Bricker v. Green

• Decision Date: 07 January 1946
• Docket Number: No. 1.,1.
• Citation: 313 Mich. 218,21 N.W.2d 105
• Parties: BRICKER v. GREEN.
• Court: Michigan Supreme Court

313 Mich. 218

21 N.W.2d 105

BRICKER

v.GREEN.

No. 1.

Supreme Court of Michigan.

Jan. 7, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, St. Clair County; Shirley Stewart, judge.

Death action by Raymond Bradshaw, administrator of the estate of Beatrice Bradshaw, deceased, against Alger Green, administrator of the estate of Loren Green, deceased. After the trial Ira Bricker, having been appointed administrator de bonis non of the estate of Beatrice Bradshaw, deceased, was substituted as party plaintiff. From an adverse judgment, the plaintiff appeals.

Judgment vacated and cause remanded with directions.

Before the Entire Bench.

Said M. Touma, of Port Huron (Eugene F. Black and Miles K. Benedict, both of Port Huron, of counsel), for appellant.

Walsh, Walsh, O'Sullivan & Schlee, of Port Huron, for appellee.

Dean W. Kelley and Russell A. Searl, both of Lansing, for Wolverine Ins. Co. and Citizens' Mut. Automobile Ins. Co., amici curiae.

Joseph W. Planck, of Lansing, Frank H. Boos and Rowe A. Balmer, both of Detroit, for State Bar of Michigan, amicus curiae.

BUSHNELL, Justice.

This action arose out of an automobile collision at the intersection of Sparling road and Goodells road west of the city of Port Huron. Sparling road east of the intersection is a black-top highway 20 feet wide, and west thereof is a gravel road 22 feet wide. Goodells road north of the intersection is also a black-top highway 20 feet in width, and south of the intersection is a gravel road 22 feet wide. These highways, neither of which was favored over the other, are comparatively level as each approaches the intersection, and traffic was controlled by signs marked ‘Slow’ and ‘Turn.’ On August 31, 1943, the day of the accident, the weather was clear and pavements were dry.

Raymond Bradshaw and his wife, Beatrice, who lived just west of the village of Goodells, which is about 12 to 14 miles from Port Huron, at about 5:00 o'clock, p. m., were returning from the Auto-Lite plant in Port Huron, where they were both employed. Bradshaw was driving and his wife occupied the front seat of the car with him; a Mrs. Auch was in the rear seat. Both Mrs. Bradshaw and Mrs. Auch were asleep at the time of the accident. Ordinarily, Bradshaw would have turned north at the intersection toward his home at Goodells. Mrs. Auch lived west of the intersection about one and a half miles, and Bradshaw was proceeding across the intersection for the purpose of taking Mrs. Auch to her home.

At the same time a car, driven by Loren Green, was approaching the intersection from the north. Green and his friend, Bernard Masters, both unmarried young men, had met at Goodells a short time before and both lived south-west of the intersection. Masters was the first to leave Goodells and, as he was approaching the intersection, Green drove around him at a high rate of speed and struck the center of the west-bound Bradshaw car, which was thrown sideways in a southerly direction about 85 feet. The Green car followed in the same direction about 75 feet. Mrs. Bradshaw and Mrs. Auch were instantly killed and Green died a few minutes thereafter.

Bradshaw testified that as he approached the intersection he made observations to the north and south without seeing any approaching traffic, and that when he looked back to the north he saw something coming that looked like a ‘black streak’ about 90 to 100 feet away. He does not know what happened thereafter. All that he remembers is that he had his left foot on the clutch and his right was touching the brake. He had been driving a car for a number of years and was well acquainted with the locality. For several days prior to the accident, because his own car was in need of repair, he had been driving a car belonging to a friend. This car had a defective fuel pump on which he had made some temporary adjustment which did not permit the car to operate at a speed in excess of 30 miles per hour.

According to the testimony of an eyewitness, Bernard Masters, the Green car passed him about 600 feet from the intersection at a speed of 40 to 50 miles per hour, but there is other testimony to indicate that on one occasion Masters stated that the Green car was traveling at a greater speed. Masters estimated that, after the impact, the Green car went 20 feet in the air and rolled end over end.

Prior to her death, Mrs. Bradshaw's earnings had been used to assist in the care of the family and for the payment of its expenses. The Bradshaw family consisted of 10 minor children, all of whom at the time were living at home and dependent upon their parents. Since the accident, one of them has married and another has joined the State troops. The youngest of the remaining children at the time of trial was two years old and the eldest seventeen years. Bradshaw is a veteran of World War I, and receives a pension. He was severely injured as a result of the accident. His average earnings were about $70 per week and his wife earned about $46 per week.

After his wife's death, Bradshaw was appointed administrator of her estate, and as such brought this action for damages under the death act. Act No. 38, Pub.Acts 1848 (3 Comp.Laws 1929, § 14061 et seq., Stat.Ann. § 27.711 et seq.), as last amended by Act No. 297, Pub.Acts 1939.

During the trial the ad damnum clause of the declaration was amended as follows: ‘Plaintiff Raymond Bradshaw, individually as distinguished from his representative capacity in this action, hereby waives and renounces all claim and right on his part as one of the statutory beneficiaries of the right of action herein alleged, to any part of the proceeds thereof, and brings this statutory action, in his aforesaid representative capacity, in behalf of the aforesaid minor children of said deceased who have suffered pecuniary loss by reason of such wrongful death. Plaintiff claims the right to judgment against the defendant, on the right of action herein alleged and for the benefit of the aforesaid minor children of said deceased, in the sum of $10,000.00.’

After the trial, Bradshaw having been discharged as administrator of his wife's estate and Ira Bricker having been appointed administrator de bonis non in his place, Bricker was, over defendant's objection, substituted as party plaintiff.

At the close of plaintiff's case a ruling on defendant's motion for a directed verdict was reserved. This motion was renewed at the close of the testimony and the trial judge, under the authority of Ehrke v. Danek, 288 Mich. 498, 285 N.W. 37, directed a verdict in favor of defendant.

On appeal, plaintiff's statement of questions involved is as follows:

‘1. Did the trial judge err in refusing to permit plaintiff to prove that the father of the dependent minor children, for whose benefit this action is prosecuted, became permanently disabled and incapacitated by reason of the same tort that caused the decedent's death?

‘2. Did the trial judge err in holding that asserted contributory negligence of the decedent's driver should be imputed in bar of this statutory right of action?

‘3. Did the trial judge err in refusing to consider and pass upon the need for overruling the Michigan doctrine of imputable negligence?

‘4. Did the trial judge err in holding that the decedent's driver was guilty of contributory negligence as a matter of law?

‘5. Did the trial judge err in holding that the case of Ehrke v. Danek is controlling of the issues presented by appellee's motion for directed verdict?’

Defendant accepts plaintiff's statement of questions numbers 4 and 5 as appropriate. He contends that question No. 1 is neither involved nor material to this appeal and that questions 2 and 3 are not open to review. He submits an additional question as follows: ‘No. 6. Where in an action brought for the wrongful death of a wife, survived by her husband and minor children, the surviving husband relinquishes all claim for damages arising out of her death, does not the action fail for want of a person suffering pecuniary loss?’

Without waiving other matters, the argument before this court on appeal was devoted largely to the question of imputed negligence. The writer of plaintiff's brief states the following therein: ‘Mr. Miles K. Benedict, Chairman of the Committee on Law Reform of St. Clair County Bar Association, has asked and obtained leave to join as counsel herein for the purpose of supporting the five year effort of his Committee and his Bar Association to bring about abolition of the imputable negligence rule. That part of this brief which is topically headed. ‘The Doctrine of Imputable Negligence Should Be Overruled,’ is partly his work.'

Amicus curiae briefs have been filed in this cause by Dearborn Bar Association, Down River Bar Association, Hamtramck Bar Association, National Lawyers Guild (Detroit Chapter), Wolverine Bar Association, Women's Lawyer's Association of Michigan, Wolverine Insurance Company and Citizens' Mutual Automobile Insurance Company.

The State Bar of Michigan has also filed an amicus curiae brief in which the historical development of the imputed negligence rule is fully discussed, each of the Michigan cases thereon analyzed, and there is appended to the brief citations of nine articles from the Michigan State Bar Journal on the subject.

Before we enter into a discussion of the imputed negligence rule and its place in the law of Michigan, we must first determine plaintiff's question No. 1 and defendant's question No. 6 as above quoted. For the purpose of considering this phase of the present appeal, we assume that Green was guilty of negligence as the trial judge held; and as we now are writing the law of the case, it is of no consequence whether Bradshaw was guilty of negligence. However, the facts aimed at in plaintiff's first question have a bearing upon whether, under the circumstances of the case, the minor children suffered a pecuniary loss in consequence of their mother's death. At least for that purpose such facts should go to the jury.

May Mrs....