Saums v. Parfet

• Decision Date: 07 January 1935
• Docket Number: No. 96.,96.
• Citation: 270 Mich. 165,258 N.W. 235
• Parties: SAUMS v. PARFET et al.
• Court: Michigan Supreme Court

270 Mich. 165

258 N.W. 235

SAUMS

v.PARFET et al.

No. 96.

Supreme Court of Michigan.

Jan. 7, 1935.

Action by Mary L. Saums, as guardian of the estate of Mildred L. Chambers, a minor, against Ray T. Parfet and another. Judgment for plaintiff, and defendants appeal.

Affirmed in part, and reversed in part.Appeal from Circuit Court, Kalamazoo County; George V. weimer, judge.

Argued before the Entire Bench.

Leo H. Robb, of Detroit, and Dwight W. Fistler, of Battle Creek, for appellant Parfet.

Howard & Howard, of Kalamazoo, for appellant Deal.

Jackson, Fitzgerald & Dalm, of Kalamazoo, for appellee.

NELSON SHARPE, Chief Justice.

On August 23, 1933, Mildred L. Chambers, aged 11 years, was riding on a bicycle in a northerly direction on what is known as the Ravine road a few miles from the city of Kalamazoo. The defendant Deal was driving an automobile in a southerly direction on said road. A collision occurred, in which the young girl sustained quite serious injuries. The automobile had been furnished to Deal by the defendant Parfet for the purpose of demonstration as a prospective purchaser.

The plaintiff, as guardian of her daughter Mildred, brought this action to recover the damages due to such injury. She had verdict and judgment against both defendants in the sum of $6,375. Each of the defendants filed an answer to the declaration, appeared by separate counsel upon the trial, and presents his appeal in like manner. As the liability of the defendant Parfet is, in any event, contingent on that of the defendant Deal, the errors relied on by the latter will be first considered.

1. Liability of Deal. His counsel moved for a directed verdict at the conclusion of plaintiff's proofs, and again after all the evidence had been submitted. Decision was reserved, and a motion for judgment non obstante veredicto was made and denied. Error is assigned thereon.

Mildred L. Chambers, hereafter spoken of as the plaintiff, testified that, as she was proceeding in a northerly direction along the highway, on the easterly side thereof, the defendant Deal, going in a southerly direction, came around a corner in the road and approached her on the side of the road on which she was riding, and, when she discovered her apparent danger, she turned towards the west side of the road, and that Deal, without making any effort to stop his car, turned in the same direction, resulting in the collision which caused her injury. Deal testified that when he rounded the curve he saw the plaintiff on her wheel and turned to his right so that his car was partly off the traveled part of the highway, but that the plaintiff turned her bicycle in front of his car, that he was then traveling about 20 miles per hour, and that he applied his brakes but was unable to avoid the collision which followed. There was testimony tending to corroborate that given by each of the parties. The weight of the evidence was for the jury to pass upon, and, without further reference thereto, we find no error in the denial of the motion for judgment nor in the denial of the motion for a new trial based upon the claim that the verdict was against the weight of the evidence, on which error was also assigned.

It is urged that the verdict is excessive. In overruling the motion for a new trial, the trial court said: ‘In view of the age of the Plaintiff, and the serious, painful and permanent injuries and disfigurement sustained by her, the verdict is not excessive.’

After the collision the plaintiff was at once taken to a hospital in the city of Kalamazoo, where she was treated by Dr. Jennings. He testified that she was then ‘bleeding profusely from a wound on the side of her face, and from a wound on her leg’; that the wound on her face has left a permanent scar, as a result of which she will always have ‘a one-sided smile’; that the wound on her leg was open and about two inches in diameter, necessitating the removal of skin from her thigh and grafting it thereon; that the scar thus caused is permanent and her limb more liable to injury by reason thereof. Both the plaintiff and her mother, who nursed her, testified that her suffering was intense. While the verdict is a large one, we do not find it so excessive as to justify its reduction by this court.

In his closing argument to the jury, plaintiff's counsel said: ‘Why, members of the jury, I believe for the purposes of this case we could rest this testimony-this case solely upon the testimony of Mr. Deal, on his own testimony that he didn't see this girl until he was within 50 feet of her; that he had a vision of her for over 200 feet; that he was driving at a rate of 20 miles an hour. He could have stopped his car a half dozen times before he got there and at least three times after he saw her, and at least ten or twelve times when he ought to have seen her. Why, members of the jury, if it had been a cow in the road there, he wouldn't have hit her. No, sir, you bet he wouldn't. He would have stopped his car, but it was a little child. It was a little child, and I submit he ought to be required to exercise the same degree of care for a living being that he would have for an animal.’

The following then occurred:

‘Mr. Howard: I would like to object to the last argument, that Mr. Deal could have seen a cow and would have avoided the cow, but that he appeals for the sympathy of the jury saying that the little child-he wouldn't pay any attention to the child. There is nothing in the record to justify that, and that is an unfair appeal, and I ask the Court to so tell the jury.

‘The Court: I don't know just what counsel intended by that statement.

‘Mr. Jackson: Just a question of reasonable control of his car.

‘The Court: Certainly, counsel did not intend to argue that Defendant was guilty of any gross, wanton negligence; didn't intend to argue that he was guilty of any reckless disregard of the rights of a child. I am sure Mr. Jackson had no-intended no such implication as that by his statement. Because of the possible implications that might arise from such a statement, I think the jury should disregard it. They may disregard it. You should disregard that statement.’

Error may be assigned upon the prejudicial remarks of counsel, and this court has not hesitated to set aside judgments and grant new trials in cases where it was apparent that the verdicts of the juries had been probably affected thereby. Barnaby v. Vorauer, 212 Mich. 395, 180 N. W. 477, and cases cited. But while the remarks above made were uncalled for, in view of the action of the trial court and the record as a whole we are not impressed that the jury were unduly influenced by what then occurred.

The judgment against Deal is affirmed.

2. Liability of the Defendant Parfet. The defendant Parfet was a dealer in...