McCullough v. Ward Trucking Co., 17

• Decision Date: 01 October 1962
• Docket Number: No. 17,17
• Citation: 368 Mich. 108,117 N.W.2d 167
• Parties: Odessa McCULLOUGH, administratrix of the estate of Van McCullough, deceased, Plaintiff and Appellant, v. WARD TRUCKING COMPANY, a Michigan corporation, Defendant and Appellee, and William A. Hazinger, Defendant.
• Court: Michigan Supreme Court

Page 167

117 N.W.2d 167

368 Mich. 108

Odessa McCULLOUGH, administratrix of the estate of Van McCullough, deceased, Plaintiff and Appellant, v. WARD TRUCKING COMPANY, a Michigan corporation, Defendant and Appellee and William A. Hazinger, Defendant.

No. 17.

Supreme Court of Michigan.

Oct. 1, 1962.

Buell Doelle, Edward P. Echlin, Vandeveer, Haggerty, Doelle, Garzia, Tonkin & Kerr, Damon J. Keith, Detroit, for appellant.

Cary, BeGole & Martin, Detroit, for appellee.

Before the Entire Bench.

BLACK, Justice.

The primary question in this case is governed by a changeless rule of the common law, written here many years ago and followed since by most of the courts of the States as well as the courts of the United States. The '12 reasonable men [and women] appointed by the constitution to determine disputed or doubtful questions of fact' have themselves disagreed. That is some evidence, by itself that all reasonable persons would not agree with respect to the conduct of this defendant driver as being negligent or prudent. ¹

The decisional test comes from the pen of Mr. Justice Cooley, reflected in Bronson v. Oakes, CCA 8, 76 F. 734, 739, 740 (following Jones v. East Tennessee &c. Railroad Co., 128 U.S. 443, 9 S.Ct. 118, 32 L.Ed. 478 and Grand Trunk R. Co. of Canada v. Ives, 144 U.S. 408, 417, 12 S.Ct. 679, 36 L.Ed. 485):

'When it can be affirmed that all reasonable men would agree as to the quality of an act in respect of its being either negligent or prudent, the court may give effect to such concensus of opinion, and direct a verdict in accordance therewith. The direction is given, not because it is the judge's opinion alone, but because the judge is able to say that it is also the opinion that all reasonable men would entertain of the question. If there is doubt as to whether all reasonable men would draw the same conclusion from the evidence, then the question must be submitted to the 12 reasonable men appointed by the constitution to determine disputed or doubtful questions of fact. The rule on the subject is well stated and illustrated by Judge Cooley in delivering the opinion of the court in Detroit & M. Railway Co. v. Van Steinburg, 17 Mich. 99, 118. The learned judge said: (Here follows extended quotation from the Van Steinburg Case).'

The plaintiff administratrix sued defendants for the wrongful death of her husband. The presented issues were tried duly to court and jury. Defendants moved in due time for an instructed verdict in their favor. The motion was denied. Following deliberation extending into a second day, the jury reported to the court that its members were unable to agree; whereupon it was relieved and discharged. On motion of defendants, presented under the mentioned statute (C.L.1948, § 691.701), the trial judge entered judgment for defendants. Plaintiff appeals.

The ruling below appears in the record as follows:

'Plaintiff's decedent was employed by G. Toccalino & Sons as a cement puddler on a road construction job; he was killed August 26, 1957, on the job when run over by a truck of defendants hauling batch mix to the cement mixer. The road work was on Gulley road, which runs north and south; the east lane had been paved in the area of the accident and for some distance north and south thereof. The trucks with batch mix backed from north to south on the unpaved west side of Gulley road to the mixer. At the time of the accident, 2 trucks had backed in to the mixer and were stopped; defendants' truck was in the process of backing in. Plaintiff's decedent was walking north toward the backing truck on the unpaved west side of Gulley road; at a point 15 to 20 feet behind the truck, for no reason determinable on this record, he fell down in the path of defendants' truck. He did not move after the fall and was run over. In the backing process, defendants' driver made observations in his right and left mirror and then opened the left door, hung his head out and looked backward. In this position, he could not see the right rear corner of the truck or objects behind it. The truck was backing 3 to 5 miles per hour.

'In their motion, defendants assert 3 grounds, viz.: no proof of negligence, negligence of decedent, and his fall was an intervening and the sole cause of the accident. Assuming for the purpose of this opinion, but not so holding, that the facts require the submission of the question of defendants' burden to the jury, it is still plaintiff's burden to show that the injuries resulted from such negligence before submission is proper. Taking this record in the light most favorable to plaintiff and applying the test laid down in Kaminski v. Grand Trunk Western Railroad Co., 347 Mich. 417, 79 N.W.2d 899, it is the opinion of this court that it is no more than conjecture, if that, to say that the injuries resulted from the negligence (assumed). This is not enough. Verdict should have been directed for defendants.'

To the facts related by the trial judge we add that there was testimony from which the jury could have found that the defendant driver failed to look at the properly positioned right rear view mirror of the truck, after he started to back toward the mixer, and that such omission constituted causal negligence. Particularly is this so when a heavy dump truck is being backed, toward a loading or unloading position, with persons known to be in the vicinity of the backing path. As observed in Hopkins v. Lake, 348 Mich. 382, 393, 83 N.W.2d 262, 263, the driver's direct vision to the rear is 'completely nil save only as to the limited left side arc.' Thus, when modern and convenient means are provided--as here--for desirable vision toward the right rear backing path, and the backing driver does not regularly utilize such means, an inference of negligence and causative effect thereof may be drawn, by the trier or triers of fact, from such omissive conduct.

On motion under the statute the party opposing such motion is entitled to the same favorable view as is due when a motion for directed verdict or for judgment notwithstanding verdict is presented. Levesque v. LaFortune, 348 Mich. 443, 83 N.W.2d 333. No question of contributory negligence is presented. The question of proximate cause is controlled by what was said in our recent decision of Barnebee v. Spence Brothers, Mich., 116 N.W.2d 49. The judgment of the circuit court must in these circumstances be, and accordingly is, reversed and the case is remanded for new trial. Costs to plaintiff.

A second question is raised. Since it may arise on retrial we consider it. The question, stated by plaintiff and accepted by defendants:

'Did the trial court during the confence in chambers between court and counsel err in not unconditionally ruling that defendant's counsel was to make no reference to workmen's compensation insurance in the presence of the jury?'

No valid reason is given why matters of such nature should intrude the jury trial of issues such as are presented by these pleadings. See discussion of the point in Wright v. Delray Railroad Co., 361 Mich. 619, 628-630, 106 N.W.2d 247, 251. ² No authority for injection of the stated matter is cited; whereas the general rule is (77 A.L.R.2d 1154, 1156; 'Prejudicial effect of bringing to jury's attention fact that plaintiff in personal injury or death action is entitled to workmen's compensation benefits'):

'Generally, it has been held to constitute error, requiring a reversal or new trial, to bring to the jury's attention the fact that the plaintiff in a personal injury or death action is entitled to workmen's compensation benefits. The courts have reasoned that such information would tend to prejudice the jury and influence their verdict, either as to liability or damages, as such information is ordinarily immaterial and irrelevant.' ³

The practice followed by plaintiff, prior to swearing of the jury and at chambers, was eminently proper. See Ruediger v. Klink, 346 Mich. 357, 372, 78 N.W.2d 248. The trial judge's sound ruling of inadmissibility considered, the result should have been an order that defendants, desiring as they said to make a record of the claimed right 'to go into the workmen's compensation angle in this case,' should proceed to make an offer of the proposed proof at chambers under Court Rule 37, § 15. Instead, the trial judge said that if counsel could not agree 'to abide by the announced advance ruling of the court,' that 'the matter should be raised at the trial by questions propounded and objection made and ruling obtained therein.' Thus the injecting question was asked, the objection was made, and the advance ruling of inadmissibility was repeated, all in the presence of the jury.

If it is proper--and it is--for defense counsel to seek at chambers an advance ruling of suppression when a plaintiff's counsel proposes without disclosed right to inject the subject of the defendant's insurance coverage, so is it proper for a plaintiff to seek such ruling of suppression when his opponent proposes without disclosed right to inject the subject of payment of compensation, or availability of compensation, when the action is brought under the auspices of the 1952 amendment (C.L.S.1956, § 413.15). This practice of calculated and unwarranted introduction before the jury of like matters of prejudice should be stopped quite as promptly whether a plaintiff or a defendant is the culprit.

A corollary question arose when counsel met with the trial judge, at chambers before trial. In addition to attempted suppression, before the jury, of the matter of compensation reviewed above, plaintiff's counsel sought also to suppress proof of or reference to the fact that plaintiff, since her husband's death, had received and would receive social security benefits. Since that question may arise on retrial, we fefer the trial judge to Lebel v. Swincicki, 354 Mich. 427, 93 N.W.2d 281, and United States v. Hayashi (C.C.A. 9), 282 F.2d 599, 84 A.L.R.2d 754, and declare agreement...