Lemanski v. Ford Motor Co.

• Decision Date: 03 April 1978
• Docket Number: Docket No. 30392
• Citation: 82 Mich.App. 244,266 N.W.2d 775
• Parties: Susie LEMANSKI, Individually and as Executrix of the Estate of Stanley Lemanski, Deceased, Plaintiff-Appellee, v. FORD MOTOR COMPANY, a Foreign Corporation, Defendant-Appellant, and Garth S. Omara, d/b/a Omara Ford, Kenneth J. Weber, Individually and d/b/a Weber's Marathon Station and John Leroy Ahrens, jointly and severally, Defendants. 82 Mich.App. 244, 266 N.W.2d 775
• Court: Court of Appeal of Michigan — District of US

Page 775

266 N.W.2d 775

Susie LEMANSKI, Individually and as Executrix of the Estate of Stanley Lemanski, Deceased Plaintiff-Appellee, v. FORD MOTOR COMPANY, a Foreign Corporation Defendant-Appellant and Garth S. Omara, d/b/a Omara Ford, Kenneth J. Weber Individually and d/b/a Weber's Marathon Station and John Leroy Ahrens, jointly and severally, Defendants.

Docket No. 30392.

82 Mich.App. 244, 266 N.W.2d 775

Court of Appeals of Michigan.

April 3, 1978.

Rehearing Denied May 17, 1978.

Released for Publication June 27, 1978.

[82 MICHAPP 245] Smith & Brooker, PC by Glenn F. Doyle, Bay City, for Ford Motor and omara.

Miller, Canfield, Paddock & Stone by Wolfgang Hoppe and Frank J. Greco, Detroit, of counsel, for Ford.

Robert B. Miller, Southfield, for Lemanski; Michael D. Dennis, Bad Axe, of counsel.

Rodman C. Moesta, Detroit, for Weber and Ahrens.

Altero Alteri, Detroit, for Marathon Oil.

Before D. E. HOLBROOK, P. J., and KAUFMAN and McDONALD, ^* JJ.

McDONALD, Judge.

Decedent Stanley Lemanski was injured on January 22, 1974, when he was struck by his own automobile while it was being driven by an employee of the service station where he had taken it to have mud flaps installed. Mr. Lemanski was standing at the back of the service bay as the employee drove the car into the bay. The car failed to stop and severely injured Mr. Lemanski's legs. Mr. Lemanski, age 80, died in [82 MICHAPP 246] April of 1976. The cause of his death was not related to the accident.

In March, 1974, Mr. and Mrs. Lemanski filed this action. The defendants were Ford Motor Company, manufacturer of the 1974 automobile involved in the accident; Garth O'Mara, doing business as O'Mara Ford, the dealer who sold the vehicle to the Lemanskis; John Ahrens, the service station employee who was driving the car at the time of the accident; Kenneth Weber, individually and doing business as Weber's Marathon Station, the operator of the service station and employer of Mr. Ahrens, and the Marathon Oil Company.

The suit was originally filed in Wayne County and there was a change of venue to Huron County where the matter was tried before a jury.

The case proceeded to trial against Defendants Ahrens and Weber on a negligence theory; against O'Mara on breach of implied warranty; and against the Ford Motor Company on negligence, breach of express warranty and breach of implied warranty.

The trial of this matter consumed six days and resulted in a transcript of almost 900 pages. The instructions to the jury covered about 30 pages of the transcript.

The jury returned verdicts of no cause of action as against Defendants Ahrens, Weber and O'Mara. Mrs. Lemanski, as executrix of her late husband's estate, was awarded $86,626.00 against Ford Motor Company, and Mrs. Lemanski, individually, was awarded $48,250.00 against Defendant Ford Motor Company. Mrs. Lemanski was 71 years of age at the time of the verdict.

Judgment was entered on the verdicts on June 24, 1976. On July 12, 1976, a motion for judgment notwithstanding the verdict, or in the alternative, [82 MICHAPP 247] for a new trial was filed by Defendant Ford Motor Company. There is no brief in support of the motion made by Defendant Ford Motor Company in the record of the lower court. An answer to the motion was filed by the plaintiff on August 11, 1976. There is no brief by the plaintiff in the lower court records in opposition to the motion for a new trial.

The disposition of this motion by the trial court consists of the following:

"This matter having come on to be heard before the Court on Motion of Defendant Ford Motor Company on Friday, August 20, 1976, and the Court having reviewed said Motion and plaintiff's response thereto and having listened to the arguments of counsel;

"IT IS THEREFORE ORDERED that the Defendant's Motion for Judgment Notwithstanding the Verdict and/or for New Trial is denied."

This order by the Court was signed September 13, 1976, but the form indicates that several of the attorneys involved had approved it as to form and content as early as August 30, 1976. The lower court records indicate that the transcript was ordered on September 16, 1976, and that a claim of appeal was filed on the 23rd day of September, 1976, which reads as follows:

"Ford Motor Company, Defendant-Appellant, claims an appeal from the Order Denying Judgment Notwithstanding the Verdict and/or for New Trial entered September 13, 1976, in the Circuit Court for the County of Huron * * * copy of which is attached hereto."

New trials are to be sought and granted or denied in the trial court. GCR 1963, 527.

It is only after the trial judge has exercised his discretion and has disposed of the motion that the [82 MICHAPP 248] matter may be presented to the Court of Appeals. GCR 1963, 805.

The question on review is whether or not the trial court abused its discretion in either granting or denying a motion for a new trial. GCR 1963, 812.6.

"The grant or denial of a new trial is within the sound discretion of the trial court which, if not abused, cannot be interfered with on appeal." Kailimai v. Firestone Tire & Rubber Co., 398 Mich. 230, 232, 247 N.W.2d 295, 296 (1976).

The record brought to this Court for review does not contain any briefs of counsel or any argument offered in the trial court in support of appellant's motion for a new trial or for a judgment notwithstanding the verdict.

"It was incumbent upon the appellant to prepare the record." Kranz v. Kranz, 323 Mich. 680, 683, 36 N.W.2d 179, 180 (1949).

"This Court is restricted to reviewing the record before it." People v. Williams, 19 Mich.App. 291, 306, 172 N.W.2d 515, 522 (1969).

On the basis of the present record before this Court it is impossible to determine what issues were urged in the lower court as a basis for a new trial.

"This Court is limited on review to the issues decided by the trial court." Hernandez v. Consumers Power Co., 51 Mich.App. 288, 291, 294 N.W.2d 846, 848 (1974).

In making a motion for a new trial, the burden is on the appellant-defendant to persuade the trial court of error committed during the trial of sufficient[82 MICHAPP 249] magnitude to cause the trial court in its judicial discretion to grant a new trial.

"An appellate court will interfere with the trial court's exercise of its discretion in this regard only if abuse of its discretion is so plain that upon consideration of the facts upon which the trial judge acted an unprejudiced person can say that there was no justification or excuse for the ruling made." Carpenter v. Cleveland, 32 Mich.App. 213, 215, 188 N.W.2d 248, 250 (1971).

It is the responsibility of the appellant-defendant to bring before the reviewing court sufficient of the record from the lower court to indicate that the claim that the trial court abused its discretion in disposing of the motion has validity.

"The granting or denying of a motion for new trial rests within the sound discretion of the trial court and reversal of such order is a function of whether prejudicial error was committed and an abuse of discretion is found." Durbin v. K-K-M Corp., 54 Mich.App. 38, 57-58, 220 N.W.2d 110, 121 (1974).

In Fera v. Village Plaza, Inc., 396 Mich. 639, 242 N.W.2d 372 (1976) the plaintiffs received a jury award of $200,000.00 for loss of anticipated profits in their proposed new business, as a result of defendant's breach of a lease. The Court of Appeals reversed, 52 Mich.App. 532, 218 N.W.2d 155 (1974). The Supreme Court reversed and reinstated the jury award.

In his opinion reversing the Court of Appeals, Chief Justice Kavanagh said:

"The trial judge, who also listened to all of the conflicting testimony,...