Tri-Part Manufacturing Co. v. Michigan Consolidated Gas Co. , 1 Mich. App. 684 ( 1965 )

1 Mich. App. 684 (1965) 137 N.W.2d 739

TRI-PART MANUFACTURING COMPANY
v.
MICHIGAN CONSOLIDATED GAS COMPANY.
SOBOTA
v.
SAME.

Docket Nos. 544, 545.

Michigan Court of Appeals.

Decided November 15, 1965.

Bernard J. Fieger, for plaintiffs.

A.D. Ruegsegger (Dyer, Meek, Ruegsegger & Bullard, of counsel), for defendant.

FITZGERALD, J.

This consolidated appeal arises from a gas explosion and subsequent fire which occurred in Detroit in 1960. Plaintiffs charged that defendant gas company was negligent in failing to seal a gas service line into the building occupied by Tri-Part Manufacturing and that it failed to inspect the line, test the line, or take immediate steps to stop the flow of escaping gas into the building.

Defendant gas company charged contributory negligence in failing to notify it that gas was leaking into the building and in failing to take other proper steps to protect from injury as a result of the explosion.

The issue before this Court involves the trial procedure to be followed in the Wayne county circuit court.

Pretrial conference on the cases had been held and when the matters were called for trial in December, 1964, defendant gas company stated to the court that it was ready to admit that it was guilty of ordinary negligence. Defense counsel moved the court to limit the plaintiff's proof to rebuttal of any proof offered by defendant to show contributory negligence of plaintiffs and the damages suffered by them. This motion was granted.

Plaintiffs then asserted that the complaint contained sufficient allegations to uphold a charge that defendant had been guilty of gross negligence and to permit introduction of evidence thereon. Specifically, the complaint stated that the defendant "recklessly and negligently, violated said duties in the following respects:" and set forth the circumstances of the duties.

The court held that the complaint did not plead gross negligence and further denied motions to amend and to return the matter to the pretrial docket.

These consolidated appeals followed the trial court's ruling.

It is obvious that plaintiff in each of these cases was catapulted into an excruciating position by the trial strategy of defendant and subsequent rulings of the court.

First, plaintiff found itself unable to introduce any evidence of defendant's negligence and permitted only to rebut allegations of its own contributory negligence and to introduce evidence of damages.

Second, plaintiff was not permitted to venture into the realm of reckless misconduct of defendant and thus counter any proofs of contributory negligence.

Third, plaintiff was not permitted to amend to assert reckless, wilful, and wanton misconduct on the part of the defendant since the trial court ruled that this would be an assertion of a new cause of action after the running of the statute of limitations.

Fourth, plaintiff was denied a return to pretrial where another effort could have been made to frame the issue in the context of gross negligence.

The first two allegations of error were supported by judicial findings and the fourth was a matter of judicial discretion and an examination of them is not necessary for disposition of this appeal.

The third point, however, compels us to remand these cases for further proceedings in accord with the holding in LaBar v. Cooper (1965), 376 Mich. 401, decided by the Supreme Court in the same month that the instant case was argued before this Court.

LaBar held specifically that amendments arising "out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading" (GCR 1963, 118.4) are not barred by the statute of limitations. This is directly opposite from the basis assigned by the trial court for denying the plaintiff's motion to amend.

The trial court's order of December 29, 1964, must yield to the holding in LaBar that the interpretation of GCR 1963, 118.4 is that the test is no longer whether an amendment states a new cause of action but whether it arises out of the conduct, transaction, or occurrence alleged in the original pleading sought to be amended.

LaBar further explores the question of exercise of discretion by a trial judge. The statement (p 409), "From the record before us, no reason appears why the amendments could not have been allowed and the case tried as scheduled," applies with equal vigor here, subject to reasonable time limitations.

Only by a re-examination of plaintiff's motions to amend, viewed in the light of the holding in LaBar, can these cases proceed in an orderly manner. As stated there (p 409), "In the event the motions are denied, such exercise of discretion should be supported by specific findings as to reasons for the same."

Reversed and remanded. Costs to appellants.

LESINSKI, C.J., and J.H. GILLIS, J., concurred.