Wigginton v. City of Lansing

• Decision Date: 15 December 1983
• Docket Number: Docket No. 62143
• Citation: 341 N.W.2d 228,129 Mich.App. 53
• Parties: Bruce S. WIGGINTON, general fiduciary of the State of Melva I. Wigginton, deceased, Plaintiff-Appellant, v. CITY OF LANSING, a municipal corporation, James Cook and Peter Zivic, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 228

341 N.W.2d 228

129 Mich.App. 53

Bruce S. WIGGINTON, general fiduciary of the State of Melva I. Wigginton, deceased, Plaintiff-Appellant, v. CITY OF LANSING, a municipal corporation, James Cook and Peter Zivic, jointly and severally, Defendants-Appellees.

Docket No. 62143.

Court of Appeals of Michigan.

Submitted April 7, 1983.

Decided Sept. 26, 1983.

Released for Publication Dec. 15, 1983.

Anderson, Carr & Street (by Cassius E. Street, Jr., Lansing), and Blackburn & Backus (by Joseph B. Backus, East Lansing), for plaintiff-appellant.

Denfield, Timmer & Taylor, Lansing (by George H. Denfield, Lansing), for defendants-appellees.

Before HOLBROOK, P.J., and HOOD and GREEN ^*, JJ.

HOOD, Judge.

Plaintiff appeals as of right from the denial of his motion for new trial or to set aside the jury verdict of no cause of action entered by the trial court on December 21, 1981.

Plaintiff, Bruce Wigginton, as fiduciary of his mother Melva Wigginton's estate, sued Robert G. Weed, administrator of the estate of Edward W. Martin, Jr., the County of Ingham, Kenneth Preadmore, the Ingham County Sheriff's Department, the City of Lansing, James Cook, and Peter Zivic in June, 1977. He alleged that his mother's wrongful death was proximately caused by the defendants' negligence, wilful and wanton misconduct, and gross negligence. He also alleged that the defendants violated his mother's federal civil rights. 42 USC 1981, 1983, and 1985.

Prior to trial, defendants Weed, Ingham County, Ingham County Sheriff's Department, and Preadmore settled with plaintiff and were dismissed as parties.

Trial commenced on October 6, 1980. A recitation of some of the facts brought out at the trial is beneficial to our discussion of the issues. Mrs. Melva Wigginton was shot to death in her home by Edward Martin, Jr., an off-duty Lieutenant of the Ingham County Sheriff's Department, on July 3, 1974. After shooting Mrs. Wigginton, Martin shot and killed himself. Martin's blood alcohol level at the time of his death was .22%.

Lt. Martin and Mrs. Wigginton, the divorced mother of five children, had dated for approximately one year prior to their deaths. However, Mrs. Wigginton had stopped seeing Martin about three weeks before the shooting, partly because she feared his bad temper.

On July 2, 1974, at about 11:30 p.m., Mrs. Wigginton returned home from a date with Robert Trudeau. Martin drove up to her home, stormed up to her porch, apparently intoxicated, and said: "You are giving it all up, Melva". After Martin left, neighbors came to Mrs. Wigginton's house to stay with her because she was frightened by Martin. Mrs. Wigginton, her neighbors, and Trudeau went to a local restaurant for coffee at about 1:30 a.m. Mrs. Wigginton turned a light on in the house, locked the front door, and left the back door unlocked.

When Mrs. Wigginton and Trudeau returned to her house at about 4:00 to 4:30 a.m., July 3, 1974, they found a white car parked in her garage, the house dark, the back door locked, and the front door unlocked. Martin was asleep in a chair in Mrs. Wigginton's living room holding a pistol in his hands. Mrs. Wigginton and Trudeau went to her neighbors' house to call the police.

About 15 to 20 minutes later, a police officer arrived at Mrs. Wigginton's home and talked to her and Trudeau outside the house. Mrs. Wigginton told the officer, defendant James R. Cook, that Martin was in her house without permission and with a gun. She also told him that Martin was a police officer.

Another officer, defendant Peter Zivic, arrived soon after. The officers shouted at Martin, removed him from the house, and placed him in a police car. Plaintiff's witnesses said that one officer told them they were taking Martin home and taking his gun away as he appeared to be drunk; that he was not being arrested because "he had not broken any law".

Trudeau remained with Mrs. Wigginton because she was frightened. At about 6:30 or 7:00 a.m., she woke Trudeau because a car was in her driveway. Martin exited from the car and pounded on Mrs. Wigginton's back door. He carried a gun. Martin came to the front door and put his hand through the locked screen door. Trudeau telephoned the Lansing police again. While phoning, he heard two gun shots at the back door. Trudeau and Mrs. Wigginton went upstairs to two separate bedrooms. Trudeau heard screams and struggling on the stairway, then two more shots. Police officers arrived as Trudeau walked downstairs. Martin was lying on the floor and Mrs. Wigginton was slouched over a chair bleeding from a chest wound.

Defendant Cook testified at trial that he found Martin in Mrs. Wigginton's house asleep, with a gun lying on the floor near his feet. Officer Cook unloaded the gun and asked Martin what he was doing there. Martin responded that he wanted to talk to the lady. Cook smelled alcohol on Martin's breath but said Martin did not appear intoxicated. Cook drove Martin home and returned Martin's gun and ammunition to him.

Officer Zivic testified that he also answered Mrs. Wiggington's call. After Cook left with Martin, Zivic talked to Mrs. Wigginton and two others outside of her house. Mrs. Wigginton said that Martin could not accept the fact that she no longer wanted to see him and that she wanted him out of her house. Trudeau asked why Martin wasn't being taken to jail or arrested. Zivic said Martin had not committed a crime.

Plaintiff's expert witness, Dr. Erik Beckman, a professor of criminal justice, testified that Martin could have been arrested for entry into a building without breaking or entry into a building without breaking with intent to commit a felony, because Martin possessed a firearm while under the influence of alcohol. Dr. Beckman opined that taking Martin home and returning his gun was a serious and reckless departure from normal and safe police procedures by Cook and Zivic.

The Chief Prosecutor of Ingham County's Criminal Division testified that, based on Cook's and Zivic's report of the incident written after the shooting, Martin had not violated any law. However, had Martin been under the influence of alcohol and possessed a gun in the officers' presence, he could have been arrested. Lansing's Chief of Police testified that the department had no written policy about how officers should deal with guns in 1974.

Mrs. Martin testified for the defense that she had instituted divorce proceedings against her husband shortly before he died. She said he was a kind and gentle man and had never threatened her.

Plaintiff's counsel attempted to introduce portions of three circuit court files to rebut Mrs. Martin's characterization of her husband. Those files dealt with the Martin's divorce. The trial court refused to admit that evidence.

On October 22, 1980, the jury returned a verdict of no cause of action.

On November 18, 1980, plaintiff filed a motion for new trial or to set aside the verdict. The trial court denied the motion in a December 21, 1981, opinion.

Plaintiff raises five issues on appeal, one of which we find clearly requires reversal.

First, plaintiff argues that the trial court erred by denying his motion for a new trial over his objection that the verdict was against the great weight of the evidence. GCR 1963, 527.1(5).

The grant or denial of a motion for new trial is within the trial court's sound discretion. Isom v. Farrugia, 63 Mich.App. 351, 355, 234 N.W.2d 520 (1975). Our standard of review is whether the verdict was against the overwhelming weight of the evidence. Isom, supra; Drouillard v. Metropolitan Life Ins. Co., 107 Mich.App. 608, 623, 310 N.W.2d 15 (1981), lv. den. 413 Mich. 874 (1982). We defer to the trial judge as uniquely qualified to judge the witnesses' credibility. Drouillard, supra.

In this case, the trial court found that there was evidence to support both plaintiff's and defendants' theories. The evidence showed that Martin was authorized to carry a gun. Whether Martin was intoxicated was disputed, although there was no doubt that he had been drinking. The evidence regarding the danger to Mrs. Wigginton was also disputed. Martin apparently cooperated with officers Zivic and Cook and was not threatening in their presence. Therefore, although plaintiff presented strong evidence to support his theory, defendants also presented evidence sufficient to present the reasonableness of their actions as a fact question to the jury. The trial court did not abuse its discretion by denying the motion for new trial.

Plaintiff next argues that the trial court erred by instructing the jury on the doctrine of comparative negligence. Defendant theorized, and argues on appeal, that had Mrs. Wigginton actually been in fear of her life, she could have removed herself and her children from her home after Martin's first unauthorized entry. The trial court did instruct the jury regarding Mrs. Wigginton's potential negligence and the doctrine of comparative negligence and did give the jury a verdict form that included the question of whether Mrs. Wigginton was negligent. See, SJI2d 66.01. Plaintiff's counsel objected to those instructions and jury form.

While we note that the jury never reached a decision regarding Mrs. Wigginton's possible negligence, we nevertheless find that this instruction was erroneous and requires reversal.

Every individual has a duty to exercise reasonable care for his or her own safety. See Jaworski v. Great Scott Supermarkets, Inc., 403 Mich. 689, 272 N.W.2d 518 (1978). The question of duty is normally one of law, Sowels v. Laborers' International Union of North America, 112 Mich.App. 616, 317 N.W.2d 195 (1981). The question of contributory negligence is a question of fact to be determined by the jury. Jaworski, supra, 403 Mich. p. 697, 272 N.W.2d 518.

Plaintiff does not dispute that his mother had a duty to exercise reasonable care for her own and her childrens' safety. However, plaintiff does dispute that that duty included a responsibility to...