MULL v EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
Docket No. 127472
Court of Appeals of Michigan
Submitted March 3, 1992. Decided October 19, 1992.
196 Mich. App. 411
The Court of Appeals held:
1. The front-end loader is a “motor vehicle” under the owner‘s liability statute. Section 79 of the Vehicle Code,
2. The front-end loader does not fit the definition of “farm tractor” provided in
3. Because the plaintiffs brought their action solely under the owner‘s liability statute, the no-fault act is inapplicable in this case and the defendants’ argument that the front-end loader was not being used “as a motor vehicle” within the meaning of the no-fault act at the time of the accident is irrelevant.
4. The plaintiffs presented sufficient circumstantial evidence of Michael Koss’ negligence to allow the case to be submitted to the jury.
5. The trial court did not abuse its discretion in refusing to instruct the jury, pursuant to the defendants’ request, that negligence could not be inferred solely from the fact that an accident occurred. The jury was not under the impression that negligence could be inferred in that manner. The instructions given presented the theories of the parties and the applicable law fairly and adequately.
6. The trial court erred in refusing to allow defense counsel to argue that, because the plaintiff failed to call Michael Koss as a witness, the jury could draw an inference against the plaintiffs. However, the error was not so prejudicial that it warrants reversal.
Affirmed.
GRIBBS, J., dissenting, stated that the front-end loader cannot be considered a motor vehicle under the owner‘s liability statute because it was not designed for highway use and was not being operated on a highway when William Mull was injured.
- AUTOMOBILES — VEHICLE CODE — OWNERS’ LIABILITY ACT.
The Vehicle Code does not require that a device be capable of lawfully being operated on a highway in order for it to be considered a vehicle for purposes of the owners’ liability statute (MCL 257.33 ,257.79 ;MSA 9.1833 ,9.1879 ). - WITNESSES — FAILURE TO CALL — INFERENCES.
It is proper for counsel to comment upon the failure of the opposing party to call a witness and to argue that the jury may draw an inference against that party.
Swanson, Torgow & Lyons, P.C. (by Peter J. Lyons and Paul R. Swanson), for the plaintiffs.
Before: NEFF, P.J., and GRIBBS and MURPHY, JJ.
NEFF, P.J. Defendants Midwest Malls Limited Partnership and Equitable Life Assurance Society of the United States appeal as of right from a judgment entered following a jury verdict in favor of plaintiffs. We affirm.
I
William Mull suffered serious personal injuries as a result of a work-related accident that occurred while he was hanging a Christmas wreath at the Southland Mall. At the time of the accident, William Mull was standing in the bucket of a Ford Tractor 3400, a “front-end loader.”
Plaintiffs filed this negligence action under the owner‘s liability statute,
Defendants moved for summary disposition under
The trial court found that the front-end loader was a motor vehicle for purposes of the owner‘s liability statute. It denied defendants’ motions for summary disposition and rehearing or reconsideration.
At trial, William Mull testified that Michael
William Mull testified that he had operated the front-end loader on numerous occasions before the accident and that it had four tires, a steering wheel, four forward gears and reverse, brakes, a windshield, and two headlights located on top of the cab. It did not have a license plate, back-up lights, turn indicators, or hazard lights. He further testified that the bucket of the front-end loader operates hydraulically and is controlled by two levers. One lever controls the up and down movement of the bucket, and the other lever moves the bucket forward and backward.
According to William Mull, Wilkerson was supposed to lower each wreath by a rope from the roof, while William Mull and Ramik attached the wreaths to the outside wall and Koss operated the front-end loader. He stated that, in preparation for hanging the wreaths, Koss positioned the front-end loader on the sidewalk with the bucket approximately eighteen inches from the wall. Koss lowered the bucket, and William Mull and Ramik climbed into it. Koss then raised the bucket seven or eight feet so that they could affix the first wreath. William Mull further stated that, after Ramik pushed the wreath into position and he fastened the bottom of the wreath, he gave Koss the “thumbs up” signal, which meant that Koss should raise the bucket straight up. However, instead of going straight up, the bucket of the front-end loader moved up and forward, hitting the wall and crushing William Mull‘s right foot between the blade of the bucket and the wall. The foot was later surgically removed.
Defendants moved for judgment notwithstanding the verdict, a mistrial, or a new trial. The trial court denied these motions.
II
Defendants first claim that the front-end loader was not a “motor vehicle” under the owner‘s liability statute,
In denying defendants’ motion for summary disposition, the trial court expressly relied on Harder v Harder, 176 Mich App 589; 440 NW2d 53 (1989), and concluded that the front-end loader came within the definition of “motor vehicle” under the owner‘s liability statute.
The owner‘s liability statute provides in pertinent part:
Nothing herein contained shall be construed to abridge the right of any person to prosecute a civil action for damages for injuries to either person or property resulting from a violation of any of the provisions of this act by the owner or operator of a motor vehicle, his or her agent or servant. The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of the motor vehicle whether the negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in the operation of the motor vehicle as the rules of the common law requires. The owner shall not be liable, however, unless the motor vehicle is
being driven with his or her express or implied consent or knowledge. [ MCL 257.401(1) ;MSA 9.2101(1) . Emphasis added.]
In determining whether the front-end loader meets the definition of a motor vehicle under the owner‘s liability statute, this Court must attempt to ascertain and give effect to the intent of the Legislature. Joy Management Co v Detroit, 176 Mich App 722, 730; 440 NW2d 654 (1989); Harder, supra, p 591.
In Frazier v Rumisek, 358 Mich 455, 457; 100 NW2d 442 (1960), the Court reviewed the owner‘s liability statute in effect at that time, which was substantially the same as the present statute, and stated:
The owner liability statute before us was passed in response to an overwhelming public need. Common-law liability, circumscribed as it was by the doctrine of bailment, respondent superior, agency, and the like, was unable to cope with the rising tide of injuries resulting from the use of the new mechanism, the automobile. Principal among the legislative answers were the owner liability laws. Their purpose, as Mr. Justice Edwards held in Moore v Palmer, 350 Mich 363 [86 NW2d 585 (1957)], was to extend and complement the common law. The legislative theory was simple to state and broadly applicable: An owner was liable for the negligent operation of the machine owned by him when he had consented to its use.
See also Dale v Whiteman, 388 Mich 698, 703; 202 NW2d 797 (1972), and Calladine v Hyster Co, 155 Mich App 175, 178-179; 399 NW2d 404 (1986).
In Roberts v Posey, 386 Mich 656, 662; 194 NW2d 310 (1972), the Court construed the owner‘s liability statute and stated:
The purpose of the statute is to place the risk of damage or injury upon the person who has the ultimate control of the vehicle.
Where a statute supplies its own glossary, this Court must apply the meaning of the terms as expressly defined. Harder, supra. The owner‘s liability statute is part of the Vehicle Code,
“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices exclusively moved by human power or used exclusively upon stationary rails or tracks and excepting a mobile home. [
MCL 257.79 ;MSA 9.1879 .]
The dispositive question in resolving this issue is whether the front-end loader is a “vehicle” under the above definition.
In Calladine, supra, pp 180-181, this Court defined the meaning of the “is or may be” language found in
Where a device is not actually transported or drawn upon a highway and where it cannot lawfully be operated on a highway, it is not a vehicle within the purview of the owner‘s liability statute. That is the meaning of the “is or may be” language found in
MCL 257.79 ;MSA 9.1879 . This reading of the statute comports with the legislative design to deal primarily with injuries occa-sioned by automobiles, as set out in Frazier, supra. [Emphasis added.]
The vehicle involved in Calladine was a forklift that was not equipped with a windshield, headlights or taillights, turn signals, seat belts, back-up lights, hazard warning flashers, or a rearview mirror. The Court in Calladine concluded that because the forklift could not lawfully be driven upon a highway and because it was never driven upon a highway, it was not a motor vehicle under the owner‘s liability statute. Calladine, supra, p 181.
Jones v Cloverdale Equipment Co, 165 Mich App 511; 419 NW2d 11 (1987), also involved the issue whether a forklift was a vehicle under the owner‘s liability statute. The Jones Court concluded that, because the forklift had no headlights or taillights, no turn signals, no windows or doors, and lacked registration or licensing, under Calladine, it was not a “vehicle” — and therefore not a “motor vehicle” — for purposes of the owner‘s liability statute. Id., p 514.
If we were to apply the analyses set forth in Calladine and Jones, we would have to find that the front-end loader is not a motor vehicle for purposes of the owner‘s liability statute. Like the forklifts in Calladine and Jones, the front-end loader lacks many of the characteristics deemed essential by the Calladine and Jones Courts for a device to be capable of lawful operation on a highway and therefore to be considered a motor vehicle.
We disagree, however, with the Calladine Court‘s interpretation of the “is or may be” language in the definition of “vehicle.” A review of general principles of statutory construction leads us to this conclusion. Nothing will be read into a
In our view, nothing in the language of § 79 of the Vehicle Code permits this Court to impose the requirement that a device must be capable of lawfully being operated on a highway in order for it to be considered a vehicle for purposes of the owner‘s liability statute. If the Legislature had intended to limit ownership liability to those devices that could lawfully be operated on a highway, it would have used such language to carry out its intent. See Ladner v Vander Band, 376 Mich 321, 327; 136 NW2d 916 (1965). The definitions in
We need not address the issue whether the owner‘s liability statute was modified by the no-fault act because this case was brought solely under the owner‘s liability statute and because the trial court did not address this issue.
We conclude, for reasons other than those found by the trial court, that the front-end loader is a “motor vehicle” under the owner‘s liability stat-
III
Plaintiffs also argue that liability was properly imposed under the owner‘s liability statute because the front-end loader fits the definition of “farm tractor” contained in the Vehicle Code, noting that it could lawfully be driven on a highway as long as it had a reflective device, and, therefore, that it was a “motor vehicle.” We are not convinced that the front-end loader fits the definition of “farm tractor” contained in
“Farm tractor” means every motor vehicle designed and used primarily as a farm implement for drawing plows, mowing machines, and other implements of husbandry.
While plaintiffs refer to the front-end loader as a “tractor,” there is no indication that it is a farm tractor under this statute.
IV
Defendants also argue that even if the front-end loader is a “motor vehicle” for purposes of the owner‘s liability statute, it was not being used “as a motor vehicle” within the meaning of the no-fault act,
Defendants next argue that they are entitled to judgment as a matter of law because there was insufficient evidence to show that Koss acted negligently. At the conclusion of plaintiffs’ proofs, defendants unsuccessfully moved for a directed verdict on the ground that there was no direct evidence that Koss acted negligently. They now claim that plaintiffs failed to demonstrate that Koss saw William Mull give the “thumbs up” hand signal or that Koss’ response to the hand signal was voluntary. We find that plaintiffs presented sufficient circumstantial evidence of Koss’ negligence to allow this case to be submitted to the jury.
When reviewing a claim that there was insufficient evidence presented in a civil case, this Court views the evidence in a light most favorable to the plaintiff and gives the plaintiff the benefit of every reasonable inference that can be drawn from the evidence. If, after viewing the evidence, reasonable people could differ, the question properly is left to the trier of fact. Boggerty v Wilson, 160 Mich App 514, 522; 408 NW2d 809 (1987). Circumstantial evidence and permissible inferences therefrom may constitute sufficient proof of negligence. Duke v American Olean Tile Co, 155 Mich App 555, 566; 400 NW2d 677 (1986); May v Parke, Davis & Co, 142 Mich App 404, 417; 370 NW2d 371 (1985).
As noted above, William Mull testified that Koss was the “lead man” and that he instructed him that they were going to hang Christmas wreaths. Mull got into the bucket of the front-end loader when directed to do so by Koss. Ramik confirmed that Koss was in charge of the wreath-hanging operation and stated that Koss was a “qualified operator.”
William Mull said that it was the general prac-
Viewing the evidence in the light most favorable to plaintiffs, we conclude that plaintiffs presented sufficient evidence of Koss’ negligence to submit the case to the jury and that reasonable people could differ with regard to whether Koss negligently operated the front-end loader.
VI
Defendants also argue that the trial court erred in refusing to instruct the jury that negligence could not be inferred solely from the fact that an accident occurred.
The trial court has discretion to give additional instructions not covered by the standard jury instructions as long as they are applicable and accurately state the law and are concise, understandable, conversational, unslanted, and nonargumentative.
On appeal, jury instructions are reviewed in their entirety, rather than extracted piecemeal to establish error in isolated portions. Wiegerink v Mitts & Merrill, 182 Mich App 546, 548; 452 NW2d 872 (1990); Willoughby v Lehrbass, 150 Mich App 319, 336; 388 NW2d 688 (1986). There is no error requiring reversal, if on balance, the theories of the parties and the applicable law were fairly and adequately presented to the jury. Wiegerink, supra. The trial court‘s decision regarding supplemental instructions will not be reversed unless failure to vacate the verdict would be inconsistent with substantial justice. Niemi v Upper Peninsula Orthopedic Associates, Ltd, 173 Mich App 326, 328-329; 433 NW2d 363 (1988).
The trial court instructed the jury on the definitions of “negligence,” “ordinary care,” “proximate cause,” and “burden of proof.” The court also instructed the jury:
The Plaintiff has the burden of proof on each of the following propositions: (A), that the Plaintiff was injured; (B), that the Defendant was negligent in one or more of the ways claimed by the Plaintiff as stated to you in these instructions; (C) that the negligence of the Defendant was a proximate cause of the injuries to the Plaintiff.
After reviewing the jury instructions in their entirety, we conclude that the trial court presented the theories of the parties and the applicable law fairly and adequately. We do not believe that the jurors were under the impression that they could infer negligence solely from the fact that an accident occurred. There was no abuse of discretion in the trial court‘s refusal to give the requested instruction. Our failure to vacate the
VII
Defendants claim that the trial court erred in precluding defense counsel from pointing out that plaintiffs had not called Koss as a witness and from arguing that the jury may draw an inference against plaintiffs because of their failure to do so. We agree, but find that the error does not require reversal.
During closing argument, defense counsel pointed out that Koss did not testify at trial. After counsel for plaintiffs objected, the trial court instructed the jury that either party could have called Koss. Defense counsel then argued to the jury that Koss did not testify and that it is plaintiffs’ obligation to prove their case by a preponderance of the evidence. Defendants unsuccessfully moved for a mistrial on the ground that the trial court excluded defense counsel‘s remarks.
It is proper for counsel to comment upon the failure of the opposing party to call a witness and to argue that the jury may draw an inference against the party who fails to call the witness. Reetz v Kinsman Marine Transit Co, 416 Mich 97, 109; 330 NW2d 638 (1982); Troyanowski v Village of Kent City, 175 Mich App 217, 223; 437 NW2d 266 (1988). Accordingly, the trial court erred in refusing to allow defense counsel to argue that, because plaintiffs failed to call Koss as a witness, the jury could draw an inference against plaintiffs. However, we are not convinced that this error was so prejudicial that it warrants reversal.
Affirmed.
MURPHY, J., concurred.
It appears to me that the tractor in this case is far closer to being a “vehicle” than the forklift at issue in Calladine. Unlike the forklift in Calladine, the tractor in this case had headlights, seat belts, a windshield, flashers, and rearview mirrors. Moreover, unlike the forklift in Calladine, the tractor in this case had been driven on a highway, though apparently only for needed repairs.
Even so, the tractor in this case lacks many of the equipment features required by the Vehicle Code. The headlights are not a proper distance from the ground,
In addition, even if the tractor in this case is a “vehicle,” it clearly was not designed for highway use and it is, therefore, not a “motor vehicle” under the Vehicle Code unless it was actually being operated on a highway at the time of the accident. Jones v Cloverdale Equipment Co, 165 Mich App 511, 514; 419 NW2d 11 (1987). See also DAIIE v Spafford, 76 Mich App 85, 89; 255 NW2d 780 (1977). It is undisputed that the accident in
As noted previously, this is not a case where the tractor at issue is lacking a single headlight or some other solitary feature required by the Vehicle Code. In this case, in addition to lacking the most basic safety equipment, the tractor has no speedometer, is only capable of speeds up to twenty-five miles an hour, and cannot be operated on a public highway without special safety precautions. See, e.g.,
Because the tractor in this case was not designed for highway use and was not being operated on a highway when William Mull was injured, it cannot be considered a “motor vehicle” as that term is used in the owner‘s liability statute. Id.;