Perlmutter v. Whitney, Docket Nos. 19549

• Decision Date: 08 April 1975
• Docket Number: 19550,No. 2,Docket Nos. 19549,2
• Citation: 60 Mich.App. 268,230 N.W.2d 390
• Parties: Nancy PERLMUTTER et al., Plaintiffs-Appellants, v. James Balmer WHITNEY et al., Defendants-Appellees. Nancy PERLMUTTER et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 390

230 N.W.2d 390

60 Mich.App. 268

Nancy PERLMUTTER et al., Plaintiffs-Appellants, v. James Balmer WHITNEY et al., Defendants-Appellees.

Nancy PERLMUTTER et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

Docket Nos. 19549, 19550.

Court of Appeals of Michigan, Division No. 2.

April 8, 1975.

Released for Publication June 26, 1975.

Cyril Abramson, Southfield, for plaintiffs-appellants.

Allyn D. Kantor, Ann Arbor, for Whitneys.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Paul J. Zimmer, Asst. Atty. Gen., for Fund.

DeVine & DeVine, by Allyn D. Kantor, Ann Arbor, for State Farm.

Before ALLEN, P.J., and T. M. BURNS and MAHER, JJ.

T. M. BURNS, Judge.

This is an automobile negligence case arising out of an automobile collision which occurred on November 11, 1971, when the plaintiff, Nancy Perlmutter, was riding in an automobile driven by defendant James Balmer Whitney and owned by his wife, defendant Marcia Ann Whitney. At the time of the accident, the driver and his passenger were commuting from Ann Arbor to the Hawthorne Center in Northville, Michigan, where both were student teachers. Plaintiff allegedly paid defendant James Balmer Whitney $10 per month for this transportation.

The accident occurred on a return trip from Plymouth to Ann Arbor when defendant James Balmer Whitney allegedly pulled out to pass a vehicle in his lane and was involved in a head-on collision with a vehicle traveling in the oncoming lane. As a result of the accident, plaintiff Nancy Perlmutter sustained serious injuries requiring a substantial period of disability.

Plaintiffs Jack and Gloria Perlmutter are the parents of Nancy Perlmutter. Mr. and Mrs. Perlmutter were neither involved in the accident nor witnesses to it. On the date and at the time of the accident, Mr. Perlmutter was on a business trip in Toronto, Ontario, and Mrs. Perlmutter was attending school at Wayne State University.

At the time of the accident, the Whitneys were insured for the amount of $10,000 per injury and $20,000 per accident, under a policy of insurance issued by defendant State Farm Automobile Insurance Company on June 15, 1971, said policy expiring on June 15, 1972. On November 3, 1972, after disclosing the limits of the policy to the plaintiffs, defendant State Farm filed an offer of judgment of $10,000, the full amount of the policy, in the Washtenaw County Circuit Court.

On March 27, 1972, the plaintiffs filed a complaint against the defendants Whitney in the Washtenaw County Circuit Court. The cause of action was one for negligence arising out of the collision which occurred on November 11, 1971. In addition to the claim for injuries suffered by plaintiff Nancy Perlmutter, the complaint also alleged that Nancy's parents, plaintiffs Gloria and Jack Perlmutter, had an independent cause of action for the mental and emotional suffering which they sustained as a result of the injuries to their daughter.

Subsequent to the filing of the initial complaint, numerous motions and countermotions were filed with the lower court. An order adding the Secretary of State, director of the Motor Vehicle Accident Claims Fund, as a party defendant, was entered on October 26, 1972. The plaintiffs also filed an amended complaint adding Count II against the director of the Motor Vehicle Accident Claims Fund.

Most of the motions filed in this case have been for summary judgments with respect to one or more of the issues. After briefs were filed in support of and in opposition to the various motions, the trial court, on February 5, 1974, entered its opinion and order. After analyzing the issues presented, the trial court granted the various motions for summary judgment requested by all the defendants and denied the motions for summary judgment requested by the plaintiffs, including plaintiffs' motion for partial summary judgment seeking a declaration that plaintiff Nancy Perlmutter was as a matter of law a passenger for hire. This appeal followed.

1. When parents sustain emotional injury resulting from concern for their injured child, do the parents have an independent cause of action for such emotional injury when they were neither witnesses to the accident causing their child's injuries nor present near the scene of the accident at the time of its occurrence?

As defendants Whitney and State Farm have pointed out in their appellate brief, the real issue is whether or not the law recognizes a separate cause of action for mental suffering incurred by persons who were not physically involved in an accident, who were not injured as a result thereof, and who did not witness the accident, but who learned from others at a later time that the accident had occurred and that a close relative was injured. Defendants contend that the trial court properly held that no such cause of action exists in this state. We agree.

In discussing this issue in its opinion, the trial court said:

'In Michigan, physical impact to the plaintiff is no longer a Sine qua non for recovery against a negligent defendant, Daley v. LaCroix, 384 Mich. 4, 179 N.W.2d 390 (1970). Thus recovery for emotional suffering sustained by a parent who witnessed a child's injury is now possible, Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973). However, the Supreme Court (Sic) in Toms was careful to distinguish earlier cases (Hyatt v. Adams, 16 Mich. 180 (1867), and Ellsworth v. Massacar, 215 Mich. 511, 184 N.W. 408 (1921)) which denied recovery for mental anguish sustained by third persons who were not witnesses to the occurrence. This court's reading of the cases reveals that the basis of the distinction was the absence of personal observation of the event. Therefore, inasmuch as plaintiffs Jack and Gloria Perlmutter admittedly did not personally witness the accident, but rather were only subsequently informed thereof, there can be no cause of action against defendants James and Marcia Whitney and no recovery from their insurer, defendant State Farm Mutual Automobile Insurance Company, for injuries caused by mental anguish sustained by plaintiff Nancy Perlmutter's parents.'

We agree with the trial court that the crucial distinction between Toms and the case at bar is the fact that in Toms the parent witnessed the accident involving her daughter, while in this case neither Jack nor Gloria Perlmutter observed the accident in which their daughter was injured. The trial court correctly pointed out that Hyatt and Ellsworth precluded recovery for mental anguish suffered by third parties who were not witnesses to the accident. That is still the law in Michigan today, and we decline plaintiffs' invitation to reject that rule. No American jurisdiction has extended the right to recover for mental anguish to the factual circumstances present in this case. Plaintiffs' argument should be directed to our Supreme Court.

We hold, therefore, that under the prevailing law in Michigan and all other American jurisdictions, the trial court correctly ruled that the claims of plaintiffs Jack and Gloria Perlmutter must be dismissed on the ground that the law does not allow recovery for mental anguish suffered by third persons as a result of their concern for the injuries of others where such third persons were not witnesses to the accident in which those injuries were sustained.

2. Is evidence of payment by a passenger to a driver of a motor vehicle sufficient evidence, standing alone, to characterize the passenger as a matter of law as a passenger for hire and not a guest passenger?

The guest passenger proviso in M.C.L.A. § 257.401; M.S.A. § 9.2101 reads as follows:

'* * * Provided, however, That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.'

Relying on this statutory provision, plaintiffs claim that Nancy Perlmutter was at the time of the accident a passenger for hire, which status would relieve her of the obligation of establishing gross negligence or wilful and wanton misconduct in this case. Plaintiffs base their contention upon the deposition testimony of defendant James Balmer Whitney who testified that he received $10 a month for gas for driving Nancy Perlmutter to and from Hawthorne Center. While plaintiffs' arguments are forceful, they do not reach the question before us. The issue we must decide is not whether Nancy Perlmutter was a passenger for hire or a guest passenger at the time of the accident, but whether the trial court erred when it held that the issue of Nancy Perlmutter's status should be submitted to the...