Bujalski v. Metzler Motor Sales Co.

• Decision Date: 09 September 1958
• Docket Number: No. 41,41
• Citation: 92 N.W.2d 60,353 Mich. 493
• Parties: Anna BUJALSKI, Administratrix of the Estate of Raymond B. Bujalski, Deceased, Plaintiff and Appellant, v. METZLER MOTOR SALES COMPANY, a corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 60

92 N.W.2d 60

353 Mich. 493

Anna BUJALSKI, Administratrix of the Estate of Raymond B Bujalski, Deceased, Plaintiff and Appellant, v. METZLER MOTOR SALES COMPANY, a corporation, Defendant and Appellee.

No. 41.

Supreme Court of Michigan.

Sept. 9, 1958.

Oscar W. Baker, Bay City, for plaintiff and appellant.

Smith & Brooker, Bay City, for defendant and appellee.

Before the Entire Bench.

KAVANAGH, Justice.

Plaintiff brought this action in the circuit court under the death act (C.L.1948, § 691.581 et seq. [Stat.Ann. § 27.711 et seq.]) to recover for funeral and burial expenses and other pecuniary injuries resulting from such death.

Plaintiff's decedent was the 18-year-old son of plaintiff. He was single and lived on the family farm with plaintiff, his widowed mother, and another brother, Ronald, 20 years of age. Plaintiff's decedent had a regular job at the Bay City Bank earning $75 semimonthly. After coming home from the bank, it was usual for the deceased, from the beginning of the crop season until fall at least, to have his supper and then work in and about the farm from approximately 6 to 10 p. m.

The income from the farm was plaintiff's only means of income, and the work of the 2 sons, it is claimed by plaintiff, produced the income from the farm which supported her.

Deceased has been regularly contributing his services about the farm since the age 11 or 12. After he graduated from high school in June he stayed on the farm with his mother until October when the close of the planting and harvesting season was reached. Deceased then sought employment in the city. He worked at different positions until he obtained employment with the Bay City Bank. He continued to live at home with his mother, paid no room or board, and his mother took care of his washing. Deceased, without objection from plaintiff, retained all of his earnings, except he paid plaintiff $50 semimonthly to repay $1,200 loaned to him by his mother for the purpose of purchasing an automobile.

Plaintiff was the sole owner of an 80-acre farm, all tillable land, and completely equipped with farm machinery, including 2 tractors and all of the necessary tools for the proper cultivation of the farm. In addition she leased 40 acres of a neighbor's farm.

Plaintiff mother testified that at the time her son began working in the city she advised him that she did not need money, that he could keep his earnings, and that this situation was true up to the time of his death.

On June 3, 1955, plaintiff's decedent and a friend went to defendant's showroom to see the new Mercury automobiles. Defendant's salesman offered to demonstrate a new automobile to plaintiff's decedent and his friend. In attempting to show them how quickly the automobile could pick up speed from a standing start, he began with a sequeal of tires and accelerated the automobile until it reached speeds up to 100 miles per hour within a mile. The automobile failed to negotiate a sharp curve, smashed through a guardrail, overturning and instantly killing plaintiff's decedent.

Plaintiff was 57 years of age, weighed 138 pounds and testified at the time of trial in circuit court that she was in good health and had been in good health for a number of years.

It was plaintiff's contention that the income from the farm was her only means of income and that the 2 sons worked the farm to help support her. It was plaintiff's further contention that she needed these services and contributions toward her support and that she had no other means of support.

When plaintiff offered to prove her pecuniary injury and loss beyond age 21 of deceased, the trial judge refused to permit such evidence on the ground that it was contrary to Michigan law. Plaintiff, through her attorney, made a statement that she desired to offer proof of the pecuniary injury and loss byond the time decased would have been 21 years of age. However, no separate record of this proof was made, and no request for the opportunity to make such record was submitted. The issue of damages was limited to the minority of deceased when submitted to the jury. Plaintiff had verdict for $4,200 on this issue.

Under the court rule plaintiff filed motion for a partial new trial, limited to damages beyond the 21st year of deceased for the benefit of the dependent parent. The trial court filed a written opinion, and subsequently entered an order denying said partial new trial.

Appellant appeals to this Court, asking partial new trial, limited to damages for the dependent parent subsequent to the time the plaintiff's decedent would have been 21 years of age.

It is the contention of plaintiff that the trial court erred in refusing to permit testimony to be submitted to the jury which would involve presentation of damages for the death of a minor beyond age 21 years, where the following elements of proof appeared in the evidence:

'1. A dependent parent in need of support.

'2. A minor child with an establsihed earning capacity.

'3. Such minor child making customary contributions of services or moneys toward the support of such dependent parent at the time of death.'

Defendant contends that it is not the law in Michigan that recovery can be had under the circumstances mentioned, and that the evidence produced with reference to the situation at the time of plaintiff's decedent's death would not support such a contention, and the offer of proofs would not so support.

This Court is in no position to pass upon the admissibility of evidence which might have been offered. It is in no position to know what the evidence would actually have been since no separate record was made, since no request was made to make a separate record in the circuit court, and no explanation or justification for failing to do so is presently offered.

Under Court Rule 37, section 15, it was plaintiff's right and duty, if she cared to preserve questions for appeal, not only to offer the evidence, but also to make a separate record in regard to the material facts so that this Court might know whether the material was admissible, and whether the proofs would have been sufficient to justify the submitting of the question plaintiff desired to the jury. This court rule makes applicable to jury law cases the substance of the...