Prentis v. Michel

118 N.W.2d 34, 368 Mich. 182, 1962 Mich. LEXIS 318

• Court: Michigan Supreme Court
• Decided: November 14, 1962
• Docket: Docket 28, 29, Calendar 49,102, 49,103
• Status: Published

Opinions

Adams, J.

On September 26, 1957, Etta Prentis, •80-year-old plaintiff, was driven to the beauty parlor 'by her husband. He parked the car across the street from the beauty parlor. Mrs. Prentis went behind 'the car and started to cross the street. She was struck by defendant’s automobile coming north on the opposite side of the street from the Prentis car. 'She sustained serious injuries. The suits of plaintiffs charged defendant with negligence. Defendant ■pleaded affirmatively that the accident occurred because of the negligence of Mrs. Prentis. The jury returned a verdict of no cause of action.

Two questions are raised. The first pertains to 3 special questions which were submitted to the jury at the request of the defendant and which are as follows :

“1. Did plaintiff make observation for vehicles approaching •from the south before attempting to-cross. Log Cabin avenue?.

“2. Did plaintiff;, in walking from behind her husband’s stopped automobile and into Log Cabin avenue exercise the care, caution, and prudence required by the circumstances?

“3. Did plaintiff’s failure to observe the oncoming-car contribute as a proximate cause of the accident and injuries?”

The first 2 questions were answered “No,” the-third “Yes.”

This Court has been concerned with the problem of special questions in a number of recent cases. In the case of May v. Goulding, 365 Mich 143, where questions involving issues of law rather than of fact were submitted to the jury, and where the questions framed false issues that were not in the case, it was held that the submission of such questions was reversible error. McClelland v. Scholz, 366 Mich 423,, again affirmed the fact that special questions requiring conclusions with regard to the law, especially if the same tend to confuse the jury, are improper and constitute reversible error. In the even more recent case of Reetz v. Rigg, 367 Mich 35, the requirements for preserving- this type of question on appeal were-stated, it being set forth therein that the prime-responsibility for special questions is with the court and for objection to the same with counsel.

Not all special questions, even though improperly posed, constitute reversible error. In the case of Baker v. Saginaw City Lines, Inc., 366 Mich 180, a special question as to whether or not a bus driver was guilty of negligence was submitted to the jury. It was held that the question was not reversible error, the plaintiff having failed to object, and the jury’s answer thereto having been consistent with the general verdict.

Special questions 2 and 3 were quite improper under rules set forth in May v. Goulding, supra, followed and approved in Baker v. Saginaw City Lines, Inc., supra; McClelland v. Scholz, supra; Reetz v. Rigg, supra.

An improper special question is usually an effective and continuing argument, right in the jury-room, of its scrivener’s cause. If submission thereof is objected to on time, as is the case here, and if .despite that objection the trial judge submits such improper question to the jury, the result is reversible error provided the aggrieved party brings the question here for consideration.

The second question raised in this appeal'pertains to an incident that occurred at the conclusion of the trial. "While it is most unlikely that there will be a repetition of such an incident on retrial, since the question of jury tampering is one of considerable concern, it may be well to consider this aspect of the problem. The jury began its deliberations late on a Thursday afternoon, and shortly was excused until the following Monday. Monday morning, deliberations began at 10 o’clock, continued to the noon recess, and began again at 2 p.m. At that time Juror Burg was called to the judge’s chambers and questioned about a telephone conversation she had reported to the secretary of the jury commission during the Monday noon recess. The juror stated that on the previous Saturday afternoon, she had received an anonymous telephone call and that the caller had said “You better find Mr. Michel not guilty.” The court asked plaintiffs’ counsel if he had any objection to excusing the juror and was advised that there was-none.

One juror had been excused earlier in the trial.. Consequently, the verdict was by a 10-man jury. It is now claimed that at the time when Juror Burg was excused the jury had stood 9 to 2 in favor of a “no-cause” verdict. Juror Burg and one other were for the plaintiffs. Shortly after Juror Burg was ex7 cused, the other juror abandoned this position and. a unanimous no cause verdict was returned. It is contended that if Juror Burg had not been tampered, with, the final verdict of the jury might have been, otherwise.

This case differs from People v. Kangas, 366 Mich 201, where there was an improper communication to-the entire panel by the sheriff. This communication was to a single member of the jury who was excused.. There was, in effect, no communication to the 10-member jury.

Plaintiffs’ attorney consented to the procedure' whereby Juror Burg was excused. If he felt that his clients would be prejudiced, some objection should have been made at that time. He could not wait until the verdict was in and then seek to attack' the result. No claim is made that there was the-slightest interference or tampering with the other-members of the jury.

In civil cases, the entire right to a trial by jury is deemed waived unless demanded. Const 1908, art 2, § 13. What occurred here was a limited and proper-waiver. The tampering, if it did occur, was cured.

The trial court did not err in denying a motion for new trial based upon the incident. However, for the reasons first stated, the case is remanded for ar. new trial.

Costs to appellants.

Black, Kavanagh, Souris, and Otis M. Smith, JJ.,, concurred with Adams, J.