Klanseck v. Anderson Sales & Service, Inc., Docket No. 64816

• Decision Date: 19 October 1984
• Docket Number: Docket No. 64816
• Parties: Stephen KLANSECK and Karen Klanseck, Plaintiffs-Appellants, v. ANDERSON SALES & SERVICE, INC., a Michigan corporation, and American Honda Motor Company, Inc., a foreign corporation, jointly and severally, Defendants- Appellees. 136 Mich.App. 75, 356 N.W.2d 275, 39 UCC Rep.Serv. 1652
• Court: Court of Appeal of Michigan — District of US

Page 275

356 N.W.2d 275

Stephen KLANSECK and Karen Klanseck, Plaintiffs-Appellants, v. ANDERSON SALES & SERVICE, INC., a Michigan corporation, and American Honda Motor Company, Inc., a foreign

corporation, jointly and severally,

Defendants- Appellees.

Docket No. 64816.

136 Mich.App. 75, 356 N.W.2d 275, 39 UCC Rep.Serv. 1652

Court of Appeals of Michigan.

Submitted May 18, 1983.

Decided July 9, 1984.

Released for Publication Oct. 19, 1984.

[136 MICHAPP 78] Moore, Sills, Poling & Wooster, P.C. by James M. Prahler, Birmingham, for plaintiffs-appellants.

Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark by Thomas G. Herrmann, Farmington Hills, for Anderson Sales & Service, Inc.

Dice, Sweeney, Sullivan & Feikens, P.C. by Jon Feikens, Detroit, for American Honda Motor Co., Inc.

Before T.M. BURNS, P.J., and WALSH, and SIMON, ^* JJ.

SIMON, Judge.

Following a trial in the Oakland County Circuit Court, the jury determined that both defendants were liable on negligence and breach of implied warranty theories. Damages were assessed at $40,000, and plaintiff Stephen Klanseck ¹ was found to be 60% negligent, resulting in a reduction of his recovery to $16,000. Plaintiffs now appeal as of right.

On May 27, 1976, plaintiff purchased a Honda G.L. 1000 motorcycle from Anderson Sales & Service. At the time of this purchase, plaintiff had only three hours experience with a motorcycle of this size and some ten hours of experience on a dirt bike which plaintiff described as "just a little toy".

Approximately three to four hours after plaintiff took delivery of the motorcycle, he was involved in an accident while travelling north on Telegraph Road toward his home in Flint. At this time, plaintiff was travelling at 55 miles per hour, which [136 MICHAPP 79] was in excess of the speed limit. Moreover, plaintiff did not possess a motorcycle operator's endorsement on his driver's license.

The accident occurred shortly after plaintiff noticed the motorcycle "sort of fishtailing", whereupon he removed his hand from the throttle and applied the front brake. The motorcycle started to slide; plaintiff hit the pavement and rolled across three lanes of traffic.

Plaintiff's wife, who was driving ahead of him in a car, stopped and transported plaintiff to St. Joseph's Hospital in Pontiac. Plaintiff received sutures in his left arm, was X-rayed, and released. Approximately two weeks later, a fracture of plaintiff's right wrist was diagnosed. Plaintiff also sought additional treatment to alleviate pain in his left arm and hand.

At the trial, plaintiff offered the expert testimony of O. Edward Kurt to establish his case. Mr. Kurt testified that he had discovered a short slit in the front tire tube of the motorcycle. He testified that the slit could well have been caused when the tube came into contact with the metal heads of the spokes on the front wheel rim of the motorcycle. According to Mr. Kurt, a protective rubber strip that would have prevented the slit from developing was not properly placed on the wheel rim.

The expert for defendant American Honda, Mr. Jameson, testified that he doubted that the spoke heads could create the slit found in the front tire tube. He further stated that he found no chafing in the area of the slit, which would be expected if, in fact, the tube was making contact with the spoke heads.

Other evidence will be set forth as is necessary to resolve the several issues raised by plaintiff on appeal.

[136 MICHAPP 80] Plaintiff first contends that the trial court erred in charging the jury that it could infer negligence on his part because he was driving the motorcycle without the proper licensing endorsement, M.C.L. Sec. 257.312a; M.S.A. Sec. 9.2012(1), and M.C.L. Sec. 257.312b; M.S.A. Sec. 9.2012(2), and since he was travelling in excess of the speed limit, M.C.L. Sec. 257.627; M.S.A. Sec. 9.2327. Plaintiff asserts that the claimed statutory violations do not permit an inference of negligence in this case under the Michigan Supreme Court's holding in Zeni v. Anderson, 397 Mich. 117, 138, fn. 2, 243 N.W.2d 270 (1976). There the Court said that for a statutory violation to give rise to an inference of negligence, three conditions must be met: (1) the statute must be intended to protect against the injury involved, (2) plaintiff must be within the class intended to be protected by the statute, and (3) the evidence must be sufficient to support the conclusion that the statutory violation was a proximate cause of the occurrence.

This Court's decision in Turri v. Bozek, 79 Mich.App. 212, 261 N.W.2d 264 (1977), rev'd on other grounds 406 Mich. 900, 276 N.W.2d 457 (1979), ² is cited by both defendants as supporting the propriety of the court's instruction that the jury could infer negligence from the fact that plaintiff did not possess a motorcycle endorsement. In Turri, the plaintiff's motorcycle was involved in an accident with the defendant's camper. The court instructed the jury that plaintiff's violation of the motorcycle license statute by plaintiff constituted negligence per se, and the jury returned a verdict of no cause of action. On appeal, plaintiff asserted that the circuit court had erred reversibly in instructing [136 MICHAPP 81] the jury that a violation of the motorcycle license statute would constitute negligence per se. ³ This Court disagreed, noting:

"1. The motorcycle license statute is intended to protect against accidents involving motorcycles driven by persons who have not been legally recognized as competent in their operation.

"2. Plaintiff is within the class of persons intended to be protected by the statute. Under the statute plaintiff should have passed an examination which included a driving test designed to assess his competency to drive a motorcycle.

"3. Plaintiff did not submit to such an examination and this violation could properly have been considered by the jury to be a proximate cause of the accident." Id., 79 Mich.App. pp. 215-216, 261 N.W.2d 264.

The Turri decision adopts the minority rule in respect to whether negligence may or must be inferred where the operator of a motor vehicle or motorcycle is not licensed. The vast majority of courts have held that a party's lack of an operator's license is immaterial to the issue of negligence. See, Anno: Lack of a proper automobile registration or operator's license as evidence of operator's negligence, 29 A.L.R.2d 963, Sec. 5, p. 970. If Turri were the only reported Michigan decision on this question, we might be persuaded to adopt the majority rule. However, the decision in Parks v. Pere Marquette R. Co., 315 Mich. 38, 48-49, 23 N.W.2d 196 (1946), is clearly at odds with the [136 MICHAPP 82] majority view. There, the plaintiff brought suit to recover damages for the death of his son in an automobile accident. The decedent owned the vehicle involved in the mishap. However, the vehicle was actually being driven at the time of the accident by an unlicensed minor with the decedent's permission. The Supreme Court determined that the jury had the right to consider that the driver of the decedent's vehicle was unlicensed, stating that it bore on the issue of the contributory negligence of the driver, which negligence, on the facts of the case, was to be imputed to the decedent. The Court specifically based its decision on the fact that an unlicensed driver who operates a motor vehicle does so in violation of statute requiring licensing. Given Parks, we believe the court's charge to the jurors properly informed them that they could infer negligence from plaintiff's failure to obtain a motorcycle endorsement. ⁴

We also conclude that the trial court correctly [136 MICHAPP 83] instructed the jury that plaintiff's violation of the basic speed law, M.C.L. Sec. 257.627; M.S.A. Sec. 9.2327, would permit the jury to infer that plaintiff was negligent. In Resolute Ins. Co. v. Marshall, 350 Mich. 218, 222, 86 N.W.2d 313 (1957), the Supreme Court flatly stated: "It is the rule that speed in excess of the statutory speed limit is negligence per se." ⁵

Plaintiff next contends that the trial court erred in instructing the jury that comparative negligence would be a defense to plaintiff's breach of implied warranty theories. The Michigan Supreme Court recently held contrary to plaintiff's position karl v. bryANT AIR CONDITIONING CO., 416 MICH. 558, 568-569, 331 N.W.2d 456 (1982).

Plaintiff next asserts that this case must be reversed because the trial court's supplemental instructions to the jury deprived him of his right to a jury of six members. During the course of deliberations, the jurors sent a note to the judge which indicated that five of them agreed on responsibility and asking whether the sixth juror should be allowed to participate in assessing damages. The trial court then proceeded to instruct the jury that the same five jurors who agreed on liability also had to agree on damages. The court did not indicate, however, that the juror who did not agree on responsibility could not participate in the deliberations on the issue of damages.

We first note that the transcript fails to reflect that the verdict was not unanimous. Following the completion of the reading of the verdict, the court asked the jurors as a group whether this was their verdict. The transcript fails to show that any juror answered in the negative. All counsel declined the [136 MICHAPP 84] opportunity to individually poll the jurors. Under these circumstances, we believe that this claim has not been properly preserved for appellate review. Nonetheless, we choose to use our discretionary powers to address this claim on the merits.

GCR 1963, 512.1, provides that "in civil cases, tried by six jurors, a verdict shall be received when five jurors agree". Although it is an issue of first impression in this state as to whether this rule requires the same five jurors who agreed on liability to agree on damages, this problem has been addressed in other states. The...