'

Defendant in his answer to plaintiff's declaration stated, in part:

'Said bridge is what is commonly known as a '1-way bridge' and was posted as such, and that defendant first entered said bridge and was about to leave the east end of said bridge when plaintiff, approaching from the opposite direction and driving at an excessive rate of speed and after failing to observe the posted signs on said highway, lost control of his automobile, struck a post located on the north side of said highway, and then crossed the road and ran into defendant's truck, and that it was plaintiff's negligence and contributory negligence that were the proximate cause of said accident.'

At the close of proofs defendant moved to amend the pre-trial order, stating: 'We have set it out that the plaintiff failed to observe the stop signs, and then we keep using the work,--failed to observe the truck, failed to observe the truck on the bridge, and became confused. We use the word 'and,' Your Honor, where I would like to amend it at this time to make it the word 'or,' instead of the word 'and.' The way we set it out in the affirmative defense, the way it now reads possibly indicates that it was all one series, and I want those separate acts. And I also move that * * * where we said that he * * * struck a highway post, and the proofs now show that he struck the * * * bridge, I would like to amend from 'struck a highway post' to 'struck the northeast end of the bridge.' I would like it amended in that way.'

Plaintiff's attorney referred to the amendment in his opening argument as follows:

'This afternoon that amendment was made, amending the pretrial statement so that contributory negligence could be alleged as a defense. Now, Mr. Otto (defendant's attorney) has a perfect right, he has the right to make that amendment, and the court has so ruled, but I submit, how sincere is that defense?'

The statute (C.L.1948, § 616.1 [Stat.Ann. § 27.838]) gave the trial court the right to grant defendant's motion to amend, and we find no abuse of discretion in this case.

The record does not sustain plaintiff's claim that the proofs were insufficient to justify submission to the jury of the question of plaintiff's contributory negligence and the pleadings and the evidence justify the instruction that was given.

Two State police officers made an investigation shortly after the accident. The 2 officers took notes at the scene and later that evening jointly reduced their notes to a typewritten statement and then rechecked that statement before destroying their notes. From the record it appears that this statement was carefully prepared within a few hours after the investigation and the record does not disclose any effort by court or counsel to discredit the ability or integrity of the officers.

Appellant's complaint is directed toward the fact that questions such as: 'Can you tell us where you found the Buick automobile?' were answered, 'From recollection, no. Referring to the report, it indicates that the Buick was on the bridge, facing south and west, southwest. The front of the car was facing southwest.'

From the record we conclude there was confusion at the trial on the part of both court and counsel in regard to the propriety of using the accident report, as evidenced by counsel's objection and the court's statement that 'The statute says we can't use the report.'

P.A.1949, No. 300, § 624, ¹ declares that the statutory report intended for the furnishing of statistical information is not available for use in any court, but we made clear that this would not apply to cases such as the present case in our decision in Carlson v. Brunette, 339 Mich. 188, pp. 193, 194, 63 N.W.2d 428, p. 431, when we said:

"The statutory bar to use in any court action of reports required in the motor vehicle code to be made with reference to cars involved in accidents applies to reports made by drivers of vehicles involved and garage keepers under certain circumstances and has no application to notes or to reports made by investigating police officers of physical facts they have observed and admissions made to them by drivers of motor vehicles at the scene of the accident for use either as evidence or refreshing a witness's recollection."

Appellant calls attention to Derrick v. Blazers, 355 Mich. 176, p. 180, 93 N.W.2d 909, p. 911, 69 A.L.R.2d 1143, and quotes the following therefrom:

'Accident reports made by police officers are...