Moore v. Spangler

• Decision Date: 06 October 1977
• Docket Number: M,No. 1,1
• Parties: Edna MOORE, Plaintiff-Appellant, v. Harold M. SPANGLER, Defendant-Appellee. ay Term.
• Court: Michigan Supreme Court

Page 34

258 N.W.2d 34

401 Mich. 360

Edna MOORE, Plaintiff-Appellant, v. Harold M. SPANGLER, Defendant-Appellee.

No. 1, May Term.

Supreme Court of Michigan.

Oct. 6, 1977.

Franklin, Petrulis & Lichty, P. C., by James T. Mellon, Troy, for plaintiff-appellant; of counsel on brief, Daniel J. McCarthy, Troy.

Martin, Bohall, Joselyn, Rowe & Jamieson, P. C. by William G. Jamieson, Donald W. Faleris, Southfield, for defendant-appellee.

FITZGERALD, Justice.

Plaintiff Edna Moore was injured in a rear-end automobile collision. Plaintiff commenced this action for negligence against defendant Harold Spangler, the driver of the automobile which struck plaintiff's automobile. The case was tried in district court, and the jury found defendant liable and awarded plaintiff $1,344 in damages. Plaintiff's motion for additur or in the alternative a new trial was denied by the district court, and on appeal the circuit court affirmed. Plaintiff raises four issues in her appeal to this Court:

1. Whether the refusal of the circuit court to allow oral argument on plaintiff's appeal from the district court, where such oral argument was specifically requested by all parties, precluded plaintiff from exercising an effective right to appeal in violation of the rights to due process and equal protection guaranteed in the Michigan and United States Constitutions.

2. Whether the trial court erred in denying plaintiff's motion for additur or in the alternative a new trial when plaintiff's uncontroverted out-of-pocket expenses exceeded the jury verdict in favor of plaintiff.

3. Whether the trial court erred in denying plaintiff's motion for additur or in the alternative a new trial when the jury failed to consider plaintiff's pain and suffering in its verdict.

4. Whether the trial court erred in instructing the jury as to the sudden emergency doctrine.

The Court of Appeals denied plaintiff's application for leave to appeal. This Court granted leave to appeal on July 8, 1976. 397 Mich. 821 (1976). We affirm.

FACTS

On January 7, 1969, plaintiff was traveling north in the left hand lane of Dequindre near Riggs in the City of Warren. Plaintiff testified that she brought her car to a stop in response to a sudden stop of two vehicles directly in front of her, and that as she did so, she was struck from the rear by a vehicle driven by defendant. According to defendant, his car was not traveling more than four or five miles per hour at the time of impact.

Plaintiff further testified that upon impact she was thrown back and forward and that she experienced back pain and "felt woozy". Soon after the accident plaintiff went to a nearby gas station and called her son, who came to the gas station and took her to Martin Place Hospital for X-rays. The results of the X-rays were negative for any fractures or dislocations. After the X-rays were taken, plaintiff and her son returned to the gas station, and plaintiff then drove her car to her son's home. Plaintiff testified that at this point the pain in her back and neck was severe and that she telephoned her family physician, Dr. Joseph A. Walker, to make an appointment.

On the following morning, plaintiff's daughter-in-law drove her to Dr. Walker's office for her appointment. Dr. Walker examined plaintiff and treated her with shortwave therapy, manipulation, and the use of analgesics. Such treatment was continued until April 20, 1970, when plaintiff had her last appointment for back and neck pain with Dr. Walker. Dr. Walker testified at his deposition taken on October 19, 1971, that "at the date of my last examination this patient was symptom free" and that she was discharged "with no complaints either in the cervical area or the low back".

On September 3, 1971, at the recommendation of her attorney, plaintiff visited Dr. Lawrence Wiseman for further treatment Plaintiff filed suit against defendant for negligence on October 1, 1969, and prayed for a judgment against defendant in the amount of $200,000 to compensate her for moneys expended for repair to her automobile and medical treatment, for enduring pain and suffering and for lost wages. Defendant denied any negligence in his answer and claimed contributory negligence as an affirmative defense.

for her back and for treatment for her right hip. Plaintiff testified at her deposition taken on March 24, 1970, that the problem with her hip was "in conjunction with the back" and started bothering her approximately two or three months after the accident. At a video-tape deposition taken on February 13, 1973, Dr. [401 Mich. 367] Wiseman testified that he saw plaintiff on three subsequent occasions for treatment, but such treatment was discontinued because plaintiff's condition had not improved. Dr. Wiseman further testified that plaintiff had a congenital abnormality of the lumbar spine consisting of an extra (sixth) vertebra and that such an abnormality "would predispose one to some degree to a more significant injury and would prolong healing and cause a problem".

On April 20, 1972, the case was to be tried at circuit court, but a mistrial was declared, the jury was discharged, and the case was adjourned. The case was subsequently remanded to district court for trial, it appearing to the circuit court that less than $10,000 was involved in the case. The case finally was tried before a jury in the 52nd Judicial District Court on May 23 and May 24, 1974. Prior to closing arguments, plaintiff made a motion for directed verdict as to the question of liability based on M.C.L.A. § 257.402; M.S.A. § 9.2102 and on the case of Vander Laan v. Miedema, 385 Mich. 226, 188 N.W.2d 564 (1971). The trial court denied this motion. At this point in the proceedings, plaintiff argued that the jury should not receive an instruction on the sudden emergency doctrine under the facts of this case, but the trial court ruled that such instruction was proper. After closing arguments, the court gave an instruction on the sudden emergency doctrine, and plaintiff objected. The jury returned a verdict in favor of plaintiff in the amount of $1,344.

Plaintiff subsequently brought a motion for additur or in the alternative a new trial, but the motion was denied. Plaintiff then appealed to the circuit court, and the circuit judge denied plaintiff's appeal from the trial court's denial of her motion without hearing oral arguments, notwithstanding the fact that both plaintiff and defendant had specifically requested an opportunity to present such arguments. Plaintiff's motion for a rehearing on denial of appeal was also denied by the circuit judge.

ISSUES

I

The first issue plaintiff raises is whether the circuit court's refusal to allow oral argument on plaintiff's appeal from district court, where such argument was specifically requested, precluded plaintiff from exercising an effective right to appeal in violation of the rights to due process and equal protection. Plaintiff would have us rule in the affirmative. It should be noted that with the repeal and replacement of GCR 1963, 701, effective July 25, 1977, the right to oral argument on appeals to circuit court does now exist. See GCR 1963, 701.10. However, this recently adopted rule has prospective effect only and is thus of no consequence to the case at bar.

It has been well recognized that "(appellate) review procedure is not a necessary part of a legal system, required by due process, nor is the right of appeal an inherent or inalienable right". 4 Am.Jur.2d, Appeal and Error, § 1, p. 533. In Chicago, D. & C. G.T.J. R. Co. v. Simons, 210 Mich. 418, 178 N.W. 12 (1920), this Court stated:

"This court, in consonance with other courts of last resort, has uniformly held that appeals are statutory, do not exist at common law, and that the legislature in its discretion may prescribe in what cases and under what circumstances appeals may be taken. (Citations omitted.) (Plaintiff) must, therefore, look to the statute and to the statute alone for its right to be here heard." 210 Mich. 418, 420, 178 N.W. 12, 12-13.

The right to appeal from district court to circuit court is provided for by M.C.L.A. § 600.8342; M.S.A. § 27A.8342. The statute provides as follows:

"Appeals shall be to the circuit court for the county in which the judgment is rendered. All appeals from final judgments shall be as of right and all other appeals shall be by application. All appeals to the court of appeals from judgments entered by the circuit court on appeals from the district court shall be by application."

Plaintiff contends that this "grant of a right to appeal bestows upon the appellant a right to oral argumentation before the circuit court where such a request has been properly and timely presented". We disagree. Since the statute providing for the right to appeal from district court to circuit court is silent as to any right to oral argument, there is no statutory right to oral argument in cases on appeal from district court to circuit court.

Plaintiff next argues that she has been denied equal protection of the law guaranteed by U.S.Const., Am. XIV, and Const.1963, art. 1, § 2, since parties appealing their cases from circuit court to the Court of Appeals are guaranteed the right of oral argument by GCR 1963, 819.1. However, the equal protection clause of the United States Constitution does not require uniformity of procedure. Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930). Nor does Const.1963, art. 1, § 2 require uniformity of procedure, since "(t)he equality of rights protected by our Constitution is the same as that preserved by the Fourteenth Amendment to the Federal Constitution". Naudzius v. Lahr, 253 Mich. 216, 222, 234 N.W. 581, 583 (1931). Of especial relevance to the instant case is the well-settled rule that the right to equal protection of the law is not denied by a state law or course of procedure where the same law or course of procedure would have been applied to any other person in the same state...