Wilson v. Modern Mobile Homes, Inc.

• Decision Date: 04 October 1965
• Docket Number: No. 9,9
• Citation: 376 Mich. 342,137 N.W.2d 144
• Parties: Harold W. WILSON, Administrator of the Estate of Jean Anne Wilson, Deceased, Plaintiff-Appellee, v. MODERN MOBILE HOMES, INC., Defendant-Appellant, and Howard L. Veurink, Defendant and Cross-Appellee.
• Court: Michigan Supreme Court

Page 144

137 N.W.2d 144

376 Mich. 342

Harold W. WILSON, Administrator of the Estate of Jean Anne

Wilson, Deceased, Plaintiff-Appellee, v. MODERN MOBILE HOMES, INC., Defendant-Appellant, and Howard L. Veurink, Defendant and Cross-Appellee.

No. 9.

Supreme Court of Michigan.

Oct. 4, 1965.

Warner, Norcross & Judd, Harold S. Sawyer, Paul K. Gaston, Grand Rapids, for appellee.

Cholette, Perkins & Buchanan, Grand Rapids (Don V. Souter, Grand Rapids, of counsel), for appellants.

Before the Entire Bench.

KAVANAGH, Chief Justice.

Plaintiff, Harold W. Wilson, administrator of the estate of Jean Anne Wilson, deceased, instituted this suit in the Kent county circuit court under the wrongful death act ¹ for damages resulting from the accidental electrocution of plaintiff's minor daughter.

The fatal accident occurred on July 12, 1960, when the daughter, Jean Anne, age 10, crawled under the Wilson trailer to retrieve a ball. Jean Anne Wilson thereafter came in contact with the ground and some part of the trailer, resulting in the child being electrocuted.

Plaintiff originally joined the manufacturer of the trailer, Gordon Hodson, d/b/a Holly Coach Company, as a party defendant, but Hodson was dismissed as a defendant prior to trial. The suit was tried against the seller of the trailer, Modern Mobile Homes, Inc. (hereinafter referred to as Modern), and Howard L. Veurink, vice-president of Modern.

The amended declaration charged defendants with negligence in the first count and breach of implied warranty in the second count.

Testimony on trial of this case revealed Mr. Wilson purchased the trailer from Modern in May 1959. An electric cord was furnished with the trailer by defendant Modern and less than a day later Mr. Wilson received a tingling sensation from the handle of the refrigerator. Wilson testified he telephoned Mr. Howard L. Veurink, vice-president of defendant Modern, and was told to turn the plug of the electric cord halfway over and that would eliminate the difficulty.

After having the trailer about two weeks, Wilson went to defendant Modern and talked to Howard Veurink about the shocks; Wilson was again told the same thing by Veurink as to turning the plug. Plaintiff testified he followed Veurink's advice and the rest of the summer employed the remedy as to turning the plug each time a tingling sensation was received from the trailer.

In the spring of 1960, Wilson had some trouble with metal on the trailer expanding and he again talked to Howard Veurink at Modern; Veurink then told Wilson he would send a factory man out to check the metal and electrical problems.

In the summer of 1960 Wilson took the trailer and his family to the McArthur trailer park at Big Pine Island Lake, Michigan. Wilson could not use the cord on the trailer supplied by defendant Modern and he used a plug given to him by Mr. McArthur.

On the morning of the accident another trailer owner, while helping Mrs. Wilson connect a water hose, received an electrical shock. The neighbor asked Mrs. Wilson to unplug the electricity while he worked and suggested that the have it checked later. The neighbor testified he saw Mrs. Wilson thereafter connect the electricity again.

Plaintiff contends the trailer was defective in that a metal screw, placed in the side of the trailer in the original construction pierced one of the neutral electrical wires on the side of the trailer. Plaintiff further contends that the cords running from the electrical outlet at McArthur's trailer park to the side of the trailer were not polarized; that built into the side of the trailer was a three-way polarized plug which was designed for three-way polarization to the source of electricity; that the cord furnished by Modern, while having a three-way polarized receptacle at one end had only a two-way unpolarized plug on the other end.

Plaintiff made a two-wire cord, and on the day of the accident the aforementioned wire cord was connected to the cord furnished by Modern to procure power.

Plaintiff further contends that on the day of the accident the two-way plug on the cord furnished by Modern was inserted in the receptacle on the cord made by Wilson and that the electric current ran through the neutral wire in the trailer which was pierced by the screw, causing a short which energized the skin of the trailer, and thus created the condition resulting in the electrocution of Jean Anne Wilson.

Defendant Modern was notified of the accident by the Michigan State Police on the afternoon it occurred.

On the trial Howard Veurink testified that the cord 'was furnished because in most State parks and all State parks I know of, the only way you can plug in a trailer is with a two-way cord * * *.'

The jury returned a verdict against Modern in the sum of $25,000. Both parties agree that the aforesaid verdict had to be based upon either a breach of implied warranty as alleged in plaintiff's amended declaration, or on negligence by Modern in providing plaintiff with a two-wire cord attached to a three-wire polarized plug at one end and an ordinary wall plug at the other end.

Defendant Modern raises fourteen questions on appeal, a substantial number of which allege error in the trial court's instructions. The principal questions for our determination are whether the trial court erred in ruling as a matter of law that sufficient notice had been given to defendant Modern and whether the trial court erred in not submitting the question of notice to the jury. These two questions are answered by the majority opinion, written by Justice Black, in Piercefield v. Remington Arms Co., 375 Mich. 85, 100, 133 N.W.2d 129, 136, where the Court said:

'For the same reasons as were made to appear in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 [60-62], 27 Cal.Rptr. 697 [699-701], 377 P.2d 897, 899-901, I would hold that the giving of notice under said section 49 is not a prerequisite to institution and maintenance of this plaintiff's suit. Said section 49 deals with the rights of the parties to a contract of sale. It does not require that notice must be given of breach of a warranty that arises by legal implication distinct from a contract of sale. 'Such warranties are not imposed by the sales act, but are the product of common-law decisions that have recognized them in a variety of situations.' (Greenman [59 Cal.2d 61, 27 Cal.Rptr. 699, 377 P.2d 899]).'

The Court then proceeded to hold (p. 100, 133 N.W.2d p. 136):

'Since the duty is not imposed by the terms of the contractual relationship, the requirement of notice under the Uniform Sales Act has, in the better view if not in the majority view, been dissipated.'

See, also. Browne v. Fenestra, Inc., 375 Mich. 566, 134 N.W.2d 730.

Appellant assigns error to the trial court in failing to charge the jury, though requested, that from any award given for companionship, there must be deducted the cost of damages for expenses of birth, clothing, food, etc., during the period that the deceased lived, and that the jury must deduct therefrom the pecuniary value of the companionship received during the same period and contends the trial court's failure to give defendant's request to charge relating to the foregoing resulted in an excessive verdict. Appellant further contends the trial court erred in failing to instruct the jury that the money value of companionship must be based upon something obtainable in the open market, and that the court erred in charging that the jury must consider the money value of the life of the deceased and put a fair evaluation on this life.

An analysis of the trial court's instructions relative to the damages recoverable in the instant controversy does not indicate any reversible error. Appellant would have this Court overrule our decision in Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118. A majority of this Court affirmed Wycko v. Gnodtke, supra, in Currie v. Fiting, 375 Mich. 440, 134 N.W.2d 611.

The trial court instructed the jury that funeral expenses, actual medical, surgical and hospital expenses, and the pecuniary, financial loss, if any, sustained by the parents, may be given consideration in evaluating plaintiff's decedent's damages. Defendant enumerates several reasons why this Court should not follow the holding of Wycko, supra, and should require deduction of the companionship, society and comfort received during the lifetime of the decedent, as well as the cost of procuring the companionship.

We again re-affirm today the holding of Wycko that a parent may properly recover the cost of the acquisition of such society and comfort, and that a jury is capable of ascertaining such damages, fairly and equitably to all parties.

A jury in a death case, as stated in Wycko, supra, is required to compute the pecuniary loss suffered because of the taking of the life. The pecuniary value of the life is composed of 'a compound of many elements.' No instruction to subtract, add or multiply is necessary. Juries are to arrive at a determination as to the money value of a life, taking into consideration expenses and companionship as well as other relevant considerations introduced as evidence.

We conclude from a reading of the charge that the trial court correctly instructed the jury as to the law of this jurisdiction concerning damages.

Appellant contends error by the trial court in failing to charge the jury, though requested, that if the jury found it was necessary to have a two-prong plug in order to procure power for the use of the trailer at State parks, this could not be a proximate cause of the death of plaintiff's decedent. Appellant further charges error to the trial court in failing to grant defendant's motion for directed verdict on the issue of negligence in furnishing a two-wire cord. Appellant's requests relating to the aforesaid errors would have the court instruct the jury as a matter of law that the furnishing of the two-pronged plug could not have been a proximate cause of p...