Clery v. Sherwood

390 N.W.2d 682, 151 Mich. App. 55

• Court: Michigan Court of Appeals
• Decided: April 21, 1986
• Docket: Docket 79561
• Status: Published

Opinions

J. C. Ravitz, J.

Plaintiff appeals by leave granted* ¹ from judgments of no cause of action in favor of defendants Timothy Sherwood and Jeffrey Pratt in plaintiff’s wrongful death action.

The decedent, Mark Clery, left the Stage Coach Stop Bar near Lansing at closing time in the early morning hours of May 6, 1981. As Clery was driving his truck out of the driveway, he spotted a friend outside the bar and tried to make a left-hand turn back into the parking lot. A second vehicle, driven by defendant Timothy Sherwood and containing passengers Dale Sherwood and defendant Cass Leonard, struck the back of Clery’s truck. Clery followed the Sherwood vehicle to a gas station approximately one-fourth mile down the road. The parties began yelling and arguing with each other, and they were joined by Jeffrey Pratt, who was driving past the gas station when he noticed his friend Dale Sherwood and decided to stop. Pratt caught wind of the subject of discussion and asked Clery if Clery was responsible for a dent in Pratt’s truck which Pratt first noticed when he exited from the bar.

The discussion ended and Clery drove back toward the bar. A few minutes later, Clery drove his truck slowly past the gas station again. While sitting in their truck, Dale and Timothy Sherwood decided to follow Clery in order to get his insurance "and registration,” and because he was "driving pretty crazily.”

A few minutes later, Pratt drove his truck in the same direction. In the fateful minutes which followed, Clery’s truck swerved to both sides of the road and onto the shoulder several times. According to Timothy Sherwood, the Sherwood vehicle caught up with Clery, passed him and signaled for him to stop. According to Sherwood, after he left his truck and began walking toward Clery’s truck, Clery drove into a ditch, through a farmer’s field and down the road. At that point, Dale Sherwood told Timothy not to follow Clery anymore. Leonard testified that Clery’s truck disappeared from sight and that the Sherwood vehicle came across Clery lying on the road at a curve approximately two or three miles down the road. Leonard testified that the Sherwood vehicle swerved to avoid Clery and that when he turned back he saw Pratt’s truck run over Clery’s body.

Pratt testified that after his vehicle left the gas station he caught up with the Sherwood vehicle and that he was rounding the fatal curve at approximately 30 or 40 m.p.h., a fraction of a second or more behind the Sherwood vehicle, when he saw the Sherwood truck’s brake lights go on the the truck swerve or fishtail. Pratt testified that he braked and felt a bump as he was driving in the right lane. Pratt testified that he never saw the object which he hit and even today does not know whether he struck Clery’s body.

A deputy sheriff testified that, from his measurements and observations, Clery’s truck left the curve, went off the side of the road, into a ditch, struck a culvert, jumped over a driveway which was elevated over the drainage ditch and culvert, rolled over at least twice, and finally came to rest at a spot almost three hundred feet from where the vehicle originally left the road.

The personal representative for Clery’s estate filed a complaint against Timothy Sherwood, the Stage Coach Stop Bar, and the Clinton County Road Commission in September of 1981. Plaintiff filed an amended complaint adding Cass Leonard and Jeffrey Pratt on November 29, 1982. A settlement was reached with the bar for $128,000 and with the road commission for $5,000, and those parties were dismissed from the case in October and November 1982. At trial, the court granted Pratt’s motion for a directed verdict on the issue of whether he was involved in a chase of Clery and on the issue of whether his conduct was wilful and wanton. The court denied Pratt’s motion for a directed verdict on plaintiff’s claim that Pratt was negligent in striking Clery’s body. The jury found Pratt and Sherwood negligent, but found that the decedent’s negligence was the sole proximate cause of his death.

At trial, the court took judicial notice of the pleadings in the case and instructed the jury that plaintiff’s complaint was originally filed naming the bar and road commission as defendants and that those parties were dismissed in October and November of 1982. The court also informed the jury that plaintiff filed his amended complaint against Pratt in November of 1982. That instruction is the basis of plaintiff’s first claim of error and our decision to reverse.

In 1982, as a matter of policy, the Michigan Supreme Court determined, prospectively, that:

When there is no genuine dispute regarding either the existence of a release or a settlement between plaintiff and a codefendant or the amount to be deducted, the jury shall not be informed of the existence of a settlement or the amount paid, unless the parties stipulate otherwise. Following the jury verdict, upon motion of the defendant, the court shall make the necessary calculation and find the amount by which the jury verdict will be reduced. [Brewer v Payless Stations, Inc, 412 Mich 673, 679; 316 NW2d 702 (1982).]

In Brewer, the Court’s directive followed "persuasive legal and procedural arguments presented by both plaintiff and defendant . . . .” After summarizing these arguments, the Court stated that evidence of a settlement was a "two-edged sword” which "cuts both ways” and concluded that keeping such information from the jury would create less confusion, promote greater predictability and enhance the Court’s policy of encouraging settlements. The Court was concerned with its own "uncertainty of juror reaction” to evidence of settlements. 412 Mich 678-679.

The issue before this Court is whether the Brewer rule is applicable to a situation where the trial court, over plaintiffs objection, instructed the jury that before defendant Pratt was sued, in an amended complaint, a prior lawsuit against the bar which served the intoxicated drivers (plaintiffs decedent and defendant Timothy Sherwood) and against the Clinton County Road Commission was dismissed.

The contested instruction was this:

You must also accept it as a fact that the Plaintiffs complaint was originally filed on September 1, 1981, against Timothy Sherwood, the Stage Coach Bar and the Clinton County Road Commission; that the Plaintiffs case against the Road Commission was dismissed by the court on October 19, 1982; that the claim against the Bar was dismissed by the court on November 29, 1982, and that Plaintiff filed his amended complaint, which first made claim against Jeffrey Pratt, on November 29, 1982.

The trial judge gave this rationale for informing the jury of this "dismissal” and for distinguishing the policy directive stated in Brewer:

There’s a very clear difference between telling a fact finder about the amount of or nature of a settlement and telling the fact finder that another has been accused. That’s what this is all about. Plaintiff is now saying that it’s Mr. Sherwood’s fault, that it’s Mr. Pratt’s fault, that it’s Mr. Leonard’s fault that this young man is dead; earlier, they said it was the Bar’s fault; earlier, they said that it was, among others, the Road Commission’s fault. Those earlier accusations, which here happen to take the form of a lawsuit, are clearly relevant and clearly admissible. It’s just as if Mrs. Clery had said on the street corner to another neighbor, this is all the Bar’s fault; if it wasn’t for them, we wouldn’t be here. Clearly, that kind of statement would be admissible, because she made it; she is a party, and it tends to lay the fault on another. The fact she took and made a choice to make that accusation formal and filed a lawsuit doesn’t prohibit its introduction. The fact of the prior action against the Road Commission, the fact of the prior action against the bar are facts that are admissible and that can be considered by the fact finder in making the decision, as to whether or not this is a good-faith claim or whether this is an after thought, whether the people are motivated by a real belief that these Defendants are responsible, or by greed.

We disagree with the statement of the trial judge in a number of respects.² Most importantly, we believe that the policy in Brewer must be applied in this case where the partial facts recited to the jury are of little, if any, probative value and where they are subject to considerable, though incalculable, prejudice. See MRE 403.

At least in Brewer the facts imparted to the jury were a complete and accurate recital of the settlement in that case. In the present case, disclosure was but that of a half-truth; the jury was told that the case against the bar and the road commission was dismissed, but they were not told that this was pursuant to settlement of $128,000 and $5,000 respectively.

In Brewer, the concern was misinterpretation of true facts; in the instant case, there is the added danger that the jury was in a position to misinterpret based only upon partial and misleading facts. The adage that "a little information may be worse than none at all” is fitting.

The possibilities of prejudice here are numerous. Just by way of illustration, the jury might easily have concluded that, if plaintiff could not collect from the bar that served these extremely drunk and obviously out-of-control young men, or from the road commission responsible for "dead man’s curve,” then certainly they, the jury, should not hold the defendants before them liable for their roles in proximately causing this tragic accident. Moreover, the probative value of the information imparted to the jury is certainly doubtful. The strength of this wrongful death claim must be measured by the evidence and not by the date when an attorney elects, within legal bounds, to file a claim.

It could be argued that the erroneous instruction was harmless. The jury found that Sherwood’s negligence was not a proximate cause of Clery’s death. Additionally, the jury found plaintiff’s damages to be $50,000, $83,000 less than the settlements with the road commission and the bar. See Salim v LaGuire, 138 Mich App 334; 361 NW2d 9 (1984), lv den 420 Mich 853 (1984). However, we believe that the potential prejudice of this instruction is so great that any guess at its impact on the jury’s verdict is speculative at best. Because we must reverse and remand for a new trial, we address plaintiff’s second claim of error.

Plaintiff claims that the trial court erred in directing a verdict for defendant Pratt on the issues of whether he was involved in a chase of Clery and whether his conduct was wilful and wanton. In determining this question, this court must view the evidence in a light most favorable to the nonmoving party. Wynn v Cole, 91 Mich App 517, 524; 284 NW2d 144 (1979). If the evidence, when viewed in this manner, establishes a prima facie case, then a directed verdict is improper. Id. If there are material issues of fact upon which reasonable minds might differ, they are for the jury. Taylor v Wyeth Laboratories, Inc, 139 Mich App 389, 394-395; 362 NW2d 293 (1984).

Viewing the facts in a light most favorable to plaintiff, we believe that the trial court erred in directing a verdict on these issues. Pratt testified that when he left the bar on the night in question he noticed a dent in his truck and that when he drove back to the gas station and noticed his friend, Dale Sherwood, at the station he pulled in, determined that they were arguing about the accident involving Clery and the Sherwoods’ truck and asked Clery if he had also hit his truck. Thus, Pratt involved himself in the antecedents to the chase. Thereafter, he was at times as close as four to five car lengths behind the Sherwoods. The fact that Pratt was not involved in the discussion when the Sherwoods determined that they would pursue Clery is not dispositive of Pratt’s participation. Nor is Pratt benefited on this issue by the fact that he testified that the road where the pursuit occurred was his only route home. The credibility of witnesses is for the jury to decide. Sacred Heart Aid Society v Aetna Casualty & Surety Co, 355 Mich 480, 486; 94 NW2d 850 (1959). In short, we believe that reasonable minds could differ on the issue of whether Pratt participated in the chase. Participation could certainly amount to negligence and, in the circumstances of this case, we believe that it could amount to wilful and wanton conduct.

Cleary was driving erratically. The continued pursuit by the defendants, which could be seen as the reason for Clery’s frantic flight, coupled with the motive and anger that the pursuers, including Pratt, might well have had, gives rise to a question of fact concerning whether Pratt’s conduct showed an intent to harm or such indifference to whether harm would result as to be the equivalent of a willingness that harm result. Burnett v City of Adrian, 414 Mich 448, 455; 326 NW2d 810 (1982).

Reversed and remanded for a new trial.³

Wahls, P.J., concurred.

1 Plaintiff filed a claim of appeal prior to the entry of judgment. He thereafter failed to file a claim of appeal within the applicable time period. Defendant brought a motion to dismiss and on November 28, 1984, this Court ordered that the appeal be accepted as on leave granted.

2 Multiple tortfeasors can, of course, be jointly and severally or partially liable. Claims against multiple defendants do not show bad faith nor formulate a sound basis for the trial court’s evidentiary ruling. Similarly, what Mrs. Clery, who was not a witness to the events, might have believed or even expressed on a street corner would not be admissible nor grounds for the evidentiary ruling in issue.

3 The trial court granted a directed verdict on the issue of Cass Leonard’s liability. Plaintiff makes no claim that the court erred in this regard. Thus, the judgment of no cause of action in favor of Cass Leonard is affirmed.