Turri v. Bozek, Docket No. 26196

• Decision Date: 24 October 1977
• Docket Number: Docket No. 26196
• Citation: 79 Mich.App. 212,261 N.W.2d 264
• Parties: Joseph H. TURRI, Plaintiff-Appellant, v. Phillip BOZEK, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 264

261 N.W.2d 264

79 Mich.App. 212

Joseph H. TURRI, Plaintiff-Appellant, v. Phillip BOZEK, Defendant-Appellee.

Docket No. 26196.

Court of Appeals of Michigan.

Oct. 24, 1977.

Released for Publication Jan. 13, 1978.

Charfoos & Charfoos by Ronald R. Gilbert, Detroit, for plaintiff-appellant.

Morton H. Collins, Southfield, for defendant-appellee.

Before RILEY, P. J., and BASHARA and MAHINSKE, ^* JJ.

MAHINSKE, Judge.

This case involves an accident between defendant's camper and plaintiff's motorcycle. At the trial level plaintiff sought recovery of damages for injuries sustained as a result of the allegedly negligent conduct of defendant in the use of his vehicle. The jury returned a verdict of no cause of action. From this ruling plaintiff appeals.

The decisive issues on appeal are: 1) whether the trial court committed reversible error when it instructed the jury that violation of the motorcycle license statute ¹ was negligence per se, and 2) whether a proper foundation was established for the trial court to permit submission of plaintiff's driving record to the jury.

At the time of trial the instruction on negligence per se was not erroneous. However, in Zeni v. Anderson, 397 Mich. 117, 243 N.W.2d 270 (1976), the Michigan Supreme Court abandoned the per se rule and adopted instead a rebuttable presumption of negligence to be overcome by the plaintiff. The Zeni Court stated as follows at p. 143, 243 N.W.2d at p. 283.

"An accurate statement of our law is that when a court adopts a penal statute as the standard of care in an action for negligence, violation of that statute establishes a prima facie case of negligence, with the determination to be made by the finder of fact whether the party accused of violating the statute has established a legally sufficient excuse."

This new approach of presuming negligence upon violation of a statute does not make the trial court's instruction reversibly erroneous. It merely overturns the law which was in effect at that time, i. e., that expressed by SJI 12.03. In either case plaintiff must show he was not negligent or, as Zeni put it, "establish a legally sufficient excuse". In the instant case plaintiff did neither. In fact, in his brief plaintiff admits that "there are facts to show that both vehicle operators could be negligent".

Michigan Standard Jury Instruction 12.03 was in effect at the time of trial. A Note to that instruction suggests that it should be given only if the defendant has alleged a statutory violation as a ground for contributory negligence and only if:

"1. the statute is intended to protect against the result of the violation;

2. the plaintiff is within the class intended to be protected by the statute; and

3. the evidence will support a finding that the violation was a proximate contributing cause of the occurrence."

The Note goes on to provide that if there is no question that the statute was violated, and no claim of excuse for the violation, then the jury should be instructed that plaintiff was negligent as a matter of law.

In the case at bar defendant did not specifically plead a statutory violation. However, the Note does not make the giving of the instruction solely dependent upon defendant's alleging a statutory violation. Here defendant did allege that plaintiff was guilty of contributory negligence which was a proximate cause of the accident. Since a violation of the motorcycle license statute was elicited during cross-examination of the plaintiff, there could have been no surprise to the plaintiff. See Brockschmidt v. Verwys, 73 Mich.App. 144, 250 N.W.2d 568 (1977). Furthermore:

1. The motorcycle license statute is intended to protect against accidents involving motorcycles driven by persons who have not been legally recognized as competent in their operation.

2. Plaintiff is within the class of persons intended to be protected by the statute. Under the statute plaintiff should have passed an examination which included a driving test designed to assess his competency to drive a motorcycle.

3. Plaintiff did not submit to such an examination and this violation could properly have been considered by the jury to be a proximate cause of the accident.

In addition, plaintiff admitted this violation and offered no legally sufficient excuse for the violation. Therefore, the lower court's instruction on negligence per se was proper under former law and harmless under present law.

Turning now to the second issue, the law pertaining to cross-examination concerning driving records in contested motor vehicle accident cases is set forth in Sting v. Davis, 384 Mich. 608, 614, 185 N.W.2d 360 (1971). In that case the Court held that a trial judge has no discretion to exclude cross-examination with regard to the driving history of plaintiff or defendant. Credibility of these witnesses is usually the central issue in the case, and their driving records may have "a...