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 |
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.
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?
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:
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:
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:
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.'
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