Sexton v. American Aggregates

• Decision Date: 24 April 1975
• Docket Number: No. 1,Docket No. 19110,1
• Citation: 60 Mich.App. 524,231 N.W.2d 449
• Parties: Delmus SEXTON, Sr., Administrator of the Estate of Larry Sexton, Deceased, and Delmus Sexton, Sr., Administrator of the Estate of Delmus Sexton, Jr., Deceased, Plaintiff-Appellee, v. AMERICAN AGGREGATES, Defendant-Appellant, and Clyde Hall and Ernst Fuel & Supply Company, jointly and severally, Defendants
• Court: Court of Appeal of Michigan — District of US

Page 449

231 N.W.2d 449

60 Mich.App. 524

Delmus SEXTON, Sr., Administrator of the Estate of Larry Sexton, Deceased, and Delmus Sexton, Sr. Administrator of the Estate of Delmus Sexton, Jr., Deceased Plaintiff-Appellee, v. AMERICAN AGGREGATES, Defendant-Appellant, and Clyde Hall and Ernst Fuel & Supply Company, jointly and severally, Defendants.

Docket No. 19110.

Court of Appeals of Michigan, Division No. 1.

April 24, 1975.

Released for Publication July 24, 1975.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy by Richard J. Tonkin, Detroit, for defendant-appellant.

Lopatin, Miller, Bindes & Freedman by Sheldon L. Miller, Detroit, for plaintiff-appellee.

Before ALLEN, P.J., and McGREGOR and CAVANAGH, JJ.

ALLEN, Presiding Judge.

On May 30, 1973, a jury rendered a verdict in favor of plaintiff against American Aggregates, defendants-appellants, and the Ernst Fuel & Supply Company and its driver, Clyde Hall, in the amount of $800,000; $350,000 was awarded to plaintiff as administrator of the estate of Larry Sexton. On November 28, 1973, defendants' motions for a new trial and/or a judgment notwithstanding the verdict was denied. GCR 1963, 527 and 515.2. Ernst and Hall subsequently paid $637,500 to plaintiff in satisfaction of plaintiff's claim against them. The Hall and Ernst appeals were dismissed August 2, 1974, and American Aggregates, hereinafter referred to as defendant, remains as the only appellant.

This appeal involves three questions: first, whether in light of the evidence, the trial court erred in instructing the jury on the 'volunteer' theory, 2 Restatement Torts 2d, § 324A, p. 142, and 57 Am.Jur.2d, Negligence § 74, pp. 424--425; second, whether the trial court erred in denying defendant's motion for a directed verdict on the grounds that the evidence was insufficient to support a finding that defendant's alleged negligence was the proximate cause of plaintiff's damages; third, whether the trial court erred in failing to accept the jury's initial verdict of $700,000 against Hall and the Fuel Company, and $50,000 against defendant and in instructing the jury to return a verdict in the form of a single sum as to the defendants and a separate amount for each plaintiff.

The first issue deals with the following jury instruction:

'Let me say with respect to the defendant, American Aggregates, that having chosen to act and having chosen to warn, I charge that defendant, American Aggregates, had the duty to use reasonable care to so warn those lawfully using the streets or highways thereabouts.'

Defendant was the owner of a gravel pit which bordered on Kensington Road in Livingston County. It built and maintained a private road which led from its pit and loading area to Kensington Road. Truck drivers gained access to and exited from defendant's property via this private road. On February 20, 1969, Hall, the driver of an Ernst Fuel & Supply Company truck, failed to stop at the intersection of this private road and Kensington Road, and collided with a pick-up truck driven by Henry M. Carter, who was returning the two deceased young men, Delmus, Jr., who was almost 16, and his younger brother Larry, who was 13, after they had stayed after school to watch a basketball game. Mr. Carter was the father of one of their friends, who also was a passenger in the pick-up on the night in question. This accident occurred at about 7 p.m. on February 20, 1969, and all four occupants of the vehicle were killed.

Defendant's claim is premised on the assertion that the evidence failed to show that defendant chose to act and chose to warn drivers, and in particular Hall, to stop at the intersection of the private road and Kensington Road. While the defendant's knowledge of the truck driver's failure to stop at the intersection is relevant to issue number two, it also provides some assistance on this point. State Police Trooper Richard Mundy testified that at least three or four times in a two-year period previous to February 20, 1969, he advised the weighmaster at defendant's weigh station that truck drivers were not stopping at the intersection. He gave many traffic tickets to drivers who violated their duty to stop, and so advised defendant's weighmaster. There was a gate located approximately 75 to 100 feet from the intersection, and two stop signs, one on each side of the private road, were located about 20 feet from the edge of the intersection. Trooper Mundy stated that the signs were posted by American Aggregates.

Clyde Hall, the driver of the tractor-trailer involved in the accident, testified that he could not 'honestly say' whether or not an agent or employee of defendant had told him to stop at the intersection, although he did testify that the other drivers told him to do so and that 'perhaps the dispatcher' did the same. In particular, Hall remembered one conversation which occurred about six months previous to the accident in which this subject was discussed, and Hall testified that 'possibly' the weighmaster had warned him to stop before entering Kensington Road. However, Hall testified that he never paid any attention to the gate, nor did he view the stop signs as a relevant factor in determining whether or not to stop before entering Kensington Road. Apparently, he and the other truck drivers felt it necessary to have a 'running start' out of defendant's private road onto Kensington Road and, in turn, up the hill which faced them as they turned left onto Kensington Road. An eyewitness to the accident, a person traveling in his own vehicle on Kensington Road, testified that Hall's tractor-trailer was traveling at a rate of about 15 miles per hour as it entered the intersection. Trooper Mundy estimated the speed to be about five miles per hour, and Hall and defendant's expert witness testified that the speed was probably four to five miles per hour as Hall entered the intersection.

Ray v. Transamerica Insurance Co., 46 Mich.App. 647, 657, 208 N.W.2d 610, 615 (1973), adopted the rule of 2 Restatement Torts 2d § 324A, p. 142, which states:

'One who undertakes, gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

'(a) his failure to exercise reasonable care increases the risk of harm, or

'(b) he has undertaken to perform a duty owed by the other to the third person, or

'(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.'

While Ray stated that reliance was a crucial factor in this theory, Chief Judge Lesinski dissented on the grounds that reliance was inapplicable to that situation, and his view has prevailed. Olkowski v. Aetna Casualty & Surety Co., 53 Mich.App. 497, 500--502, 220 N.W.2d 97 (1974), Aff'd, 393 Mich. 758 (1974).

Although meager, the record before us supports the trial court's action in instructing the jury that once defendant chose to act and chose to warn, it had a duty to use reasonable care in the exercise of that action. Clyde Hall testified that it was possible that defendant's weighmaster advised him to stop previous to entering the intersection, and American Aggregates did place stop signs on either side of the driveway. Ray noted that one must actively undertake to provide the service and duty at issue. It must be shown that defendant exercised some action in order that the above rule will come into play. 46 Mich.App. at 654, 208 N.W.2d 610. We find that the record in our case has disclosed some action on the part of defendant to make sure that vehicles exiting from its road onto Kensington Road do so safely and without endangering those using Kensington Road. Therefore, the trial court properly instructed the jury that having chose to act and chose to warn, defendant had the duty to use reasonable care in the exercise of those actions.

Defendant next claims that the trial court erred in denying its motion for directed verdict on the grounds that the evidence was insufficient to support plaintiff's claim that defendant's alleged negligence was a proximate cause of plaintiff's damages. Both parties have acknowledged the discussion in Johnston v. Harris, 387 Mich. 569, 573--574, 198 N.W.2d 409 (1972), that one's intervening or superseding acts will not relieve a defendant of liability if the likelihood of that third person's actions is reasonably foreseeable. However, each party differs on the argued application of the rule to the case before us.

In reviewing a claim that a motion for directed verdict was erroneously denied, the Court must view evidence in a light most favorable to plaintiff. If, when doing so, the Court determines that there is 'any evidence which was competent and sufficient to support the jury's determination', the jury's resolution of the case should be affirmed. Kupkowski v. Avis Ford, Inc., 51 Mich.App. 668, 670, 215 N.W.2d 767, 768 (1974), Lv. granted, 392 Mich. 806 (1974), and cases cited therein. See also, Wilhelm v. Detroit Edison Co., 56 Mich.App. 116, 126, 224 N.W.2d 289 (1974). As stated in Price v. Manistique Area Public Schools, 54 Mich.App. 127, 132--133, 220 N.W.2d 325 (1974), Lv. den., 393 Mich. 753 (1974), an intervening cause, such as Clyde Hall's failure to stop at the intersection, will not 'sever' the connection between the plaintiff's damages and defendant's negligence if Hall's action 'was reasonably foreseeable'. Price also referred to 2 Restatement Torts 2d, § 447, p. 478 and the general principle of intervening cause found in Johnston v. Harris, supra, in particular the statement that:

'If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being...