Reetz v. Rigg

• Decision Date: 02 July 1962
• Docket Number: No. 7,7
• Citation: 367 Mich. 35,116 N.W.2d 323
• Parties: Milo REETZ, Plaintiff and Appellant, v. Alvin E. RIGG and Jerry W. Rigg, Jointly and Severally, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 323

116 N.W.2d 323

367 Mich. 35

Milo REETZ, Plaintiff and Appellant, v. Alvin E. RIGG and Jerry W. Rigg, Jointly and Severally Defendants and Appellees.

No. 7.

Supreme Court of Michigan.

July 2, 1962.

Roy De Gesero, Saginaw, for plaintiff and appellant.

Heilman & Purcell, Saginaw, for defendants and appellees.

Before the Entire Bench.

BLACK, Justice (for affirmance).

This is an intersectional collision case, tried to court and jury in the Bay circuit. The jury returned a verdict for defendants. Judgment on the verdict having entered, plaintiff moved for retrial, alleging--with other questions--malpractice in submission to the jury of certain special questions defendants had proffered under the statute (C.L.1948, § 618.39). The motion was denied. Plaintiff appeals.

The crash intersection and approaching roadways were covered with ice. The two drivers approached from opposite directions. Plaintiff's pleaded and tried theory was that the defendant driver caused defendants' car to skid into his car as he, plaintiff, was attempting to make a lawful left turn in the intersection. Defendants, denying negligence on the part of their driver, pleaded contributory negligence consisting of effort by plaintiff to 'cut the corner' in front of defendants' car without signalling intention of making such turn. Plaintiff, replying, insisted that the defendant driver was guilty of 'gross negligence.'

With its general verdict for defendants the jury reported answers to 4 special questions as follows:

'Was the negligence of defendant Jerry W. Rigg a proximate cause of the collision?

'Answer: Yes.

'Was the negligence of plaintiff Milo Reetz a proximate cause of the collision?

'Answer: Yes.

'Was the defendant Jerry W. Rigg guilty of gross negligence which was a proximate cause of the collision?

'Answer: No.

'Was the Reetz vehicle entirely out of the intersection at Frank and Community street at the time of collision?

'Answer: No.' ¹

Defendants, having proposed the above special questions, labeled one as 'Defendant's special question.' It was delivered in that form to the jury for answer. Also, and in the course of his charge, the trial judge informed the jury that some of the special questions had been presented by defendants. Near the end of the charge the following discussion took place in the presence of the jury:

'The Court: Now, there are two possible verdicts which you may render in this case. Number 1, you may find damages in favor of the plaintiff, in the sum of so many dollars; Number 2, you may find judgment in no cause of action.--Anything further, gentlemen?

'Mr. DeGesero [plaintiff's counsel]: Your Honor, just a moment. ²

'The Court: Now, I have indicated to you that the special questions were presented by particular parties. That should make no difference to you, who presents the special questions, you are to answer them fairly and honestly. All right. Anything further?

'Mr. DeGesero: I have nothing further, your Honor.

'The Court: Mr. Heilman?

'Mr. Heilman: I have nothing further.'

The following was said later, at conclusion of the court's charge:

'The Court: I want to put on the record before we adjourn the following statement. I indicated to the jury that one of the questions was defendant's special question. Now, the court does not know whether that was the proper thing to do. However, I have called to the attention of both parties that the question as it was given to me had the title on it 'Defendant's Special Question.' So, I fail to see how that in any way could be error. However, I did want to place it in the record, because Mr. Heilman did raise that objection that it should be placed in the record.'

On motion for new trial plaintiff pointed vainly to the form and manner of submission of the special questions. Referring to the fourth quoted above, his counsel said and says now that the label is 'contrary to the practice and rule'; that the question indicated its source and that he was thereby denied 'a fair and impartial trial.' The point calls for some comment upon and exposition of the respective functions of court, counsel and jury when the cited statute is called duly into play.

When a special question is timely submitted to the court, and the court has approved it as to form and substance for submission, the question is adopted by the court and is submitted to the jury as an interrogatory of the court; not of counsel. In such regard the duty of the court is no different than if the question had been drafted or redrafted by the court. ³ The specific object is that of ascertainment, by the court, whether the jury has properly applied the law as given by the court to the jury's findings of fact (Beecher v. Galvin, 71 Mich. 391, 39 N.E. 469; International Wrecking & Transportation Company v. McMorran, 73 Mich. 467, 41 N.W. 510; Holman v. Cole, 242 Mich. 402, 218 N.W. 795; and see cases cited in Richards v. Birmingham School District, 348 Mich. 490, 496, 83 N.W.2d 643). The situation is no whit different than that which obtains when the trial judge approves requested jury instructions. In the latter instance the requested and approved instructions are adopted by the court and become a part of the court's charge. In the other the requested and approved special question is adopted by the court and is submitted by the court. The interrogator is the judge; not the movant lawyer or party. Such is the proper instructional posture of the question when it goes before the jury and is considered by the jury.

It is improper, then, to submit special questions or requested instructions as having emanated other than from the court. What was said unanimously in Newton v. Consolidated Const. Co., 184 Mich. 63, 75, 76, 150 N.W. 348, 352, comes to mind as explanatory of that which we lay now before the profession and our trial judges:

'It is an exasperating thing, one which most trial lawyers have at some time had occasion to complain about, to have the trial judge say to the jury, 'I am requested to charge you,' proceed to read a request, and end by so qualifying or amending it, with or without argument, that its force as a declaration of the applicable law is weakened or wholly lost. The jury will usually understand by whom the request is preferred, and if several requests preferred by the same party suffer this fate, especially if they are contrasted with an unqualified, connected statement of rules...