Wicks v. Cramton

• Decision Date: 06 October 1941
• Parties: WICKS v. CRAMTON, Acting Circuit Judge.
• Court: Michigan Supreme Court

299 Mich. 252

300 N.W. 75

WICKS

v.CRAMTON, Acting Circuit Judge.

Supreme Court of Michigan.

Motion 473.

Oct. 6, 1941.

Action by Benjamin Milan, special administrator, against Edwin H. Wicks, for alleged malpractice. From an order granting plaintiff's motion to vacate an order directing a verdict for defendant and to enter an order of nonsuit, defendant appealed upon leave granted and sought a writ of mandamus against Louis C. Cramton, Acting Wayne Circuit Judge.

Writ of mandamus denied.Appeal from Circuit Court, Wayne County; Louis C. Cramton, judge.

Argued before the Entire Bench.

Humphreys Springstun, of Detroit, for appellant.

Harold N. Harris, and Harry J. Lippman, both of Detroit, for appellee-respondent.

NORTH, Justice.

Mrs. Clara Wasserman sought the professional services of Dr. Edwin H. Wicks, who specialized in oral surgery. Shortly following a surgical operation performed by Dr. Wicks on Mrs. Wasserman, she died. A suit for malpractice was thereafter instituted and a trial by jury was had before Honorable Louis C. Cramton sitting as circuit judge in Wayne county. During the course of the trial, the plaintiff called Dr. Wicks, the defendant, for cross-examination under the statute and cross-examined him at length. Prior to this, an opening statement had been made by defendant's attorney, and when plaintiff had completed his cross-examination, the defendant's attorney proceeded to fully examine defendant in his own behalf, and incident thereto introduced some documentary evidence.

After plaintiff had rested, defendant's attorney moved for a directed verdict, and this motion was argued at length by counsel for the respective parties in the absence of the jury. Following such argument, the trial judge directed that the jury be returned to the court room. Plaintiff's attorney thereupon asked the trial judge if he would indicate how he intended to rule upon the motion for a directed verdict. The judge then stated that he thought it would be necessary to grant the motion. This result seems to have followed from the judge's conclusion that there was no testimony of malpractice on the part of Dr. Wicks incident to the professional services rendered by him to Mrs. Wasserman. Upon being advised of the circuit judge's intention to direct a verdict in favor of defendant, plaintiff's attorney stated to the court that since the judge had indicated his intention to direct a verdict, plaintiff desired to submit to a voluntary nonsuit. Payment of costs was tendered. While the recorddoes not disclose that the trial judge specifically denied plaintiff's motion or request that he be permitted to submit to a nonsuit, still in effect it was denied by the action of the trial judge by proceeding to direct a verdict for defendant. The verdict of the jury was rendered accordingly and judgment entered thereon December 23, 1940. On January 11, 1941, plaintiff filed a motion to vacate the order directing a verdict, to set aside the verdict and judgment, and to grant plaintiff's application for the entry of an order of nonsuit. Upon subsequent hearing, this motion by plaintiff was granted and orders entered in accordance therewith. Leave having been granted, defendant has appealed, seeking mandamus to compel the circuit judge to vacate the order granting a nonsuit and to reinstate the verdict and judgment entered thereon.

In making the final disposition of the case the circuit judge relied upon the recent decision of this Court in Slowke v. Altermatt, 293 Mich. 360, 292 N.W. 330. In so doing, we think the trial judge was correct. There can be no doubt that under the circumstances of this record it was within the power of the circuit judge to have granted a new trial. But instead of granting a new trial in toto, he reconsidered his earlier ruling and corrected an error which he concluded he had made in the case. The character of the correction made worked no prejudice to defendant, since no disadvantage resulted to defendant by the granting of the nonsuit subsequent to the discharge of the jury rather than at the time the application for nonsuit was first made. Frederick v. Circuit Judge, 52 Mich. 529, 18 N.W. 343. And at the time it was first made, plaintiff was entitled to an order of nonsuit as a matter of right under our holding in Slowke v. Altermatt, supra.

It is strenuously urged by appellant since he made his opening statement to the jury before plaintiff rested in the malpractice case, and further since defendant's...