Mitchell v. Perkins

• Decision Date: 27 June 1952
• Docket Number: No. 63,63
• Citation: 334 Mich. 192,54 N.W.2d 293
• Parties: MITCHELL et al. v. PERKINS.
• Court: Michigan Supreme Court

Page 293

54 N.W.2d 293

334 Mich. 192

MITCHELL et al. v. PERKINS.

No. 63.

Supreme Court of Michigan.

June 27, 1952.

Alexis J. Rogoski and Robert Bunker Rogoski, Muskegon, for defendant and appellant.

George D. Stribley, Muskegon, (R. W. Nebel, Munising, of counsel), for plaintiff and appellee.

Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids, for Intervening plaintiff and appellee.

Before the Entire Bench.

SHARPE, Justice.

I am for reversal and a new trial for reasons hereinafter stated.

Before the cause was submitted to the jury the following special questions were presented to the jury, at the request of defendant's counsel:

'1. Could plaintiff, after he first saw defendant's automobile approaching the intersection, by the exercise of ordinary care have prevented a collision with defendant's automobile?

'2. Did the failure of plaintiff to sound his horn between the time he first saw defendant's automobile approaching the intersection and the time when defendant's automobile entered the intersection amount to negligence which proximately contributed to cause the collision in which plaintiff was injured?'

We note that no objection was made to the form of the questions. During the argument of plaintiff's counsel to the jury the following occurred:

'Mr. Rogoski: I object to counsel referring to any special questions in his argument as improper.

'Mr. Nebel: These are requests on the part of the defendant.

'Mr. Rogoski: It is improper for him to make any reference to them.

'Mr. Nebel: I certainly can. It would be highly improper of me if I didn't.

'Mr. Rogoski: I will ask for a ruling of the Court.

'The Court: No. I am going to present these questions to the jury for their answer, and I believe counsel would have the right to discuss them in connection with his argument.

'Mr. Nebel: Thank you, your Honor.

'Mr. Rogoski: I take exception to his argument as improper and prejudicial. May I have an exception?

'Mr. Nebel: If you are going to give Mr. Mitchell something for his damages, then you will answer both of these questions 'No'.

'Mr. Rogoski: I take exception to counsel telling the jury how to answer the questions.

'The Court: He may comment on the points raised in the special questions.

'Mr. Nebel: The first question that will be asked for you to determine is 'Could plaintiff, after he first saw defendant's automobile approaching the intersection, by the exercise of ordinary care, have prevented a collision with defendant's automobile?' We submit if you give a verdict to plaintiff, the answer to that is 'No.'

'Mr. Rogoski: I object to the argument as improper and prejudicial.

'The Court: I will overrule the objection.

'Mr. Nebel: The second one: 'Did the failure of plaintiff to sound his horn between the time he first saw defendant's automobile approaching the intersection and the time when defendant's automobile entered the intersection amount to negligence which proximately contributed to cause the collision in which plaintiff was injured?

'And again we submit that special question should be answered 'No'.

'Mr. Rogoski: I object to the argument as improper and prejudicial.

'The Court: I will overruled the objection.'

The trial court instructed the jury as follows:

'* * * Members of the jury, I am going to hand these questions to you for you to answer. Discuss them.

Read them over carefully. If you are unanimous in answering yes or no, make the answer. You will see a line for the foreman to sign. If the foreman signs that, that will mean you were unanimous. The first question is: 'Could plaintiff, after he first saw defendant's automobile approaching the intersection, by the exercise of ordinary care, have prevented a collision with defendant's automobile?' If plaintiff has convinced you from the evidence received here in court that he could not have avoided the accident despite the fact, if it be a fact, he exercised ordinary care, then the answer would be 'No'. If he could have avoided the collision by the exercise of ordinary care, the answer would be 'Yes'. The second question: 'Did the failure of plaintiff to sound his horn between the time he first saw defendant's automobile approaching the intersection and the time when defendant's automobile entered the intersection amount to negligence which proximately contributed to cause the collision in which plaintiff was injured?' In other words, if you find plaintiff, by sounding his horn, could have avoided the collision but he failed to do so, then his failure to sound his horn--if ordinary care and prudence called for it--there would be contributory negligence on his part.

If you find plaintiff's failure to sound his horn was contributory negligence----'

The statute relating to special questions reads as follows--C.L. 1948, Sec. 618.39, Stat.Ann. 27.1019:

'Sec. 39. In all cases where an issue of fact is tried before any court of record, the court shall at the request in writing, of the counsel of either party, instruct the jury if they return a general verdict, also to find upon particular questions of facts, respecting which the issue is joined, to be stated in writing, and shall direct a written finding thereon: Provided, Such special questions shall not exceed 5 in number, and shall be each in single, short sentences, readily answered by yes or no. The special verdict, or finding, shall be filed with the clerk, and entered upon the minutes, and when any special finding of facts shall be inconsistent with a general verdict, the former shall control the latter, and the court give judgment accordingly.'

In Beecher v. Galvin, 71 Mich. 391, 39 N.W. 469, 471, we had occasion to discuss the object of the statute relating to special questions. We there said:

'* * * The object of the statute in allowing such specific questions to be submitted to the jury, and requiring them to make answer thereto, was to ascertain whether the jury had, in making up their general verdict, properly applied the law, as given by the court, to the facts in the case. This can never be done if the jury are to be directed by the court what answer shall be made to each question asked, in the event the general verdict is a certain way. This direction by the court was error, and it was also error for the court to decline to require the jury to make answer to the plaintiff's questions so submitted when asked to do so by plaintiff's counsel.'

In Taylor v. Davarn, 191 Mich. 243, 157 N.W. 572, 574, plaintiff recovered a civil damage judgment against defendant, a saloon keeper. The following question was submitted to the jury:

"Was the plaintiff's hunband, Benjamin Taylor, intoxicated at the time he came to his death on the 1st day of April, 1913?"

After the jury had deliberated for some time, they requested further instructions with reference to the special question.

The court gave the following instruction:

"As you will recall from the instructions I gave you, in order to find for the plaintiff you must find that her husband, Benjamin Taylor, was intoxicated at the time he came to his death. So if you find for the plaintiff your answer to the question would be 'Yes.' If you should find for the defendant you would find that he was not intoxicated at the time he came to his death, and your answer therefore would be 'No.' * * *

"Juror: Nothing difficult, but if it has to be signed all 'Yes' or all 'No.'

"The Court: Yes; all 'Yes' or all 'No.' If he was not intoxicated at the time he met his death the plaintiff cannot recover, as I told you. If he was intoxicated at the time he met his death the plaintiff may recover, the other conditions existing to which your attention was called in the general charge. If you should find for the plaintiff it would not be a difficult thing to find the necessary elements to entitle her to recover, namely, he was intoxicated, because, if you do not find he was intoxicated, your verdict cannot be for the plaintiff. If you should find he was not intoxicated at the time of his death, your verdict necessarily must be for the defendant. You may take the paper and retire to your jury room." We there said:

'We are of the opinion that the error is well assigned under the holdings of this court in the cases of Cole v. Boyd, 47 Mich. 98, 10 N.W. 124; Maclean v. Scripps, 52 Mich. 214, 17 N.W. 815, 18 N.W. 209; Beecher v. Galvin, 71 Mich. 391, 39 N.W. 469; Mechanics' Bank v. Barnes, 86 Mich. 632, 49 N.W. 475; Brassel v. Minneapolis, St. P. & S. S. M. Ry. Co., 101 Mich. 5, 59 N.W. 426.'

'It was said in Maclean v. Scripps, supra [52 Mich. 214, 17 N.W. 833], that:

"The object of the statute (Comp.Laws 1871, § 6026; How.Ann.St. 1882, § 7606) requiring the jury to answer specifically questions giving their conclusions on the facts necessary to be found to entitle a party to recover, was to ascertain whether or not they had found sufficient facts from the evidence to support their general verdict under the law as given them by the court. It is the province of the jury to find these facts from the evidence, without aid or suggestion from the court, and this can never be done if the jury are told in advance what facts are necessary to be found to support the verdict, or what answers to the questions propounded will be consistent therewith, or what they must find in order to answer a question propounded in the negative or affirmative. This practice will make the general verdict control the findings, instead of the findings control the general verdict; and thereby the object of the framers of the statute will be defeated. This was the result of the practice indulged in this case. The effect is to make the court, and not the jury, decide the main issues in the case. Cole v. Boyd, 47 Mich. 98, 10 N.W. 124. The special findings of the jury were sufficient to support the general verdict, had the proceedings upon which they were based not been erroneous.'

'The question submitted in this case was an important one. The...