Tait v. Nash

• Decision Date: 28 October 1970
• Docket Number: Docket No. 6990,No. 1,1
• Citation: 183 N.W.2d 591,27 Mich.App. 446
• Parties: Margaret TAIT, Plaintiff-Appellant, v. Gladys NASH, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 591

183 N.W.2d 591

27 Mich.App. 446

Margaret TAIT, Plaintiff-Appellant, v. Gladys NASH, Defendant-Appellee.

Docket No. 6990.

Court of Appeals of Michigan, Division No. 1.

Oct. 28, 1970.

Released for Publication Feb. 23, 1971.

LeeRoy H. Temrowski, Detroit, C. Michael Kimber, Detroit, of counsel, for appellant.

Robert E. Sullivan, Sullivan, Sullivan, Ranger & Ward, Detroit, for appellee.

Before LEVIN, P.J., and GILLIS and BRONSON, JJ.

GILLIS, Judge.

Plaintiff appeals from the Wayne county circuit court's order denying her motion for a new trial. Pursuant to defendant's motion, the trial court entered an order for summary judgment, GCR 1963, 117.2(1), against plaintiff in that her opening statement failed to state a cause of action. See: Stevens v. Stevens (1959), 355 Mich. 363, 94 N.W.2d 858; Coon v. Williams (1966), 4 Mich.App. 325, 144 N.W.2d 821; Ambrose v. Detroit Edison Company (1968), 380 Mich. 445, 157 N.W.2d 232.

Plaintiff was injured when the trunk lid of defendant's automobile fell on her head. Plaintiff, in her original complaint stated the cause of action to be:

'That the plaintiff herein had used the facilities located in the Norge laundry and was in the process of putting certain washed clothing into the trunk of the defendant's automobile, * * * the defendant Carelessly and negligently cause (sic) the trunk lid to strike the plaintiff on the right side of her head, inflicting severe, personal injuries upon the person of the plaintiff herein.' (Emphasis supplied.)

This allegation was further supported by general averments that the defendant had a duty to the plaintiff and that there was a breach of this duty.

Plaintiff, on appeal, raises 2 issues, neither of which directly bears upon the question implicitly raised herein. But, from the tenor of this appeal, taken as a whole, it is unquestionable that the plaintiff's challenge is directed at the trial court's grant of summary judgment in defendant's favor. Detroit Trust Co. v. Hartwick (1936), 278 Mich. 139, 270 N.W. 249. Thus, the real issue is whether the plaintiff's opening statement was so far afield from the pretrial summary that it, in effect, surprised the defendant, as she alleged, and introduced a new cause of action.

It has long been an accepted purpose of the pretrial conference to narrow the factual and legal issues for trial. It is for this reason that the pretrial statement must be given the effect specified in the rule, that is to control the subsequent course of the action. GCR 1963, 301.3; Applebaum v. Wechsler (1957), 350 Mich. 636, 87 N.W.2d 322; Willingham v. City of Dearborn (1960), 359 Mich. 7, 101 N.W.2d 294; Conroy v. Harrison (1962), 368 Mich. 310, 118 N.W.2d 383; Wentzel v. Hutchinson (1963), 370 Mich. 420, 122 N.W.2d 80; Kolton v. Nassar (1958), 352 Mich. 337, 89 N.W.2d 598. However, the trial court in its discretion may permit amendments thereto to prevent manifest injustice. Bednarsh v. Winshall (1965), 374 Mich. 667, 133 N.W.2d 202.

Prior to the pretrial conference, pursuant to GCR 1963, 301.1(8), ¹ depositions were taken by the parties and are part of the record before this Court. It is apparent from an examination of those depositions that it was the intent of the plaintiff to omit as a cause of action any allegation of mechanical failure in the spring latch which would normally have held the trunk lid in the opened position. It is for this reason the words 'physically and manually' were used in the final summary statement. The cause of action finally settled upon at pretrial was one seated on a theory of negligence. In its summary the pretrial court concluded that the original complaint was unsatisfactory and should be amended to read:

'The pleadings may be amended to show that it is further stipulated by plaintiff that This cause of action is limited to the allegation of the defendant physically and manually closing the trunk lid in a negligent manner on the plaintiff's head.' (Emphasis supplied.)

It is the defense argument that plaintiff's opening statement at trial was totally inconsistent and diametrically opposed to the pretrial summary:

'Earlier, we pointed out that there was a discussion about whether Sister Nash (the plaintiff and defendant are stepsisters) closed the trunk on her. We are not going to say that. We don't believe Sister Nash did anything deliberate. We are only charging here that Sister Nash did not hold the trunk lid like she knew she should.' (Emphasis supplied.)

A cause of action based on the theory of negligence may be generally pleaded. GCR 1963, 111.1; Major v. Schmidt Trucking Company (1968), 15 Mich.App. 75, 166 N.W.2d 517. The defendant's allegation that the plaintiff's opening statement raised a new cause of action in effect argues that to charge that defendant 'did not hold the trunk lid like she knew she should' is, in and of itself, not an allegation based on a theory of negligent conduct. Thus, the defendant would urge that the court distinguish between negligent misfeasance and negligent malfeasance, and that each must be pleaded to the exclusion of the other. See Hart v. Ludwig (1956), 347 Mich. 559, 79 N.W.2d 895. We see such a distinction as being tenuous at best. See Flynn v. Brownell (1963), 371 Mich. 19, 123 N.W.2d 153. Rather, it is apparent that the plaintiff's cause of action in negligence is based upon 'the recognized principle that one who assumes to act * * * becomes liable if he fails to act with due care.' Ray v. Transamerica Insurance Company (1968), 10 Mich.App. 55, 58, 158 N.W.2d 786, 787; Talucci v. Archambault (1969), 20 Mich.App. 153, 161, 173 N.W.2d 740.

Furthermore, the defendant's attorney, in his argument to the trial court for summary judgment, admitted the possibility that a theory of negligence might include both misfeasance and malfeasance:

'The case came on for pretrial on June 27th, 1967, before Judge Farmer of this circuit, at which time it was demanded that because of the plaintiff's version of the accident, and the...