Podbielski v. Argyle Bowl, Inc.
| Decision Date | 16 January 1973 |
| Docket Number | Docket Nos. 11025,11026,No. 1,1 |
| Citation | 44 Mich.App. 280,205 N.W.2d 240 |
| Parties | Juanita PODBIELSKI, Individually and as Guardian of Robert Podina and Florence Ann Podina, minors, Plaintiffs-Appellees, v. ARGYLE BOWL, INC., a Michigan corporation, Defendant-Appellant. Juanita PODBIELSKI, Individually and as Guardian of Michael Sanderson, a minor, Plaintiffs-Appellees, v. ARGYLE BOWL, INC., a Michigan corporation, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Irving Blum, Blum & Sternberg, Detroit, for defendant-appellant; Norman L. Zemke, Southfield, of counsel.
Edward M. Ranger, Sullivan, Sullivan, Ranger & Ward, Detroit, for plaintiffs-appellees.
Before V. J. BRENNAN, P.J., and McGREGOR and BRONSON, JJ.
These two suits were brought under the dramshop act (M.C.L.A. § 436.22; M.S.A. § 18.993) to recover damages stemming from the death of Mrs. Loretta Podina. Plaintiff Juanita Podbielski is the mother of the decedent and grandmother and guardian of the minor plaintiffs (decedent's children).
At the trial, Mr. Podina, decedent's husband, testified that at about 4 p.m. on November 25, 1967, he drank one 'Seven and Seven' at defendant's bar, and that he then went shopping and returned to the defendant's bowling alley about 7 p.m. During the next two hours Podina said he had several drinks of 'Seven and Seven,' but that he did not feel intoxicated when he left at 9 p.m. to go home and pick up his wife. Podina said that he and his wife returned to the Argyle Bowling Alley about 10 p.m. Upon their arrival, Podina, who had not eaten all day, drank another 'Seven and Seven' before going out to bowl. While he was bowling he had another drink. Then he fell down and hurt his leg because he had been drinking too much. Podina stopped bowling and went back into the bar where he had 'quite a few' more 'Seven and Sevens,' possibly five or six more, while his wife continued bowling. When she finished bowling, she joined him in the bar where Podina continued drinking. He lost count of how much more he drank but he remembered being served 'last call.' When they left the bar to go home, Mrs. Podina wanted to drive but her husband said no, he was all right. They did not go anywhere else to drink. The fatal accident was reported to the police about 2:10 a.m.
Mrs. Podbielski filed there two suits seeking compensation individually for the loss of the care, comfort, and companionship of her daughter, and for the funeral bills and other expenses. She also sued as guardian of the three minor plaintiffs seeking compensation on their behalf for the loss of the care, comfort, love, affection, and companionship of their mother.
The court limited the recovery to $27,622.00, the estimated cost of the services lost by the children, plus the funeral expenses. The court allowed plaintiffs to argue the loss of comfort, companionship and love, but would not allow recovery on these bases.
The jury returned a verdict of $1,730.70 for plaintiff individually, and $9,032.00 as guardian of Robert Podina, $7,838.00 as guardian of Florence Podina, and $3,412.00 as guardian of Michael Sanderson. Defendant filed a motion for judgment N.O.V., or in the alternative, for a new trial. That motion was denied and defendant appealed. Plaintiffs then filed a cross-appeal seeking a new trial on the issue of damages only.
Defendant raises a plethora of arguments on appeal; the first of these is that the trial court erred by failing to grant a mistrial after one of the jurors had, in a letter to the presiding judge of the circuit, requested to be discharged from jury duty. The most pertinent portions of that letter are as follows:
'SUBJECT: Request to be excused from Jury Duty
'I humbly submit this request to be excused from jury duty on the following grounds:
'I am strongly opposed to being forced to serve on jury duty. I feel this decision should be one of the individual's choice based on his or her personal convictions.
'I don't feel that there is anything in life that renders me capable of determining the fate of another human being.
'The Holy Scriptures tell us, 'Judge ye not that ye be not judged with the same measures.' Also, when the hostile crowd brought the woman before Christ who had been caught in the act of adultery and demanded she be stoned to death, He wrote upon the ground these words, 'He that is without fault let him cast the first stone.' Not one stone was cast. Another question was asked of Jesus, 'How many times should we forgive our adversaries, seven times?' He replied, 'Not seven times, but seven times seventy times.'
'Finally, in view of my personal beliefs and feelings, as set out in the foregoing statements, I would be a disservice rather than a service if I were forced to serve jury duty.
'Therefore, I beg that I be excused from jury duty now and that my name not be considered for subsequent duty in any court.
'Thank you very kindly for your consideration in this matter.'
This letter was not received by the trial judge until the third day of this trial. Upon receipt of the letter, the trial judge, in chambers and on the record, showed the letter to counsel for both plaintiffs and defendant. Defendant's counsel immediately moved for a mistrial on the grounds that the attitude of this juror may have been communicated to the remainder of the jury and could possibly have resulted in incurable prejudice. This motion was denied by the trial court. Defense counsel refused to comment on the trial court's suggestion that the author of the letter be excused from the jury on the grounds that counsel did not want to prejudice his motion for a mistrial.
The court, before resuming the trial, interviewed a member of the jury to determine if there had been discussions among the jurors related to the substance of the letter. The judge's inquiries were designed to reveal whether or not the author of the letter had communicated his feelings to other jurors. The statements of the juror questioned indicated that this had not been the case.
The court then interviewed the author of the letter to determine whether he should be permitted to remain on the jury. During that interview, the following exchange took place:
Subsequently, the court resumed the trial without excluding this juror, or taking any other action in this regard.
Since there was an alternate chosen when the jury was...
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Podbielski v. Argyle Bowl, Inc., 16
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