Uhrstadt v. Sauer Cooperage Co. , 309 Mich. 201 ( 1944 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] On January 25, 1941, plaintiff was riding as a passenger in an automobile proceeding southerly on Telegraph road, a four-lane highway, near Monroe, Michigan. Except as to the claim that the amount of damages adjudged was excessive, the questions presented on this appeal are procedural, and hence details of the accident need not be stated. It is sufficient to say that a truck belonging to defendant Sauer Cooperage Company was passing, or, as plaintiff claims, suddenly stopped along side of, an automobile parked in the outermost southbound traffic lane, and the car in which plaintiff was riding ran into the rear end of the truck. Almost simultaneously the automobile of defendant Hamilton crashed into the rear end of the car in which plaintiff was riding and plaintiff was injured. Plaintiff brought this suit against the Sauer Cooperage Company and Hamilton as codefendants, plaintiff claiming they were joint tortfeasors. Upon trial by jury a verdict of $8,500 was rendered against the two defendants, and judgment entered thereon. Each of the defendants made a motion for a new trial. The motion of the Cooperage Company was granted, and the motion of defendant Hamilton was denied. The case is before us on the appeal of defendant Hamilton.

We first consider the claim that the trial judge in granting the Cooperage Company's motion for a new trial committed error for the reason that this motion was not made until more than 20 days after the entry of judgment and without an extension of time having been granted. See Court Rule No. 47 (1933). There is no merit to this contention. Clearly it was within the discretion of the trial court to grant an extension of time; and since the court heard and disposed of the motion on its merits, it should be considered that the court in effect extended the time for making the motion. The court had the power to grant a new trial of its own motion. General Necessities Corp. v. Wayne CircuitJudge, 214 Mich. 138. Neither plaintiff nor defendant Hamilton objected to the Cooperage Company's motion for a new trial at the time of its hearing on the ground that it was belatedly made. It is now too late to make such objection for the first time.

After this record on appeal was settled, plaintiff petitioned for leave to appeal from the circuit judge's order granting a new trial to the Cooperage Company, urging error in that particular on the ground above considered and also that under the circumstances of the instant case granting the motion was an abuse of discretion. We have considered the various reasons assigned by plaintiff, but do not find in them justification for setting aside the order granting a new trial to the Cooperage Company.

A more important question presented by appellant is stated in his brief as follows:

"In the event of trial resulting in judgment against joint tortfeasors, may the court grant a new trial as to one tortfeasor permitting the judgment to stand against the other tortfeasor?"

Appellant asserts that because of the recent passage of the so-called contribution statute (Act No. 303, Pub. Acts 1941 [Comp. Laws Supp. 1943, § 14497a et seq., Stat. Ann. 1943 Cum. Supp. § 27.1683 (1) et seq.]) hereinafter quoted in part, error was committed in granting a new trial to one of two joint tortfeasors and denying a new trial to the codefendant. At common law a new trial could not be granted to one of several joint tortfeasors without granting a new trial to other codefendants because the judgment was regarded as an entirety which must be affirmed or reversed as to all or none. Burton v. Roberson,139 Tex. 562 (164 S.W. [2d] 524, 143 A.L.R. 1), and annotation 143 A.L.R. 7. But this rule has been changed and the modern rule generally followed, although not universally, is that a new trial in a tort action may be granted as to one of several defendants and not granted as to others; and a case may be dismissed as to one or more of such defendants and judgment entered against the remaining codefendants. In some jurisdictions this change in the rule of law has been accomplished by statutory enactments. In Michigan the modern rule has been adopted as a matter of case law. Bowerman v. Detroit Free Press, 287 Mich. 443 (120 A.L.R. 1230). However, it should be noted that in this jurisdiction there are pertinent statutory provisions.

"It shall be lawful for any plaintiff to include in one action as defendants, all or any of the parties who may be severally, or jointly and severally liable, and to proceed to judgment and execution according to the liability of the parties." 3 Comp. Laws 1929, § 14023 (Stat. Ann. § 27.667).

"In any action against two or more defendants, judgment may be rendered for the plaintiff against some one or more of the defendants." 3 Comp. Laws 1929, § 14517 (Stat. Ann. § 27.1443).

In Moreland v. Durocher, 121 Mich. 398, the plaintiff joined in a tort action two parties as principal defendants. After judgment each of these defendants moved for a new trial in his own behalf; and the trial court granted the motion as to one but denied it as to the other. On appeal this holding was affirmed, and incident thereto Justice MONTGOMERY said:

"The question of most importance arises out of the action of the court in granting a new trial as to a portion of the defendants, and allowing the judgment to stand as to the remainder. It is contended by the defendants that the effect of this order was to vacate the judgment as to all, and that upon the recovery of verdict and judgment against several defendants, whether in an action of tort or upon contract, a new trial cannot be granted as to a portion of the defendants only. Authorities are not wanting to sustain this contention, but the modern authorities sustain the ruling of the circuit judge. * * * In this case the plaintiff might have proceeded against the defendants as to whom the judgment now stands, or she might have discontinued the case as to their co-defendants at any stage of the proceedings. It is not easy to perceive, therefore, where the action is thus severable as well as joint, and where the right exists to proceed against a portion or all of the defendants, why the plaintiff should be compelled to lose her judgment against a portion because it appears that the others are entitled to a new trial."

See, also, Robinson v. Railroad Co., 135 Mich. 254 (15 Am. Neg. Rep. 341). While we deem the holdings just above noted applicable to and controlling of the instant case, it should be noted that because of peculiar circumstances touching the relation to each other of the respective tortfeasors, a case might arise in which the noted rule would not be applied because doing so would work obvious injustice. Strickler v.International Harvester Co. (Tex.Civ.App.),141 S.W.2d 989. But we find no such interrelation or other controlling circumstances which render the general rule inapplicable to the instant case. In Federal practice a new trial may be granted to one defendant and denied to another unless there is a relation between the joint tortfeasors which would cause injustice to result from granting a new trial to one and denying it to another of the codefendants. Dollar S.S. Lines, Inc., v. Merz (C.C.A.), 68 F.2d 594, citing Pennsylvania Railroad Co. v.Jones, 155 U.S. 333 (15 Sup. Ct. 136, 39 L. Ed. 176).

We are not in accord with the claim of defendant Hamilton that the recently enacted contribution statute, Act No. 303, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 14497a, Stat. Ann. 1943 Cum. Supp. § 27.1683 [1]), changes the Michigan rule. The pertinent portion of this statute reads as follows:

"Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment hasbeen paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment: Provided, however, that no defendant shall be compelled to pay to any other such defendant an amount greater than his pro rata share of the entire judgment."

It must be presumed that had the legislature intended to change the well-established practice in the courts of this State in the particular under consideration it would have done so by an appropriate enactment. Since such a change has not been accomplished, we adhere to the former rulings of this Court above noted.

The remaining issue on this appeal is presented by defendant Hamilton who claims that the verdict and judgment against him in the amount of $8,500 is excessive, and that in event a new trial is not granted on grounds hereinbefore considered, the judgment of $8,500 should be reduced or a new trial granted. The record discloses that the impact of the Hamilton car colliding with the rear of plaintiff's car caused her to be thrown against and through the windshield. Her face was badly cut, leaving disfiguring scars, which at least to some extent are permanent in character according to testimony given. At the trial, which occurred more than two years after the accident, the character and extent of the scars on plaintiff's face were pointed out and closely observed by the jury during the testimony of a doctor who on the eve of the trial had examined the condition of plaintiff's face. One of the scars, about a quarter of an inch in width and eight inches long, extended from plaintiff's forehead down through the eyebrow to the upper right eyelid and back to the temple region. Several other scars on plaintiff's face were pointed out to the jury while the doctor was testifying; and concerning one he said: "She has a scar through the right lower eyelid which turns the inside of the eyelid outward. * * * It is permanent." A scar on the right side of plaintiff's nose "went right through the full thickness of the nose, and through part of septum." Plaintiff testified that she was unconscious as a result of this accident, that she was in the hospital for about three weeks and then went to the home of her people where she was in bed. She further testified:

"During the time I was in the hospital I suffered pain and suffering with my head. I had injuries on my forehead, nose, head and left leg. There was a hole in my left leg at that time. * * * The injury to my face took over 100 stitches. * * * I have severe headaches. They occur about once in two weeks, sometimes oftener. I still have difficulty that way. I am conscious of the scars on my face. * * *

"Q. Does it embarrass you some all the time?

"A. Yes."

Plaintiff's expectancy was shown to be 41.53 years at her age of 21. Obviously she must go through life with facial disfigurements of the character indicated. Her personal appearance before the jury was much more indicative than anything that can be included in a printed record of the amount of damages which would constitute just compensation. From the record as a whole we cannot say that the amount of the verdict and judgment was excessive to the extent that it should be disturbed on this appeal.

The orders of the circuit judge made incident to the motions for new trials and the judgment for plaintiff against defendant Hamilton are affirmed. Each of the other parties will have costs of this Court against appellant.

STARR, WIEST, BUTZEL, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.