Gustafson v. Faris

• Decision Date: 11 February 1976
• Docket Number: Docket No. 24751
• Citation: 67 Mich.App. 363,241 N.W.2d 208
• Parties: Richard GUSTAFSON and Glenna Gustafson, Individually, Plaintiffs-Appellants, v. Glen R. FARIS and Elizabeth Faris, Defendants-Appellees. 67 Mich.App. 363, 241 N.W.2d 208
• Court: Court of Appeal of Michigan — District of US

Page 208

241 N.W.2d 208

Richard GUSTAFSON and Glenna Gustafson, Individually Plaintiffs-Appellants, v. Glen R. FARIS and Elizabeth Faris, Defendants-Appellees.

Docket No. 24751.

67 Mich.App. 363, 241 N.W.2d 208

Court of Appeals of Michigan.

Feb. 11, 1976.

Released for Publication May 5, 1976.

[67 MICHAPP 364] Leitson, Dean, Dean, Segar & Hart, P.C. by Leonard B. Shulman, Flint, for plaintiffs-appellants.

Brownell, Andrews & Philpott by Douglas M. Philpott, Flint, for defendants-appellees.

Before D. E. HOLBROOK, P.J., and MAHER and WALSH, JJ.

D. E. HOLBROOK, Presiding Judge.

This is an appeal from an order granting defendants' motion for partial summary judgment. The motion was apparently based upon GCR 1963, 117.2(1), which provides for a summary judgment in cases where plaintiffs fail to state a claim upon which relief can be granted. Since motions based upon GCR 1963, 117.2(1) are to be tested by the pleadings alone, Todd v. Biglow, 51 Mich.App. 346, 214 N.W.2d 733 (1974), a substantial portion of plaintiffs' complaint is here quoted:

'1. That plaintiff herein is the duly appointed Administrator of the Estate of said decedent pursuant to proceedings had in the Probate Court for the County of Genesee, State of Michigan.

'2. That this cause arose in Davison Township, Genesee County, Michigan.

'3. That this cause arises from personal injuries sustained on July 30, 1974 which resulted in the death of David Gustafson on August 4, 1974.

'4. That at the time of his death, David Gustafson was five years of age and left surviving as his next of kin and heirs at law his father, Richard Gustafson and his mother, Glenna Gustafson.

'5. That the incident which gave rise to the injuries and death of David Gustafson occurred at the intersection[67 MICHAPP 365] of Potter Road and Blarney Drive in the following manner:

'a. David Gustafson was operating a bicycle in a northerly direction on Blarney Drive and entered the intersection of Blarney Drive with Potter Road.

'b. Defendant Elizabeth Faris was operating a vehicle owned by defendant Glen R. Faris in a westerly direction on Potter Road approaching the intersection with Blarney Drive.

'c. At the time and place aforesaid, defendant Elizabeth Faris, in a reckless, careless and negligent manner, struck David Gustafson while said minor child was in the intersection on his bicycle, causing injuries to him which subsequently resulted in his death.

'6. That the negligence of defendant Elizabeth Faris, imputed by law to defendant Glen Faris, consisted of the following acts and omissions:

'a. In operating said motor vehicle in a careless and heedless manner without due regard to the rights and safety of others and at a speed and in a manner so as to endanger or be likely to endanger persons and property.

'b. In failing to make proper observation or in the exercise of reasonable care observe the presence of others using the highway.

'c. In failing to yield the right of way.

'd. In then and there failing to observe the rules of the road in such cases made and provided governing the movements of motor vehicles on public streets and highways.

'7. That as a result of the aforesaid negligence, David Gustafson sustained painful injuries which caused him to die.

'8. That as a result of the injuries sustained, decedent suffered from conscious pain and suffering until his death and as a result of his death his estate became responsible for medical, surgical, hospital, funeral and burial expenses and his heirs sustained losses of society and companionship; pecuniary losses, of services and earnings; of investment and other losses.

'9. That as a result of the injury to David Gustafson and his subsequent death, Glenna Gustafson, mother of said decedent, suffered severe emotional trauma which [67 MICHAPP 366] has caused her great pain of body and mind and other personal injuries and damages.

'10. That as a result of the emotional trauma to his wife, Richard Gustafson, in addition to the damages sustained by him as a result of the death of his son, has also been damaged by the loss of the society, companionship and services of his wife, Glenna Gustafson.'

The Gustafsons brought this cause of action both individually and as administrators of the estate of their deceased son. The motion for summary judgment was directed toward the cause of action brought by the Gustafsons individually. Oral arguments, of which no transcript was filed in this Court, were held below. The court then ruled:

'Defendants having filed a Motion for Summary Judgment of Dismissal as to the claim of Richard and Glenna Gustafson, individually, on the grounds that plaintiff's complaint failed to state a claim upon which relief could be granted; and

'This court having heard the oral arguments of counsel for both plaintiff and defendant 'It is the order of this court that a Summary Judgment of Dismissal be entered in favor of defendants against the claims of Richard and Glenna Gustafson, as individuals, for the reasons and on the grounds that this matter is controlled by Perlmutter v. Whitney, 60 Mich.App. 268, 230 N.W.2d 390 (1975).

'It is a further finding and order of this court that there is no just reason for delay and that this Judgment against the individual claims of Richard and Glenna Gustafson is a final judgment and shall be entered as such.'

One of the issues in the Perlmutter case, relied on by the court below at p. 272, N.W.2d 391--392, was:

'(W)hether or not the law recognizes a separate cause of action for mental suffering incurred by persons who [67 MICHAPP 367] were not physically involved in an accident, who were not injured as a result thereof, and who did not witness the accident, but who learned from others at a later time that the accident had occurred and that a close relative was injured. Defendants contend that the trial court properly held that no such cause of action exists in this state. We agree.'

The Court went on to hold at p. 273, N.W.2d 392, that:

'(T)he trial court correctly ruled that the claims of plaintiffs Jack and Gloria Perlmutter must be dismissed on the ground that the law does not allow recovery for mental anguish suffered by third persons as a result of their concern for the injuries of others where such third persons were not witnesses to the accident in which those injuries were sustained.'

The Perlmutter case could possibly have been decided based upon one of two grounds; (1) the plaintiffs' failure to...