Smith v. Jones

• Decision Date: 04 August 1969
• Docket Number: No. 5,5
• Citation: Smith v. Jones, 382 Mich. 176, 169 N.W.2d 308 (Mich. 1969)
• Parties: Ollie Z. SMITH and Ollie Mae Smith, Plaintiffs and Appellants, v. Louis JONES and Heriberto Miranda, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 308

169 N.W.2d 308

382 Mich. 176

Ollie Z. SMITH and Ollie Mae Smith, Plaintiffs and Appellants, v.Louis JONES and Heriberto Miranda, Defendants and Appellees.

No. 5.

Supreme Court of Michigan.

Aug. 4, 1969.

Marcus, McCroskey, Libner, Reamon, Williams & Dilley, by William G. Reamon, Grand Rapids, for plaintiffs-appellants.

Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), for defendant-appellee.

Before the Entire Bench.

KELLY, Justice.

PlaintiffOllie Mae Smith was injured on July 11, 1963, when an automobile owned by defendantHeriberto Miranda, and driven by named defendantLouis Jones, struck the front porch of plaintiffs' residence where Ollie Mae Smith had been seated, causing a piece of wood to strike her on the leg.

Plaintiffs filed complaint against both Miranda and Jones seeking damages for injuries, pain and suffering, impairment of earning capacity, and the medical expense for care and treatment of Ollie Mae incurred by her husband, Ollie Z. Smith, Jones was never served with process.

A jury returned verdicts against defendant Miranda, awarding Ollie Mae Smith $2,500, and her husband, Ollie Z. Smith, $719.85 for expense incurred in the care and treatment of his wife.

Judgments were entered on the verdicts and the trial court file discloses payments thereof to the Kent County Clerk, who is holding same in escrow pending final determination of the case.

Plaintiffs did not file a motion for new trial and appealed to the Court of Appeals.¹

The Court of Appeals, affirming the trial court, stated (p. 94, 148 N.W.2d p. 234):

'Plaintiffs appeal and assert a multitude of errors, some of which would clearly require reversal if the jury verdicts had not been in plaintiffs' favor.However, plaintiffs recovered and they made no claim below nor do they claim here that the verdicts were inadequate or against the weight of the evidence.No motion for new trial on the basis of inadequacy was made in the trial court.Since the errors complained of would only be prejudicial with respect to the amount of the verdicts, we believe Davis v. Jermstad(1957), 350 Mich. 439, 86 N.W.2d 316, is dispositive of this appeal and we decline further comment on the errors asserted by plaintiffs.'

Plaintiffs sought in the Court of Appeals and are presently seeking a decision reversing the trial court's instruction on damages.Davis v. Jermstad, Supra, is not 'dispositive of this appeal.'In Davis we held that (p. 444, 86 N.W.2d p. 318)'the charge as given to the jury carefully and fully covered the material issues in the case.'

In Bunda v. Hardwick(1965), 376 Mich. 640, 672, 138 N.W.2d 305, we held that a motion for new trial was not necessary to preserve for appellate review alleged errors ruled upon by the trial judge.

We will consider in this appeal two claimed instructional errors, both of which were extensively discussed and argued in the 'Proceedings In Chambers' by plaintiffs and defendant Miranda, namely:

1) Was error committed by the trial court's refusal to permit the jury to consider the gross negligence of defendant Miranda and an award of exemplary damages to plaintiffs; and

2) Did the trial court err in permitting the jury to consider and determine issues upon which no evidence was submitted.

I.

Plaintiffs call attention that:

'Both the unserved defendant, Jones, and Miranda were charged with wanton misconduct.The charge against Jones was based upon his manner of operating the Miranda vehicle immediately prior to and at the time of this collision.The charge against Miranda was based upon his knowingly permitting an intoxicated person to operate his automobile.'

Plaintiffs analyze our decisions of the past by stating that 'at first blush, it might appear' that our decisions before 1948² would sustain the trial court's refusal to permit the jury to consider exemplary damages, but that our decisions subsequent to 1948³ establish the Court's error.

The Peyton v. Delnay and Karney v. Upton cases, upon which plaintiffs rely, involved actions under the guest portion of the statute and not under the ownership liability provisions involved in this appeal.

In the Peyton case, defendant claimed that if the driver was guilty of gross negligence, then under our Wieczorek and Geib decisions the owner would not be liable under C.L.S.1961, § 257.401(Stat.Ann.1968 Rev. § 9.2101) holding that only ordinary negligence would be imputed to the owner.

This Court, in rejecting plaintiff's claim, and explaining the difference between the Wieczorek and Geib cases and the Peyton case, said (p. 248, 83 N.W.2d p. 209):

'Appellants rely for a contrary view upon Wieczorek v. Merskin, 308 Mich. 145, 13 N.W.2d 239, andGeib v. Slater, 320 Mich. 316, 31 N.W.2d 65.Neither was a case involving suit by a guest passenger.Neither held that where the operator (driving with the owner's consent) was found guilty of gross negligence or wilful and wanton misconduct that this acted to relieve the owner of liability.'

That the Karney v. Upton decision did not overrule Wieczorek or Geib is evidenced by the following from that decision (p. 265, 91 N.W.2d p. 298):

'It may be noted that the recent decision of this Court in Peyton v. Delnay, 348 Mich. 238, 83 N.W.2d 204, is squarely in point.See, also, Wieczorek v. Merskin, 308 Mich. 145, 13 N.W.2d 239.'

Under our decisions of the past, which we are reaffirming in the present appeal, we hold that the trial court did not commit error in refusing to instruct on gross negligence and exemplary damages.

II.

We next consider the court's instructions regarding plaintiffOllie Mae Smith's duty to minimize her damages by obtaining proper medical or surgical treatment.That such a duty exists is well established.⁴

A review of plaintiffOllie Mae Smith's efforts to obtain such treatment discloses that within one hour after defendant's car struck the porch a neighbor drove her to the Grand Rapids Butterworth Hospital Emergency Department, where x-rays were taken which disclosed no broken bones in the leg; that two weeks later because of continuous pain she sought aid from Dr. Jones, of Grand Rapids, who prescribed the use of an elastic bandage to wrap the leg, some pills, and instructions to keep off the leg as much as possible and keep it elevated; that on August 23, 1963, she went from her home in Grand Rapids to the office of Dr. Lauretti, in Muskegon, who diagnosed her complaint as being a thrombophlebits of the left leg, because either the nerves of the leg were somewhat inflamed or the diameter of the vein was smaller than ordinary; that because Dr. Lauretti felt physiotherapy was necessary, she went to a Mr. Beam, a physiotherapist in Grand Rapids, 19 times between September 4, 1963 and October 16, 1963, where whirlpool treatments and massage were administered; that Dr. Lauretti again examined plaintiff on October 18 and November 19, 1963, and on January 2, 1964; that her next visit to a doctor was on April 2, 1965, to a Dr. Johnston; that Dr. Johnston, on August 23, 1965, operated and tied off a vein in plaintiff's leg.

Plaintiff was examined as a witness at the trial and on direct examination related her visits to Dr. Lauretti.Plaintiff's cross-examination was confined to a few questions in regard to a knee injury she received in 1961, and a swollen leg resulting from medical treatment in 1958.Nothing was said by plaintiff on direct examination that even implied that Dr. Lauretti had recommended surgery, and the only question about Dr. Lauretti which defendant asked her on cross-examination was whether her attorney told her 'to see Dr. Lauretti in the fall of 1963 so you made two or three trips over there'(to Muskegon).

In the opening statement to the jury, defense counsel stated:

'It is our claim and our theory that she knew she needed the operation as of January, 1964, and if it had been done at that time she would have been completely cured at least within a couple of months.'

An extended discussion and argument between counsel took place in the judge's chambers previous to instructing the jury.It was plaintiffs' counsel's contention that there was no testimony that Dr. Lauretti ever advised plaintiff, or her counsel, that surgery was necessary.

The court read aloud to counsel from Dr. Lauretti's deposition as follows:

'Q.Does it respond readily to conservative treatment?

'A.If it doesn't--sometimes it does.But most often it doesn't.And if it doesn't then you have to think of other things.

'Q.Such as what?

'A.Surgery.'

and then asked defendant's counsel,

'Do you claim that that (surgery) was conveyed to her?'

Defendant's counsel answered:

'No, but I claim the law is, if she feels, if the jury finds she failed to procure necessary treatment for whatever reason, if she failed to act as a reasonably prudent person, failed to procure medical treatment and the jury so finds, she cannot recover.'

The court specifically charged the jury:

'In his deposition, the doctor from Muskegon (Dr. Lauretti) then recommended surgery.Whether that was communicated to the plaintiff or not is part of that deposition that was read to you.'

The record sustains plaintiffs' contention that:

'Upon examination of the record, it is evident that there was no reference at all made to any knowledge on the part of Mrs. Smith that she should have surgery, nor of any opinion being expressed by Dr. Lauretti that she should have had surgery prior to the actual date of surgery.The most that is found in the record is a statement in Dr. Lauretti's deposition that was read into evidence at the trial, wherein he said upon cross-examination by Mr. Souter (defendant's attorney):

"Q.So that the next recommendation at that point would normally be surgery?

"A.Yes.'

'This is Not a statement by Dr. Lauretti that, at the time he last saw Mrs. Smith in January of 1964, he recommended surgery.It is merely an answer to Mr. Souter's question that ordinarily...