Klein v. Wagenheim

• Decision Date: 26 April 1966
• Docket Number: Nos. 333,No. 1,334,s. 333,1
• Citation: 3 Mich.App. 74,141 N.W.2d 714
• Parties: George KLEIN, and Olga Klein, Plaintiffs-Appellants, v. Albert WAGENHELM, individually and d/b/a Superior Radio Repair, Defendant- Appellee. Cal
• Court: Court of Appeal of Michigan — District of US

Page 714

141 N.W.2d 714

3 Mich.App. 74

George KLEIN, and Olga Klein, Plaintiffs-Appellants, v. Albert WAGENHELM, individually and d/b/a Superior Radio

Repair, Defendant- Appellee.

Cal. Nos. 333, 334.

Court of Appeals of Michigan, Division No. 1.

April 26, 1966.

M. Manuel Merzon, Detroit, for appellants.

John D. Peacock, Ward, Plunkett, Cooney, Rutt & Peacock, Detroit, for appellee.

Before WATTS, P.J., and BURNS and GILLIS, JJ.

WATTS, Judge.

Plaintiffs' civil suits were consolidated for jury trial. The husband, George Klein, instituted civil suit for damages in the Wayne county circuit court, resulting from being struck by an automobile, his wife, Olga Klein, for damages resulting from loss of consortium. Judgment of no cause for action is appealed by plaintiffs.

George Klein testified that he was a plumber by trade, employed by Hartwell Plumbing and Heating Company located at 15364 Schaefer highway in Detroit; that on January 4, 1961, at approximately 8 a.m. he parked a truck on Tracey avenue and proceeded to walk to the plumbing shop for materials; that he walked on the west side of Schaefer to a point opposite his place of employment, which is located on the east side of Schaefer approximately 250 feet north of Fenkell; that the northbound and southbound vehicular traffic on Schaefer was stopped for a traffic signal at the intersection of Fenkell and Schaefer; that motor vehicles were parked on the west side of Schaefer in the curb lane, and a number of southbound cars were stopped in the lane east of the curb lane waiting for the traffic signal to change.

Plaintiff further testified that he entered Schaefer highway from the west, walked between cars parked at the curb and cars stopped for a traffic signal at Fenkell and Schaefer; that after he had passed the second lane of cars, he looked to the north and to the south and saw no moving traffic; that he continued to cross Schaefer when he was struck by a truck driven by the defendant in southerly direction in a northbound lane; and that his left leg was fractured in the accident and he was taken to the hospital where he remained for a period of 25 days.

Plaintiffs contend that the negligence of the defendant was the proximate cause of the accident which resulted in injuries to George Klein and loss of consortium to Olga Klein. Plaintiff George Klein claims damages in the amount of $100,000, and plaintiff Olga Klein damages in the amount of $50,000.

The defendant contends that he was proceeding south in the southbound lane and that plaintiff suddenly ran into the side of his motor vehicle.

Defendant further contends that he was operating a motor vehicle in a lawful and proper manner and at a legal rate of speed, that the accident happened solely because of the contributory negligence of the plaintiff.

After the jury had deliberated for some time, they returned to the courtroom and requested that the testimony be read. The court denied their request. The jury returned with a verdict of no cause for action.

The plaintiffs moved for a new trial, alleging 9 assignments of error. The third assignment of error alleges that the court erred in denying the request of the jury to have the testimony read. The trial court denied plaintiffs' motion for a new trial.

In answer to the jurors' request to have the testimony read, the court said:

'The Court: I have a note, members of the jury, that says the jury specifically requests that the testimony be read over to them.

'Let me explain that to you. I do not deem it proper to read any testimony, unless you read all of the testimony of the case, for the simple reason that if you read some of it you tend to emphasize that over the other.

'So that I have always held, and I think it is generally held, although some judges may not agree with me, that it is improper to read part of the testimony.

'I feel the only proper way to do it would be to read everything in the case. I wonder if you want to take 2 days and have it all read back to you.

'(Juror No. 9 rises)

'The Court: Are you the foreman, sir?

'Foreman: Yes, sir.

'This was what we had in mind. We would like to hear it all read over again.

'The Court: Well, as a last resort * * * It would take 2 days; it can't be read any faster than it was given. That means we would have to release the reporter and tie him up somewhere in another courtroom, and get a new reporter in, and you would have to sit and listen to all of it.

'And how long did the case take? It took nearly 2 days, didn't it? It can't be read any faster than you heard it in the trial. I wonder if we want to be tied up that long in reading it all.

'Why don't you try to work a little more and see if you can come up with something, and see what happens? You may retire.'

Question: Was the trial court's denial of the jury's request to have the testimony read reversible error?

A jury trial is a proceeding in which the jury are the triers of the facts and the courts are the judges of the law. A jury trial means that the ultimate determination of the issues of fact is for the jury under the guidance and direction of the court.

The record clearly indicates the jury's need for the court's guidance and assistance in their determination of the difficult issues of fact raised in the instant trial.

The jury was compelled to return to the jury room without hearing the testimony read. Their request was fundamentally and basically sound, timely, and reasonable. It...