*1 Mich 169. 382 176 Opinion of the Court. public question costs, No fund. second &'
being involved. and J., E. C. T. Black, Dethmers, Brennan, JTJ'., and T. Gr. T. M. Kavanagh, Kavanagh, Adams, concurred. v. SMITH JONES. Decision Court. Damages Exemplary Damages— Mitigation — 1. Automobiles — Tort-Eeasors. Joint against Judgment wife for actions husband and defendants operator injured the' wifé when ear and of car which owner against sitting with her chil- poreh where she was was driven Dethmers, J.,C. and Brennan, per T. E. dren reversed Adams, JJ., improper Kelly, Kavanagh, T. M. and Kavanagh mitigation damages; per T. M. struction as jury Adams, JJ., to allow additionally, for refusal and actions question defendant owner’s consider as to whether gross negligence misconduct or wilful and wanton amounted to ' for joint and part his as a tort-feasor with driver damages; per charge exemplary refusal as to as to whether Black, issue J., for refusal to submit according to common- joint tort-feasors both defendants were law standards. for Points in Headnotes References [1] 22 Am Jur 8 Am Jur 2d, 2d, Damages Automobiles Decisions of §§ 200-202,-205. Highway the Court. Traffic, §§-598, n . 599.' [3] [7] [9] [10] [11] [2] [4] L5, [12,13,16] 8 Am Jur 6, 8 39 22 22 Am Jur 5 Am Jur 598. Am Jur 8] Am Jur Am Jur Am Am 53 Am Jur, Jur 2d, 2d, 2d, 2d, Damages 2d, New Trial 2d, Damages Jur, Automobiles Appeal Automobiles and Automobiles and Trial 2d, Separate and Error § Automobiles §§ § §§ 579. §§ 26-29. 236, 244. 200-202, Highway Traffic 598. Opinions. Highway Highway 545. 205. Highway Traffic Traffic Traffic § § § 12. 487-.. §§ Separate Opinion. J., G. Kelly, JJ. Brennan,
T. E. and Dethmers Appeal Saving for Review —Motion and Error — Question New Trial. *2 necessary preserve for Teview A motion for new trial is not to alleged judge. ruled on the trial errors Liability Negli- Negligence — — —(cid:127) Gross 3. Automobiles Owner gence— Jury. Instructions refusing jury gross as to court was correct in to instruct Trial negligence exemplary damages in on owner action founded liability liable owner statute since statute which malees for negligence driving with his consent does one automobile negligence (CLS 1961, impute not driver’s to owner §857.401). Damages Injuries Mitigation. 4. —Personal — duty plaintiff injury to miti- personal A in a action is under gate damages by obtaining proper personal injury medieal surgical treatment. Injury Mitigation. — 5. Same —Instructions—Personal plaintiff’s jury statement Instruction to which included plain- surgery for physieian deposition recommended his had presented a factual issue as tiff was erroneous since it damages by obtaining medical duty mitigate her Xilaintiff’s treatment, presented the evidence. an issue not 6. Trial —Instructions—Evidence. assuming of evidence the existence An to a instruction impossible is presented in and it the case is erroneous not an instruction effect of such to determine on review the jury. the minds of the [14, [17] [23] [24] [25] [20] [21] | [18, [26] [27] [28] 599, 15] 19] 8 Am Jur 22 Am Jur 22 Am 22 Am Jur 22 Am Jur 22 Am Jur 22 Am 22 Am Jur 8 Am Jur Am Jur 8 674, 22 Am Jur Am Jur Jur 675. Reference Jur 2d, 2d, 2d, Automobiles and 2d, Damages 2d, Damages 2d, Damages 2d, Damages 2d, Damages 2d, Damages 2d, 2d, Automobiles and Automobiles and 2d, Damages Damages Automobiles and for §§ §§ §§ Points § § § § 263. 270. 251. 237. §§ 244, 243, 249. 243, 244, 249-251. Highway Traffic Highway Traffic Highway Traffic 246. 361. in Headnotes Highway Traffic § §§ § 564. §§ 599. 994-1006. 524, 572, Mici-i [Aug1. 176‘. 7. New Trial —Error.—Different Result. justified A new trial if error is such committed might result been well have different if the error had not been committed. Damages — — Injury — Instructions Personal Previous Con- dition. personal they Instructions action could injured plaintiff they find no found that juries related to an were earlier condition were lasting erroneous previous where no evidence of effects condition had presented. been Exemplary — Damages Negligence — — — 9. Same Automobiles Injury. Personal Exemplary damages been have allowed in varied situations fact in this State but never have been in a allowed claim for injuries personal in an automobile eollision. suffered Negligence—Guest Passenger 10. Automobiles — —Common Law— Statutes. legislature extensively provided has rules the road developed automobiles because common law for automobile; before thus, cases, except in automobile accident for the *3 guest passenger actions, Supreme by the has Court abided legislative determining questions and rules in enactments of negligence requiring instead the trial to court determine of first negligence negli- there were and then the or amount hind if of gence. Negligence Passenger Exemplary 11. Same —Gross —Guest — Dam- ages' Recovery. — negligence Gross or and wanton misconduct are wilful referred by legislature only guest passenger the to the act and provision giving purpose injured was not the an for of guest right exemplary damages an added to but was intended recovery by guest passenger limit the to situations where gross proof negligence there was or wanton of wilful (CLS §£57.401). 1961, misconduct
Separate Opinion. Kavanagh T. M. Adams, JJ.
See headnot.es 4-8. — — Negligence Liability — 12. Automobiles Statutes Owner's Negligence Imputed — Negligence. — Gross imposing liability upon Statute the owner an automobile of for negligence driving one with automobile the owner’s of v. Jones. impute negligence consent does not driver’s to the owner (CLS 1961, §857.401). Negligence. Passenger 13. Same —Statutes—Guest —Gross imposes liability State statute civil on the owner a motor of injury being negligently vehicle which causes while driven only operation where the another is with the owner’s consent guest passengers, only and in the ease was of if by gross negligence caused and wanton misconduct or wilful operator (CLS 1961, 857.401). or the owner the vehicle § of of 14. Same —Owner’s Control —Joint Tort-Peasor with Driver. stipulation An owner’s that a driver could use the owner’s vehicle accompanied jury when the owner allows a to conclude right the owner had the control the vehicle at all of of joint times and that he was a with the driver tort-feasor (CLS 1961, §857.401). the occurrence an accident of Eight op Liability por Negligent Operation 15. Same — Control — Duty. —Owner’s Light control a motor vehicle rather than actual exercise of of liability negligent operation control determines owner’s of for an automobile and the that an owner of fact refrained from directing encouraging operation or his reckless automobile of change duty liability, does not it is the owner’s to exercise for using persons reasonable care to third his control conduct of property protection of, or others where he knows of, necessity doing as a reasonable man should know (CLS 1961, §857.401). so op Passenger 16. Same —Construction Statutes —Guest —Gross Negligence. guest passenger gross negligence statute reference and wanton misconduct is a test as to whether there wilful disregard safety public and wanton m the wilful operation vehicle; thus, a motor where an automobile riding house, porch which the owner was into a crashes a disregard could and wanton misconduct find wilful safety guest public passenger was .in- for volved; may likewise, such conduct be found regard occupants be with and wanton wilful *4 porch (CLS 1961, §857.401). Negligence—Concerted 17. Same- — Tort-Peasor— Action —Joint Passenger Guest Act. Injuries by operated plaintiff, when an automobile under suffered t]ie supervision and its presence the into owner crashed of Mick 176. porch plaintiff seated, by on which could be found to be result the concerted action the driver and owner of of vehicle, parties joint both could be held liable as of negligent driving, all acts caused tort-feasors for for the misconduct was no in causal relation to in- different
juries guest passenger than it would be under the of (CLS 1961, §257.401). act Damages Exemplary Damages Injuries Feelings 18. — — to —Mal- ice —Recklessness.
Damages feelings person injured to the are for of damages person, recoverable in addition property, or reputation, where there is malice or or wanton mis- wilful conduct, carelessness, negligence great or so as to indicate a disregard rights safety reckless or others. of of Exemplary Damages Injuries Feelings 19. Same — — —Gross Negligence. damages injured Amount feelings, recoverable which in- of shame, anxiety, honor, cludes suffering, mental insulted indignation consequent may wrong, on the be increased feelings, degree malice, vindictive recklessness, or of negligence carelessness, or of defendant. Damages' Exemplary Damages Same —Actual — —Instructions. damages dependent An increase conduct of defendant damages although usually must be spoken considered as actual exemplary, vindictive, punitory damages; however, of the amount exemplary damages to be recovered as must rest judgment in the and deliberate and discretion fair jury acting upon justice their sense in view the cir- cumstances and as aided instructions the court which from prevent damages tend to or those so remote as not fanciful fairly resulting injury. from Exemplary Damages Injuries Feelings Physical 21. Same — — — Injury —Limitation. Exemplary damages may proper be awarded m a case feelings plaintiff, right recovery to the but the person physical injury. restricted to the who has received Exemplary Damages Punishment'—Recovery. 22. Same — — Exemplary damages punish are not allowed in order to defend- right ant, but the to recover such arises out outrageous nature acts. of defendant’s *5 v. Jones. Injure Negligence. Exemplary Damages to — Same — —Intent 23. damages Exemplary may despite be awarded lack of defendant’s person, done, specific to do the act intent to a where nature, expected its must be to result in from mischief negligence great where the is so as to indicate a reckless dis- regard rights safety the others. and of of Becovery— Exemplary Damages Injuries—Bight to Same — — 24. op Law. Violation may damages physical and recover both mental Plaintiff jury an into the when ran automobile suffered defendants plaintiff seated, porch had which was where defendants driving drinking deliberately and while the law flaunted driving in a reckless manner. Damages Pleading—Complaint. Exemplary — Same — 25. damages thus, Exemplary specially pleaded; to be do not have complaint negligence and wanton the avers the where personal and misconduct defendants suffered of past physical mental, injuries, which and both and caused complaint pain suffering, to award the sufficient future damages. exemplary Injury Jury.— 26. Automobiles —Evidence—Personal sitting porch with Testimony by on the a mother that she was porch, ran the when a car into her two small children thought running leg and that one her she down blood testimony held, car the children was under the sufficient for physical and jury mother both suffered find injury. mental Damages Automobiles—Negligence— n Damages -Exemplary — — 27. Negligence Jury Appeal — Error —Gross Question. exemplary charge jury refusing judge as to in erred Trial refusing whether in to alloio consider loaning vehicle his an automobile action the owner only be stipulation that it used another, could with to. gross negligence or presence owner, amounted driver, the owner when wanton misconduct wilful porch plaintiff’s owner, accompanied into crashed injured negligently plaintiff. Mich
Separate Opinion. Black, Appeal Negligence—Gross Negli- 28. Automobiles — and Error — gence Jury —Common Law —Joint Tort-Eeasors — Question. judge refusing Trial erred in to allow a to consider whether loaning the action an owner automobile his vehicle *6 another, stipulation with the it could be used in presence owner, rendered both the driver and the of joint according owner standards, to common-law tort-feasors by accompanied plain- when the driver the owner crashed into porch negligently injured plaintiff and tiffs’ wife. Appeal Appeals, from of Court Division 3, Quinn, Fitzgerald affirming P. and J., Holbrook, JJ., and (John H.), Kent, Vander Wal J. No- Submitted (Calendar vember 1968. 12, No. No. 5, Docket 51,752.) August Decided 4, App
6 Mich and reversed remanded. Complaint by Mae and Z. Smith, Ollie Smith Ollie against her and Heriberto husband, Jones Louis personal injuries expenses Miranda, for and medical by by caused automobile driven and owned Jones plaintiffs. judgments Miranda. Plaintiffs for Verdicts Appeals. appealed of Affirmed. to Court appeal. Plaintiffs and remanded for new Reversed trial. McCroskey, & Libner, Beamon, Williams
Marcus, Dilley, plaintiffs. for (Edward Wells, D.
Cholette, Perkins & Buchanan counsel), Heriberto Miranda. of defendant injured was Plaintiff Ollie Mae Smith J. Kelly, July an automobile owned 11, 1963, when by named and driven Miranda, Heriberto defendant v. Jones. Smith by Kelly, porch struck the front Jones, Lonis defendant plaintiffs’ where Ollie Mae Smith had residence piece causing a of wood to strike her seated, been leg. on the against complaint both Miranda
Plaintiffs filed injuries, pain seeking damages for and Jones earning impairment capacity, suffering, and the expense Mae for care and treatment Ollie medical Z. husband, Ollie Smith. Jones her incurred process. never served with against defendant, Mi- returned verdicts A awarding $2,500, her Mae Ollie randa, expense incurred Z. Smith, husband, in the care $719.85 Ollie his wife. and treatment of Judgments were entered on the verdicts payments court file discloses thereof to the trial Kent county holding clerk, who is same escrow pending final determination the case. did file a motion for new trial
Plantiffs not appealed Appeals.1 to the Court Appeals, affirming the court, trial Court *7 (p 94): stated appeal of- “Plaintiffs assert multitude er- clearly require of which reversal rors, some would jury plaintiffs’- had the verdicts not been in favor. they plaintiffs no recovered and made However, they here claim below nor do claim that the verdicts inadequate against weight were of the evi- dence. No motion for new trial on the basis
inadequacy in made the trial court. Since complained prejudicial errors of would be with respect to the verdicts, amount we believe (1957), disposi- Davis v. Jermstad 350 Mich is appeal tive this we decline further comment by plaintiffs.” on the errors asserted sought Appeals in Plaintiffs and are Court presently seeking reversing a decision the trial
1 Jones (1967), App Smith Mich 92. Mich 176.
Opinion by Kelly, damages. ermstad, Davis J v. court’s instruction supra, appeal.” “dispositive In of this not Davis. (p 444) charge given to the “the we held that fully jury carefully the material issues covered in the case.” (1965),
In 640, 672, Bunda v. Hardwick Mich a motion new trial was neces- we not held alleged sary preserve appellate review errors judge. upon by the trial ruled appeal two claimed We will consider extensively which were errors, structional both of argued “Proceedings In Cham- discussed and bers” namely: by plaintiffs and Miranda, defendant (1) error committed the trial court’s Was permit to consider the refusal negligence Miranda and an award of of defendant damages plaintiffs; exemplary permitting (2) trial court err Did upon issues which and determine to consider evidence was submitted. call attention that:
Plaintiffs Mi- defendant, Jones, “Both the unserved charged with wanton misconduct. randa were upon charge against was based his manner Jones immediately prior operating the Miranda vehicle of to and at the charge time of this collision. The knowingly per- against was based his Miranda operate person mitting an intoxicated his auto- mobile.” analyze past by our decisions
Plaintiffs
stating
might appear”
blush,
first
it
that “at
19482would
the trial
decisions before
sustain
our
*8
(1944),
145;
Merskin
2 Wieczorek
308 Mich
Geib v. Slater
v.
In defendant claimed that Case, guilty gross negligence, then under driver was our Wiecsoreh and would
Geib the owner decisions (Stat § Ann 257.401 liable under CLS not be 1968 Rev ordinary neg- 9.2101), holding § imputed ligence to the owner. plaintiff’s would be rejecting ex- claim, Court, .This plaining Wiecsoreh between the the difference (p 248): Peyton Case, said and the Geib Cases contrary rely “Appellants view for a 145; v. and Geib Merskin, Mich v. Wieczorek involving was a case Slater, 320 Mich Neither passenger. where by guest held Neither suit consent) operator (driving the owner’s with gross negligence wan guilty or wilful found owner relieve the acted to ton misconduct that this liability.” Karney Upton did not overrule' v. decision That follow or Geib is evidenced czorek Wie 265) (p‘ : ing from that decision may decision the recent be noted that “It squarely Peyton Delnay, 238,is 348 Mich v. Court Mich point. Merskin, v. Wieczorek also, See, 145.” past, . are re- which we our decisions Under appeal,
affirming present hold we in the (1958), 3 Peyton Mich 262. Delnay (1957), 348 Mich 238; Karney v. Upton *9 Mich 186 176. by Kelly,
Opinion, J. refusing trial court did commit error in not gross negligence exemplary damages. struct on We next consider regard- the court’s instructions ing plaintiff duty Ollie Mae Smith’s to minimize her damages by obtaining proper surgical medical or duty treatment. That such a exists is well estab- lished.4 plaintiff
A review of Ollie Mae Smith’s efforts obtain such treatment discloses that within one hour porch after neighbor defendant’s car struck the a Rapids drove her to the Grand Butterworth Hos- pital Emergency Department, X-rays where were taken which leg; disclosed no broken in bones that pain two weeks later because of continuous sought she Rapids, aid from Dr. Jones, of Grand prescribed bandage who use of elastic wrap leg, pills, keep some and instructions to leg possible keep off the as much as it elevated; August that on 23, she went her 1963, from home Rapids in Grand to the office of Dr. in Lauretti, Muskegon, thrombophlebitis diagnosed complaint being who her a leg,
of the left
because either the
leg
nerves of the
were somewhat
or the
inflamed
ordinary;
diameter
the vein was smaller than
physiotherapy
that
Dr.
because
Lauretti felt
necessary,
physiothera-
Beam,
she
a
went to a Mr.
pist
Rapids,
September
in Grand
19 times between
whirlpool
4, 1963 and
16, 1963,
October
where
treat-
massage
administered;
Dr.
ments and
were
again
Lauretti
on
18 and
examined
October
January
19,
on
1963,
2, 1964;
November
April
her
to a
2, 1965,
next
to a doctor was
visit
on
(1924),
(1916),
In the counsel stated: theory that claim and our she knew “It is our January, operation 1964, and
she needed that time she would have been if had done at it been couple completely at of months.” cured least within argument An extended discussion between previous place judge’s chambers counsel took plaintiffs’ instructing jury. counsel’s to contention It testimony that Dr. there was plaintiff, her counsel, advised Lauretti ever necessary. surgery was Lau- aloud to counsel from Dr.
The court read deposition as follows: retti’s readily respond treat-
“Q. it conservative Does ment? it But most If doesn’t—sometimes does. “A. it you it if doesn’t then have to doesn’t. And it often things.
think other as what? “Q. Such Surgery.” “A. counsel, asked defendant’s
and then ir 382 Mío 370. Kelly, you [surgery] was-conveyed “Do claim that that to her?” counsel answered:
Defendant’s ' I is, but claim the law if “No, feels, she if the procure necessary she finds whatever prudent person, failed to treatment reasonably reason, she failed to act as a procure failed to medical treatment finds, and the she so cannot recover.” specifically charged jury:
The court deposition, Muskegon [Dr. “In his the doctor from Lauretti] was communicated to the that surgery. then recommended Whether that part or not is deposition you.” that was read to plaintiffs’ The record sustains contention that: “Upon examination it record, is evident that any knowledge there was all no reference at made to part on the of Mrs. Smith that she should have sur7 gery, any opinion being expressed by nor of Dr. surgery prior Lauretti that she should have had surgery. the actual in the record date The most that is found deposi-
ais statement in Dr. Lauretti’s *11 tion that was read into evidence at the wherein trial, [de- he said cross-examination Mr. Souter (cid:127) attorney] fendant’s : “ ‘Q. So that next recommendation at that point normally surgery? would be
‘“A. Yes.’
“This is not a statement Dr. Lauretti that, at January the time he last saw Mrs. Smith in of 1964, surgery. merely he recommended It is an answer question ordinarily to Mr. point Souter’s at progressed, which Mrs. Smith’s case had he would surgery. totally recommend The trial record is de- any void of indication that Dr. Lauretti ever made any surgery, recommendation of or, fact, that any surgery Mrs. Smith ever might had idea that be Smith Opinion by Kelly, required prior Dr. to the initial examination Wil- L, liam Johnston.” " agree do not with defendant that “The We might infer that doctor had recommended sur- gery plaintiff and do it,” she did not want nor we agree conclusion “Even with defendant’s that: point, which is there were evidence at all on the strenuously intelligent jury denied, then an would finding point anyway.” an on the not make erroneous n disclosing Hospital records were introduced plain- years involved, accident here five before hospitalized was with chest tiff pains Mae Ollie discharge (July pleuritic nature and that on diag- 1958) summary stated: “Final sheet pneumonia. Thrombophlebitis.” atypical nosis Further, to the plaintiff again came 12, 1961, that on June complaining hospital her which left knee injured an automobile two weeks earlier in been had. regard her In testified left accident. this car in which she was knee hit the dashboard riding accident. the time at given by testimony Dr. medical
The Dr. Lauretti and Johnston. questions Dr. Lauretti on cross-exami- asked regard mentioned of the above to either
nation in fol- hospital confined to the were recorded incidents lowing : assuming had, had fact that she “Q. Would diagnosis diagnosis a of, had been a
that there thrombophlebitis significant 1958, would this be you all? at an would, acci- it because I don’t know that “A. causing pain way swell- described, she dent ag- along ing, I the lines would think at least gravation. had a condition You mean that there been “Q. may aggravated? have
that n “A. Yes.” *12 Mxoii 176. J'. by Kelly,
n On stating Dr. examination, Johnston, after direct hospital rec- the above mentioned reviewed he had disclosed there was that those records ords, and thrombophlebitis any finding after 1958, further any significance to attached whether he was asked pres- respect thrombophlebitis to the with He answered: ent case. n certainly surgery could I found at “Well, what injury. have no with her initial I initiated
have way that evaluating in 1958 the fact what had but she any from 1958 1963 without she went until cramps diagnosis pain, any swelling, or other in the hospitalizations clinic and innumerable innumerable visits in 1958 process pretty had that this she conclusive completely. It must have been had subsided leg up process, it not ascend her or localized did picture.” enough scarring produce give her this Johnston, of Dr. the follow-
On cross-examination given: questions ing were asked and answers phlebitis assuming had the that the “Q. Well, she you hospital would mean that this show do records disappeared? completely or cleared have (cid:127) * * * Yes. “A. ' sig- phlebitis you was not that 1958 “Q. Do feel nificant then? relationship any has to this I don’t think it “A. [case] regard to the in its instructions
The court said: claim, to defendant’s of the defendant that what the claim “It is complained juries not caused of were Mrs. Smith leg. coming piece in contact with her of wood defendant further claim the “It is the thrombophlebitis condition, a thrombus she had that she was in au- 1958; back in condition tomobile accident thrombosis in 1961and that her *13 191 r. Opinion by J. Kelly, thrombophlebitis negligence any the was not direct result of part of either Mr. on the Jones or Mr. Miranda.” instructions, in
Further on the the court stated,5 again jury reiterated6 that the could find that any plaintiff damages entitled to not even though proved negligence. the evidence defendant’s only evidence introduced other than that of any way any light the upon that could in doctors, throw question plaintiff’s operation the whether as to was caused the act of defendant or because of her previous testimony condition to said act, was the Smith, Ollie Mae which refuted defend- claim. ant’s “An instruction based not on the evidence is er- in that it roneous introduces before the facts presented thereby,
not and is well calculated to in- suppose duce them to that such state of in facts opinion and possible of the court is under the evidence may be considered them.” 53 Am Jur, Trial, § 579, pp 455,456. (1935), In Fortner Koch 273, 283, 272 Mich we impossible upon held that it is to determine the.effect jury resulting the minds from an instruction erroneously assuming the existence of certain facts. months was a direct eause or relate back to what in 1958 or and cident tion of course then she cannot lined to gence were able to condition and what of, direct results or [5] “If 6 “But, “If were [1961] not a on the other hand you you, because, Mr. not caused if then of course happened July 11, direct you aeeident 1963, should Jones, should find that her condition responsible cause of this of course then her was the result of what if find by, any, this defendant would be liable for July you — they that her happened * * * for the 1963 had were not find accident were not recover the that was these injuries on damages resulting injuries nothing directly July 11, injuries the direet happened solely damages she cannot were the result of her that are to do with her condi- caused due to her condition that she July 1963.” happened result of this ac- in recover,” directly 1958 or I complained subsequent have out- in 1958 negli- trace- 1961, tiMíe 176. ToyKelly, if error is also held that such that
haveWe might been different well have not commit result justified. (1959), Rouse v. Gross a new trial ted, 475, 481,482. Mich Applying above mentioned we tests, these con: granted a new trial should be elude that because permitted to consider which instructions no evidence was which and determine issues submitted. trial. for new Costs remanded
Reversed and *14 appellants.
ADDENDUM opinion my subsequent is written This addition to receiving Adams’ to Justice Justice Black’s opinions. liability common-law
The of Miranda defendant my opinion original was not considered in because raised in either the trial of case it was not this appeal Appeals. or in to the Court of the though in Plaintiffs, brief, their admit that even would sustain an instruction in re- the evidence gard “the wanton misconduct of defendant Mi- to regard “imputation in to and an instruction randa,” of wanton misconduct defendant Jones there would the Miranda,” still remain defendant by exemplary damages, regard in “critical issue” Court: the statement ques- determines that the “However, the Court presented negligence been should have tion of to and jury, plaintiffs’ by then entitle- decided exemplary damages issue becomes critical ment to case.” submitting approves Admitting Court’ that if the damages, exemplary question it of to the plaintiffs doing state: time, first so for the will be v. 1969J by Kelly, Michigan “Although in- are numerous cases there exemplary volving under the allowance directly situations, there are none fact varied personal point a claim for with reference to juries collision.” in an automobile sustained Adams do not cited refute The cases Justice by this statement.
The law came into common existence and was day developed before the Realiz- automobile. legislature ing Michigan has enactment this, extensively provided for the road” “rules in to Up regard driving, stopping, parking. determining rules in now we have abided those question negligence in automobile accident placed the trial the burden and have not cases whether there was to first determine court negligence proof determine the amount and then passenger guest except negligence or kind question Determining of the amount of eases. major problem negligence which has been ais guest passenger proven cases have been appealed to this Court. only legislative gross negligence reference to guest pas- and wanton misconduct is in the
or wilful *15 provision senger statute and this was not included purpose giving injured guest to the for the damages, right exemplary to but was inserted added namely: guest passen- sense, a restrictive that proof ger there could recover unless gross negligence and wanton miscon- wilful duct. presented my original
Nothing has been since writing differently me to conclude than that causes I i.e.: then, did past, which we are our decisions of “Under appeal,
reaffirming present that the we hold in the Mich Opinion, by Kelly, J. refusing trial court did not commit error in- to gross negligence exemplary damages.” on struct T. E. Brennan, J.,C. and Dethmers, J., concurred J. with. Kelly, (concurring
Adams, remand). reversal and agree I with Justice Kelly a driver anof guilty gross automobile negligence, the owner would not be negligence liable for such under (Stat § CLS 257.401 9.2101) § Ann 1968 Rev only ordinary negligence imputed would be to the owner. In case, however, we are concerned with the persons— claimed tortious conduct of two Louis Jones, driver of the automobile jured plaintiff Ollie Mae Smith, and Heriberto Mir- present anda, owner the automobile, who was in the per- automobile. The trial court refused question mit the to consider the of whether own Miranda’s actions amounted wanton miscon- part on duct his and as to whether Ollie exemplary damages. Mae Smith was entitled to Upon testimony the trial of this case, there was July afternoon 13, 1963,Miranda and pool a Jones met at hall on South Division Street Rapids. period in Grand Over a time, Miranda acquaintance, Anderson, and another Shannon made trips nearby consuming bar, three at least one trip. accompanied bottle of beer on each Jones trip. them on at one least Sometime after the third trip bar, to the Jones asked to borrow Miranda’s Pontiac automobile to conduct some business. Miranda refused to loan the re- car. Jones made requests. peated permitted finally Miranda him to use car on the condition that Miranda accom- pany him. Jones drove short distance. He then pick stopped up Darby. Darby a friend, Norris *16 v. Adams, entering was car, he invited testified that open wine that bottle a from an to have drink away pulling from the After was in the rear seat. the wine bottle from men drank each of the curb, trip during from drinking continued and the point of collision. avenue to the Cass Darby while testified that Jones was driv- further ing “told Louis street, on Franklin he Jones west ready easy, yet, die I was not because take it zigzagging street. He almost hit across the he was easy me so I take it or else let cars, one or two said you matter, what is are said, “Ah, He out.” Darby something or or like that?” chicken, afraid, to him that Miranda also testified that it seemed easy, something like take it also told Jones to Finally, en- when he first he testified that that. avenue, and Miranda on Cass countered Jones they had the fact that “there was doubt about” drinking. been which occurred at collision,
Minutes before the approximately p.m., Miller, an attor- 4:55 Robert J. light ney, stopped a at the corner at red avenue, headed west- street and Jefferson Franklin erly when he first observed street, on Franklin rapidly “pulled out car Miranda car. The gasoline corner station, which on the southwest pulled into Franklin Franklin, of Jefferson rapid nearly speed, a was which car was hit car that at a street proceeding westerly direction, ain Having traffic. lane on the westbound in the north barely proceeded swerve it then missed that car southwesterly south lane into direction proceeded westward.” traffic westbound light stop Frank- at the at red saw the car Miller and observed intersection avenue lin-Sheldon talking “laughing occupants boister- were changed, light car ously.” Miranda When *17 382 Míen 176. Adams, Opinion J. pulled “again away rapid at a rather accelerated speed,” greater speed and then a continued west “at pulled away probably by from me a block or two.” Miller watched the car continue west on Franklin to street the intersection of Grandville, it appearing going go directly as if “first the car was to through green light the intersection with the go through westward the intersection but all of the they quick right sudden made a turn to the or north into Grandville avenue, were over the center line of Grandville avenue traffic and came into contact with another car which it hit.”
At the time of the collision, William R. Maier, a self-employed driving accountant, was an automo- bile southbound Grandville avenue, near the Grandville avenue-Franklin street He intersection. stopped was waiting in the inner southbound traffic lane, signal change green
for the traffic light changed Grandville avenue. After green, stationary he remained for a time, short squealing then “heard brakes, noticed the high Pontiac come around the corner at a rate of speed,” judged which he to be “between 40 and 50 right miles an hour.” As the Pontiac made the turn from Franklin street to Grandville avenue, “it leaning pretty 30-degree angle was on, close to a just hoping I sat there it would me miss (Maier); headlight and as it did the left hit front my my it] car, the left corner front car [, porch careened off that over and hit of house on the east side Grandville.” got
Maier “Well, testified that as we the driver barely up, out he could stand and the odor of al- present cohol all was around him. He couldn’t talk clearly, say aas he fact, matter of tried he was just driving, helped not even we him out from behind the wheel.” Maier also observed that “the r. Adams, strong- (Miranda) passenger smelled also front seat opened door there were ly As we alcohol. were other bottles out. There fell bottles some later identified as wine were The bottles car.” bottles. shop employed Corey at a on the barber
John avenue street-Grandville Franklin of the corner He collision. heard of the the time at tersection going squealing, corner,” then around the “wheels opposite on the “hit the car vehicle Miranda saw be the west side that would street, side *18 on the smell wine” He “could avenue.” Grandville ap- car; Miranda “it person of the driver drinking they door and as the peared had been that opened right I the wine there saw hand side on the drop out.” bottle Holmgren, who investi- A. Richard
Police Officer “all the individ- gated collision, observed or been car, car, had that'were uals they appear appeared had been or did had drinking.” respect Miranda, to Jones and And with breath, which on both of their was odors “There definitely dis- content, I couldn’t alcoholic were drinking; they tinguish however, had what been drinking.” they had been I know do (Stat § 9.2101), Ann 1968 Rev CLS 257.401 1961, § to the civil refers, relates Justice to which Kelly injury liability motor oc- of owners of vehicles negligent operation imposing liability by casioned — being motor vehicle is driven where the owner, on the only operation the own- if such is with another, injured guest- in the case of an and, consent er’s liability only passenger, imposing if gross negligence by or wilful and wanton caused operator of misconduct of the owner motor vehicle. Micei
Opinion by Adams, J. present In case, Miranda in the motor prior at all times vehicle the accident. There is testimony that when Jones asked Miranda for the loan of his automobile, he was refused, that repeated requests by after Jones did con- Miranda sent to allow him to use the automobile and then only Miranda'accompanied if him. From such tes- timony stipulation upon as to the tbe use of the Jones, automobile could find that Miranda right retained the of control of the all vehicle at joint he was therefore a tort-feasor times with Jones. directing Miranda
Whether refrained from or en- couraging operation the reckless of his car Jones change liability right does not his because it is the control rather than the actual exercise of it which is material. The rule is stated in 2 Restatement, (Second), § 318, Torts as follows: Duty “§ 318. of Possessor of Land or Chattels to Control Conduct of Licensee. permits person “If the actor a third to use land or possession in his chattels otherwise than aas serv- present, duty he ant, is, under to exercise rea- sonable care so to control the conduct of the third person prevent intentionally him from harm- conducting ing or from others so himself toas create *19 bodily harm them, an unreasonable risk to if the actor “(a) knows or has reason to know he has the ability person, to control the third and “(b) necessity knows or should know of the and exercising opportunity such control.” In the comment which follows the above section, appears: statement duty “The to exercise reasonable care to control persons protection for the
the conduct
third
requires
ability to
the actor to exercise his
others
199
i).
SmiIi-í
Adams,
only
person’s
not
when he
conduct
third
such
control
doing,
necessity for
but also when
so
of the
knows
know of it.”
man he should
a reasonable
as
(1968),
Although 1961, 257.401 Ann 1968 CLS Rev “gross negligence 9.2101) § refers or wilful and liability in connection misconduct” with wanton passenger, guest under this Court’s most recent quoted phrase, pronouncements to the above Delnay (1957), Peyton 348 238, Mich McKen- v. (1965), 374 Mich is a 320, the test v. McKenzie zie safety.” disregard public wanton “wilful bearing Applying case,, the test to this mind totality of the facts to be considered— is (1959), Mich and Ander- v. Stevens Stevens (1963), Deming Sales, Motor Inc. son v. Gene guilty found 223—a could have Jones Mich gross negligence wanton or wilful and misconduct guest passen- meaning if a of the statute within the ger equally conduct could involved. Such had been regard wanton with wilful and to be be found occupant pedestrian, persons an- other other —a occupant of one’s front own automobile, guest pas- porch, to a it would be i.e., Mrs. Smith—as senger. operation of the automobile Jones
If the operation permitted such in that Miranda limited .jury supervision presence, under his injuries Mrs. resulted that the could find Miranda Jones and of action a concert from operation wrongful motor vehicle. a common action toward concerted there “Where parties acts within for all are liable both end, scope (1943), King undertaking.” v. Herfurth (1906), 143 Ross In Benson 444, 448. Mich *20 Mich 200 Adams, stray injured a wliere 452, Mich bullet shot defendants, 3 said: 1 of Court tending testimony to show that “There was acting act, in in an palpably concert were three defendants not city violating and but ordinance, a grossly negligent. found such concert If the joint as tort-feasors.” he liable all would action, (1965), McCoy 198, 228. 376Mich also, See, DeLiefde (1927), 224, Mich Fisher v. Rumler (if exist) is misconduct found Miranda’s injuries inflicted relation to different on causal guest under the it would be Mae than Ollie Smith Miranda a could find Because statute. it authority circumstances, act under had to reckless- amounted his also find conduct could public disregard for and wanton ness and wilful safety.
Exemplary Damages. attorney sought ex- Plaintiffs’ instruction emplary damages.1 The instruction not a correct regard exemplary dam- law with statement previously you that, you “I defendant have instructed should find disregard guilty gross negligence or willful and wanton Miranda safety, public you may are called of ‘exemplary’ damages. award Mrs. Smith what then injuries Michigan that, person law when a sustains “It is the gross negligence, then the as result of or willful and wanton misconduct party, jury may injured person oE award addi- another gravity tional ness, willfullness, rule of the defendant’s reckless- because gross negligence. or No hard and fast wantonness measuring limiting damages down, properly which can be laid or you may you guilty award if should find that defendant Miranda was negligence, except they oppressive, of as to shoek the must be or sueh not men, they are sense of fair-minded common your left therefore reasonable discretion. case, you “Under the facts of this should find that defendant guilty gross negligence, Miranda was dis- willful wanton regard may public safety, any you then amount ehoose to which exemplary damages Smith award Mrs. ‘must rest the fair ** * judgment [you deliberate and discretion of as members of] * * * * * * jury acting upon justice [your] own sense of circumstances, mitigating aggravating, view of all the both ” appearing in the case.’ v. *21 by Adams, J. Opinion ages Mae was not entitled Ollie attorney given. made also ob- Plaintiffs’ to have it any give to jection failure in- court’s the trial to damages. exemplary De- the to struction fendant-appellee as to that instruction maintains given. damages exemplary have been should exemplary question constitutes what as to length in a damages number at has been considered Company Daily Michigan Post Detroit In cases. of v. McArthur libel, (1868), for 447, an action 16 Mich 453): (p said the Court degrees of with the various “It is in connection chargeable wrongdoers, on upon blameworthiness subject arisen the of vin- have .the discussions exemplary damages, which, inasmuch as dictive or they fault, actual are some authorities rest designed punish wrong intent, the to to be said n usually damages, according so while, others, to the recompense only are meant to the sense of called jury always experience aggra- human, in which is proportion degree to vated' or lessened perversity term the offender. While the exhibited the damages exemplary has or become vindictive may get it to rid fixed in the law that be difficult so yet be should be allowed to used so it,of it not proper application think the and we mislead, beyond person, property those to n reputation, reparation to make is the for person feelings injured. the This is the often (Emphasis wrong greatest which can be inflicted.” added.) (1875), Mich
In v. Ware an 77, Welch action battery, discussing Court, assault and damages, exemplary (pp right 84, recover said 85)-; wrongs, gives ! an law action willful “When
n it injured person ground does it on pecuniary wrong- ought amends from to receive Mioh by Adams, every wrong brings It doer. assumes that such dam- age upon principal damage sufferer, and that the physical. is mental, and not itAnd assumes further metaphysical damage, that this is and not actual, compensation. and deserves When this is rec- once ognized, just it is as clear that the willfulness important of the act wickedness must constitute an computation, plain element in the for the reason that indignation propor- we all feel our excited direct tion with the malice of the offender, wrong aggravated by (Emphasis added.) it.” Scripps Reilly (1878), In 38 Mich action writing for libel, Justice for a unanimous Marston, summary applicable set forth a Court, the rules *22 recovery damages. through the of Eules 6 are pertinent They (pp here. as read follows 23 and 24) : any injury entitling party “1. In the to redress, damages person, property reputation, to the to-
gether special damage may with such as be shown are recoverable. very
“2. Where the act done is one which from its expected be nature must to in mischief, result or where there-is malice, or or wanton miscon- willful negligence great duct, carelessness or so as to indi- disregard rights safety cate a reckless the or of of damages others, a new element is allowed, vis.: of injury feelings plaintiff. 'to the the for of Damages injuries feelings “3. are al- for voluntary lowed those torts which consist some of gross neglect, very depend very act or in amount degree much the of fault evinced all the circumstances. voluntary
“4. Where the tort consists of some gross act, but no of malice, element or carelessness negligence, is shown to have the existed, but that spite wrong proper precaution, was done in of injured damages to be awarded on feel- account v. by Adams, J. inevitably ings, sum as must to such reduced will be wrong itself. from the resulted have a case, however, the elements exist “5. Where, injured damages party entitling to recover feelings, shame, allowed mental the amount to be indigna- suffering anxiety, honor, and insulted wrong, may consequent or be increased tion aggravated degree feelings, or the vindictive neglu recklessness, or carelessness malice, gence is much defendant, more as or either of are elements, them, serious where these shown to have existed. damages dependent upon the
“6. This increase of must be considered conduct of defendant damages, although usually spoken as actual State punitory, exemplary, vindictive as recovered, where recoverable thereof be amount incapable by any they of ascertainment as are all, at in the and deliberate rule, must rest known other fair jury acting upon judgment and discretion of justice all in view the circum- their own sense of aggravating, appearing mitigating and stances, both fairly give said which can be case, in the aided, however, act, or characterize color to such will from the court tend instructions merely prevent fanciful, the allowance fairly resulting from the in- not or jury.” remote as so (Emphasis added.) Michigan (1893), Central R. Co. In Lucas v. by passenger who claimed he had an action 1, Mich *23 ejected wrongfully a train con- from the been (p 4): said ductor, Court jury case, if of this “Under circumstances plain- testimony of behalf introduced believed recover, not entitled tiff, was n are damages ordinarily termed ‘actual those which feelings injury damages,’ to his but whatever pain, disgrace indignity, conduct such and place, produce time, in view would tend Mich Opinion by Adams, J.- may hasty and circumstances. Conduct be so and disregard proper precaution, and ill-timed, so far rights and the .'op- others, as to be reckless pressive, regards op- and the law recklessness and pression aggravating injury. [Citations plaintiff’s omitted.] legal rights If were violated by to consider the expulsion from the- it train, was for the injury feelings to his that such con- in-view of his con- likely produce, duct would be sciousness that he was without fault, had right to remain the train destination.”, to his ' (cid:127) (Emphasis added.)
Finally, in the more recent case of McFadden v.
(1957), 350
Tate
Mich 84, which
an action
.was
damages arising
battery,.
from assault and
Jus
writing
said-(p 91):
tice Carr,
for the Court
compensation
“Plaintiff was entitled to reasonable
pain
suffering undergone by
for
wise,
him and, like-
maliciously
wantonly
indignity
flicted, for the
sense
and humiliation
resulting to him.”
quoted
From the above
discussions from'Michi
gan cases, it must be concluded that allowance 'of
exemplary proper
in a
case is made for in
feelings
plaintiff.
to of a
It should be
further noted that this Court has held that such a
right
recovery
person
is restricted to the
who
physical injury. Hyatt
has received the
v. Adams
(1867),
(1901), McChesney 129 Mich (1903), 137; v. Wilson (1911), 132 Mich Hink 252; v. Sherman 164 Mich (1922), and Wise Daniel Mich 229. 352; *24 v. Adams, by Opinion exemplary Miranda Defendant maintains damages Michigan at common law in have been al involving only in cases intentional torts. The lowed right exemplary damages to recover arises ont of outrageous nature of the acts of a defendant. variously in the acts are described cases: “the Such degree perversity of exhibited the offender” (Detroit Daily Company, supra); Post “the will (Welch, supra); of the act” fulness wickedness and neg or misconduct, or carelessness “willful wanton ligence disregard great a reckless so as indicate * ** very rights safety or others * * * negli neglect gross or carelessness * * * supra); (Scripps, gence “Con recklessness” may hasty far ill-timed, and so dis and duct be so rights precaution regard others, proper and *** regards reck the law and as be reckless * ** (Lucas, injury” aggravating the lessness * * * maliciously supra); “injury and wan (McFadden, supra). tonly inflicted” usually, described conduct but not nec- The above essarily, an to do in- the element of intent involves person. always specific is This means especially day age case, however, control an indi- under the when instrumentalities recklessly as an automobile—can be so vidual—-such endanger injure wantonly as to who- used wrong- enough to encounter the unfortunate ever is gross negligence seen, or wilful we have doer. As operation an auto- misconduct and wanton impersonal disregard can be an mobile, because it persons, has and limb of other come life disregard “willful wanton defined as a to be safety.” public “In is all cases where act expected very must from its nature be which done negligence or where there is so mischief, result rights disregard of the great as a reckless to indicate Mich Adams, J. safety others, a new element of *25 Daily to be considered.” Detroit allowed Post Com- supra. pany, conduct of this kind When occurs, it injured person matters little to the innocent he or lacking any specific is the victim of acts in she by injury upon to inflict intent is not the mechanical action of defendant him. This
delivering a blow from the arms of a windmill supra, referred in Welch,
or the kick in the face bovine reaction of supra Wise, a cow referred to in this is the —rather being having mentality of a act human to com- prehend public disregard the nature of an act utter safety. negligence. It transcends mere permitted recovery exemplary
haveWe
dam-
ages
unnecessary suffering arising
when a man
legal rights
proceeds
op-
misconceives his
pressive
in an
Raynor
(1877),
fashion,
v. Nims
It is
further contention that
plead exemplary damages,
failed to
exemplary damages
special damage
are items of
governed by
required
1963,112.8,
GCR
and that it is
they
pled.
specifically
be
Defendant cites Sherman
Kilpatrick (1885),
opinion
“Q. After you did do? what got down, hair, she I Tamera’s “A. finished When combing hair. Karen’s I started then that time? “Q. Tamera at about How was old four. “A. Tamera was put go you her after “Q. Tamera did Where ? down standing steps. on the “A. She was happened next? “Q. What sitting standing steps, I on the was “A. was She combing all once I heard hair, at Karen’s there up up, something bump. I looked I looked when baby my straight me and headed car was this Mich by Adams, my lounge grabbed sitting I chaise her on the so attempted just I door, ran to the arms. open I something leg. hit me on the Tamera door, steps. standing My on the husband came trembling, crying screaming, from work. I was crying. thought car, I she was under the she was thought under the car she had I she was down but gone in the house with her dad. happened? ahead, Go what “Q. gone I then after found out So she was
“A. Karen Dad, the house with her was still scared. just screaming I her. Tamera was so took We was girls. My standing shuddering, with there cous- beauty shop, ran door, in next police she one of the up porch, anybody said, come to the he hurt up there. respect anybody with “Q. Now, and else, don’t they you what tell us tell us what said because are not allowed to they happened. but tell us what said, say anybody “A. Police hurt. I I come, said know I am I nervous, don’t so don’t know what to I do. About that time looked blood was run- down, my ning leg.” down In a mother was of her case, seated with two porch small children on own her front when the occurred. The in- intrusion circumstances of that testimony, according such, trusion were physical find could she suffered both injury. mental
Upon properly new trial, should be exemplary damages structed as to in accordance opinion. *27 with agree with Justice that the case must be Kelly
I However, reversed and remanded for a new trial. given by I would do so, addition to the reasons judge refusing him, because the trial erred in question allow the to consider the whether gross negligence the actions of Miranda amounted to Opinion by Adams, J. part or wilful and wanton misconduct on his as a joint judge tort-feasor with Jones because charge exemplary damages. refused to as to T. M. Kavanagh, J., J. Adams, concurred with (concurring specially in reversal and Black, Kelly remand). I and Adams vote to With Justices reverse and remand for new trial.
My separate judge re- view is that the trial erred jury question versibly refusing to submit to the whether defendant Miranda’s defendants rendered both conduct according
joint tort-feasors to common- which I law standards. The conduct to refer is out- favorably present to the as is due for lined, opinion. purposes, in Justice Adams’ I find other evidence of no reversible error. all
Plaintiff should have costs of courts thus far sustained.
T. G-. Kavanagh, J., took in the decision part of this case.