Dauer's Estate v. Zabel

• Decision Date: 07 December 1967
• Docket Number: Docket No. 1931,No. 3,3
• Citation: 156 N.W.2d 34,9 Mich.App. 176
• Parties: The ESTATE of David Anthony DAUER, Deceased, by Eva F. Dauer, Administratrix, Plaintiff-Appellee, v. Carl J. ZABEL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 34

156 N.W.2d 34

9 Mich.App. 176

The ESTATE of David Anthony DAUER, Deceased, by Eva F.

Dauer, Administratrix, Plaintiff-Appellee, v. Carl J. ZABEL, Defendant-Appellant.

Docket No. 1931.

Court of Appeals of Michigan, Division No. 3.

Dec. 7, 1967.

Released for Publication Feb. 19, 1968.

As Amended Aug. 19, 1968.

A. Thomas Lippert, Jr., Smith, Brooker, Harvey & Cook, Saginaw, for defendant-appellant.

Eugene D. Mossner, Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw, for plaintiff-appellee.

Before HOLBROOK, P.J., and BURNS and WISE, ^* JJ.

HOLBROOK, Presiding Judge.

On November 7, 1962, plaintiff filed suit against defendant in the circuit court in Saginaw county, under the provisions of the wrongful death act, C.L.1948, §§ 691.581, 691.582 (Stat.Ann.1959 Cum.Supp. §§ 27.711, 27.712) ¹ seeking recovery on behalf of the estate of David Anthony Dauer. This action sought damages for the death of deceased, aged 5 years, as a result of a motor vehicle accident, May 2, 1962. Trial was had before the court without a jury November 27, 1964. After the plaintiff had completed the presentation on her proofs, defendant made a motion for involuntary dismissal under GCR 1963, 504.2 which the court denied. Defendant then offered an exhibit which was withdrawn when objection was made by plaintiff. Defendant did not present any proofs. Defendant then renewed his motion for involuntary dismissal and for a directed verdict. The court requested briefs which were furnished, and on February 24, 1966, rendered a written opinion granting judgment to plaintiff and against defendant for the sum of $15,721.40 plus interest from date of death of deceased. On February 25, 1966, final judgment was entered.

From this judgment, defendant has appealed raising several questions for review which are hereinafter considered.

1. Did the trial court properly strike defendant's demand for a jury trial when a jury demand was not filed within the time limit specified in GCR 1963, 508?

The defendant's answer was filed on May 24, 1963. Defendant, more than 4 months later, October 10, 1963, filed demand for jury trial and paid the statutory fee.

Const.1908, art. 2, § 13, provided for jury trials in civil actions as follows:

'The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases unless demanded by one of the parties in such manner as shall be prescribed by law.'

The pertinent portions of GCR 1963, 508.2(1) and 508.4 provide as follows:

'Actions Commenced in Circuit Courts. Any party may demand a trial by jury of any issue so triable of right by filing a demand therefor in writing at any time after the commencement of the action and not later than 30 days after the filing of the answer or a reply filed within the time prescribed. Such demand may be indorsed on a pleading of a party if notice of the demand is included in the entitlement of the pleading. * * *

'Waiver; Withdrawal. The failure of a party to file a demand as required by this rule or to deposit the jury fee by the close of the pretrial conference constitutes waiver by him of trial by jury. A waiver of trial by jury is not revoked by an amendment of a pleading asserting only a claim or defense arising out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. A demand for trial by jury as herein provided may not be withdrawn without the consent, expressed in writing or in court, of the parties or their attorneys.'

The defendant having failed to comply with the court rule, the trial court by order filed June 8, 1964, granted plaintiff's motion to strike defendant's demand for jury trial. Defendant thereupon filed an application for leave to appeal from said order in the Supreme Court. On September 3, 1964, the Supreme Court denied the application for leave to appeal stating 'as the circuit court did not abuse its discretion in entering the order from which appeal is sought.'

Defendant maintains that the Constitution mandates by the use of the words 'prescribed by law' A legislative act providing the time and manner of demanding a trial by jury.

The only applicable statute, C.L.S. 1961, § 600.2537 (Stat.Ann.1962 Rev. § 27A.2537) provides:

'In every case where a trial by jury is demanded, the party making the demand shall, at the time of filing the demand, pay to the clerk of the court the sum of $3.00. Failure to pay the fee within the time provided in the court rules constitutes a waiver of the right to a jury trial.'

Defendant maintains that he complied with the aforementioned statute and the court rule is not operative and therefore he was wrongfully denied his right to a jury trial.

The 1908 Constitution provided in article 7, § 5 as follows:

'The supreme court shall by general rules establish, modify, and amend The practice in such court and in all other courts of record, and simplify the same.' (Emphasis supplied)

The legislature has specifically given rulemaking power to the Supreme Court in the Revised Judicature Act C.L.S.1961, § 600.223 (Stat.Ann. 1962 Rev. § 27 A.223) as follows:

'The supreme court has authority to promulgate and amend general rules governing practices and procedure in the supreme court and all other courts of record, including but not limited to authority:'

The manner and time for demanding a trial by jury is procedural within the meaning of the Constitution and RJA, and the adoption of GCR 1963, 508 was a proper exercise of the rulemaking power of the Supreme Court.

One question remains--Does GCR 1963, 508 qualify as a law within the meaning of the term 'prescribed by law' under Const.1908, art. 2, § 13?

In 52 C.J.S. Law, p. 1025, 'law' is defined as follows:

'The law of a state is to be found in its statutory and constitutional enactments as interpreted by its courts and, in the absence of statute law, in the rulings of its courts.'

In 20 Am.Jur.2d, Courts, § 85, p. 447, the authors stated:

'Rules of court properly promulgated, and not exceeding the limitation of the court's rulemaking power, have the force of law, and are tantamount in this respect to rules incorporated in statutes.'

We conclude that the only effective statute failed to provide the manner and time for demanding trial by jury and therefore GCR 1963, 508 constitutes the law governing the same and satisfies the constitional requirements.

2. Did the trial court make proper findings of fact in accordance with the requirements of GCR 1963, 517.1?

The provision of the court rule provides:

'In all actions tried upon the facts without a jury or with an advisory jury the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the approximate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts. If an opinion or memorandum decision is filed, it will be sufficient if the findings and conclusions appear therein. The clerk shall notify the attorneys for both parties of the findings of the court. Findings of fact and conclusions of law are unnecessary on decisions of motions except as provided in subrule 504.2. The findings of a circuit court commissioner, to the extent that the court adopts them, shall be considered as findings of the court. Requests for findings are not necessary for purposes of review. No exception need be taken to any finding or decision. Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appear before it.'

The opinion of the trial court is as follows:

'In this cause plaintiff's decedent, age 5, was killed on May 2, 1962, when the automobile in which he was riding was struck by defendant's automobile on a country road intersection located in Midland county, Michigan. Defendant was proceeding south on Sasse road. The decedent was a passenger in a car traveling west on East Kent road, which is a stop road at this intersection. The case was submitted to the court without a jury and at the close of plaintiff's case defendant made a motion for involuntary dismissal which was denied and then defendant made an offer of proof which was withdrawn. At this point defendant rested and renewed the motion for involuntary dismissal. The motion was taken under consideration and briefs from counsel were requested.

'On consideration of the arguments and briefs submitted, this court is of the opinion that plaintiff has presented a prima facie case and is entitled to a verdict. The parties herein must concede that the testimony is to be considered in the light most favorable to the plaintiff and all of the facts, stated and physical, must be taken into consideration.

'In...