Heider v. Michigan Sugar Co.

Decision Date01 January 1964
Docket NumberNo. 6,6
Citation134 N.W.2d 637,375 Mich. 490
PartiesDonald HEIDER, Administrator for the Estate of James D. Heider, Deceased, Plaintiff and Appellee, v. MICHIGAN SUGAR COMPANY, a Michigan corporation, Defendant and Appellant. Donald HEIDER, Administrator for the Estate of David Heider, Deceased, Plaintiff and Appellee, v. MICHIGAN SUGAR COMPANY, a Michigan corporation, Defendant and Appellant. ,
CourtMichigan Supreme Court

Gregory M. Pillon, Detroit, for plaintiff and appellee.

Smith, Brooker & Harvey, Carl H. Smith, Sr., Bay City, for defendant-appellant.

Cicinelli, Mossner, Majoros & Harrigan, Saginaw (Peter F. Cicinelli and Eugene D. Mossner, Saginaw, as amicus curiae to plaintiff-appellee).

Before the Entire Bench.

KELLY, Justice.

Plaintiff brings these companion cases under the Death by Wrongful Act statute (C.L.1948, § 691.581 [Stat.Ann.1959 Cum.Supp. § 27.711]), claiming that his sons James (12 1/2 years of age) and David (8 years of age) were drowned in a pond on defendant's premises and that their deaths were caused by defendant's negligence.

Plaintiff demanded a jury only in the David Heider case, and defendant's request for jury trial in the James Heider case was denied. The cases were consolidated for trial, one a jury case and the other a nonjury case.

At the conclusion of plaintiff's proofs, defendant moved for a directed verdict 'for the reason that the plaintiffs have failed to produce evidence * * * that would tend to establish any responsibility on the defendant for the death of the children.' The court took the motion under advisement and reserved decision in accordance with the terms of the Empson Act.

February 15, 1961, the jury returned a verdict in favor of the plaintiff-administrator of the David Heider estate in the sum of $125,000.

February 28, 1961, defendant filed its motions for new trial and for judgment notwithstanding verdict, on the grounds that the verdict was against the clear preponderance of the evidence, contrary to the great weight of the evidence, and clearly excessive.

May 17, 1962, the trial court directed the entry of a judgment in the nonjury case of James Heider in the amount of $40,989.65, and on the same date denied defendant's February 28, 1961, motions for new trial and judgment notwithstanding verdict in the David Heider case, said motions having been under consideration by the court during the time he was deliberating on the James Heider nonjury case. Defendant then moved for new trial in the nonjury case and this also was denied, the court relying on its opinion denying the motions in the David Heider case.


James and David Heider were halfbrothers and did not live together. James was raised by and lived with his grandparents since he was 8 days old. His mother and father (plaintiff Donald Heider) were divorced and the father contributed nothing to James' support.

David, the younger, lived with his mother and younger brother and sister 3 blocks from the grandparents' home, in Sebewaing, Michigan.

The father, plaintiff Donald Heider, was in Jackson prison serving a sentence of from 10 to 20 years on an armed robbery conviction at the time of the accident.

Defendant's 200 acre tract of land is located north of the village limits of Sebewaing. In order to conduct its sugar beet proceeding operation, it was necessary to prevent beet particles and waste containing limestone, calcium carbonate, et cetera, from running into the Saginaw bay. To meet this problem and the requirements of the Water Resources Commission, defendant, in 1944, commenced building a series of auxiliary ponds which finally culminated in 8 ponds, varying in size from 5.9 acres to 27.1 acres. The ponds are separated by dikes 12 feet high and wide enough to accommodate a motor vehicle for travel. There are no public roads on defendant's premises.

The pond in which the boys drowned was known as pond No. 3, 27.1 acres in size and, at the time of the accident, was around 7 feet deep. Said pond was located approximately in the center of defendant's tract of land.

A pipe approximately 4 feet from the top of the embankment of pond No. 3 emptied water and waste products into the pond. This chemical waste prevented freezing at the outlet and covered the surface of the water with a foamy substance for an area of 10 feet by 8 feet.

Sunday afternoon (December 21, 1958) the 2 boys left the home of their grandparents about 3:30 p. m., in sub-zero weather, informing the grandparents they were going to trap muskrats. When they failed to return, the grandmother conducted a search, to no avail. The marshal of Sebewaing was notified and the marshal, firemen, amd citizens of Sebewaing conducted a search for well over an hour before any one thought of the possibility of the boys going onto defendant's property.

A bicycle was found on the C & O Reilroad right-of-way 300 feet north of the public roadway and footprints led from this point along the tracks for about half a mile, then across a ditch to an island in the center of pond No. 3 and, after circling about, the steps led to the point where the pipe was emptying into the pond. There was a bunch of frozen foam about 3 feet from where the footprints ended.

The court in a written opinion held that the cause of death was the negligence of defendants in the maintenance of its premises contrary to legal principles, stating:

'Although none of defendant's employees was shown to have specific knowledge that children trespassed upon defendant's premises to trap, they knew that trespassers came upon defendant's land during the hunting and trapping seasons and that traps were set at the ponds to catch muskrats which frequented them and actually did considerable damage to company property by digging holes in defendant's dikes. Defendant company pur up 'no trespassing' signs at least twice a year but knew they did not remain in place and often were ignored. * * *

'On the basis of a careful consideration of all the evidence and the now well established law of this State, this court concludes that neither the 2 boys nor their guardians were guilty of contributory negligence in this case and that the sole, proximate cause of their deaths in this tragic accident was the negligence of the defendant company in the maintenance of its premises contrary to the following legal principle:

"A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.' (Lyshak v. City of Detroit, 351 Mich. 230 ; Nielsen v. Henry H. Stevens, Inc., 359 Mich. 130 ; 2 Restatement of Torts, §§ 334, 339).'

The trial court's misinterpretation of our Lyshak and Nielsen decisions, supra, requires emphasis that the legal principle enunciated in these opinions was that defendant in each instance was aware of the fact that infant trespassers were subjecting themselves to danger upon defendant's property. To establish this important point beyond question, not only in regard to this opinion but for future reference, the following excerpts from Justice Talbot Smith's opinion in Lyshak are set forth:

'The main thrust of plaintiff's argument on appeal is devoted to the proposition that defendant city knew that children 'were constantly coming onto the golf course during the summer months, just as they had been doing for over a long period of time * * *.' From this knowledge, says plaintiff, there arose 'a duty on the part of defendant City of Detroit to keep a lookout for such children who might be on the golf course and, in the exercise of ordinary care, to discover their presence and the presence of infant plaintiff in a dangerous situation as presented itself on the day infant plaintiff was injured and exposed to the danger and peril of being struck by a flying golf ball.' * * *

'It is clear that the plaintiff himself was not on the golf course as a matter of right. * * * A powerfully driven golf ball in flight is a projectile of lethal qualities, as this record amply demonstrates. * * * The difference between a golf course and a riflt range, then, as a playground for children, is a difference of degree only.

'If duty is born of danger, the duty of the City of Detroit, knowing that children frequent a certain area, is clear. * * *

'To what degree does the landowner still wear the feudal mantle of special privilege, exempting him from the ordinary rules of negligence when children (yes, trespassing children) are known to frequent land upon which he is carrying on an enterprise hazardous to them? Can he simply say, 'They are trespassers' and continue as if they were not there? Can a landowner blindly throw the firing lever and explode blasting charges in a vacant lot that, to his knowledge, is used daily as a playground by (trespassing) neighborhood children? * * *

'A distinction has been drawn between the mere condition of the premises (a child falls into a natural pond) and a dangerous situation on the premises caused by the active intervention, the affirmative acts, of the owner (the child is carelessly run down by the owner's horse and buggy). * * *

'We have mentioned, but we have not emphasized, the distinction between an injury arising from a condition of the premises and one arising from affirmative dangerous conduct by the owner. * * * In the interests of accuracy, it should be pointed out that the case before us does not involve injury from the mere physical condition of the premises, whether natural or artificial and hence many of the cases cited by the city against recovery (e. g., Hargreaves v. Deacon, 25 Mich. 1; Graves v....

To continue reading

Request your trial
33 cases
  • Currie v. Fiting, 76
    • United States
    • Michigan Supreme Court
    • April 1, 1964
    ...as amended (C.L.1948 & C.L.S.1961, § 401.1 et seq. [Stat.Ann.1960 Rev. § 16.121 et seq.]).1 Reisig v. Klusendorf and Heider v. Michigan Sugar Co., Mich., 134 N.W.2d 634 and Mich., 134 N.W.2d 637. FN2. Ever since the unanimous handing down of 1885 Staal v. Grand R. & Indiana R. R. Co., 57 Mi......
  • Powers' Estate v. City of Troy
    • United States
    • Michigan Supreme Court
    • March 4, 1968
    ...court.4 C.L.S.1956, § 436.22 (Stat.Ann.1957 Rev. § 18.993).1 Currie v. Fiting, 375 Mich. 440, 134 N.W.2d 611.2 Heider v. Michigan Sugar Co., 375 Mich. 490, 134 N.W.2d 637.3 Reisig v. Klusendorf, 375 Mich. 519, 134 N.W.2d 634.4 Newman v. City of Detroit, 281 Mich. 60, 274 N.W.2d 710.5 Tunnic......
  • Breckon v. Franklin Fuel Co.
    • United States
    • Michigan Supreme Court
    • March 12, 1970
    ...divided when the wrongful death actions shown by Currie v. Fiting (1965), 375 Mich. 440, 134 N.W.2d 611; Heider v. Mich. Sugar Co. (1965), 375 Mich. 490, 134 N.W.2d 637; Reisig v. Klusendorf (1965), 375 Mich. 519, 134 N.W.2d 634; Wilson v. Modern Mobile Homes Inc. (1965), 376 Mich. 342, 137......
  • Taylor v. Mathews
    • United States
    • Court of Appeal of Michigan — District of US
    • April 25, 1972
    ...premises, M.C.L.A. § 300.201; M.S.A. § 13.1485, and because our Supreme Court has ruled in the case of Heider v. Michigan Sugar Company, 375 Mich. 490, 134 N.W.2d 637 (1965), that the statute is applicable to We now come to the vital question of whether Count II of plaintiffs' complaint whe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT