Easton v. Medema

• Decision Date: 28 March 1929
• Docket Number: No. 75.,75.
• Citation: Easton v. Medema, 246 Mich. 130, 224 N.W. 636 (Mich. 1929)
• Parties: EASTON v. MEDEMA et al.
• Court: Michigan Supreme Court

246 Mich. 130

224 N.W. 636

EASTON

v.MEDEMA et al.

No. 75.

Supreme Court of Michigan.

March 28, 1929.

Error to Circuit Court, Muskegon County; John Vanderwerp, Judge.

Suit by Loretta Easton, by Hugh Stidham, her next friend, against E. H. Medema and another.Judgment for plaintiff, and defendants bring error.Reversed, and new trial granted.

Argued before the Entire Bench.

Fead, J., North, C. J., and Fellows and McDonald, JJ., dissenting in part.

FN1 (Affirmed as to this point by ducided court.)

Joseph T. Riley, of Muskegon, for appellants.

Wetmore & Bagley, of Hart, for appellee.

POTTER, J.

Plaintiff brought suit against defendants to recover damages alleged to have resulted from the negligent operation of an automobile by defendant Medema which belonged to defendant Carbine.Carbine owned a store in Muskegon.Medema worked for him.Plaintiff was 5 years and 8 months old when injured, September 21, 1926, and a pupil in the Muskegon schools.Medema, the day of the accident, took the automobile near the store and started home.Plaintiff was on her way to school, but, attracted by Muskegon fire equipment going in an opposite direction, had turned and followed it some distance and then started back toward the school-house.Both plaintiff and defendant were traveling west on Grand avenue, immediately prior to plaintiff's injury.On the south side of Grand avenue is an alley at right angles with the street.Medema turned to go into this alley.Plaintiff was struck and injured.There is dispute whether plaintiff was on the sidewalk or not when injured.

1.During the trial the Muskegon Chronicle, a newspaper circulating in Muskegon and vicinity, published an article as follows:

‘Second Trial Started in Damage Suit.A second trial in circuit court today in a suit commenced in behalf of Loretta Easton, seven year old school girl, injured when struck by an automobile at an alley on Grand avenue near Fifth street in 1926.A circuit court jury last year awarded the girl $2,700 damages.The defendant was E. H. Medema, driver of an automobile owned by E. H. Carbine, Muskegon produce dealer.Both Medema and Carbine are defendants in the present suit.The girl's leg was broken and she will be crippled the rest of her life, according to the declaration in this case.’

Prior to its publication, plaintiff's attorney was interviewed, but the only information obtained by the reporter was the age of plaintiff.This article was presented to the court, and defendant's counsel moved that the jurors be interrogated by the court to determine whether this article or any knowledge of its contents had come to their attention, and if such interrogation showed the jurors had knowledge or information gained from it to grant a mistrial.The trial judge refused to interrogate the jury or to direct a mistrial, but said: ‘It is unfortunate, of course, that this appeared in the paper.* * * It was unfit to appear in the paper.’Error is assigned upon the refusal of the court to interrogate the jury and to declare a mistrial.The action of the trial court was not error.Sherwood v. Chicago & W. Michigan Ry. Co., 88 Mich. 108, 50 N. W. 101;Forsythe v. Thompson's Estate, 157 Mich. 669, 122 N. W. 219;Prange v. City of Flint, 217 Mich. 675, 187 N. W. 356;Hatton v. Stott, 220 Mich. 262, 189 N. W. 850;46 C. J. 139, 140.

2.While the jury was being impaneled, plaintiff's counsel requested the court to ask the jurors if they were members of the Auto Owners' Insurance Company.Upon objection the court refused to ask the question, and stated to the jury: ‘We have nothing to do with that.’Upon direct examination of Martha Wilson by plaintiff's attorney, she testified Medema said: ‘My car is insured.’This was objected to, and the court instructed the jury that any testimony about insurance should not be considered.When defendant Medema was on the stand plaintiff's counsel cross-examined him as follows:

‘Q.Youdidn't tell Mrs. Wilson that your car-this car was insured, and you would see that the little girl went to the hospital?A.I never told Mrs. Wilson the car was insured.It wasn't my car.

‘Mr. Riley: I object to the question.

‘The court: Well, let the answer stand.’

Upon the closing argument of the caseplaintiff's counsel said:

‘I am going to talk to you a moment about Mr. Medema taking the little girl over there and what he said, but I want to say to you gentlemen that you are not interested whether there was any insurance or whether there was not--

‘Mr. Riley: I object to the argument, and take exception to it, and ask that it be stricken out and the jury instructed to disregard it.

‘Mr. Wetmore: You should not say anything about insurance.

‘Mr. Riley: I ask for a mistrial on that ground.’

Counsel then stated he would like to make a statement of what he proposed to say.The court directed the jury to retire, and plaintiff's counsel stated he proposed to say to the jury it was not a question of whether defendant was insured or not, but one bearing upon the truth of Medema's testimony.The court declined to grant a mistrial but warned plaintiff's counselhe was taking chances.The court charged the jury the question of insurance was not to be considered by them in arriving at their verdict or in fixing its amount.

Where, as here, it is apparent that immaterial and collateral matters have been purposely injected into the record and persistently kept before the jury to create prejudice, a reversal must be had.Peter v. Railway Co., 121 Mich. 324, 80 N. W. 295,46 L. R. A. 224, 80 Am. St. Rep. 500;Atherton v. Defreeze, 129 Mich. 364, 88 N. W. 886;Hillman v. Railway Co., 137 Mich. 184, 100 N. W. 399;Reed v. Louden, 153 Mich. 521, 116 N. W. 1073;Kerr v. Manufacturing Co., 155 Mich. 191, 118 N. W. 925;Hughes v. City of Detroit, 161 Mich. 283, 126 N. W. 214,137 Am. St. Rep. 504;Morrison v. Carpenter, 179 Mich. 207, 146 N. W. 106, Ann. Cas. 1915D, 319;Sherwood v. Babcock, 208 Mich. 536, 175 N. W. 470;Ward v. De Young, 210 Mich. 67, 177 N. W. 213;Church v. Stoldt, 215 Mich. 469, 184 N. W. 469;Reynolds v. Knowles, 223 Mich. 71, 193 N. W. 900;Stowe v. Mather, 234 Mich. 385, 208 N. W. 609;Sutzer v. Allen, 236 Mich. 1, 209 N. W. 918;Oliver v. Ashworth, 239 Mich. 53, 214 N. W. 85;Johnson v. Mutual Savings Association, 242 Mich. 558, 219 N. W. 736.

3.Plaintiff was injured September 21, 1926.Trial of the case was commenced March 26, 1928.Plaintiff was seven years old January 16, 1928.She was permitted to make a statement to the jury not under oath.It was not error to permit her to do so. Section 12556, C. L. 1915;4 Blackstone, Com. 214;3 Wigmore, Evidence, par. 1821; 9 Holdsworth, Hist. Eng. Law, 188, 189.

4.It is contended the court erred in excluding the question of plaintiff's contributory negligence from the jury because she was permitted to mkae a statement to the jury.It does not follow because the witness was permitted to make a statement not under oath when more than seven years old she should be held to have had sufficient discretion to be held guilty of contributory negligence when less than six years old.5.Defendant contends the question of plaintiff's contributory negligence should not have been withdrawn by the court but considered by the jury.

Blackstone says: ‘The capacity for doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment.’4 Blackstone, Com. ch. 2.In McDonough v. Vozzela, 247 Mass. 552, 142 N. E. 831, the court said a child four years and five months old, ‘cannot be pronounced as a matter of law incapable of exercising any care in the circumstances confronting him.’In a case where a child injured was 5 years and 9 months old, the court said: ‘The weight of authority both in this country and in England, is decidedly in favor of holding a child * * * only to such degree of care as ought reasonably to be expected among children of his age and intelligence.’McMahon v. Northern Central Ry. Co., 39 Md. 438.

A verdict directed against plaintiff 5 years and 6 months old, on the ground of his contributory negligence, was sustained in Hayes v. Norcross, 162 Mass. 546, 39 N. E. 282, and he was held ‘bound to show that he exercised such care as ordinary boys of his age and intelligence are accustomed to exercise under like circumstances.The standard is the conduct of boys who are ordinarily careful.’In Atchason v. United Traction Co., 90 App. Div. 571, 86 N. Y. S. 176, a child 5 1/2 years old was held ‘not in law excused from exercising such care as is commensurate with his years and intelligence.’A child is only held to such degree of care ‘as would reasonably be expected of a child of her sex, age, and intelligence under all the circumstances surrounding her at the time.’Cooper v. L. S. & M. S. Ry. Co., 66 Mich. 261, 33 N. W. 306, 11 Am. St. Rep. 482.‘When contributory negligence is sought to be attributed to a child, the child can only be held to that degree of care which may reasonably be expected from one under the same conditions, of the...