Lebel v. Swincicki

• Decision Date: 02 December 1958
• Docket Number: No. 28,28
• Citation: 354 Mich. 427,93 N.W.2d 281
• Parties: Edward R. LEBEL, Administrator of the Estate of John Lebel, Deceased, Plaintiff and Appellee, v. Albert SWINCICKI, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 281

93 N.W.2d 281

354 Mich. 427

Edward R. LEBEL, Administrator of the Estate of John Lebel, Deceased, Plaintiff and Appellee, v. Albert SWINCICKI, Defendant and Appellant.

No. 28.

Supreme Court of Michigan.

Dec. 2, 1958.

Miltner & Miltner, Cadillac, for defendant-appellant.

James C. Herrinton, Cadillac, for plaintiff and appellee.

Before the entire Bench.

CARR, Justice.

This is an action for damages based on the alleged negligent killing of plaintiff administrator's decedent. The declaration filed in the case alleged that on the 27th of August, 1955, at about 10 o'clock in the evening, defendant was driving an automobile in a southerly direction on trunkline highway M-66, that at the intersection of said highway with M-115 in Osceola county he operated his automobile in such a careless and negligent manner as to run into a car proceeding in a westerly direction on M-115 and driven by plaintiff's intestate John M. Lebel, and that as a result of said collision John M. Lebel, his wife, and two children were killed. Plaintiff sought the recovery of damages in accordance with the provisions of the socalled death act ¹ of the State of Michigan. The declaration also averred freedom from contributory negligence on the part of John M. Lebel and set forth in some particularity the various respects in which negligence on the part of defendant was claimed. It alleged that decedent left surviving him three minor children who had sustained pecuniary loss because of the death of their father.

Defendant's answer to the declaration admitted that plaintiff's decedent had left three children as his survivors but denied the claim of pecuniary loss and damages sustained thereby, and further denied all claims of negligence on his part. The case was tried before a jury. At the conclusion of plaintiff's proofs defendant moved for a directed verdict on the ground that freedom from contributory negligence on the part of John Lebel had not been established. Decision was reserved by the trial judge and like action was taken on renewal of the motion following the introduction of testimony by defendant. The jury returned a verdict of $10,000. Defendant's motions for judgment notwithstanding the verdict and for a new trial were denied, and defendant has appealed from the judgment entered against him.

As appears from the joint appendix filed in this Court by counsel representing the respective parties, it is stipulated that the accident occurred at the time and place alleged in the declaration, and that the night was clear and dry. It is further agreed that M-66 runs north and south at its intersection with M-115, and that the latter highway runs from southeast to northwest. The main traveled portion of each highway is approximately 22 feet in width. North of the intersection M-66 drops slightly and then rises. It also rises gradually to the south. The parties further stipulated as to the location of certain buildings at or near the intersection, a restaurant being located on the northeast corner, and a gas station on the southeast corner. Following the impact defendant's car came to a stop on its wheels, on the southwest embankment and facing the southwest. The Lebel car was resting on its top approximately 75 to 150 feet to the west. It is also agreed that M-115 is a through highway and that stop signs were placed on M-66 on either side of M-115, in proper locations. Also on M-66 and farther from the intersection than were the 'Stop' signs there was situated, on each side of the intersection, a 6 X 8 foot lattice-wood sign on which appeared at the time of the accident 'Stop Ahead'.

On behalf of appellant it is claimed that there was no competent evidence justifying submitting to the jury the question of John Lebel's freedom from contributory negligence. It is contended that there was no direct proof establishing that decedent's car was being driven on M-115, and by way of argument it is said that he may have been driving on M-66 as he approached the intersection. In submitting the case to the jury the trial judge stated in some detail the claims of both parties, leaving it to the jury to determine the issue as a matter of fact. The verdict indicates that it was based on a finding that plaintiff's claim as to the material facts was correct. In denying the motion for a new trial the circuit judge expressed the opinion that the question as to decedent's freedom from contributory negligence was properly submitted to the jury to be determined from the testimony in the case as well as from the physical facts disclosed by the proofs. We think that such conclusion was correct.

Defendant Swincicki was called by plaintiff for cross-examination. He stated that at the time of the accident he was driving 55 miles per hour, and that he did not see the signs on M-66 or at least could not recall that he did so. He also stated that immediately before the impact he saw a flash of light come from the left. Such testimony would indicate that the Lebel car was proceeding on M-115. Later in his testimony defendant declared that he did not know from what direction the light was approaching, but admitted that it was: 'Probably coming from the left.' He also admitted that during the day, August 27th, he had had 'probably four bottles of beer,' the last one between 9 and 10 o'clock in the evening. Defendant's testimony is of such nature as to justify submitting to the jury the question of freedom from contributory negligence on the part of plaintiff's decedent. The negligence of defendant clearly appears.

If the Lebel car was proceeding on M-115, as claimed by plaintiff, the driver was not required to anticipate that a motorist approaching on M-66 would enter the intersection in disregard of the traffic signs and at a high rate of speed. Staunton v. City of Detroit, 329 Mich. 516, 46 N.W.2d 569; Hicks v. Gillespie, 346 Mich. 593, 78 N.W.2d 145. It is a fair inference also from defendant's testimony, considered in its entirety, that John Lebel was not driving in a northerly direction on M-66 immediately prior to the collision. Defendant persisted in his claim that he saw only a flash of light immediately before the impact. Had the Lebel car been approaching from the south he could scarcely have failed to observe its headlights which under the physical facts would have been directly in front of him. Obviously he did not see any headlights, a fact that tends to clearly indicate that the suggestion made by way of argument as to the highway on which the Lebel car approached the intersection is not wellfounded.

The manner in which the accident occurred and the position of the automobiles at the time of the accident is further indicated by the physical facts, that is, by the nature of the damage sustained by each vehicle and by the positions of the cars following the collision. The trial court was not in error in leaving the question of John Lebel's freedom from contributory negligence to the jury to be determined as a matter of fact on the basis of the proofs.

It is further insisted on behalf of the defendant that the verdict returned by the jury, on which judgment was entered, was excessive. Such claim appears to be predicated principally on the fact that under insurance policies on the life of their father the three children who are survivors of plaintiff's decedent received a total of $5,400, and that such sum should have been deducted from the amount of the financial loss, as indicated by the proofs, that was sustained by said children as a result of their father's death. It is argued that had such deduction been made the verdict, under the proofs, must necessarily have been less than $10,000. In making this argument counsel for defendant direct attention to the fact that John Lebel was divorced from the mother of the children in question, and that the decree entered in the case referred to the insurance policies and in terms directed that they should be kept in force and effect until the youngest of the three children reached the age of 21. The decree further required that the father pay the sum of $20 per week toward the support of the three children until the youngest reached the age of 17. Obviously the provision with reference to the insurance was not designed to be in lieu of the support payments in the event of inability for any reason to make such payments. It is likewise apparent that the purpose to be served by the insurance was not intended to operate to the benefit of any one negligently or otherwise wrongfully causing the death of John Lebel. We are not in accord with defendant's claim that the payments made under the insurance policies can affect the recovery of damages to which decedent's children are entitled. It may be noted further in this connection that the insurance payments were not subject to apportionment among the children in the manner provided by the statute with reference to damages recovered for the benefit of persons suffering pecuniary loss as a result of a death caused by negligence or otherwise wrongful conduct, and entitled to recover therefor.

Complaint is made that the trial judge did not properly instruct the jury with reference to the manner of computing damages. An examination of the charge as given brings us to the conclusion that defendant may not claim that he was unduly prejudiced thereby. Neither was there error in denying the motion for a new trial on the ground of newly discovered evidence relating to the matter of pecuniary loss. It is the claim of defendant that following the death of their father the three children sustaining such loss because of his death have been paid social security benefits, and that such payments should be considered in determining the amount of recovery. It does not clearly appear, however, that the facts with reference to such payments might not have been discovered pefore trial. The trial judge was correct in so holding. It may be suggested also that such...