Benson v. Watson , 26 Mich. App. 142 ( 1971 )

26 Mich. App. 142 (1970) 182 N.W.2d 357

BENSON
v.
WATSON

Docket No. 7,202.

Michigan Court of Appeals.

Decided August 25, 1970. Reversed February 9, 1971.

Goodman, Eden, Robb, Millender, Goodman & Bedrosian, for plaintiff.

Plunkett, Cooney, Rutt & Peacock (John D. Hayes, of counsel), for defendants.

Before: R.B. BURNS, P.J., and LEVIN and CHURCHILL,^[*] JJ.

Reversed by Supreme Court February 9, 1971. 384 Mich. 804.

R.B. BURNS, P.J.

This is a wrongful death action arising from the accidental death of a six-year-old boy, Gene Arthur Benson.

In the middle of the afternoon Gene was playing in a gully beside a two-lane blacktop county road. In the gully were high weeds which grew to the edge of the road. Gene darted out of the gully and ran across the road. Before he reached the center line of the road, he was struck and killed by defendant's truck. The jury returned a verdict for plaintiff and defendants appeal the trial court's denial of the motion for judgment notwithstanding the verdict.

Defendants claim the trial court erred in submitting for jury determination the question of whether defendants' driver could have slowed down sufficiently before the impact to permit the child to run across the road in front of the truck without being struck. The deputy sheriff who investigated the accident shortly after it happened testified for plaintiff. He stated that in his opinion the truck was traveling at a speed of about 55 m.p.h., that the accident occurred on the down side of a slight rise, and that a boy of decedent's height, standing at the edge of the road, could be seen at a distance of 250 feet. In addition he testified that the boy was struck by the left front of the truck on his way from the driver's right to the driver's left. At that point Gene would have run a distance of about 15 feet. The skid marks from the accident did not begin until after the point of impact.

Plaintiff attempted to prove that the driver did not have his eyes on the road and that if he had had his eyes on the road he would have seen Gene and would have been able to slow down and avoid hitting the youngster. Gene's mother testified that he ran at a normal speed for a boy his age — five or six feet per second. Thus, it would have taken approximately three seconds to traverse the 15 feet from the edge of the road to the point of impact. At 55 m.p.h. the truck would have traveled 243 feet (81 feet per second).

Defendant's driver testified as follows:

"Q. [By plaintiff's counsel]: Let's say you were 50 feet away now, Mr. Watson; you could see the boy for 50 feet. If you hit your brakes at 50 feet, do you think you could have brought the pickup and trailer to a stop before the point at which you hit the boy?

"A. Yes.

"Q. You think you could have brought it to a stop?

"A. Enough to miss the boy, yes.

"Q. What about at 100 feet?

"A. Yes.

"Q. Even more so, I suppose?

"A. Yes.

"Q. And from 150 feet even more so, I suppose; is that right?

"A. Yes.

"Q. At least slowed it down, if not stopped it, sufficiently so that the boy could have run beyond the truck and crossed the road?

"A. Yes."

Gene was in the road to be seen. Whether the driver should have seen him in time to stop or slow down to avoid the accident was a question of fact for the jury. Johnson v. Hughes (1960), 362 Mich. 74; Odell v. Decker (1965), 2 Mich. App. 14.

Defendants' claim that the court's charge to the jury was misleading is unwarranted. A complete reading of the instructions show that as a whole they were fair and proper.

Defendants claim that plaintiff's counsel made improper remarks during his rebuttal argument to the jury and the court should have granted his motion for a new trial. It should be noted that the remarks objected to by defense counsel were a direct result of his final argument when he said, "'Could not avoid hitting him' that is the conclusion that the police officer made. That is what he typed on his report."

Defense counsel argued facts not in evidence and plaintiff's counsel replied during his rebuttal. Defense counsel objected to the remarks and the court sustained the objection. Counsel did not ask for any curative instructions. The court did not err by refusing to grant a new trial.

Defendants claim the court erred in its instructions on the voir dire examination. Under the circumstances of this case the issue does not merit consideration.

An issue not raised in the trial court or in the defendants' original brief was raised in a supplemental brief filed by the defendants approximately one month before oral argument. The plaintiff did not submit any evidence concerning expenses for the child's birth, clothing, instruction, education or upbringing, but relied on loss of companionship for damages.

Since the trial in the present case the Supreme Court released Breckon v. Franklin Fuel Company (1970), 383 Mich. 251, decided March 12, 1970, and released in the advance sheets April 16, 1970, in which the Court said loud and clear that loss of companionship is not an element of damages under the death act. On p 275 the Court stated:

"We hold that Wycko [Wycko v. Gnodtke (1960), 361 Mich. 331] never did authorize recovery of death act damages over and above compensation for ``pecuniary injury' or ``pecuniary loss,' aside of course from the statutorily provided recovery for conscious pain and suffering, if any, and ``damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable.'"

And, on p 278:

"Having ruled that Wycko made no precedent for recovery and distribution — under the acts of 1939 — of damages for loss of companionship * * *."

Although the Supreme Court said Wycko never authorized damages for loss of companionship, the profession and the trial courts have interpreted the case as authorizing such damages. Neither plaintiff's counsel nor defendants' counsel can be faulted for not raising the issue in the trial court. Therefore, the case is remanded to the trial court for a new trial limited to the question of damages only. Costs to abide final results.

LEVIN, J., concurred.

CHURCHILL, J. (concurring in part and dissenting in part).

I do not agree that Breckon v. Franklin Fuel Co. (1970), 383 Mich. 251 requires this Court to remand this action for a new trial on the damage issue. The profession generally may believe that the Supreme Court was overruling Wycko v. Gnodtke (1960), 361 Mich. 331, but that is not the Supreme Court's view of its own action.

I agree with Judge BURNS' opinion on the liability issue and vote to affirm.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.