Mack v. Precast Industries, Inc., 104

• Decision Date: 07 March 1963
• Docket Number: No. 104,104
• Citation: 120 N.W.2d 225,369 Mich. 439
• Parties: Katheryne MACK, Administratrix of the Estate of Lawrence Harry Mack, Deceased, Plaintiff and Appellant, v. PRECAST INDUSTRIES, INC., a Michigan corporation, H. H. Shinville, Inc., a Michigan corporation, and Frank Branch, jointly and severally, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 225

120 N.W.2d 225

369 Mich. 439

Katheryne MACK, Administratrix of the Estate of Lawrence Harry Mack, Deceased, Plaintiff and Appellant, v. PRECAST INDUSTRIES, INC., a Michigan corporation, H. H Shinville, Inc., a Michigan corporation, and Frank Branch, jointly and severally Defendants and Appellees.

No. 104.

Supreme Court of Michigan.

March 7, 1963.

Doyle, James & Dark, Kalamazoo, for plaintiff and appellant.

Paulson, Bennett & Palmer, Kalamazoo, for defendant and appellee.

Before the Entire Bench.

DETHMERS, Justice (dissenting).

This is a suit under the survival act and the wrongful death act, for injury and death of plaintiff's decedent. From verdict and judgment of no cause for action for defenant Shinville plaintiff appeals. No appeal is taken from dismissal as to the order 2 defendants.

Defendant's negligence and contributory negligence of plaintiff's decedent were placed in issue by the pleadings. Plaintiff says 'the charge of the court is the sole matter on review.'

The first claim of error relates to the statement in the court's charge that for the plaintiff to recover the jury must find that the decedent 'was free of any negligence, however slight, which contributed to his injury.' Plaintiff says it was error to so instruct the jury 'without further instructing the jury that the negligence, however slight, must be a proximate or direct cause of the injuries and death.' There is no difference in meaning to say, as the court did, that the negligence, however slight, of decedent which would bar plaintiff's right to recover must be that 'which contributed to his injury' or to say, as plaintiff urges that the court should have said, that it must be that which is 'a proximate or direct cause of the injuries and death.' They are one and the same thing. The court elsewhere properly defined contributory negligence and proximate cause. If negligence contributes to, it is a proximate cause of the injury. Plaintiff also says that the court erred in causing the words 'however slight' to modify the word 'contributed' rather than the words 'proximate' or 'direct' cause. The court did neither. A reading of the portion of the charge above quoted makes it manifest that the court properly caused the words 'however slight' to modify the word 'negligence'. This is as it should be, according to the case relied upon by plaintiff in this connection, Huey v. Milligan, Ind.App., 175 N.W.2d 698. That court emphasized the difference between saying 'slight negligence which is proximate cause' and 'negligence which is a slight cause.' To bar recovery, decedent's negligence, however slight, must have been a proximate, direct, contributory cause.

Plaintiff cites Schattilly v. Yonker, 347 Mich. 660, 81 N.W.2d 343, to the effect that attempts to discuss, in the charge to the jury, the difference between 'mere' negligence and 'actionable' negligence are more likely to confuse than clarify and that no such distinction exists in Michigan law. From that, it does not follow that a plaintiff's negligence, however slight, which contributed to his injury would not bar his right to recover. An instruction that it would bar it is a correct statement of the law. From the statement in Schattilly that no distinction exists in Michigan law between mere negligence and actionable negligence, the necessary implication is that mere negligence is actionable. By the same token, mere negligence or negligence however slight, on a plaintiff's part, which is a proximate cause of or contributes to his injury, is a bar to his right to recover.

In Vinton v. Township of Plainfield, 208 Mich. 179, 175 N.W. 403, the court's instruction included the following:

'The plaintiff can recover providing he himself or his son were not guilty of any negligence which contributed in any degree to the injury;'

While that language was not specifically challenged, this Court said of the instructions containing that statement that they were proper. In Zylstra v. Graham, 244 Mich. 319, 221 N.W. 318, there was included in the instructions the statement that if plaintiff's decedent was guilty of contributory negligence 'no matter how slight' the verdict must be for defendant. Again, while that statement was not directly challenged, the instructions were approved as sufficiently informing the jury as to the duties and responsibilities of both parties. In Haara v. Vreeland, 254 Mich. 462, 236 N.W. 836, the court instructed the jury that for plaintiff to recover it must find that plaintiff 'was free from any negligence which contributed to the injury, 'and when I say any negligence, I mean even the slightest * * *.'' Plaintiff specifically challenged the use of the word 'slightest' in this connection. It was held to be not prejudicial to plaintiff's case.

Reference has been made to the statement in this Court's majority opinion in People v. Campbell, 237 Mich. 424, 212 N.W. 97, that, 'Slight negligence is never actionable either in the civil or criminal law and is not so under this statute.' From this, it is reasoned that neither can slight negligence of a plaintiff be contributory negligence barring his right to recover. The statute referred to in the quotation was P.A.1921, No. 98, defining the crime of negligent homicide under which the prosecution in that criminal case has been brought. No question did or could have arisen in that criminal prosecution as to the propriety of a jury instruction on slight contributory negligence such as here given. The mentioned statement in the opinion was gratuitous, obiter dictum, made without benefit of citation or authorities, and was not necessary nor even pertinent to the decision that the conviction should be reversed and a new trial granted because of error in admitting evidence as to defendant's violation of the speed limit in a business district at a point remote from the scene of the accident and an instruction to the jury that the deceased, for whose killing defendant was being criminally prosecuted, were, as a matter of law, free from contributory negligence. It is of no precedential value here.

Also cited is Michigan Central Railroad Co. v. Coleman, 28 Mich. 440. There, in a suit by a passenger against the railroad, this Court held improper an instruction that carriers of passengers are 'legally bound to exert the utmost care and skill in conveying their passengers, and are responsible for the slightest negligence or want of skillfulness' and 'That the degree of responsibility to which carriers of passengers are subjected is not ordinary care, which will make them liable for ordinary neglect, but extraordinary care which renders them liable for slight neglect.' Of that instruction, this Court said that it 'would fairly permit the jury to find anything to be negligence which could by any possibility be avoided.' Despite the use of the words 'however slight' in the instructions in the instant case, they did not, as in Coleman, indicate that the duty reposing on plaintiff's decedent was to exert the utmost care and skill or that he was subjected to responsibility for extraordinary care, or that he was guilty of contributory negligence if he did or failed to do anything which could by any possibility be avoided. On the contrary, the court in this case expressly told the jury that the duty reposing on plaintiff's decedent was 'to exercise ordinary care for his own protection.'

We are aware of the situation in Clark v. Grand Trunk Western Railway Co., 367 Mich. 396, 116 N.W.2d 914, in which 5 of the 8 members of this Court signed an opinion holding that a claim of error of the kind above considered was without merit and one of those 5 then also joined the 3 remaining members of this Court in signing an opinion holding it to be reversible error. The consequence thereof may be debatable.

In Iwrey v. Fowler, 367 Mich. 311, 116 N.W.2d 722, this Court, after holding that for another reason the case should be reversed and remanded for new trial, also said the following:

'Complaint is also made with reference to the following statement in the charge, likewise bearing on the question as to the contributory negligence of Mrs. Iwrey:

"Under our law it does not make any difference if the defendant is 99.9 per cent guilty of negligence, if the plaintiff driver is 1/10th of 1 per cent, or in any way guilty of negligence that contributed to the accident she cannot recover.'

'It is insisted that said statement might have been interpreted by the jurors as barring recovery on the basis of negligence so slight as to be immaterial, or possibly on a finding of remote lack of due care as distinguished from negligence proximately contributing to the accident. That the instruction might have been so construed is possible. The specific reference to stated percentages might well have been confusing.'

The instruction at bar made it clear that the only negligence of decedent which would defeat plaintiff's cause of action is negligence which proximately causes the accident, and that proximate cause means that act or failure to act which an ordinarily prudent person ought reasonably to have foreseen might produce the injury in question. These instructions did not, as in Iwrey, give the jury occasion to find 'remote lack of due care as distinguished from negligence proximately contributing to the accident' as a bar to recovery.

Both in Iwrey and in Schattilly note is taken of the possibility for confusion in the instructions there involved. This factor also is mentioned in comments of the Illinois supreme court committee in its Illinois pattern jury instructions. To a suggestion of that character, made to the trial courts of this State, that this type of instruction might, in the interests of clarity, better be omitted in the future, this writer has no objection. This does not include agreement that the instructions given in this case were confusing or constituted prejudicial error.

Appellant further complains of the court's...