Pelley v. Peterbilt Motors Co.

133 Mich. App. 664 (1984) 350 N.W.2d 787

PELLEY
v.
PETERBILT MOTORS COMPANY

Docket No. 65461.

Michigan Court of Appeals.

Decided April 16, 1984.

James F. Finn, for plaintiff.

Dykema, Gossett, Spencer, Goodnow & Trigg (by Derek I. Meier, Kathleen McCree Lewis, and Gregory M. Kopacz), for defendants Peterbilt Motors Company and Motor Truck Sales, Inc.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. (by Milton Lucow), and Gromek, Bendure & Thomas (by James G. Gross), of counsel, for defendants Brown and Bridge.

Before: BEASLEY, P.J., and V.J. BRENNAN and R.A. BENSON,^[*] JJ.

BEASLEY, P.J.

Plaintiff appeals from a jury verdict of no cause of action rendered in favor of defendants. In addition, plaintiff claims that the trial court erred in awarding judgment on the partial directed verdict, rendered after completion of plaintiff's proofs, sometime later: in fact, after appeal was taken to this Court.

Plaintiff raises various issues on appeal, none of which require reversal. First, plaintiff argues that denial of her motion at the outset of trial to apply Michigan's comparative negligence law rather than Ohio's contributory negligence standard was error.

This wrongful death case arises from an accident that occurred on an interstate highway in Ohio on December 21, 1977. Plaintiff says that since plaintiff and defendants Brown and Bridge were all Michigan residents, and defendants Peterbilt and Motor Truck Sales were corporations doing business in Michigan, then Michigan law should apply.

Plaintiff cites Sexton v Ryder Truck Rental, Inc,^[1] saying that trial of this case antedates Sexton by only a few weeks. It is, however, unnecessary to consider this issue in the manner posed by plaintiff. The trial court, without objection from either party, required the jury to return a special verdict according to a written form that was given the jury. The trial court instructed the jury that if the jury found that any of the defendants was not negligent or, in the case of the corporate defendants, had not breached any warranty, then they, the jury, should not proceed to the remaining issues listed on the form. Counsel for plaintiff was aware of this procedure and made no objection.

In open court, the jury returned a verdict of "no cause of action" without reference to the verdict forms, which were completed and filed with the court. The forms indicate a finding of no negligence or breach of warranty by any defendant. Though plaintiff requested a polling of the jurors, there was no request that they be polled in terms of the form itself. Consequently, from these verdict forms, it plainly appears that the jury never reached the issues which form the basis for plaintiff's claims of error. Where the absence of alleged errors would not have changed the result, reversal is not granted.^[2]

In this case, the doctrines of contributory negligence and assumption of risk and the issue of collateral recovery by plaintiff would have been considered only if the defendants had been found liable initially and the jury had turned its attention to calculation of damages.^[3]

On appeal, plaintiff argues that the verdict of "no cause of action" is ambiguous and, therefore, the possibility is raised that the jury considered Ohio law and, further, that the pronouncement in open court, not on the written form, is the verdict. However, plaintiff waived this argument at trial by making no objection to the form of the jury's verdict.

GCR 1963, 514 authorizes return of a special verdict in the trial court's discretion "and in such cases no general verdict shall be returned". Where the latter rule is ignored and a conflict occurs between special questions and a general verdict, the general verdict must yield.^[4] In this case, there is not any conflict. The verdict of no cause of action was a mere repetition of the jury's special findings that none of the defendants was liable.

Second, plaintiff claims on appeal that the trial court erred in refusing to permit cross-examination of Arlan Riggs, an engineer employed by defendant Peterbilt, because counsel failed to announce he was calling the witness under the adverse party witness statute. Plaintiff cites Jackovich v General Adjustment Bureau, Inc,^[5] to indicate that "[t]he general rule is that where a conflict exists between a statute and a general court rule, the latter prevails". Plaintiff argues that MCL 600.2161; MSA 27A.2161, which requires that where a party wishes to cross-examine an adverse witness under the statute "counsel is required to announce the purpose for calling the witness", has been superseded by adoption of MRE 611(c).^[6]

The trial judge limited counsel to direct examination, saying that "the time is long past for calling under the statute". On appeal, plaintiff refers to MRE 611(c), but the fact is that, at trial, counsel for plaintiff did not cite MRE 611(c) when making his offer of proof. He referred only to the statute. Furthermore, there does not appear to be any prejudice to plaintiff in this ruling. When counsel for plaintiff interrogated the witness by the use of leading questions in several instances, the defense did not object. Consequently, we conclude that this issue is without merit.

Third, plaintiff claims that the trial court abused its discretion in refusing to permit plaintiff's expert witnesses to render an opinion on the proper design of the cab release hooks. A trial court's determination of whether a witness is qualified to render an expert opinion on a particular subject is reversed only for an abuse of discretion.^[7]

The record does not indicate that the trial court abused its discretion in its ruling regarding the extent of expertise of the two experts. Similarly, the record does not demonstrate an abuse of discretion in the refusal by the trial court to permit evidence of test results on allegedly similar holddown hooks. The record does not indicate any basis on which to conclude that the tested hooks were similar to those on the cab involved, and there was evidence to the contrary. Consequently, abuse of discretion was not shown.^[8]

With respect to the entry of judgment on the partial directed verdict over six months after trial, the record indicates that plaintiff stipulated to the partial directed verdict and did not object when the trial court omitted instructions on the claims encompassed by the directed verdict. There was not any evidence to support these claims.

Technically, it would appear that plaintiff's claim is correct, and that the trial court lacked jurisdiction to enter the judgment without leave of this Court for the reason that at the time of entry of the judgment the appeal was docketed in this Court. This technical error does not, however, constitute a ground for reversal.

Under the circumstances of this case, we enter a similar order pursuant to our inherent authority under GCR 1963, 820.1(7), which order shall merely give effect to the stipulation of the parties for a partial directed verdict and to the tardy entry of judgment on said stipulation.

Plaintiff's other claims of error on appeal are similarly without merit.

Affirmed.

NOTES

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

[1] 413 Mich. 406; 320 NW2d 843 (1982).

[2] See Knoper v Burton, 383 Mich. 62; 173 NW2d 202 (1970); Gallagher v Parshall, 97 Mich. App. 654; 296 NW2d 132 (1980); Froling v Bischoff, 73 Mich. App. 496; 252 NW2d 832 (1977).

[3] See Termaat v Bohn Aluminum & Brass Co, 362 Mich. 598, 604; 107 NW2d 783 (1961).

[4] In re Medical Center Rehabilitation Project, 50 Mich. App. 164, 169; 212 NW2d 780 (1973).

[5] 119 Mich. App. 221, 232; 326 NW2d 458 (1982), lv den 417 Mich. 1071 (1983).

[6] Ruhala v Roby, 379 Mich. 102, 111; 150 NW2d 146 (1967).

[7] Phardel v Michigan, 120 Mich. App. 806, 809; 328 NW2d 108 (1982), lv den 417 Mich. 1015 (1983).

[8] Moldovan v Allis-Chalmers Mfg Co, 83 Mich. App. 373, 383-384; 268 NW2d 656 (1978), lv den 406 Mich. 916 (1979), cert den 444 U.S. 1034 (1980).