Hill v. Clark Equipment Co.

• Citation: 42 Mich.App. 405,202 N.W.2d 530
• Decision Date: 28 August 1972
• Docket Number: No. 3,Docket No. 10825,3
• Parties: Listeon HILL, Plaintiff-Appellant, v. CLARK EQUIPMENT COMPANY, a Michigan corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 530

202 N.W.2d 530

42 Mich.App. 405

Listeon HILL, Plaintiff-Appellant, v. CLARK EQUIPMENT COMPANY, a Michigan corporation, Defendant-Appellee.

Docket No. 10825.

Court of Appeals of Michigan, Division No. 3.

Aug. 28, 1972.

Released for Publication Dec. 8, 1972.

Leave to Appeal Denied Nov. 15, 1972.

Peter F. Cicinelli, Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw, for plaintiff-appellant.

Edward D. Wells, Cholette, Perkins & Buchanan, Grand Rapids, for defendant-appellee.

Before R. B. BURNS, P.J., and LEVIN and T. M. BURNS, JJ.

LEVIN, Judge.

The plaintiff, Listeon Hill, appeals from a summary and accelerated judgment dismissing the complaint which he filed against the defendant, Clark Equipment Company.

Hill was seriously injured when a heavy bale of cardboard fell on him while he was stacking bales of cardboard with a forklift truck manufactured by Clark. He received workmen's compensation benefits. He seeks by this lawsuit to recover damages from Clark on the ground that its failure to equip the truck with a steel canopy or guard to protect the driver against such a mishap constituted negligence (Count I), reckless disregard for the safety of another or gross negligence (Count II), a breach of implied warranty (Count III), and a breach of the manufacturer's strict liability to the consumer (Count IV).

The accident occurred in Alabama. Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969), ¹ obliges us to apply the Lex loci--in this case, the substantive law of Alabama. The Uniform Statute of Limitations on Foreign Claims Act (M.C.L.A. § 600.5861; M.S.A. § 27A.5861) obliges us to apply the Alabama statutes of limitations because under that enactment of the Michigan Legislature the limitational period prescribed by the law of the place where the claim accrued or by the law of Michigan--whichever bars the claim--controls.

The accident occurred on October 4, 1963. This action was commenced on September 26, 1966.

Michigan prescribes a 3-year period for bringing an action to recover damages for personal injuries. ² Alabama allows 1 year. ³ The Alabama period is shorter. Therefore, under the uniform act Alabama's 1-year statute governs.

Hill's lawyer counters saying that Hill was insane when the claim accrued and, therefore, the statute was tolled. ⁴

I

Under Alabama, ⁵ as well as under Michigan, ⁶ law the insanity of the plaintiff at the time the claim accrues tolls the running of the statutes of limitations. The term 'insanity,' as used in such a statute, includes traumatic insanity, and specifically insanity which arises at the same time that the plaintiff's claim against the defendant accrues. See Alabama Power Co. v. Shaw, 215 Ala. 436, 440; 111 So. 17, 20 (1926), where the Supreme Court of Alabama declared:

'The insanity here insisted upon comes within the definition of traumatic insanity as set forth in 32 Corpus Juris, p. 602, as follows:

"'Traumatic insanity' is such as results from a wound or injury, particularly to the head or brain, such as fracture of the skull or concussion of the brain.'

'As the word 'insanity' appears in section 8960 ⁷ of our Code, it is unexplained and unlimited. Viewing the purpose of the statute and the broad and comprehensive meaning of the word, we are of the opinion that it embraces a temporary unsoundness of mind as indicated by the proof, and is not to be confined to chronic or fixed condition.'

Recently in Davidson v. Baker-Vander Veen Construction Co., 35 Mich.App. 293, 305--307, 192 N.W.2d 312 (1971), we ruled that whether a plaintiff is insane for the purposes of tolling a statute of limitation is a question ordinarily to be decided by the trier of fact, and that the trial judge in that case had erred in resolving that disputed question on affidavits and other papers without a trial. Here, paralleling Davidson, Clark offered no evidence, by affidavit or otherwise, in support of its contention that Hill was not insane, relying entirely on Hill's deposition and the affidavit of Hill's doctor.

Our observations in Davidson are again pertinent:

'(E)ven when the evidence and underlying facts are not in dispute, there may still be a qualitative judgment concerning the significance and meaning of the underlying facts. Such questions or judgmental facts are sometimes called 'mixed questions of law and fact' or 'ultimate facts'. If the qualitative judgment is in dispute, then the ultimate fact is generally a disputed question of fact. * * *

'The question here presented * * * inolves a value judgment of the kind we generally entrust to the trier of fact in recognition of our inability to crystalize an omniscient rule which would eliminate the need to make a case-by-case appraisal in applying the general standard to the specific facts at hand. * * *

'The averments in the affidavits submitted in Joe Davidson's behalf provide a more than adequate basis upon which a trier of fact could infer and conclude that he was suffering from a mental derangement such as would prevent him from comprehending rights he otherwise is bound to know. Whether inferences or conclusions favorable to Davidson's contention should be drawn from such averments is a matter entrusted to the trier of fact and not to be decided summarily as a matter of law. Decision requires an appraisal and an exercise of judgment concerning the extent of his mental infirmity. It is not a question on which all reasonable men would necessarily reach the same conclusion.'

A physician, who examined Hill in 1967, averred on affidavit:

'8. That the said Listeon Hill, as a result of the trauma sustained in said accident, received a serious injury to his spinal column; that he sustained a crushed and fractured cervical vertabrae and a severe contusion to the spinal cord, which resulted in complete and permanent paralysis (quadripledgia) from the neck down; that he has suffered from periodic blackouts and spells of dizziness since said accident, and his mental state, as a result of his physical condition and said trauma, has been abnormal; that he has suffered certain losses of memory; that during his initial hospitalization, he was unconscious much of the time, advised that he could not see or hear, and talked out of his head.

'9. His history reflects a ninth grade education with all his abilities to earn his living derived from employment requiring physical strength, and that he has been totally disabled since his accident.

'10. That on the basis of his examination of said patient and a review of the medical and hospital records of said patient and his knowledge of psychiatry your deponent is of the opinion that Listeon Hill, following his injury of October 4, 1963, suffered some intellectual impairment consistent with a diagnosis of chronic brain syndrome probably related to his injury of October 4, 1963, and this impairment of his intellect that existed at the time of my examination was present at all times after his accident.'

Hill was deposed on August 22, 1968. He testified that he was knocked unconscious by the bale that hit him, came to and was taken to the hospital. His neck had been broken and thongs (weights) were placed on his head. His injury was such that sometimes he could not see members of his family who came to visit him at the hospital. After the first week he was in the hospital he began having frequent blackout spells, several hours in duration. He stayed in the hospital for three months, and then for eight or nine months at a rehabilitation center. When he was discharged from the rehabilitation center he was transported to his brother's home where he has resided. He has been in and out of hospitals since he was discharged from the rehabilitation center; the employees of these hospitals gave him pain pills, shots, x-rayed him and gave him exercises. He was still taking pain pills and other medicine daily, and experiencing blackout spells.

The question before the judge was whether Hill was insane at the time his claim accrued, and, specifically, did he, by reason of the accident, at that time suffer from an unsound deranged condition of the mind ⁸ barring him 'from comprehending rights he is otherwise bound to know' ⁹ and, if so, had he recovered from that debility more than one year before this action was commenced. ¹⁰ And, even more particularly, was there a genuine issue on this question to be submitted to the trier of fact chosen by Hill--a jury.

In ruling against Hill, the judge declared that he relied on Hill's admission on deposition that over a year before this action was commenced he had arranged 'for social security payments, workmen's compensation payments, a power of attorney and hired an attorney to pursue the present action.' The judge said that, 'These actions appear to me to conclusively negate a type of 'insanity' which would bar him from comprehending rights he is otherwise bound to know.' The record shows:

--During the taking of Hill's deposition he was asked whether he had received workmen's compensation benefits. He responded, 'They put me under workmen's compensation 21 days after I was hurt. So my brother told me.' He did not sign anything to obtain workmen's compensation benefits. He just received a check and continued receiving them. His brother endorses his checks because of his disability. He did not give his brother any written authority to endorse the checks. He did not know what a power of attorney is. He had told his Dad to go to a Justice of the Peace and the Justice of the Peace would make it possible 'where he could carry on all of my business without I give my signature and he can go and sign my checks and carry on my business or anything like that. That is the Justice of the Peace.'

--An agent from the Social Security Administration visited him at the rehabilitation center, talked to him 'and explained it.' The agent filled out some papers 'and gave me a pen and helped me write my name.'

--He said variously that he had...