Rittenhouse v. Erhart

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM
• Citation: Rittenhouse v. Erhart, 126 Mich.App. 674, 337 N.W.2d 626 (Mich. App. 1983)
• Decision Date: 18 August 1983
• Docket Number: Docket No. 60844
• Parties: Donald RITTENHOUSE, Next Friend of Karen Rittenhouse, a Minor, Plaintiff- Appellee and Cross-Appellant, v. Earl M. ERHART and General Motors Corporation, Defendants, and Tuffy Service Centers, Inc., Defendant and Third-Party Plaintiff, and North Woodward Mufflers, Inc., a Michigan corporation, Defendant-Appellant, Third-Party Plaintiff-Appellant, Cross-Appellee, and Supreme Muffler, Division of Arvin Industries, Inc., Third-Party Defendant Appellee. 126 Mich.App. 674, 337 N.W.2d 626

Page 626

337 N.W.2d 626

Donald RITTENHOUSE, Next Friend of Karen Rittenhouse, a Minor, Plaintiff- Appellee and Cross-Appellant, v. Earl M. ERHART and General Motors Corporation, Defendants and Tuffy Service Centers, Inc., Defendant and Third-Party Plaintiff and North Woodward Mufflers, Inc., a Michigan corporation Defendant-Appellant, Third-Party Plaintiff-Appellant, Cross-Appellee and Supreme Muffler, Division of Arvin Industries, Inc., Third-Party Defendant Appellee.

Docket No. 60844.

126 Mich.App. 674, 337 N.W.2d 626

Court of Appeals of Michigan.

Submitted Jan. 19, 1983.

Decided June 22, 1983.

Released for Publication Aug. 18, 1983.

[126 MICHAPP 677] Zeff & Zeff by Michael T. Materna, Gromek, Bendure & Thomas by Mark R. Bendure, of counsel, Detroit, for Donald Rittenhouse.

Moore, Sills, Poling & Wooster, P.C. by James M. Prahler, Birmingham, for North Woodward Mufflers, Inc.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C. [126 MICHAPP 678] by John M. Heaphy, Detroit, for Supreme Muffler Div. of Arvin Industries, Inc.

Before T.M. BURNS, P.J., and WAHLS and HOOD, JJ.

PER CURIAM.

On August 26, 1981, the trial court entered a $805,000 judgment against defendant North Woodward Mufflers, Inc. ¹ Defendant appeals and plaintiff cross-appeals as of right.

On December 20, 1974, Karen Rittenhouse (plaintiff Donald Rittenhouse's daughter) and Kerry Erhart (defendant Earl Erhart's son) were asphyxiated by carbon monoxide fumes while occupying Earl Earhart's 1979 Chevrolet. Kerry was later pronounced dead as a result of carbon monoxide poisoning. Karen Rittenhouse survived, but spent several months in a hospital and rehabilitation center. She has never fully recovered.

Eventually, plaintiff sued Earl Erhart, Tuffy Service Centers, Inc., North Woodward Mufflers, Inc., and General Motors Corporation. Defendants Tuffy Service and North Woodward filed a third-party claim against Supreme Muffler Division of Arvin Industries, Inc.

Just before trial, plaintiff settled with General Motors for $195,000. Later, during trial, plaintiff settled with Supreme Muffler for $5,000 and with Tuffy Service Centers for $195,000. Tuffy Service then stipulated that its complaint against Supreme Muffler could be dismissed. The trial court granted a "directed verdict" for Supreme Muffler in defendant's third-party complaint. Eventually, the jury found that Karen Rittenhouse had sustained $1,500,000 in damages but that she was [126 MICHAPP 679] 20 percent negligent. It also found defendant to be negligent but found Earl Erhart not negligent.

Defendant first argues that plaintiff's suit against it has been barred by the statute of limitations because it was not filed against North Woodward until 1976 and plaintiff had been appointed next friend for Karen Rittenhouse in 1974. However, M.C.L. Sec. 600.5851(1); M.S.A. Sec. 27A.5851(1) tolled the claim until Karen's disability of insanity was removed. In Paavola v. Saint Joseph Hospital Corp., 119 Mich.App. 10, 325 N.W.2d 609 (1982), the Court held that the appointment of a guardian for an insane person did not remove the disability. We find that the same conclusion applies to the appointment of a next friend.

Defendant next argues that the trial court erred in instructing the jury that Karen's mental impairment could toll the statute of limitations even if the condition came from having ingested sleeping pills instead of the carbon monoxide poisoning. Defendant claims that the mental incompetence must have come from the accident itself. However, Michigan law makes no such distinction. A condition of mental impairment is sufficient to toll the statute if it is "such a condition of mental derangement as to actually bar the sufferer from comprehending rights he is otherwise bound to know". Valisano v. Chicago & N W R Co., 247 Mich. 301, 304, 225 N.W. 607 (1929).

Defendant next argues that the trial court should have granted its motion for summary judgment after plaintiff had settled with Tuffy. A release of a servant operates to release the master and vice versa if the claim is based on a respondeat superior theory. Geib v. Slater, 320 Mich. 316, 31 N.W.2d 65 (1948). However, the release of one joint tortfeasor does not necessarily release all the [126 MICHAPP 680] others. M.C.L. Sec. 600.2925(2); M.S.A. Sec. 27A.2925(2). In the present case, both defendant and Tuffy Muffler denied that they had acted jointly or that one would have been responsible merely because the other was negligent. Moreover, neither side presented evidence in this case that both of these defendants were not wholly separate and independent enterprises.

Defendant next argues that the trial court abused its discretion in allowing plaintiff to call expert witnesses on the liability issue even though their names had not been disclosed before trial. Whether or not to allow such a witness to testify is within the trial court's discretion. People v. Cyr, 113 Mich.App. 213, 317 N.W.2d 857 (1982), lv. den. 414 Mich. 888 (1982); Wood v. Posthuma, 108 Mich.App. 226, 310 N.W.2d 341 (1981), lv. den. 413 Mich. 923 (1982); MRE 702. In this case, the parties did not exchange witness lists. Instead, the answers to the 1979 interrogatories had said that additional witnesses would be mentioned when they later became known. The trial started May 18, 1981. Three days later, plaintiff told defendant that it intended to call Sheldon Rabinovitz and Stanley James. While Rabinovitz testified on June 4, James testified on June 5. We do not believe that the trial court abused its discretion on this issue.

Defendant further argues that the trial court erred when it instructed the jury that, because of Karen's loss of memory about the incident, plaintiff was entitled to a presumption that she had used ordinary care. SJI2d 10.09. However, the question of whether or not this instruction was properly given in this case is irrelevant to this appeal. Where a jury has found that the plaintiff was comparatively negligent, the use of this instruction is harmless error. Bell v. Merritt, 118 Mich.App. 414, 420, 325 N.W.2d 443 (1982).

[126 MICHAPP 681] Defendant next argues that the trial court abused its discretion in ruling out relevant evidence. A blood test had shown that Karen Rittenhouse had taken Doriden that evening. Defendant, therefore, wished to show that she had in the past taken mescaline. However, MRE 403 allows a trial court to exclude relevant evidence when unfairly prejudicial. Evidence of the prior use of mescaline is definitely prejudicial. Defendant has not really shown how it is sufficiently probative. It does not show how its use could have caused Karen's injuries.

Both Kerry and Karen were found nude. The trial court also excluded this fact from evidence. Defendant, in arguing comparative fault (see Anderson v. Harry's Army Surplus, Inc., 117 Mich.App. 601, 324 N.W.2d 96 [1982] ), wished to prove the time frame through this evidence. If she had taken the Doriden after sexual intercourse, the evidence would be relevant to show proximate cause. However, the important point for defendant is that she actually took the Doriden. When she took it is not as relevant. Therefore, the trial court did not abuse its discretion in ruling that the prejudicial impact outweighed the probative value.

Defendant next argues that the trial court denied it a fair trial by constantly overruling its objections and denying its motions. After reviewing the record, we do not agree. Most of the instances defendant complains of concern issues that we have just covered.

Defendant last argues that the trial court should not have granted third-party defendant Supreme Muffler's motion for a directed verdict. Both defendant and Tuffy Muffler had sued Supreme Muffler claiming indemnity for plaintiff's allegation of improper design. Supreme Muffler had just settled [126 MICHAPP 682] with plaintiff for $5,000 in exchange for plaintiff's striking the improper design allegation from his complaint. But even though plaintiff was alleging that defendant had improperly installed the muffler, defendant could defend by claiming improper design and that Supreme Muffler is instead, therefore, the negligent party. See generally Skinner v. D-M-E Corp., 124 Mich.App. 580, 335 N.W.2d 90 (1983). In fact, some evidence was presented to support this theory. However, at no time did defendant ever attempt to amend its third- party complaint against Supreme Muffler. The complaint, as it stood when the trial court dismissed Supreme Muffler from the lawsuit, merely prayed for indemnity. The...