Kohn v. Ford Motor Co.

• Decision Date: 04 August 1986
• Docket Number: Docket No. 72771
• Citation: 390 N.W.2d 709,151 Mich.App. 300
• Court: Court of Appeal of Michigan — District of US
• Parties: William KOHN, by his Next Friend, Verle Kohn, Plaintiff-Appellant, Cross-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellee, Cross-Appellant.

Page 709

390 N.W.2d 709

151 Mich.App. 300

William KOHN, by his Next Friend, Verle Kohn Plaintiff-Appellant, Cross-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellee, Cross-Appellant.

Docket No. 72771.

Court of Appeals of Michigan.

Submitted Nov. 7, 1984.

Decided April 23, 1986.

Released for Publication Aug. 4, 1986.

Van Benschoten, Hurlburt & Van Benschoten, P.C. by Harvey E. Van Benschoten and Lawrence A. Hurlburt, Saginaw, for plaintiff-appellant, cross-appellee.

Taylor and Braun, P.C. by Charles R. Taylor, Detroit, for defendant-appellee, cross-appellant.

Before KELLY, P.J., and BEASLEY and STEMPIEN, ^* JJ.

BEASLEY, Judge.

On July 5, 1983, after a two-week trial, a Tuscola County jury returned a verdict of no cause of action in favor of defendant, Ford Motor Company, and against plaintiff, William Kohn, by his next friend, Verle Kohn. After a judgment of no cause of action was entered by the trial court, plaintiff appealed as of right. Defendant cross-appealed, raising two issues which need to be addressed only in the event that this case is remanded for a new trial.

The suit arose out of a February 28, 1969, accident involving a 1963 Ford school bus owned by the Vassar Public School System. As the bus approached an intersection in Tuscola County, the brakes failed. The bus driver attempted to turn right and avoid the intersection, but the bus flipped onto its side and landed in a ditch. Plaintiff was one of several school children injured as a result of the accident.

Defendant designed and manufactured the bus chassis and brake system, which was later assembled into the completed bus by another manufacturer. The bus had a single master cylinder hydraulic brake system. In such a brake system, one cylinder provides pressure for all the brakes. Thus, if a leak occurs in any one of the brake drums, the entire brake system becomes inoperable. The Vassar Public School System had purchased and maintained the bus prior to the accident.

On appeal, plaintiff raises six issues. First, plaintiff claims that the Wayne County Circuit Court abused its discretion in granting defendant's motion to change venue to Tuscola County Circuit Court. Resolution of this issue may render it unnecessary for us to address the remaining issues involving the trial in Tuscola County Circuit Court.

Plaintiff filed this suit in Wayne County Circuit Court. Initially, we note that venue was properly laid in Wayne County because defendant's headquarters and principal place of business are located there. ¹ Thus, the Wayne County Circuit Court judge granted defendant's motion for a change of venue to Tuscola County under GCR 1963, 403, now MCR 2.222(A), which provides in part:

"The venue of any civil action properly laid * * * may be changed to any other county by order of the court upon timely motion by one of the parties, for convenience of parties and witnesses * * *."

This Court has clearly stated that the grant or denial of a motion pursuant to GCR 1963, 403 is discretionary, and the trial court's ruling will be reversed only in cases where there is a plain abuse of discretion. ² However, the moving party has the burden of making a persuasive showing of inconvenience justifying a change of venue. ³

On August 10, 1977, the Wayne County trial judge issued a written opinion granting defendant's motion under GCR 1963, 403. In reviewing the trial judge's findings included in his opinion, it is clear that he granted defendant's motion based on the permissible consideration of convenience of the parties and witnesses. Specifically, the trial judge found that the accident occurred in Tuscola County, that plaintiff and his mother were residents of Tuscola County, that the witnesses who could testify as to the facts of the actual accident were residents of Tuscola County, that the witnesses who could testify as to the actual occurrence of brake failure and the maintenance of the bus were residents of Tuscola County, and that the witnesses, other than expert witnesses, who could testify as to damages in the case were residents of or employees who worked in Tuscola County. The trial judge concluded that a far greater number of witnesses would be inconvenienced if trial were held in Wayne County than if the case were to be transferred to Tuscola County.

Based on the above findings, we conclude that the Wayne County trial judge did not abuse his discretion in holding that defendant had carried its burden of making a persuasive showing of inconvenience and granting a change of venue to Tuscola County. In reaching this conclusion, we note that the situation in this case is clearly distinguishable from cases in which this Court has found an abuse of discretion in the granting of a change of venue under GCR 1963, 403. In Brown v. Hillsdale County Road Comm, ⁴ this Court found that the trial court had abused its discretion in transferring a case from Wayne County to Hillsdale County where both counsel and 13 of 17 witnesses were from the Detroit metropolitan area and the plaintiff alleged facts that indicated he would be prejudiced and inconvenienced by the transfer.

In the within case, the Wayne County trial judge found that many of the possible witnesses resided in Tuscola County. We refuse to require the trial judge to make specific findings as to who will be the actual witnesses used at trial when he addresses a motion for change of venue early in the litigation process. Here, the trial judge used common sense in making pragmatic inferences concerning the inconvenience to the witnesses and the parties if the case were litigated in Wayne County. The trial judge's logical inferences on the inconvenience to many of the potential witnesses clearly distinguish this case from the Brown situation.

In Duyck v. International Playtex, Inc., ⁵ this Court found an abuse of discretion when the trial court transferred a case from Wayne to Macomb County where both counsel had offices in Wayne County, the defendant was located out of state, and thus had no preference based on convenience as to either county, plaintiff was located closer to Wayne County, the distance between the two courthouses was only nine miles, the trial court had expressed a desire to stop plaintiff's forum shopping and to keep suits out of Wayne County, and the witnesses were unknown. In the within case, the distance between the Tuscola and Wayne County courthouses is approximately 90 miles, many of the inferrable potential witnesses resided in Tuscola County, and the judge gave no indication that he was transferring the case to keep suits out of Wayne County to clear that court's crowded docket.

The situation in this case is much more closely analogous to that in Hunter v. Doe. ⁶ In Hunter, it was held that the trial court did not abuse its discretion in transferring the case from Wayne to nearby Oakland County where the alleged battery occurred in Oakland County, and seven of the eight defendants resided in Oakland County. This Court concluded that inconvenience for purposes of GCR 1963, 403, was apparent from these facts. We are convinced that the facts in this case present a stronger situation of inconvenience to the parties and witnesses than that in Hunter. The Wayne County trial court did not abuse its discretion in transferring this case to Tuscola County.

In its written opinion, we note that the Wayne County trial judge did state that the testimony of the parties' expert witnesses who did not reside in Tuscola County could be presented through depositions conducted elsewhere. Furthermore, in transferring the case, the trial court noted that the Tuscola County trial courts had previously handled litigation related to this accident and might have some expertise in the matter. Upon reviewing the trial court's entire findings, it appears that these two observations were not used as factors in ruling on defendant's motion under GCR 1963, 403. The trial judge did not impermissibly consider factors other than the "convenience of the parties and witnesses" in transferring the case.

We are especially convinced of our conclusion that the trial court did not abuse its discretion in transferring this case in light of plaintiff's inaction after the change of venue. Plaintiff failed to apply for leave to appeal the trial court's order granting change of venue to Tuscola County. An entire two-week trial was subsequently conducted in Tuscola County without significant inconvenience to plaintiff, and a judgment was entered. Allowing plaintiff to now allege an improper change in venue in order to gain a new trial would cause great inefficiency in the court system. Plaintiff's failure to apply for leave to appeal, although it may not technically violate M.C.L. Sec. 600.1645; M.S.A. Sec. 27A.1645, which deals with the failure of a party to move for a change of venue prior to judgment, certainly violates the spirit of that statute, which provides:

"No order, judgment, or decree shall be void or voidable solely on the ground that there was improper venue."

Plaintiff's inaction further convinces us that the trial judge did not abuse his discretion in transferring the case to Tuscola County. Thus, since venue was properly transferred to Tuscola County, we must address plaintiff's other five issues raised on appeal.

On appeal, plaintiff argues that the trial judge erred in allowing defendant to introduce evidence concerning complications during plaintiff's birth and denying admission of plaintiff's evidence indicating his birth had been normal. The record indicates that the evidence introduced, or sought to be introduced, concerning plaintiff's birth was only relevant to the issue of assessing damages. Defendant sought to establish plaintiff's pre-accident physical and mental condition in order to minimize the jury's possible damage award. However, the jury returned a verdict of no cause of action on the negligence and implied warranty claims and, thus, never reached the...