Carey v. Toles

• Citation: 151 N.W.2d 396,7 Mich.App. 195
• Decision Date: 27 June 1967
• Docket Number: No. 2,Docket No. 772,2
• Parties: James CAREY, by his next friend Edgar Carey, and Edgar Carey, Individually, Plaintiffs-Appellants, v. Edward TOLES, by his guardian and litem, Howard Murray, Defendant-Appellee
• Court: Court of Appeal of Michigan (US)

Page 396

151 N.W.2d 396

7 Mich.App. 195

James CAREY, by his next friend Edgar Carey, and Edgar

Carey, Individually, Plaintiffs-Appellants, v. Edward TOLES, by his guardian and litem, Howard Murray,

Defendant-Appellee.

Docket No. 772.

Court of Appeals of Michigan, Division No. 2.

June 27, 1967.

William R. Walsh, Jr., Walsh, O'Sullivan, Stommel & Sharp, Port Huron, for appellants.

E. F. Oppliger, Schlee, McIntosh, Simpson, Oppliger & Mugan, Port Huron, for appellee.

Before LESINSKI, C.J., and BURNS and QUINN, JJ.

LESINSKI, Chief Judge.

Plaintiffs appeal from a judgment entered on a jury verdict of no cause of action as to both plaintiffs, and from a subsequent order denying plaintiffs' motion for judgment notwithstanding verdict and for a new trial.

A summer baseball game and a winter snow storm join forces in an unexpected manner to create the legal issues presented here. On July 7, 1961, plaintiff James Carey and defendant Edward Toles, ages 15 and 13 respectively, engaged in an afternoon pick-up type of baseball game on a field behind the Garfield School in Port Huron, Michigan. It was explained during the course of the trial that in such a game, where each team does not have the full complement of players, certain special rules govern. They are worth our noting at the outset. These rules require that the batter hit only to center and one of the fields, because the teams are short players to cover all positions. A right-handed batter is thus limited to center and left field (and the reverse for a left-handed batter). If the batter hits the ball into the wrong field, it is an automatic 'out.'

With this rule in mind, we can resume our account of the happenings of the afternoon in question. Edward Toles, a right-handed better, was at bat. There were two 'outs.' He hit the ball into right field, and started to run; then he threw his bat which hit James Carey, who was on the sidelines between home plate and first base. The ensuing injuries were undisputed. They necessitated extensive surgery on James Carey's mouth, his jaw bone, and the replacement of 9 teeth, lost as a result of the injury, with a prosthesis. James Carey, by his next friend Edgar Carey, (who is James' father) and Edgar Carey individually, brought a negligence action against Edward Toles by his guardian Ad litem, Howard Murray, thereby seeking to recover damages for the ensuing expense and the injuries described.

The trial began on February 16, 1965, and continued on February 17th, 18th, 23rd and 24th. On the last-named date the closing arguments were completed. As the judge adjourned for the day he mentioned that it had begun to snow quite hard. As most Michigan residents will recall, that snow marked the advent of a storm of blizzard proportions, which, coupled with a death in a juror's family, caused a delay in the resumption of the proceedings until March 3, 1965. On that date the charge to the jury was given, pursuant to which it brought back the verdict of no cause of action. After the denial of plaintiffs' post-trial motions mentioned at the beginning of this opinion, plaintiff appealed.

On March 1, 1965, the Michigan Supreme Court decided Felgner v. Anderson (1965), 375 Mich. 23, 133 N.W.2d 136. This much-heralded case eliminated the defense of assumption of risk in Michigan except in certain defined areas not applicable here with the following language at p. 56, 133 N.W.2d at p. 153:

'Assumption of risk should not again be used in this State as a substitute for, or as a supplement to, or as a corollary of, contributory negligence; nor should it be used to explain a law violator's enlarged duty of due care resulting from his violation of law. The traditional concepts of contributory negligence are more than ample to present that affirmative defense to established negligent acts. See 2 Harper and James, The Law of Torts, § 21.1 et seq. (1956). Language other than that of assumption of risk easily can be found to describe the enlarged scope of the duty of due care imposed upon one who voluntarily violates statutory or common law standards of due care.'

On March 3, plaintiffs' counsel, in proceedings had in the absence of the jury, requested by motion that the court eliminate as inapplicable any instruction involving the doctrine of assumption of risk, based upon Felgner Case. This was not the first time that plaintiffs' attorney sought to remove this theory from the case. In proceedings in chambers prior to the selection of the jury, in argument in opposition to defendant's motion for a directed verdict at the close of plaintiffs' case, in recorded discussion with the court over the proposed jury instructions, plaintiffs' counsel had previously made diligent efforts to voice timely and forceful objection to the applicability of this doctrine to the facts of the instant case, prior to the Felgner decision. He also renewed his objection, prior to the charge, to a defense (and at this point an instruction,) on the theory of unavoidable accident. ¹ From the foregoing summary, it is apparent that plaintiff has preserved for our review the questions raised on appeal, which were again posed in the post-judgment motions which were denied.

The first issue as might be anticipated from the foregoing discussion, alleges reversible error in the instruction given by the court and its refusal to give the plaintiffs' requested instruction relative to 'assumption of risk,' or to paraphrase the wording chosen by plaintiffs, to otherwise cover this theory to 'bring the case within established Michigan law.'

In order to review the instruction here, we set it forth in the margin ² for perusal. We follow this with the court's opinion denying plaintiffs' motion subsequent to the entry of judgment ³ as it contains the court's rationale for denial of plaintiffs' motions which followed the verdict and judgment.

The jury verdict specified that it found no negligence on the part of the defendant. The defendant, in seeking affirmance of the actions below, here alleges that since the jury made this specification, plaintiffs' assignment of error is immaterial and beside the point. Defendant's theory rests on the premise that a finding of negligence was prerequisite to the necessity for any affirmative defenses. Plaintiffs counter by stating that the verdict, as repeated in the court's opinion set forth in footnote 3, amounted to a special verdict, and was therefore improper. Before reaching the prime issue, it is therefore necessary for us to deal with these two preliminary matters. First, was the verdict, as rendered, a special verdict? It is clear that no special verdict was requested or required by the court pursuant to GCR 1963, 514. The cases cited by plaintiffs deal with situations in which special verdicts were requested and furnish no precedential assistance for the plaintiffs' claim that the verdict was improper. It contained surplusage--we might assume out of an excess of zeal and caution on the part of the jury--and we would do a painstaking jury a disservice to term the verdict improper, rather than merely composed of some 7 words too many. ⁴

However, having determined that the words 'find Edward Toles not negligent and we' are, fairly considered, mere surplusage, we cannot then employ them as the basis for determining that the plaintiffs' assignment of error is immaterial and beside the point. We therefore ignore these words for consistency in reasoning. Defendant is correct that there is no need for affirmative defenses if there is no negligence shown. However, since we must ignore these words, we cannot, at this point, consider that plaintiffs' assignment of error in the failure to give the requested instructions is without merit. In addition, a reading of the transcript discloses that the defendant did not attempt, prior to the appellate level, to confine the theory of assumption of risk to an affirmative defense, but rather tried to establish throughout that the defendant's act, which was the proximate cause of the minor plaintiff's injuries, was not negligent but rather one of the normal risks assumed by one who plays baseball.

We now have reached the point where we can determine if the court here committed reversible error in refusing to comply with plaintiffs' requests regarding the assumption of risk doctrine in the instant case.

The problem of whether a decision which overrules prior law should be applied prospectively or retrospectively has long plagued appellate courts. Once it has been determined that the 'new' rule of law shall be prospectively applied, an additional question of assigning an effective date for the new rule is often required and has been dealt with in a variety of ways. See Johnson v. State of New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Felgner v. Anderson, supra, is a case wherein the language chosen by the Court (375 Mich. p. 56, 133 N.W.2d 136) has made it abundantly clear that prospective effect is to be given its holding, without stating the exact time for the effectiveness, and the cases which followed have not compelled an exact determination of that date. ⁵ The fortuitous events of a snow storm dividing the date of the conclusion of a case from a jury charge and submission of the case thereto, with an intervening decision which changes the law, are not common occurrences. These circumstances would seem to compel us to set this date were it not for one other circumstance.

The plaintiffs' attorney in his initial efforts to get the assumption of risk theory removed from the case, cited Schnepf v. Andrews (1952), 333 Mich. 509, 53 N.W.2d 355, wherein the plaintiff received judgment on a jury verdict for injuries which she claimed resulted from the negligent acts of the defendant dance instructor who was giving her a 'jitterbug' lesson: Subsequently the court below gave the defendants a judgment N.o.v. The Supreme Court reversed on the theory that the plaintiff did not...