Peasley v. Lapeer Circuit Judge

128 N.W.2d 515, 373 Mich. 222, 1964 Mich. LEXIS 198

• Court: Michigan Supreme Court
• Decided: June 1, 1964
• Docket: Calendar 7, Docket 49,858
• Status: Published

Opinions

Souris, J.

The principal issue presented for decision in this case is the propriety of a pretrial order in an automobile negligence case requiring separate submission of the liability proofs for jury determination before submission of any evidence of damages. Other coui’ts have considered this and related issues, as have the writers of numerous articles appearing recently in legal journals. See Hosie v. Chicago & N. W. R. Co. (CCA 7, 1960), 282 F2d 639, certiorari denied 365 US 814 (81 S Ct 695, 5 L ed 2d 693); Iley v. Hughes (1958), 158 Tex 362 (311 SW2d 648, 85 ALR 1); Bowen v. Manuel (1962, Fla Dist Ct App), 144 S2d 341; 85 ALR2d 9; Miner, Court Congestion: A New Approach, 45 ABAJ 1265 (1959); note, 46 Iowa L Rev 815 (1961); note, 46 Minn L Rev 1059 (1962); note, 48 Va L Rev 99 (1962).

I.

In Michigan, prior to January 1, 1963, there was no express authority for such judicial separation of issues for presentation at trial excepting only for the reference in our former Court Rule No 35, § 4 (3) (1945)¹ to consideration of “the separation of issues” by the judge and counsel at pretrial conference in contested civil actions. That language was never construed by us to authorize the separati.011 of issues for trial before a single jury. However, while our 1945 rules were still in effect Judge Quinn invoked Rule No 35, § 4 (3) to support an order in an automobile negligence case requiring separation of issues for trial.² We issued our order to show cause in this original mandamus proceeding, instituted by the plaintiff in the negligence suit pending before Judge Quinn, to review his order. In the interim, however, we adopted new rules of procedure including one, GCR 1963, 505.2, by which separation of issues for trial is expressly authorized. Because our new rules may be applied upon the subsequent trial of the negligence suit notwithstanding its inception prior to their promulgation (GCR 1963, 14), we may properly consider the issue as if it had arisen originally under the authority of our current Rule 505.2.

Judge Quinn’s order, in addition to requiring the separation of the issues of liability and damages for jury submission, required also that the liability issue be determined by special verdict. Thus, instead of permitting the jury to reach a general verdict on the issue of liability alone and only on liability proofs, as is contemplated, for example, by local rule 21 of the United States district court for the northern district of Illinois (4 Fed Rules Serv [2d] 1136), the jury in this negligence suit will be required to make special findings of fact, in accordance with our special verdict practice (GCR 1963, 514), based upon which fact findings the trial judge will determine whether plaintiff has proved defendant’s liability. Only if plaintiff does prove liability will he be permitted to present his damages proofs before the same jury for what will amount to another special verdict.

The argument is made that our’ Constitutions of 1908 (art 2, § 13) and of 1963 (art 1, § 14) guarantee the right of trial by jury as that right was known to the common law and that the separation of issues for trial was not permitted at common law. Implicit in the argument is the assumption that the separation of issues for submission to a jury constitutes a substantial change in the character of a jury trial as known to the common law which neither this Court nor the legislature is constitutionally competent to make. People v. Marion, 29 Mich 31; Underwood v. People, 32 Mich 1 (20 Am Rep 633); Swart v. Kimball, 43 Mich 443; McRae v. Grand Rapids, L. & D. R. Co., 93 Mich 399 (17 LRA 750); and People v. Bigge, 297 Mich 58. What this claim amounts to, in the contest of this case, is that plaintiff has a constitutionally protected right to submit to the jury all his proofs on all the fact issues presented by his case, no matter how comples, before the jury may be allowed to deliberate upon and decide any issue, however separable from other issues.

The United States supreme court rejected an analogous claim, as applied to the Seventh Amendment’s guarantee of jury trial in Federal courts, in a case challenging the constitutionality of an order for new trial limited only to the issue of damages. Gasoline Products Co., Inc., v. Champlin Refining Co. (1931), 283 US 494 (51 S Ct 513, 75 L ed 1188). There, the supreme court said (p 498) that the significant element of substance in the right to trial by jury is the right to jury determination of facts and that the form of such determination was not of vital significance. It also noted that the constitutional guarantee does not prohibit introduction of new methods for the ascertainment of facts. See, also, Hosie v. Chicago & N. W. R. Co., supra. We perceive no basis for reaching a contrary result with reference to our local constitutional jury guarantees. For at least 100 years a special verdict practice has been known to the jurisprudence of this State, Erwin v. Clark, 13 Mich 10, with reference to which no constitutional objection can be made. While traditionally special verdicts require jury deliberation and fact decision after all proofs are submitted, Judge Quinn’s order, in its practical consequences, deviates from such traditional practice only to the extent that the jury is called upon to perform part of its function, as to liability, prior to the introduction of damages proofs. We do not consider such deviation from traditional special verdict practice of constitutional magnitude.

II.

Having rejected the constitutional challenge to the separation of issues for jury submission and decision, as authorized by Q-CR 1963, 505.2, questions of policy remain regarding the circumstances justifying orders for such procedure. Our rule is expressly limited to situations where such orders of separation are required “in furtherance of convenience or to avoid prejudice.” It is not a rule for wholesale application to all cases or to all of a particular type or to all in a particular circuit. Rather, the rule is cast in language which indicates clearly that it is designed for selective application to those cases in which the convenience of the parties and the court or the avoidance of prejudice compels such deviation from our traditional trial practices.

In no event should the court rule be invoked to order separate submission of issues unless the issues are in fact separable in the sense that they may be proved independently of other issues. Thus, affirmative defenses such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, which if established would be dispositive of the entire case, may be separable and, in appropriate circumstances, may be ordered submitted separately for jury or court determination before other proofs are taken. See King, Michigan Practice, § 422, and 2 Honigman and Hawkins, Michigan Court Rules Annotated, § 505, authors’ comments, p 368. Likewise, claims and counterclaims will, more likely than not, be separable although that fact alone would not justify their separation for trial purposes over the objections of a party.

When we consider the separation of issues which together constitute a single claim, as is involved in the case at bar, the likelihood of separability is greatly diminished. Furthermore, even in circumstances which would suggest separability in theory, the practical necessities of evidentiary proof may make theoretically separable issues practically interdependent, — for example, when the same witnesses must be relied upon for proof of damages as are relied upon to prove liability. The showing of compelling necessity for separation under such circumstances, in the interest of convenience or the avoidance of prejudice, would have to be very strong to justify interference with a party’s presentation of proofs in the customary fashion.

The stated reason for entry of the challenged order was that time and effort will be saved in the event that plaintiff fails to establish the issue of defendant’s liability. In that event, the parties and the court, it is said, will be spared the time and effort otherwise required in offering proofs on the damages issue. While that may be the ultimate result in a given case, we do not regard its expectation (which may, in fact, be illusory; see note at 46 Iowa LR 815-831 [1961]) as sufficient cause to invoke the rather extraordinary provisions of sub-rule 505.2 as they relate to the separation of issues for trial. It is our conclusion that there was no valid reason for the pretrial order requiring separation of the issues of liability and damages and that, on plaintiff’s motion therefor, it should have been vacated.

III.

Two other issues are raised by plaintiff which may be disposed of summarily. Nothing in our former rules required a judge to order at pretrial conference, or at any other time, the disclosure by a party of the identity of witnesses he intended to call at trial. Judge Quinn’s refusal so to order of the defendant at plaintiff’s request, therefore, was not erroneous. The final issue raised involves the judge’s refusal to order discovery of written statements made by defendant and other witnesses to defendant’s insurance carrier. Since submission of this case to this Court we have decided Wilson v. Saginaw Circuit Judge, 370 Mich 404, J. A. Utley Co. v. Saginaw Circuit Judge, 372 Mich 367, and Otto Taylor Construction Co. v. Saginaw Circuit Judge, 372 Mich 376, each of which is relevant to the discovery sought by plaintiff. Since the negligence action has not yet been tried, we are certain that upon renewal of plaintiff’s request for discovery, by motion, the respondent judge will reconsider it in the light of the foregoing cases.

Our writ of mandamus requiring vacation of paragraph 7 of the pretrial order may issue. No costs.

Kavanagh, O. J., and Smith, J., concurred with Souris, J.

1 As added in 1952 and amended. See 352 Mieh xv.

2 The pertinent provision of the pretrial order reads as follows:

“At the trial of this cause the issues of liability and damages will be separated and the former tried first. The question of liability will be submitted on special verdict pursuant to section 7 of Rule No 37, Michigan Court Rules.”