HEIDER v. MICHIGAN SUGAR COMPANY.
Docket Nos. 49,890, 49,891
Supreme Court of Michigan
May 10, 1965
Rehearing denied October 4, 1965
375 Mich. 490
Certiorari granted by Supreme Court of the United States February 21, 1966.
1. DEATH—TRAPPERS—MINORS—CONSIDERATION—GROSS NEGLIGENCE OF LANDOWNER.
No recovery is allowed in actions under death act for loss of 2 minor sons of administrator, where they were drowned while trapping on defendant‘s land without permission or consideration and there is no claim defendant was guilty of gross negligence or wilful and wanton misconduct in the maintenance of chemical ponds for disposal of waste products incident to sugar-beet processing operation (
SEPARATE OPINION. DETHMERS and KELLY, JJ.
2. NEGLIGENCE—POSSESSOR OF LAND—TRESPASSERS. A possessor of land who knows or from facts within his knowledge should know, that trespassers consistently intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.
3. SAME—DANGEROUS CONDITION OF PREMISES. Owners of private property are not responsible for injuries caused by leaving a dangerous place thereon—but not immedi-
REFERENCES FOR POINTS IN HEADNOTES [1, 8, 9, 13, 16] 38 Am Jur, Negligence §§ 109-113, 118, 138.5. Liability of landowner for drowning of child. 8 ALR2d 1254. [2, 13] 38 Am Jur, Negligence § 112. [3] 38 Am Jur, Negligence § 109 et seq. [4, 5, 15] 38 Am Jur, Negligence § 118. [6, 7, 22, 23] 4 Am Jur 2d, Appeal and Error § 507. 5 Am Jur 2d, Appeal and Error § 545. [10] 14 Am Jur, Courts § 191. [11] 14 Am Jur, Costs § 14. [14] 38 Am Jur, Negligence § 4 et seq. [17, 18] 16 Am Jur, Death § 238. [19] 16 Am Jur, Death §§ 216, 217. [20, 21] 16 Am Jur, Death § 199. [24] 5 Am Jur 2d, Appeal and Error § 974. [25] 5 Am Jur 2d, Appeal and Error § 1014.
4. SAME—REASONABLE FORESEEABILITY—TRESPASSERS—INFANTS. Reasonable foreseeability that children would be trapping, playing, or trespassing upon premises occupied by a defendant is a necessary prerequisite to imposition of liability for injuries to, or death of, trespassing children.
5. SAME—TRESPASSERS—INFANTS. Judgments for plaintiff administrator of the estates of his 12-1/2-and 8-year-old sons who had drowned while trespassing on defendant sugar company‘s 27.1-acre pond in center of 200-acre tract of land in midafternoon in subzero weather where a waste pipe prevented freezing held, against the clear preponderance and contrary to the great weight of the evidence, where record is devoid of evidence that defendant‘s employees had ever seen children trespassing on its premises or had specific knowledge that children trespassed thereon.
6. APPEAL AND ERROR—QUESTIONS REVIEWABLE. Generally, parties cannot assume a position inconsistent with or different from that taken at the trial and are restricted to the theory upon which the case was defended in the court below, but such rule is not inflexible and will not be applied when consideration of a claim sought to be raised is necessary to a proper determination of the case.
7. SAME—QUESTIONS REVIEWABLE—STATUTES. A party‘s failure to call the trial court‘s attention to a relevant statute does not preclude the appellate court from considering it.
8. NEGLIGENCE—GROSS NEGLIGENCE—OCCUPIER OF PREMISES—EVIDENCE. Defendant occupier of premises was not liable for the death of plaintiff administrator‘s decedents, his 12-1/2- and 8-year-old sons, who had trespassed upon and had drowned in a 27.1-acre pond located in center of its 200-acre tract of land and used, in its business of processing sugar beets, for disposal of waste materials, where there is no evidence that the boys had paid a valuable consideration for trapping on defendant‘s land and no evidence that defendant had been guilty of gross negligence or wilful and wanton misconduct, notwithstanding trial court‘s attention was not drawn to statute requiring payment of a valuable consideration for privilege of hunting, fishing, or trapping or that the occupier of premises be guilty
SEPARATE OPINION. BLACK, SMITH, and O‘HARA, JJ.
9. DEATH—TRESPASSING CHILDREN—TRAPPERS—LANDOWNER‘S LIABILITY—JURISDICTION.
The trial court had no jurisdiction to try actions brought under death act for loss of plaintiff‘s 2 minor sons who went onto defendant sugar company‘s premises to trap muskrats and walked onto one of its chemical ponds, where it knew persons came to trap but failed to have any warning signs or to protect children, in view of statute limiting liability of landowner to persons on the land without payment of a valuable consideration unless the injuries be caused by gross negligence or wilful and wanton misconduct of the owner, since the declared acts of the defendant would not, if death had not ensued, have entitled the sons to have maintained an action (
10. COURTS—LACK OF JURISDICTION. Courts are bound to take notice of the limits of their authority, and a court may, and should, on its own motion, though the question is not raised by the pleadings or by counsel, recognize its lack of jurisdiction and act accordingly by staying proceedings, dismissing the action, or otherwise disposing thereof, at any stage of the proceeding.
11. COSTS—JURISDICTION—FAILURE TO RAISE DECISIVE QUESTION IN DUE TIME. A defendant who failed to raise decisive jurisdictional question in due time should not have costs.
DISSENTING OPINION. T. M. KAVANAGH, C. J., and SOURIS and ADAMS, JJ.
12. DEATH—TRESPASSERS—KNOWLEDGE OF OWNER.
Findings of trial court and jury that defendant sugar company‘s employees knew that its 200-acre premises had been frequented by trappers, hunters, skaters, and other trespassers held, amply supported by evidence adduced in administrator‘s actions under death act for loss of his 12-1/2-year-old and 8-year-old sons (
14. SAME—MINIMIZATION OF LIKELIHOOD OF HARM TO OTHERS. There is a duty upon all men so to conduct their activities as to minimize the likelihood of harm to others.
15. SAME—CHILD TRESPASSERS—DANGEROUS CONDITION OF PREMISES. Likelihood of injury to child trespassers from dangerous condition of defendant‘s premises and foreseeability of such injury are much the same thing.
16. SAME—DANGEROUS CONDITION OF PREMISES—CHILD TRESPASSERS. Findings of jury in response to special questions that defendant sugar company knew, or should have known, that child trespassers were likely to come upon its premises, that the premises constituted an unreasonable risk of death to child trespassers, that the utility of maintaining the pond in the condition it was, was slight as compared to the risk to child trespassers held, proper in actions by administrator for death by drowning in mid-December of his 2 sons, 12-1/2- and 8-years of age, near middle of 27.1-acre pond where water from sugar beet processing was discharged in such a way as to keep 8’ x 10’ area from freezing.
17. DEATH—DAMAGES—PERSONS ENTITLED TO SHARE IN RECOVERY.
Whether awards of $40,989.65 for loss of 12-1/2-year-old boy and $125,000 for loss of 8-year-old boy in actions under the death act were excessive or insufficient is dependent upon whom the persons were who would share in the recovery (
18. SAME—DAMAGES—NEXT OF KIN.
Trial court‘s restriction of recovery in nonjury action under the death act for loss of 12-1/2-year-old son of administrator to the boy‘s father held, error, where there were other members of the class of next of kin entitled to recovery and who should have been considered, necessitating remand for reconsideration of such award (
19. SAME—DAMAGES—NEXT OF KIN—COST OF RAISING CHILD.
Award of $10,989.65 to father in his action under death act for cost of raising his 12-1/2-year-old son held, incorrect, where grandfather, not the father, had incurred such cost and was among the next of kin entitled to recover (
21. SAME—DAMAGES—LOSS OF COMPANIONSHIP—DEPENDENCY.
Verdict of $125,000 under death act for loss of companionship of 8-year-old boy who had a younger brother and sister and whose parents had separated held, not excessive, in view of the mother‘s probable dependency upon such son, and the loss to the family group of the life of the boy over a useful lifetime (
22. NEGLIGENCE—STATUTES—LIMITATION OF LIABILITY—QUESTIONS REVIEWABLE.
Statute limiting liability of owner of premises to persons injured thereon while fishing, hunting, or trapping, with or without permission, but without payment of a valuable consideration, to injuries caused by the gross negligence or wilful and wanton misconduct of the owner, which was not brought to the attention of the trial court and sought, for the first time, to be applied on appeal in the Supreme Court as an after-thought, held, not applicable in case otherwise affirmed, since it is not the function of the Supreme Court to correct, on review, the inadvertence or failure of counsel to present what might have been a defense (
23. APPEAL AND ERROR—QUESTIONS RAISED FOR FIRST TIME ON APPEAL—EXCEPTIONS. Exception to rule that no matter should be heard on appeal, where first raised there, should only be made when the matter was presented to the trial judge and he refused to rule, or, under the clearest circumstances, where the entire matter is before the Supreme Court.
24. NEGLIGENCE—DEATH—STATUTES—LIMITATION OF LIABILITY—REMAND. Whether or not statute limiting liability of owner of premises to persons injured thereon while fishing, hunting, or trapping, with or without permission, but without payment of a valu-
25. COSTS—EACH PARTY PREVAILING IN PART. No costs are allowed in appeal in action that is remanded for determination of questions not hitherto raised before case was presented on appeal and for reassessment of damages, since each party has prevailed in part.
Appeal from Saginaw; Huff (Eugene Snow), J. Submitted January 9, 1964. (Calendar Nos. 6, 7, Docket Nos. 49,890, 49,891.) Decided May 10, 1965. Rehearing denied October 4, 1965. Certiorari granted by Supreme Court of the United States February 21, 1966.
Case by Donald Heider, administrator of the estate of James D. Heider, deceased, against Michigan Sugar Company, a Michigan corporation, under death act for negligence resulting in drowning. Similar action by plaintiff as administrator of the estate of David Heider. Cases consolidated for trial and on appeal. Verdict for plaintiff in 1 case based on death of David Heider, and judgments for plaintiff in both cases. Defendant appeals. Plaintiff cross-appeals on question of damages and propriety of computing interest. Reversed and remanded for entry of judgments for defendant.
Gregory M. Pillon, for plaintiff.
Smith, Brooker & Harvey (Carl H. Smith, Sr., of counsel), for defendant.
Amicus Curiae: Cicinelli, Mossner, Majoros & Harrigan (Peter F. Cicinelli and Eugene D. Mossner,
KELLY, J. Plaintiff brings these companion cases under the death by wrongful act statute (
Plaintiff demanded a jury only in the David Heider case, and defendant‘s request for jury trial in the James Heider case was denied. The cases were consolidated for trial, one a jury case and the other a nonjury case.
At the conclusion of plaintiff‘s proofs, defendant moved for a directed verdict “for the reason that the plaintiffs have failed to produce evidence * * * that would tend to establish any responsibility on the defendant for the death of the children.” The court took the motion under advisement and reserved decision in accordance with the terms of the Empson act.1
February 15, 1961, the jury returned a verdict in favor of the plaintiff-administrator of the David Heider estate in the sum of $125,000.
February 28, 1961, defendant filed its motions for new trial and for judgment notwithstanding verdict, on the grounds that the verdict was against the clear preponderance of the evidence, contrary to the great weight of the evidence, and clearly excessive.
May 17, 1962, the trial court directed the entry of a judgment in the nonjury case of James Heider in the amount of $40,989.65, and on the same date denied defendant‘s February 28, 1961, motions for new trial and judgment notwithstanding verdict in
Question No. 1: Was the verdict and judgment in each case against the clear preponderance of the evidence and contrary to the great weight of the evidence?
James and David Heider were half-brothers and did not live together. James was raised by and lived with his grandparents since he was 8 days old. His mother and father (plaintiff Donald Heider) were divorced and the father contributed nothing to James’ support.
David, the younger, lived with his mother and younger brother and sister 3 blocks from the grandparents’ home, in Sebewaing, Michigan.
The father, plaintiff Donald Heider, was in Jackson prison serving a sentence of from 10 to 20 years on an armed robbery conviction at the time of the accident.
Defendant‘s 200-acre tract of land is located north of the village limits of Sebewaing. In order to conduct its sugar beet processing operation, it was necessary to prevent beet particles and waste containing limestone, calcium carbonate, et cetera, from running into the Saginaw bay. To meet this problem and the requirements of the water resources commission, defendant, in 1944, commenced building a series of auxiliary ponds which finally culminated in 8 ponds, varying in size from 5.9 acres to 27.1 acres. The ponds are separated by dikes 12 feet high and wide enough to accommodate a motor vehicle for travel. There are no public roads on defendant‘s premises.
A pipe approximately 4 feet from the top of the embankment of pond No 3 emptied water and waste products into the pond. This chemical waste prevented freezing at the outlet and covered the surface of the water with a foamy substance for an area of 10 feet by 8 feet.
Sunday afternoon (December 21, 1958) the 2 boys left the home of their grandparents about 3:30 p.m., in subzero weather, informing the grandparents they were going to trap muskrats. When they failed to return, the grandmother conducted a search, to no avail. The marshal of Sebewaing was notified and the marshal, firemen, and citizens of Sebewaing conducted a search for well over an hour before any one thought of the possibility of the boys going onto defendant‘s property.
A bicycle was found on the C. & O. railroad right-of-way 300 feet north of the public roadway and footprints led from this point along the tracks for about half a mile, then across a ditch to an island in the center of pond No 3 and, after circling about, the steps led to the point where the pipe was emptying into the pond. There was a bunch of frozen foam about 3 feet from where the footprints ended.
The court in a written opinion held that the cause of death was the negligence of defendants in the maintenance of its premises contrary to legal principles, stating:
Although none of defendant‘s employees was shown to have specific knowledge that children trespassed upon defendant‘s premises to trap, they knew that trespassers came upon defendant‘s land during
On the basis of a careful consideration of all the evidence and the now well established law of this State, this court concludes that neither the 2 boys nor their guardians were guilty of contributory negligence in this case and that the sole, proximate cause of their deaths in this tragic accident was the negligence of the defendant company in the maintenance of its premises contrary to the following legal principle:
‘A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.’ (Lyshak v. City of Detroit, 351 Mich 230; Nielsen v. Henry H. Stevens, Inc., 359 Mich 130; 2 Restatement of Torts, §§ 334, 339.)
The trial court‘s misinterpretation of our Lyshak and Nielsen decisions, supra, requires emphasis that the legal principle enunciated in these opinions was that defendant in each instance was aware of the fact that infant trespassers were subjecting themselves to danger upon defendant‘s property. To establish this important point beyond question, not only in regard to this opinion but for future reference, the following excerpts from Justice TALBOT SMITH‘S opinion in Lyshak are set forth (pp 232, 238-241, 244, 249, 251):
The main thrust of plaintiff‘s argument on appeal is devoted to the proposition that defendant city
It is clear that the plaintiff himself was not on the golf course as a matter of right. * * * A powerfully-driven golf ball in flight is a projectile of lethal qualities, as this record amply demonstrates. * * * The difference between a golf course and a rifle range, then, as a playground for children, is a difference of degree only.
If duty is born of danger, the duty of the city of Detroit, knowing that children frequent a certain area, is clear. * * *
To what degree does the landowner still wear the feudal mantle of special privilege, exempting him from the ordinary rules of negligence when children (yes, trespassing children) are known to frequent land upon which he is carrying on an enterprise hazardous to them? Can he simply say, ‘They are trespassers’ and continue as if they were not there? Can a landowner blindly throw the firing lever and explode blasting charges in a vacant lot that, to his knowledge, is used daily as a playground by (trespassing) neighborhood children? (pp 238-241) * * *
A distinction has been drawn between the mere condition of the premises (a child falls into a natural pond) and a dangerous situation on the premises caused by the active intervention, the affirmative acts, of the owner (the child is carelessly run down by the owner‘s horse and buggy). (p 244) * * *
We have mentioned, but we have not emphasized, the distinction between an injury arising from a condition of the premises and one arising from affirmative dangerous conduct by the owner. * * * In the interests of accuracy, it should be pointed out that the case before us does not involve injury from the mere physical condition of the premises, whether natural or artificial, and hence many of the cases cited by the city against recovery (e.g., Hargreaves v. Deacon, 25 Mich 1; Graves v. Dachille, 328 Mich 69) are not precedent for the situation before us. Here we have injury from dangerous activities conducted in a limited area which trespassers in general are known to frequent. * * * Upon these facts, infant plaintiff, even if a trespasser, was a known trespasser (pp 249, 251).
Justices DETHMERS and EDWARDS wrote concurring opinions in the Lyshak Case. Justice DETHMERS emphasized the fact that the defendant‘s awareness of the infant trespasser was a controlling feature, stating (p 253):
Here defendants knew of the presence of small children within the range of a flying golf ball before the foursome. Whether, under such circumstances, it was negligence to drive or permit the driving of a ball in the direction of such small children presented, as I think, a question of fact for the jury.
Justice EDWARDS, while stating that Lyshak overruled cases “where Michigan has barred recovery for injuries involving infant trespass—holding the effect of child trespass to be identical with that of adult trespass,” also said (p 253): “This case concerns a child of tender years—obviously too young to look out for himself. His presence in a place of potential danger, beside a golf course fairway, was known to agents of defendant who were on the tee at the time the golf ball was driven, which caused the loss of the boy‘s eye.”
In Lyshak, as in the instant case, the Court was dealing with a fact situation where plaintiff alleged active negligence on the part of the defendant toward a minor child whose presence on defendant‘s property in a place of danger was known to defendant.
Lyshak referred to, but did not repudiate, our early 1872 decision in Hargreaves v. Deacon, 25 Mich 1, where we held:
Owners of private property are not responsible for injuries caused by leaving a dangerous place thereon—but not immediately adjoining a highway—unguarded, where the person injured was not on the premises by permission, or on business, or other lawful occasion, and had no right to be there.2
Likewise, Lyshak referred to our 1950 Graves decision3 but, again, did not overrule or repudiate this decision, but merely stated that the facts in Graves (p 249) “are not precedent for the situation before us.” In the Graves Case we considered the question of whether damages should be awarded in an action for the death of a 6-1/2-year-old boy by drowning in stagnant water which had accumulated in a sump on defendants’ property incident to an excavation operation. After stating (p 74), “We do not find
Lyshak overruled cases referring to defendant‘s responsibility to trespassers only where the facts disclose that defendant owner was aware that child trespassers were entering his property and subjecting themselves to danger and possible harm.
Prior to Lyshak, decisions of this Court did not distinguish between a child and an adult trespasser. In Ryan v. Towar, 128 Mich 463 (
The trial court in the present case erroneously concluded that while it was not shown that defendant‘s employees had “knowledge that children trespassed upon defendant‘s premises to trap,” he could apply the principle of Lyshak and Nielsen, supra, because “they knew that trespassers came upon defendant‘s land during the hunting and trapping season.”
In the recent case of Slinker v. Wallner (1960), 258 Minn 243 (103 NW2d 377), the Minnesota su-
In upholding recovery in these cases we have gone a long way in placing responsibility upon the occupier of premises to safeguard trespassing children. However, there must come a point where liability does not exist as a matter of law unless occupiers of land are to be held liable merely because children might stray onto their premises. It would seem that reasonable foreseeability is and must be a necessary prerequisite to liability. * * *
Here, the record is completely devoid of any evidence from which an inference could reasonably be drawn that the owners or occupiers of the premises involved knew or had any reason to know that children could be expected to play on these grounds any more than it is generally known that they might be found anywhere.
“Reasonable foreseeability” as a necessary prerequisite to liability is not established in this record, which is completely devoid of any evidence from which an inference could be drawn that defendant owner knew, or had any reason to know, that infant children would be trapping, playing, or trespassing upon the property.
The record sustains appellant‘s statement:
The pond in question was approximately a quarter of a mile from the nearest highway. A more desolate area could not be imagined. It was midwinter and below zero weather. There was no reason to believe children would be in the vicinity. No employee of the defendant company had ever seen children trespassing on its premises or had specific knowledge that children trespassed thereon, as is conceded by the trial judge.
In the 1951 Petrak decision, supra, we considered whether defendant-owner of road-making equipment
Applying the principles established in Petrak, we can and should conclude that “a reasonably prudent person would not anticipate” the tragic events that led up to the death of the 2 boys on defendant‘s premises.
We conclude that under the evidence in this record and under the decisions of this Court, including Lyshak and Nielsen, supra, the judgment in each case was against the clear preponderance and contrary to the great weight of the evidence.
Question No. 2: Should the provisions of
No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other a valuable consideration for the purpose of fishing, hunting or trapping, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant or lessee.
Appellant states:
Candor compels our admission that this statute escaped the attention of this brief writer until it
Appellee objects to consideration of the statute by this Court in this appeal because it was not raised in the pleadings, nor at trial, motion for new trial, or in the reasons and grounds for appeal; that it is an affirmative defense and cannot be raised as part of the general issues.
My answer to Question No. 1 discloses that without the application of this statute, on the record submitted, the verdict and judgment in each case should be set aside, but as this opinion is written before acceptance or rejection by my Associates, I am answering Question No. 2.
The general rule is well established that upon appellate review, parties cannot assume a position inconsistent with or different from that taken at the trial and are restricted to the theory upon which the case was defended in the court below.
This rule has its exceptions, and in Dation v. Ford Motor Co., 314 Mich 152 (19 NCCA NS 158), we held that the general rule that a question may not be raised for the first time on appeal to the Supreme Court is not inflexible and will not be
Especially is this true where an applicable statute has been overlooked. It has been held that the party‘s failure to call the trial court‘s attention to a relevant statute does not preclude the appellate court from considering it.4
There is no claim in this case that defendant was guilty of gross negligence or wilful and wanton misconduct. There is no testimony that even infers that permission was given to the boys, or that a valuable consideration was paid by them for the privilege of going upon defendant‘s premises.
The statute states there must be proof of (1) payment of a valuable consideration, or (2) proof of gross negligence or wilful and wanton misconduct before a party who is on the land of another for fishing, hunting, or trapping can seek damages for injuries. In the absence of proof sustaining one of these requirements, the statute specifically states “no cause of action shall arise.”
The total lack of proof to meet any of these requirements makes this statute applicable and should be considered by this Court as one more reason why the conclusion reached in answer to Question No. 1 should also be the answer to Question No. 2.
The cases are reversed and remanded to the lower court for entry of judgments of no cause of action. Defendant may recover costs.
DETHMERS, J., concurred with KELLY, J.
O‘HARA, J. (concurring in reversal). I am obligated to vote to reverse with instructions
“27. That David Heider is the minor son of the plaintiff, Donald Heider, and on the 21st day of December, 1958 said son with his brother, James Donald Heider and their dog set out muskrat trapping.
“28. That David Heider with his brother and dog entered the defendant‘s premises and walked onto one of the defendant chemical ponds.
“5. That the defendant knew persons came on their land where their artificial storage ponds are located to trap for muskrats, mink, et cetera.
“21. That the defendant failed to have any warning signs and failed to maintain the property to protect children.” (Emphasis this Court‘s.)
The wording is identical in the companion case.
The statute2 involved is herewith set out in its entirety:
“An act restricting suits by persons coming upon the property of another for the purpose of hunting, fishing or trapping; and to declare the limited liability of owners of property within this State.
Casualty Co., 19 NJ 201 (115 A2d 557); Huntress v. Estate of Huntress (CCA 7), 235 F2d 205 (61 ALR2d 682).
“The People of the State of Michigan enact:
“300.201. Prohibiting tort actions against landowners for recovery of damages, unless caused by negligence, etc., of owner, tenant or lessee. [M.S.A. 13.1485]
“Sec. 1. No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other a valuable consideration for the purpose of fishing, hunting or trapping, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant or lessee.
“Approved June 10, 1953.” (Emphasis supplied.)
At the time of these unfortunate deaths the Constitution limited the original jurisdiction of our circuit courts to “all matters civil and criminal not excepted in this constitution and not prohibited by law.” (Const 1908, art 7, § 10.)3
No right or rights of action as pleaded here could have accrued, to the personal representatives of either decedent, the declared acts of defendant not being “such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof” (
With or without raising of the question below, the circuit court was possessed of no jurisdiction to hear and determine the merits of plaintiffs’ allegations. See the long list of authorities cited in In re Fraser‘s Estate, 288 Mich 392, 394, as supporting this settled principle:
“Courts are bound to take notice of the limits of their authority, and a court may, and should, on its own motion, though the question is not raised by the pleadings or by counsel, recognize its lack
The principle quoted was applied in Lehman v. Lehman, 312 Mich 102, 105 and Second National Bank & Trust Co. v. Wayne Circuit Judge, 321 Mich 28, 45. It is controlling here; hence my vote as indicated. The situation here is the same as if plaintiff had declared for alienation of affections.4 Defendant, having failed to raise the jurisdictional question in due time, should not have costs.
BLACK and SMITH, JJ., concurred with O‘HARA, J.
ADAMS, J. (dissenting). I am unable to agree with Justice KELLY that the trial court misinterpreted Lyshak v. City of Detroit, 351 Mich 230, or Nielsen v. Henry H. Stevens, Inc., 359 Mich 130. The trial judge found:
“Defendant company certainly was carrying on a legitimate business enterprise on its own premises. It was quite clear from all the evidence in the case, however, that an extremely deceptive and treacherous condition existed in the surface of the ice around the pipe discharging water into the pond. Defendant easily could have employed some sort of a warning device and sign to serve as a notice or caution to trappers and trespassers who were known to use that area frequently. That would not have limited or interfered in any way with defendant‘s profitable conduct of its business.” (Emphasis added.)
There is ample evidence in the record to support the findings of the court and jury that defendant‘s
“Q. Do you conduct any activity on these ponds?
“A. Well, I‘ve trapped them, being within that area I would say for at least 20 years. * * *
“Q. Well, did they give you permission or didn‘t they?
“A. They actually did not give me permission, he says in his own words, for all of them they would like to get rid of the muskrats because they do damage on the ponds, but if I went onto them I was on my own risk.
“Q. Now, have you ever seen any evidence while you are trapping that other people trapped up there? * * *
“A. Yes, I seen others out there trap.
“Q. How many people do you know of that trap out there?
“A. Three that I know of.” (Emphasis added.)
Max Meissner, also an employee of Michigan Sugar, testified that he had been aware of the fact that people were trapping in the area and that hunters often used the land in question, as many as 30 or 40 during a hunting season.
Floyd Taylor, a truck driver living in Sebewaing, testified it was common knowledge in the community that the Sugar Company premises were a good area for trapping:
“Yes, I think that just about everybody that did any trapping around town knew that that was one of the best areas around, to trap.”
He testified that his own boy, when 14 and 15 years old, trapped on the ponds. There was also evidence of the presence of children, small footprints having been seen and the ponds having been used for skating.
As Justice TALBOT SMITH observed in Lyshak (p 239):
“We accept as commonplace today the principle that there is a duty upon all men so to conduct their activities as to minimize the likelihood of harm to others.” (Emphasis added.)
Special findings were made by the jury in answer to the following questions:
“Question No. 1—Was the pond where the boys met their death a place where the Michigan Sugar Company knew, or should have known, that children were likely to trespass? [x] Yes [ ] No
“Question No. 2—Was the place where the boys met their death a place where a condition existed which the Michigan Sugar Company knew, or should have known, involved an unreasonable risk of death to child trespassers? [x] Yes [ ] No
“Question No. 3—Was the utility of maintaining the pond by the Michigan Sugar Company in the condition it was slight as compared to the risk to child trespassers as involved therein? [x] Yes [ ] No”
With regard to the question of damages and whether the awards were excessive or insufficient, it is necessary first of all to determine the persons who would be entitled to share in recovery. In the case of James D. Heider, the trial court equated the term “pecuniary injury” as used in the wrongful death act (
The restriction of the class to Donald Heider, father of James D. Heider, by the trial judge was improper, since, in this case, there were other members of the class who should have been considered. The trial court said:
“This court finds from the evidence at the trial that the deceased James Heider had lived long enough to be able to demonstrate much more clearly than his younger brother David the talents, abilities, character, and accomplishments which gave such distinct and definite promise of a useful life and a good citizen. As a consequence, it would seem to follow irrefutably that his death would occasion the greater loss, not only to the community but also to his whole family, and that therefore the damages should be higher in his than in his brother‘s case. This court would be inclined to reach such a conclusion as a matter of simple and obvious justice.”
Since the court did not make an award to cover the pecuniary injury to all of James’ next-of-kin, it will be necessary to remand the case for a reconsideration of such award.
Some further comment is appropriate with regard to the assessment of damages which the trial judge did make. He awarded $10,989.65 for the cost of raising James. The sum was incorrectly allocated to Donald Heider, father of James, who did not provide such cost. It should have been allocated to James D. Heider‘s grandfather, who incurred the cost, and who, being within the statutory class, would be entitled to recover.
The trial judge also awarded $30,000 for loss of the society and companionship of James Heider by his father, Donald Heider, who was 33 years old at the time of the trial. James was the son of his first marriage. His wife deserted the child. Her
In the case of 8-year-old David Heider, the jury awarded damages of $125,000. It is asserted that this sum is excessive, against the clear preponderance of the evidence and contrary to its great weight. Appellant states:
“Mrs. Heider, with the $125,000, at her present age would be able to purchase an annuity which would pay her a guaranteed monthly income of $455 for her lifetime.”
The loss of companionship in David‘s case runs not only to the father and mother but also to a younger brother and sister. The amount of damages recoverable in actions for death by wrongful act
With regard to
Dation v. Ford Motor Co., 314 Mich 152 (99 NCCA NS 158), is cited by Justice KELLY in support of the proposition that, while usually a question may not be raised for the first time on appeal to the
The problem has not received uniform treatment. Plaintiff cites Hollister v. Kinyon‘s Estate, 195 Mich 261; Lewis J. Selznick Enterprises v. Harry I. Garson Productions, 202 Mich 106; D. & W. Rottschafer Real Estate v. Morris, 245 Mich 192; and Shaver v. Associated Truck Lines, 322 Mich 323. Counsel for defendant stress Morris v. Radley, 306 Mich 689, in support of the exception to the rule and argue that we should apply the exception here to avoid a miscarriage of justice because of the inadvertence of counsel in overlooking and failing to raise the application of the statute before the trial court. This is not a proper case to apply the exception. Only when the matter was presented to the trial judge and he refused to rule, or, under the clearest of circumstances, where it is unquestioned that the entire matter is before this Court, should the exception prevail.
Such is not the case in which the question is first presented here as an afterthought and accorded cursory treatment and briefing. For these reasons it is not applicable at this late juncture in the case of David Heider. Litigation must come to an end. Defendant has had its day in court with ample opportunity to raise and present all defenses. It is not the function of this Court to correct, on review, the inadvertence or failure of counsel to present what might have been a defense.
In the case of James D. Heider, upon remand the trial court should determine any questions of fact
The judgment in the case of Donald Heider, administrator for the estate of James D. Heider, should be remanded for consideration of the applicability of
The judgment in the case of Donald Heider, administrator for the estate of David Heider, should be affirmed. Costs to appellee.
T. M. KAVANAGH, C. J., and SOURIS, J., concurred with ADAMS, J.