Grud v. Warren , 297 Mich. 546 ( 1941 )

Separate actions by husband and wife to recover damages for personal injuries received in a collision between their automobile and a truck were tried together to a jury, with verdicts and judgments for defendant.

Motions for new trials were denied and plaintiffs review by appeal.

When the cases were called for trial, and jurors were not present, counsel for defendant conceded that their client was, to some extent, insured by the General Accident Fire Life Assurance Corporation, Ltd., with its foreign office in Perth, Scotland, and its office in this country at Philadelphia, Pennsylvania.

Counsel for plaintiffs requested the court, upon voir dire examination of the jurors, to inquire:

"Whether or not any one of them were engaged or are engaged in the insurance business; whether any of them are stockholders of an insurance company; or are agents of any insurance company, or have been agents of any insurance company."

The trial court asked the jurors whether any of them were stockholders in a corporation or agents, or employees, for and employed by a corporation, and questioned each juror as to his or her occupation.

Plaintiffs exercised no challenges and announced satisfaction with the jury.

Counsel for plaintiffs contend that the mentioned examination of the jurors was not sufficient to cover the questions upon which inquiry should have been made.

We find no merit in the point. The subject was handled in a dignified manner by the court, and further inquiry along the line requested by counsel for plaintiffs would have emphasized the fact that defendant carried accident insurance and have constituted error, of which defendant might complain.

Plaintiffs cite Fedorinchik v. Stewart, 289 Mich. 436. That case must not be wrested from its setting of a mutual insurance company, with thousands of local members, wherein the insured are also the insurers and, as such, directly interested in the financial affairs of the company. Such was not the instant case.

Plaintiffs claimed that, as they were driving westward over an 18-foot paved highway, they saw defendant's truck coming toward them on their side of the pavement and, in order to avoid a collision, turned their car to the other side; the truck then turned into the path of their car and the collision followed.

Defendant claims the truck was at all times on its proper side of the pavement and when the driver of the truck saw plaintiffs' car coming, weaving and skidding on the pavement directly toward the truck, the driver of the truck turned toward the right of the pavement and, while still upon the berm at the side of the pavement, plaintiffs' car struck the truck.

These versions as to how the collision happened and evidence in support thereof were submitted to the jury and verdicts found for defendant. The cause of the collision under the evidence was a question of fact for the jury.

At the trial plaintiffs sought to show that the truck, at the time of the collision, on account of its weight, was being driven at a speed in violation of the uniform motor vehicle act, as amended. 1 Comp. Laws 1929, § 4693 et seq., as amended (see Comp. Laws Supp. 1940, § 4693 et seq., Stat. Ann. and Stat. Ann. 1940 Cum. Supp. § 9.1561 et seq.). On the ground that no such violation was averred in the declarations the court excluded the proffered proof.

Plaintiffs claim that it was not necessary to plead the law and violations thereof inasmuch as the declarations alleged it was the duty of the defendant's driver to:

"Drive and operate said motor vehicle on the highway aforesaid at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and not to drive the said vehicle upon the highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. * * *

"Yet notwithstanding his duty to control and operate the said motor vehicle in accordance with the statutes of the State of Michigan and the rules of the common law so as to avoid injury to the plaintiff, the said defendant caused the said vehicle to be driven forward in a wanton, reckless, careless and negligent manner to and against the automobile in which plaintiff was riding."

In Anderson v. Matt, 223 Mich. 534, 540, we said:

"While plaintiff's declaration did not by number or name make reference to the statute regarding the limit of speed within which automobiles may be driven, its allegations made plain that wantonly exceeding the statutory speed limit was a ground of negligence relied upon. A formal reference to the statute would not make that claim clearer and is not required where the declaration contains the averments necessary to bring the case within the statute, of which courts are required to take judicial notice."

But counsel for defendant contend, and in the instant case the trial judge so held, that Court Rule No. 19, § 2 (1933), adopted after the decision in the Anderson Case, relative to the form and contents of declarations, rendered that decision inapplicable in cases subsequently brought. That section provides:

"Where a breach of statutory duty is alleged, the statute shall be cited in connection with such allegation."

The manifest purpose of that rule is to prevent surprise, and it in no way nullifies the common-sense holding in theAnderson Case. No surprise was, or could have been, claimed here.

The court was in error in excluding the statutory provisions and evidence of violations thereof.

For this error the judgments are reversed and new trials granted, with costs to plaintiffs.

SHARPE, C.J., and BUSHNELL, CHANDLER, and McALLISTER, JJ., concurred with WIEST, J.