Elliott v. A.J. Smith Contracting Co.

• Decision Date: 04 January 1960
• Docket Number: No. 40,40
• Citation: 100 N.W.2d 257,358 Mich. 398
• Parties: Carl J. ELLIOTT, Administrator of the Estate of John I. Elliott, deceased, Plaintiff and Appellee, v. A. J. SMITH CONTRACTING COMPANY, Inc., a Michigan corporation, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 257

100 N.W.2d 257

358 Mich. 398

Carl J. ELLIOTT, Administrator of the Estate of John I Elliott, deceased, Plaintiff and Appellee, v. A. J. SMITH CONTRACTING COMPANY, Inc., a Michigan corporation, Defendant and Appellant.

No. 40.

Supreme Court of Michigan.

Jan. 4, 1960.

John T. McWilliams, Dearborn, for plaintiff and appellee.

Cary, BeGole & Martin, by David V. Martin, Detroit, for defendant and appellant.

Before the Entire Bench.

SMITH, Justice.

The facts are as simple as they are appalling. A 5-year old child and his playmate wandered onto a heavily-traveled highway. Proceeding from the west shoulder they crossed the 2 southbound lanes in safety. Eventually, since they were walking, and walking slowly, they reached the center of the highway. Here they paused. The car closest them (in the northbound lane), driven by Mrs. Devereaux, came to a complete stop. One boy stood still. The other, Johnnie Elliott, continued across at a more rapid rate.

But slightly behind and to the right of the Devereaux car approached a truck belonging to defendant. It was being driven by Everett Hunter. He, it was testified, admitted that he was unaccustomed to this truck 'because he was a bulldozer operator.' He had a bad traffic record. He hadn't kept any track of the times his license had been revoked or suspended, at least 'not an accurate one, no.' Despite the fact that many others on the highway clearly saw these children, despite the fact that the Devereaux car which was closer to Johnnie than defendant's truck, stopped for him, and despite the fact that Hunter was sitting in an elevated cab with an unobstructed vision of 500 feet and upwards, in daylight, on a clear day, his truck killed the boy. Despite much study of the record and exhibits it is incomprehensible to me why, if the Devereaux car, which was closest to the boy, was able to stop and let him proceed in safety, the defendant's truck was not, and it is even less comprehensible how, despite the care with which the trial was conducted, and the verdict of the jury, we are able to find the miscarriage of justice required for reversal of the case.

A jury, as we noted, found liability. In our Court it is urged that the judge committed errors so harmful to the truck owner that there must be a new trial. If, indeed, the trial judge has so misconstrued the law that a miscarriage of justice has resulted as to either party, we are not reluctant to set it straight. We are not, however, disposed to parse his charge for its grammar, reversing for the misspoken word or the inartistic phrase. if the law has been fairly stated we will not reverse because a doctorial thesis in law might have put it more elegantly. If the court has permitted a reasonable evidentiary showing by both parties, the fact that he has pruned the testimony a little here and let it flower a little there will not cast the case into outer darkness if, on the whole, justice has been done. These are not new principles, but old, so old in fact that they have been allowed to grow tarnished and rusty.

The case before us is a near-perfect example. The circumstances surrounding this boy's death could hardly, short of deliberate attack, have been more reprehensible. The problem presented by the case, the death on the highway, is one of our most pressing social problems. The verdict was well justified upon the evidence. Yet, despite all of this, we are urged to countermand the jury's verdict because of 'errors' which, upon examination, are seen not to be errors at all in the sense we require for reversal but merely the normal give and take of a hotly-contested trial. The most serious, indeed, is a mere matter of grammar. It is adquately answered by Webster's dictionary. From this high point the errors descend, in decreasing order of legal importance, to the content of plaintiff's argument to the jury. With respect to it the objection seems to be that since it was good enough to witn it was bad it was good enough to win it was bad

We will examine the alleged errors in order:

Claimed error 1: The trial court gave an erroneous, confused and misleading instruction in regard to the wrongful death act.

Appellant claims that the instructions allowed the appellee to recover on either of 2 theories, 1 of which was erroneous.

The complained of portions of the charge were the following:

'The plaintiff alleges that the defendant is liable under the Death Act by reason of the fact that the truck was being driven by a driver who was a dozer operator; or that the defendant is liable for the driver's negligence in operating the truck at excessive speed and in not having his truck under control; and failure to make reasonable observation as to the presence of others in the highway; and failure to stop within the assured clear distance ahead. * * *

'The plaintiff, in order to recover, has the burden of proof to establish his case by a preponderance of the evidence, in that the defendant is liable under the Wrongful Death Act, or that the driver's negligence in the operation of defendant's dump truck, was the proximate cause of the injuries and death of John I. Elliott. * * *

'If you find that the act of the defendant corporation in suffering and permitting Everett R. Hunter, the driver of the truck, to drive the dump truck when they knew of could have known the nature and extent of his driving record, you may find such to be an act of neglect or default; and if it was a proximate cause of the ensuing injury and death of John I. Elliott, then you may find a verdict for plaintiff and against the defendant.

'Now, with reference to the negligence, if any, of the driver: I charge you that the defendant corporation, as the owner of the dump truck, is also liable for the negligence, if any, of the driver of said truck at the time and place of the accident There being no question as to the fact that Everett R. Hunter was then and there operating said truck with the knowledge and consent of defendant, and as an employee, agent, and servant of defendant, and engaged in defendant's business; and if you find that the operator of the truck was in any way negligent, and if that negligence was a proximate cause of the injuries and death, then you should find a verdict for plaintiff and against defendant. * * *

'In determining whether the driver, Mr. Hunter, was negligent, it is not to be decided upon Mr. Hunter's past driving record; and I distinguish here between determining this matter on the negligence phrase of it, in considering this topic, rather than on the determination of liability under the Death statute.'

What has been said here? Simply that plaintiff has 2 theories for defendant's liability: 1) defendant's alleged negligence in entrusting a motor vehicle to an employee unfit to be at the wheel, and 2) defendant's vicarious liability for the negligence of an employee acting within the scope of his employment. These are 2 perfectly valid theories. Where is any error? Defendant asserts that the use of the word 'or' in the second paragraph meant that plaintiff had another theory, one not found in the books or in any statute, i. e., that he could recover somehow under the wrongful death act for something the nature of which we are not told, regardless of any negligence on the driver's part. If true, this is a serious charge, namely, that the jury was told that Michigan has something called the Wrongful Death Act, Comp.Laws 1948, §§ 691.581, 691.582, by virtue of which the estate of anyone who dies has a cause of action against somebody. But upon the whole charge, it is perfectly clear that the able trial judge was indulging no such nonsense, betraying no such legal illiteracy. He was using the word 'or' in the sense of an explanatory word, which, grammatically speaking, ¹ is a proper use.

However, even assuming that the instruction could have been interpreted as defendant claims, any possible ambiguity was clarified by the 3rd and 4th paragraphs of the disputed portion of the charge. These, as may be seen from an examination thereof, went on to amplify each of the 2 theories relied on by plaintiff. Indeed, the trial judge, in this amplification process, followed very closely the statement of law recommended by my brother in view of the fact that he informed the jury that, in order for plaintiff to recover under either theory, it must find negligence, and further, that such negligence must have been the proximate cause of decedent's death. That defendant's negligence in choosing an unfit driver should entail no liability, unless the driver was negligent in striking plaintiff's decedent, was made clear by the trial judge's reference to the need for proximate causation and the definition of that term in a later part of the charge.

We will not dissect the rest of the charge. Astute grammarians will doubtless be able to find other 'errors.' Our test is that set forth in Zebell v. Krall, 348 Mich. 482, 83 N.W.2d 288: we consider the charge as a whole.

Claimed error 2: The trial court erred in permitting examination of defendant's driver concerning his past driving record and license revocation. ²

Appellant claims that the admission of evidence concerning its employee's past driving record violated the following Michigan statute

'No evidence of the conviction of any person for any violation of this chapter or of a local ordinance pertaining to the use of motor vehicles shall be admissible in any court in any civil action.' (C.L.S.1956, § 257.731, Stat.Ann.1957 Cum.Supp. § 9.2431).

The above statute has not been previously construed by this Court.

Even though was were to assume, without deciding, that in a negligence action against the driver himself, evidence of the type mentioned, supra, is 'evidence of the conviction' of the driver and thus within the proscription of the legislature, such an assumption would not answer the problem here presented.

The principal evils sought to be cured by the statute...