Smith v. Musgrove
| Decision Date | 03 February 1964 |
| Docket Number | No. 59,59 |
| Citation | 372 Mich. 329,125 N.W.2d 869 |
| Parties | John SMITH, Plaintiff and Appellee, v. Hubert C. MUSGROVE, Defendant, and James M. Peadbody, Defendant and Appellant. |
| Court | Michigan Supreme Court |
Carl F. Davidson, Detroit, for appellant.
Zeff & Zeff, Detroit, Edward Grebs, Detroit, of counsel, for appellee.
Before the Entire Bench.
This is an automobile negligence case. Plaintiff was a passenger in a car headed south which was stopped for a red traffic light at the intersection of Mt. Elliott and East Grand Boulevard in the city of Detroit.
Defendant-appellant Peabody was approaching the intersection from the east on Grand Boulevard. Codefendant below, Musgrove, was traveling north on Mt. Elliott. Peabody and Musgrove collided in the northeast quadrant of the intersection. The Musgrove car, after the impact, crashed into the vehicle in which plaintiff was a passenger, and plaintiff was seriously injured. Suit on his behalf was brought against Peabody and Musgrove jointly and severally. A joint and several verdict of $30,000 for plaintiff resulted. Defendant Peabody alone appeals. He claims: (1) a verdict should have been directed in his favor because there was no actionable negligence shown against him; (2) proper requests to charge were refused him by the trial court; (3) inadmissible testimony relating to his speed prior to the collision was received over objection; (4) inflammatory argument was made by plaintiff's counsel, characterized as 'improper' by the trial judge, which argument was to have been the subject of cautionary instruction and such instruction was not given; (5) erroneous instruction as to the applicability of the reckless driving statute* to his driving was given.
The first claimed error is untenable. There was testimony from which a jury could have inferred actionable negligence on appellant's part. Quoting it in detail would add nothing to established case precedent. As his brief urges this proof may not have been as persuasive as the proof of the codefendant's negligence. The issue, however, was the weight of that testimony and the credibility of the witness who gave it. These questions were for the jury.
The second claim of error will not support reversal. It is well established that requests to charge need not be given in the language in which they are submitted. Knickerbocker v. Samson (not Simpson as cited), 364 Mich. 439, 449, 111 N.W.2d 113, 118, obtains:
'No lawyer is entitled to demand that a specific [requested] charge be given verbatim.'
The court's charge in its entirety encompassed the substance of the properly applicable parts of the requests.
The third claimed reversible error is concerned with the admission of an 'estimate' of appellant's speed in approaching the intersection. The concerned testimony is herewith set forth:
'Q. Answer this yes or no. Can you estimate how fast that automobile was going from your observation?
'A. No.
'Q. (By Mr. Zeff): You cannot estimate how fast he was going?
'MR. HALSEY: That question has been asked and answered, your Honor.
'A. To me it seemed to be about 40 miles an hour.
'A. Approximately, yes, sir.
'THE COURT: I think he was confused, counsel, on the other one. Go ahead.
'Q. (By Mr. Zeff): Could you tell us how fast he was going, sir?
The truncated and self-serving excerpts set forth in the respective appendices were irreconciable and required our time consuming reference to the full transcript. A reading of all the witness's testimony clearly revealed that he had been having difficulty understanding the questions asked him. The trial judge who saw and heard the witness and observed his demeanor was well within his prescribed supervisory control of the trial when he determined that further explanatory questioning as to the witness's understanding of the meaning of 'estimate' was in order. There was no error in this incident of the trial.
We reverse the order of treatment of the 2 remaining claims of error (5). Appellant complains of the following instruction:
'I shall now advert to another section of the Vehicle Code * * * and read a portion thereof:
"Any person who drives any vehicle upon a highway * * * carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be * * * guilty [of reckless driving]."
It is his precise point that 'there is no indication of any reckless driving on the part of the defendant Peabody in entering the intersection on a green light and within the speed limit,' and that the instruction as to possible reckless driving should not have been made as to him [appellant]. Accepting appellant's postulate, the basis for error would of course be manifest. The difficulty is, the trial court did not accept, and neither can we, the conditions included in the hypothesis that appellant entered the intersection 'on a green light and within the speed limit.' As the trial court pointed out in his opinion on the motion for a directed verdict:
'[The Court]: On examination he [Musgrove] was asked this question and gave this answer:
'Q. Was it already amber?
'On the following question this occured:
'[The Court]: Of course, this testimony is in direct conflict with that of Peabody who claims he had the green light throughout, that is, the green light for Grand Boulevard as opposed to Mt. Elliott.'
We previously pointed out herein there was also testimony that appellant was driving 'about 40 miles an hour.' The legal speed limit on Grand Boulevard at this point was established as 30 miles per hour. The color of the traffic control light as to appellant and his speed as he entered the intersection were disputed questions of fact. An instruction based on appellant's assumptions would have been error. The instruction as given was proper.
The last and most compelling assignment of error (4) is the alleged impropriety of the argument of plaintiff's counsel to the jury, coupled with the court's designation thereof as improper, and the failure to give promised 'cautionary instruction.' The following excerpt from appellant's appendix contains the error contended for:
'Ladies and Gentlemen, in closing I ask that you as triers of the fact, in trying to evaluate what this man deserves, place yourself in the shoes of Mr. Smith and ask yourselves whether the emotional, mental and physical ordeal that he went through and has been testified to on that stand, together with the factors of what he was going to have to live with the rest of his life and ask yourselves whether or not $50,000 is a just evaluation in your own case, whether or not you think $50,000 would be just compensation for you to go through the rest of your life with the complaints and factual conditions as were brought out at the time of trial and from this witness stand.
Plaintiff had contracted poliomyelitis in the interim between the accident and trial. No causal connection between the accident and the subsequently contracted polio was claimed.
The trial court disposed of this claim which was advanced also in support of the motion for a new trial as follows:
'As to an appeal to passion and prejudice, the charge to the jury must be viewed as a whole. Specifically, however, the jury was warned against sympathy and the Court at some length, when discussing negligence, emphasized that the objective standard had to be used rather than the subjective standard which plaintiff's counsel urged at one point of his argument. Frankly, the argument in Elliott v. A. J. Smith Contracting Co., 358 Mich. 398 , far exceeded the bounds of the argument in the instant case where plaintiff's counsel did specifically tell the jury that plaintiff was not claiming any damages as a consequence of this accident for polio.
'The whole of the charge to the jury, it is believed, adequately protected all parties insofar as is possible from appeals to passion and prejudice.'
The point was not whether plaintiff's counsel improperly suggested or implied that the polio residuals should have been considered in fixing the damages, if any. If he did so, he clearly repudiated it later in his argument. The impropriety consisted in the invitation to the jury to consider what amount, if any, a juror or the jury collectively would award as compensation for himself or themselves for the causally connected injury and damage claimed. Such standard is clearly erroneous. The standard to be used by the jury in fixing damages, if any, is what amount would fairly compensate any given plaintiff not what a jury member or members would award to himself or themselves under the proof of injury in the case. The argument was reversibly erroneous.
The general rule is found in 53 Am.Jur., Trial, § 496, p. 401:
'It is, therefore, improper for counsel to appeal to the sympathy of...
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