Overall v. Kadella, Docket No. 65562

Citation138 Mich.App. 351,361 N.W.2d 352
Decision Date07 January 1985
Docket NumberDocket No. 65562
PartiesRandal C. OVERALL, Plaintiff-Appellee, v. Steven KADELLA, Defendant-Appellant. 138 Mich.App. 351, 361 N.W.2d 352
CourtCourt of Appeal of Michigan (US)

[138 MICHAPP 352] Mager, Monahan, McKelvie & Donaldson by Charles L. McKelvie, Detroit, for plaintiff-appellee.

Richard D. Fessler, Bloomfield Hills, for defendant-appellant.

[138 MICHAPP 353] Before MAHER, P.J., and WAHLS and HATHAWAY, * JJ.

PER CURIAM.

On April 17, 1975, two amateur hockey teams, the Waterford Lakers and the Clarkston Flyers, played each other in a hockey game. After the game had ended, a fight broke out between defendant, who played for the Flyers, and a member of the opposing team. This fight soon became general, with players leaving the benches to join the melee. During the fight, defendant struck plaintiff, knocking him unconscious and fracturing the bones around plaintiff's right eye.

At trial, defendant stated that he had gone to shake hands with the opposing team after the game when he was struck from behind. Both benches cleared and a scuffle ensued, during which defendant stated he saw a hockey stick coming toward his head. Defendant testified that he was hit several times before he turned around and hit the person swinging the stick. He did not know plaintiff had been injured by the blow and, in fact, did not know whom he had struck until much later. Three witnesses testifying on behalf of defendant stated that plaintiff remained on the bench during the fight, but poked or hit defendant with a hockey stick during the fight. They all saw defendant retaliate by turning and throwing one punch.

Plaintiff's testimony and that of two spectators at the game differed from this testimony in significant respects. According to these witnesses, plaintiff remained on the bench even after all other players had joined the fray. The bench was well removed from the fighting and plaintiff did not poke or hit anyone with a hockey stick. Defendant skated over to the bench and struck plaintiff who [138 MICHAPP 354] had done nothing to provoke the attack. Defendant then skated away.

The hockey referees at the game testified that defendant had engaged in at least three separate fights after the game was over. He was given three game misconducts because fighting is against the rules of the Michigan Amateur Hockey Association. These rules are designed to stop violence. The bench is considered part of the playing field. One of the referees saw plaintiff poke defendant with a hockey stick to get defendant's attention and then saw defendant attack plaintiff by striking him.

At the conclusion of the bench trial, the district court found that "without provocation the Defendant in the heat of his battles swung his hockey stick at the Plaintiff who was off the field of play and not engaged in the fight and struck him on the right side resulting in the injuries of which he complained". The court also found that plaintiff had suffered damages of $21,000 for out-of-pocket expenses, pain and suffering, and permanent injury, and awarded an additional $25,000 as exemplary damages because defendant's act had been "intentional and malicious".

On appeal, defendant first argues that the 48th District Court did not have proper venue over the case because the incident occurred within the geographic bounds of the 51st Judicial District. Pursuant to GCR 1963, 404, improper venue in a civil action must be changed by order of the court, either on the timely motion of a defendant or by the court on its own motion. Defendant failed to file a timely motion (he first raised the issue in his appeal to the circuit court) and so failed to invoke the mandatory change of venue.

In addition, venue in the 48th District Court was proper. The case was originally filed in Oakland County Circuit Court, but after a mediation award [138 MICHAPP 355] of $5,000 was rejected by both sides the case was removed to the 48th District Court. Removal of a case from circuit court to district court because of a failure to meet the jurisdictional amount in circuit court is governed by M.C.L. Sec. 600.641(1); M.S.A. Sec. 27A.641(1). At the time of the trial, the statute provided:

"If it appears at the conclusion of a pretrial hearing on an action commenced in the circuit court that the amount of damages sustained may be less than the jurisdictional limitation as to the amount in controversy applicable to the lower court, the circuit judge may, without the consent of the parties, remove the action to a lower court within the county which would have had jurisdiction but for the amount of damages demanded. These actions shall be assigned by lot by the clerk of the court to all lower courts and districts within the county. Each lower court or district in the county shall be assigned, as nearly as possible, a proportion of the total number of removed actions equal to the proportion of the total number of lower court judges serving on the court or in the district." 1

Defendant also contends that the district court lacked jurisdiction to award actual damages over $10,000. However, while M.C.L. Sec. 600.8301(1); M.S.A. Sec. 27A.8301(1) provides that a district court has exclusive jurisdiction in civil actions when the amount in controversy does not exceed $10,000, M.C.L. Sec. 600.641(5); M.S.A. Sec. 27A.641(5) expressly provides that when an action is removed to district court (as occurred here), the judgment "shall be lawful to the extent of the amount demanded, notwithstanding the jurisdictional limitation as to the amount in controversy otherwise applicable to cases commenced in the lower court". We therefore reject defendant's contention.

[138 MICHAPP 356] Defendant next argues both that the trial court did not properly disclose the basis of its findings of fact and that those findings were clearly erroneous. In a bench trial, the court must make "brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts". GCR 1963, 517.1; Karaskiewicz v. Blue Cross & Blue Shield of Michigan, 126 Mich.App. 103, 336 N.W.2d 757 (1983), lv. den. 418 Mich. 882 (1983). Further, findings of fact by a trial court will not be set aside unless clearly erroneous. GCR 1963, 517.1.

Defendant objects to three findings on these grounds. He first objects to the court's finding that defendant's attack was not provoked by plaintiff. We find that the trial court amply provided this Court with the factual basis for this conclusion and further find that the court's conclusion was not clearly erroneous. The court concluded that plaintiff's witnesses were more credible than defendant's witnesses, including defendant himself, especially in light of the fact that defendant would not have been able to see a hockey stick swung at him while he was "actively engaged in fighting". Defendant next objects to the court's finding that plain...

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9 cases
  • Knight v. Jewett, S019021
    • United States
    • United States State Supreme Court (California)
    • August 24, 1992
    ...... on the ground watching the end of a pass interception play]; Overall v. Kadella (1984) 138 Mich.App. 351, 361 N.W.2d 352 [hockey player ......
  • Ritchie-Gamester v. City of Berkley, Docket No. 109633., Calendar No. 3.
    • United States
    • Supreme Court of Michigan
    • July 30, 1999
    ...of the risk in this context, some of the published cases began to move away from the "ordinary care" standard. In Overall v. Kadella, 138 Mich.App. 351, 361 N.W.2d 352 (1984), on which the trial court relied, the plaintiff was injured when the defendant struck him during a fight that occurr......
  • Crawn v. Campo
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 30, 1993
    ...consents to and assumes the risk of the dangerous activity by voluntarily participating in the sport"); Overall v. Kadella, 138 Mich.App. 351, 361 N.W.2d 352, 355 (1984) ("[p]articipation in a game involves a manifestation of consent to those bodily contacts which are permitted by the rules......
  • Szarowicz v. Birenbaum
    • United States
    • California Court of Appeals
    • December 4, 2020
    ...sport—or as Barton , Karas , and Borella put it, the check was a flagrant infraction or extreme misconduct.Lastly, Overall v. Kadella (1984) 138 Mich.App. 351, 361 N.W.2d 352 involved a fight that broke out after an ice hockey game ended, during which defendant struck the plaintiff and caus......
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