Johnson v. Fischer, 224

• Citation: 47 N.W.2d 706,330 Mich. 491
• Decision Date: 14 May 1951
• Docket Number: No. 224,224
• Parties: JOHNSON v. FISCHER et al. (two cases). Motion
• Court: Supreme Court of Michigan

Page 706

47 N.W.2d 706

330 Mich. 491

JOHNSON v. FISCHER et al. (two cases).

Motion No. 224.

Supreme Court of Michigan.

May 14, 1951.

Allaben, Wiarda, Hayes & Hewitt, Grand Rapids, for plaintiffs and appellees.

Linsey, Shivel, Phelps & Vander Wal, Grand Rapids, for defendants and appellants.

Before the Entire Bench.

BUSHNELL, Justice.

I do not concur in the opinion of Mr. Justice Boyles for granting a rehearing. This court adopted an opposite policy in Bricker v. Green, 313 Mich. 218, 21 N.W.2d 105, 163 A.L.R. 697.

In Travis County v. King Iron Bridge & Mfg. Co., 5 Cir., 1899, 92 F. 690, 694 certiorari denied in 1898, 174 U.S. 801, 19 S.Ct. 887, 43 L.Ed. 1187, the court said that, even if it had the power to issue a writ of certiorari as an original process to review a cause, it would not issue the writ, saying: 'We can well understand that the petitioner regrets that it cannot enjoy the benefits of the later decision of the supreme court of Texas. This alleged reversal of the former state jurisprudence may appear to work a hardship on the petitioner. But the speedy ending of litigation has always been considered to be a matter of great public importance. It concerns not only suitors, but those who may derive rights from them. 'Interest reipublicae ut sit finis litium.' Practically, a suit would never be finally terminated, if, as contended by the petitioner, it were true that a change in the interpretation of the law applicable to a cause prosecuted to judgment entitled the party who had been cast in the suit by reason of the prior interpretation to reopen the controversy. * * * But, if the petitioner's contention were correct in principle, it would seem to be immaterial whether the lapse of time were of long or short duration, and that such a petition as the one now before us could be urged successfully at any time. * * * It is evident that it is far better, in the general interest, that there should be a few cases of apparent hardship, such as the one presented, resulting from a change of jurisprudence, than that litigation should never end.'

The petition for rehearing is denied, but without costs to either party.

REID, C. J., and NORTH, DETHMERS, BUTZEL, CARR and SHARPE, JJ., concurred with BUSHNELL, J.

BOYLES, Justice (dissenting).

This is a motion by plaintiffs to set aside an order of this Court denying them a rehearing in Johnson v. Fischer, 292 Mich. 78, 290 N.W. 334, 336, decided in 1940. In that case the Court held that the plaintiff Nettie W. Johnson was engaged in a joint venture or enterprise with the defendant Mae Fischer, and therefore neither of the plaintiffs could recover damages resulting from the negligence of said defendant Mae Fischer in the operation of an automobile while plaintiff Nettie Johnson and said defendant Mae Fischer were on a fishing and recreation trip. Plaintiff John E. Johnson, the husband of Nettie Johnson, was not on the trip. Said plaintiffs had brought separate suits for damages alleged to have been caused by the negligence of said defendant Mae Fischer in driving the automobile at the time of the accident. Each plaintiff recovered a separate judgment, both of which this Court set aside on appeal. Without referring to each judgment separately, the Court concluded as follows: 'It is clear these parties [Nettie W. Johnson and Mae Fischer] did not sustain to each other at the time of the injury the relation of passenger and carrier for hire. It is equally clear plaintiff was not a guest passenger of defendant Mae Fischer any more than defendant was a guest of plaintiff Nettie W. Johnson. * * * Under the undisputed evidence, the parties were engaged in a joint venture or enterprise and plaintiffs may not recover.'

The plaintiffs timely filed a motion in this Court for a rehearing, which was denied. They have now filed the instant motion to set aside the order entered April 1, 1940, denying their motion for a rehearing, on the ground that the Court has now overruled that decision by Bostrom v. Jennings, 326 Mich. 146, 40 N.W.2d 97, decided in 1949.

Mere lapse of time does not stand in the way of a rehearing. No time limit has been set, either by statute or by Court Rule, within which the Court may overrule or reverse a prior decision. In Attorney General v. Joy, 181 Mich. 266, 148 N.W. 250, the Court considered on the merits and decided a petition, in the nature of a bill of review, for a rehearing of a case decided nearly 30 years previously. Subsequent to that decision, the remedy by bill of review was abolished, and superseded by motion for rehearing. In Fries v. Wonnacott, 1935, 270 Mich. 86, 258 N.W. 219, 221 the Court said: 'Under section 4, rule 48, Michigan Court Rules [1933], the remedy by bill of review was abolished and superseded by motion for rehearing. Plaintiffs are not entitled to rehearing on their own motion, as such motion was not made within 4 months from the entry of the decree. The trial court, however, may grant a rehearing sua sponte after the 4 months have elapsed upon a showing that plaintiffs are about to lose their rights in their homestead by forfeiture and without judicial sale; that no rights of third parties have intervened; that there is no question of public policy; that provision has been made to pay defendants the entire amount due them, together with interest and costs; and that the denial of relief under the circumstances would result in such a harsh forfeiture as to severely shock the conscience of the court.'

Staub v. Tripp, 253 Mich. 633, 235 N.W. 844, is not only decisive of the Court's power to reconsider an order denying a rehearing, but equally indicative of the action the Court should take on a like motion to reconsider our denial of a rehearing in Johnson v. Fischer, now before us. On rehearing, the Court said: 'The original opinion herein is reported in [Staub v. Tripp] 248 Mich. 45, 226 N.W. 667, and is in accord with the earlier decisions in the so-called Kavanaugh Cases. See Kavanaugh v. Rabior, 222 Mich. 68, 192 N.W. 623, and Kavanaugh v. Baird, 241 Mich. 240, 217 N.W. 2. These decisions have now been overruled by Hilt v. Weber, 252 Mich. 198, 233 N.W. 159 ; and consistent administration of justice clearly necessitates a reversal of our former decision herein unless such action is foreclosed for reasons presented on this rehearing by appellee.'

The Court overruled its earlier decision, concluding as follows: 'A holding to the contrary, in view of our decision in Hilt v. Weber, supra, would result in a total failure of justice in the instant case.'

The Staub Case, supra, arose out of the decision of the Court in Hilt v. Weber, 252 Mich. 198, 233 N.W. 159, 71 A.L.R. 1238, reversing its decisions in both of the Kavanaugh Cases, the first one of which Kavanaugh v. Rabior, 222 Mich. 68, 192 N.W. 623, had been decided nearly 8 years before. In Kavanaugh v. Baird, 253 Mich. 631, 235 N.W. 871, the Court, in reversing its former decision in the second one of the Kavanaugh decisions, said: 'Following the decision in Hilt v. Weber, 252 Mich. 198, 233 N.W. 159 , this court of its own motion ordered a rehearing herein. The facts and issues are so fully presented in the original opinion that there is no occasion for detailing them again. The decision as originally rendered in the Kavanaugh Case was overruled by the Hilt Case. In the orderly administration of justice, this necessitates the court now holding that the plaintiff herein is entitled to a decree quieting the title in him to the relicted land involved as prayed in his bill of complaint. A decree may be taken accordingly, but without costs.'

The rule as to stare decisis settled by the Court in Hilt v. Weber, supra, applies with equal force to the motion now before us. In that case, the Court said 252 Mich. at page 223, 233 N.W. at page 167: 'The doctrine of stare decisis has been invoked. The point has much force. Titles should be secure and property rights stable. Because a judicial decision may apply to past as well as to future titles and conveyances, a change in a rule of property is to be avoided where fairly possible. But where it clearly appears that a decision, especially a recent one, was wrong and continuing injustice results from it, the duty of the court to correct the error is plain. The Kavanaugh Cases were decided in the recent years in 1923 and 1927, respectively. They enumerated principles at varince with settled authority in this state and elsewhere, under which real estate transactions long had been conducted and given legal effect by courts and citizens, and, themselves, disregarded the doctrine of stare decisis by overruling the Warner Case [People v. Warner, 116 Mich. 228, 74 N.W. 705], decided in 1898. The rules they stated are not as old as the rules they abrogated. When to that are added the considerations that they operated to take the title of private persons to land and transfer it to the state, without just compensation, and the rules here announced do no more than return to the private owners the land which is theirs, the doctrine of stare decisis must give way to the duty to no longer perpetuate error and injustice.'

Plaintiffs insist that they are entitled to a rehearing, inasmuch as the adverse decision in their case has now been overruled by the Bostrom Case. In that case, Carl D. Bostrom, in his own right and as administrator of the estate of Clara B. Bostrom, his deceased wife, had sued Jennings in one action to recover damages for himself and also for the estate of his deceased wife, resulting from the alleged negligence of Jennings while driving Bostrom's automobile in Illinois. On that trip, Bostrom, a minister, and his wife were going to Iowa to visit a church where the minister was expecting a call. Jennings was riding in the Bostrom automobile as far as a certain college in Illinois to see about enrolling as a student, and was to ride back to Michigan with the Bostroms when they returned. He was to drive...