Nielsen v. Henry H. Stevens, Inc.

• Decision Date: 26 February 1960
• Docket Number: Nos. 23-24,s. 23-24
• Citation: 359 Mich. 130,101 N.W.2d 284
• Parties: Farrell J. NIELSEN, as Guardian of David Thomas Nielsen, Minor, Plaintiff and Appellant, v. HENRY H. STEVENS, INC., a Michigan corporation, and John Katona, jointly and severally, Defendants and Appellees. Farrell J. NIELSEN, Plaintiff and Appellant, v. HENRY H. STEVENS, INC., a Michigan corporation, and John Katona, jointly and severally, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 284

101 N.W.2d 284

359 Mich. 130

Farrell J. NIELSEN, as Guardian of David Thomas Nielsen, Minor, Plaintiff and Appellant, v. HENRY H. STEVENS, INC., a Michigan corporation, and John

Katona, jointly and severally, Defendants and Appellees.

Farrell J. NIELSEN, Plaintiff and Appellant, v. HENRY H. STEVENS, INC., a Michigan corporation, and John

Katona, jointly and severally, Defendants and Appellees.

Nos. 23-24.

Supreme Court of Michigan.

Feb. 26, 1960.

Herman F. Lande and Maile & Leach, Detroit, Saul M. Leach, Detroit, of Counsel, for plaintiff and appellant.

Ranson & Fazenbaker, Flint, for defendants and appellees.

Before the Entire Bench.

EDWARDS, Justice.

In this case plaintiff appeals from a jury verdict, claiming primarily that the trial judge's charge dealing with defendants' duty to a trespassing child was fatally erroneous.

Plaintiff is the father of David Thomas Nielsen, a minor, who was 7 years old at the time of this accident on Saturday, October 6, 1951. Plaintiff sues as guardian of the boy to seek recovery for his injuries, and in his own right to recover for hospital and doctor bills.

The facts in this record reveal that the injury to the boy took place when a truck owned by defendant Stevens, Inc., and driven by defendant Katona, and a bicycle on which David was riding collided in a concrete areaway owned by defendant Stevens. Plaintiff's testimony was to the general effect that the truck hit the boy, and the defendants' that the boy rode his bicycle into the left rear of the tractor-trailer which defendant Katona was driving.

The portion of the judge's charge objected to reads as follows:

'I charge you that mere toleration of a trespass does not alone constitute a license and certainly not an invitation. The minor here as a child of tender years has no greater rights as a trespasser or a licensee, than does an adult, and the only obligation that defendants owed to him was not to wilfully and wantonly injury him.' (Emphasis supplied.)

This language did indeed come from some prior Michigan case law. See Ryan v. Towar, 128 Mich. 463, 87 N.W. 644, 55 L.R.A. 310; LeDuc v. Detroit Edison Co., 254 Mich. 86, 235 N.W. 832. The judge's charge was delivered on January 30, 1958. This Court has subsequently dealt with this problem in two cases: Lyshak v. City of Detroit, 351 Mich. 230, 88 N.W.2d 596, and Swanson v. City of Marquette, 357 Mich. 424, 98 N.W.2d 574. The effect of these cases is clearly to overrule the language upon which the trial judge had relied.

In Lyshak, as in instant case, the Court was dealing with a face situation where plaintiff alleged active negligence on the part of the defendant toward a minor child whose presence on defendant's property in a place of danger was known to defendant. The cardinal rule stated in Lyshak, we believe was that adopted from 2 Restatement, Torts, § 334:

'A possessor of land who knows, or from facts within his knowledge should know, that trespassers contantly intrude upon a limited area thereof, is subject to liability for bidily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.' Lyshak v. City of Detroit, supra, 351 Mich. 249, 254, 88 N.W.2d 606.

See, also, Herrick v. Wixom, 121 Mich. 384, 388, 80 N.W. 117, 81 N.W. 333.

We recogniz that subsequent to the paragraph we have quoted from the trial judge's charge, he also gave a charge pertaining to active negligence which was in general accord with the Lyshak rule. However, since he directed the jury (we think correctly from this record) that the accident took place on private property, the jury may well have felt that they were compelled to return the verdict they did return.

Appellant also contends that the trial judge erred in not instructing the jury that David's parents were not responsible for the accident. The occasion pointed to for this claim is the closing argument of defendants' counsel wherein he asserted that David's parents were wrong in buying a bicycle for a 7-year-old boy. He made no claim that this action constituted contributory negligence in either case but asserted that plaintiff's counsel opened the door to this topic in his jury argument. A review of the material objected to convinces us that the whole argument was quite irrelevant and that the trial judge should have said so.

Other questions posed by appellant would not occasion reversal. The verdict was not against the clear weight of the evidence and we find nothing in the evidence to support a request for a charge as to wilful or wanton misconduct.

We reverse for new trial under the Lyshak and Swanson rules. Costs to appellant.

DETHMERS, C. J., and CARR, KELLY, SMITH and KAVANAGH, JJ., concurred with EDWARDS, J.

SOURIS, J., took no part in this decision.

BLACK, Justice (concurring in reversal).

I agree, for reasons given in the opinion of the Court, that the trial judge's unqualified instruction (that 'the only obligation that defendants owned him was not to wilfully and wantonly injure him'), applicable as it was to both cases, constitutes error reversible of both cases. I do not agree, however, with the Court's indiscriminate and quite inconclusive treatment of the subject of parental contributory negligence. To say--without reason or reference to authority--that defense counsel' argument upon the latter subject 'was quite irrelevant and that the trial judge could properly have said so,' and to hold nevertheless that failure of indicated instruction was not prejudicial, is to pave an open way for more error on re-trial.

The unvarnished fact is that omission of unequivocal instruction as requested, either in the language of plaintiffs' request No. 3 or the legal substance thereof, amounts--alone and by itself--to error calling for reversal of the judgment in the plaintiff infant's case. We should say so, in precedentary words, the better to half the perceptibly crescent practice of giving common instructions in consolidated jury-tried cases when distinctive instructions for each are due as a matter of law.

Before us are two separate rights of action. They arise together from the same factual circumstances, yet differ markedly by force of rules governing sustenance in court of each right. The first of such rights belongs to a little boy; not his parent, guardian, or next friend. He is the legal plaintiff in his case and is the real party in interest. The other, on these proofs, belongs to and is sued upon by the boy's father, a properly separate plaintiff. In the first the plaintiff's damages, if recoverable, are direct and personal. In the other such damages are consequential. In the first case contributory negligence of the parent, if any, is a matter of totally prejudicial misguidance if it is permitted to seep into the jury room. In the other it will, if established, bar recovery by the parent seeking such consequential damages.

These...