Kelly, J.
Plaintiff Ollie Mae Smith was injured on July 11, 1963, when an automobile owned by defendant Heriberto Miranda, and driven by named [183]*183defendant Lonis Jones, struck the front porch of plaintiffs’ residence where Ollie Mae Smith had been seated, causing a piece of wood to strike her on the leg.
Plaintiffs filed complaint against both Miranda and Jones seeking damages for injuries, pain and suffering, impairment of earning capacity, and the medical expense for care and treatment of Ollie Mae incurred by her husband, Ollie Z. Smith. Jones was never served with process.
A jury returned verdicts against defendant, Miranda, awarding Ollie Mae Smith $2,500, and her husband, Ollie Z. Smith, $719.85 for expense incurred in the care and treatment of his wife.
Judgments were entered on the verdicts and the trial court file discloses payments thereof to the Kent county clerk, who is holding same in escrow pending final determination of the case.
Plantiffs did not file a motion for new trial and appealed to the Court of Appeals.1
The Court of Appeals, affirming the trial court, stated (p 94):
“Plaintiffs appeal and assert a multitude of- errors, some of which would clearly require reversal if the jury verdicts had not been in plaintiffs’- favor. However, plaintiffs recovered and they made no claim below nor do they claim here that the verdicts were inadequate or against the weight of the evidence. No motion for new trial on the basis of inadequacy was made in the trial court. Since the errors complained of would only be prejudicial with respect to the amount of the verdicts, we believe Davis v. Jermstad (1957), 350 Mich 439, is disposi-tive of this appeal and we decline further comment on the errors asserted by plaintiffs.”
Plaintiffs sought in the Court of Appeals and are presently seeking a decision reversing the trial [184]*184court’s instruction on damages. Davis v. Jermstad, supra, is not “dispositive of this appeal.” In Davis. we held that (p 444) “the charge as given to the jury carefully and fully covered the material issues in the case.”
In Bunda v. Hardwick (1965), 376 Mich 640, 672, we held that a motion for new trial was not necessary to preserve for appellate review alleged errors ruled upon by the trial judge.
We will consider in this appeal two claimed instructional errors, both of which were extensively discussed and argued in the “Proceedings In Chambers” by plaintiffs and defendant Miranda, namely:
(1) Was error committed by the trial court’s refusal to permit the jury to consider the gross negligence of defendant Miranda and an award of exemplary damages to plaintiffs; and
(2) Did the trial court err in permitting the jury to consider and determine issues upon which no evidence was submitted.
1.
Plaintiffs call attention that:
“Both the unserved defendant, Jones, and Miranda were charged with wanton misconduct. The charge against Jones was based upon his manner of operating the Miranda vehicle immediately prior to and at the time of this collision. The charge against Miranda was based upon his knowingly permitting an intoxicated person to operate his automobile.”
Plaintiffs analyze our decisions of the past by stating that “at first blush, it might appear” that our decisions before 19482 would sustain the trial [185]*185court’s refusal to. permit the jury to consider exemplary damages, but that our decisions subsequent to 19483 establish the Court’s error.
The Peyton v. Delnay and Karney v. Upton Cases, upon which plaintiffs rely, involved actions under the guest portion of the statute and not under the ownership liability provisions involved in this appeal.
In the Peyton Case, defendant claimed that if the driver was guilty of gross negligence, then under our Wiecsoreh and Geib decisions the owner would not be liable under CLS 1961, § 257.401 (Stat Ann 1968 Rev § 9.2101), holding that only ordinary negligence would be imputed to the owner.
.This Court, in rejecting plaintiff’s claim, and explaining the difference between the Wiecsoreh and Geib Cases and the Peyton Case, said (p 248):
“Appellants rely for a contrary view upon Wieczorek v. Merskin, 308 Mich 145; and Geib v. Slater, 320 Mich 316. Neither was a case involving suit by a guest passenger. Neither held that where the operator (driving with the owner’s consent) was found guilty of gross negligence or wilful and wanton misconduct that this acted to relieve the owner of liability.”
That the Karney v. Upton decision did not overrule' Wieczorek or Geib is evidenced by the following from that decision (p‘ 265) :
“It may be noted that the recent decision of this Court in Peyton v. Delnay, 348 Mich 238, is squarely in point. See, also, Wieczorek v. Merskin, 308 Mich 145.”
. Under our decisions of the past, which we are reaffirming in the present appeal, we hold that the [186]*186trial court did not commit error in refusing to instruct on gross negligence and exemplary damages.
2.
We next consider the court’s instructions regarding plaintiff Ollie Mae Smith’s duty to minimize her damages by obtaining proper medical or surgical treatment. That such a duty exists is well established.4
A review of plaintiff Ollie Mae Smith’s efforts to obtain such treatment discloses that within one hour after defendant’s car struck the porch a neighbor drove her to the Grand Rapids Butterworth Hospital Emergency Department, where X-rays were taken which disclosed no broken bones in the leg; that two weeks later because of continuous pain she sought aid from Dr. Jones, of Grand Rapids, who prescribed the use of an elastic bandage to wrap the leg, some pills, and instructions to keep off the leg as much as possible and keep it elevated; that on August 23, 1963, she went from her home in Grand Rapids to the office of Dr. Lauretti, in Muskegon, who diagnosed her complaint as being a thrombophlebitis of the left leg, because either the nerves of the leg were somewhat inflamed or the diameter of the vein was smaller than ordinary; that because Dr. Lauretti felt physiotherapy was necessary, she went to a Mr. Beam, a physiotherapist in Grand Rapids, 19 times between September 4, 1963 and October 16, 1963, where whirlpool treatments and massage were administered; that Dr. Lauretti again examined plaintiff on October 18 and November 19, 1963, and on January 2, 1964; that her next visit to a doctor was on April 2, 1965, to a [187]*187Dr. Johnston; that Dr. Johnston, on Angnst 23, 1965, operated and tied off a vein in plaintiff’s leg.
Plaintiff was examined as a witness at the trial and on direct examination related her visits to Dr. Lauretti. Plaintiff’s cross-examination was confined to a few questions in regard to a knee injury she received in 1961, and a swollen leg resulting from medical treatment in 1958. Nothing was said by plaintiff on direct examination that even implied that Dr.
Free access — add to your briefcase to read the full text and ask questions with AI
Kelly, J.
Plaintiff Ollie Mae Smith was injured on July 11, 1963, when an automobile owned by defendant Heriberto Miranda, and driven by named [183]*183defendant Lonis Jones, struck the front porch of plaintiffs’ residence where Ollie Mae Smith had been seated, causing a piece of wood to strike her on the leg.
Plaintiffs filed complaint against both Miranda and Jones seeking damages for injuries, pain and suffering, impairment of earning capacity, and the medical expense for care and treatment of Ollie Mae incurred by her husband, Ollie Z. Smith. Jones was never served with process.
A jury returned verdicts against defendant, Miranda, awarding Ollie Mae Smith $2,500, and her husband, Ollie Z. Smith, $719.85 for expense incurred in the care and treatment of his wife.
Judgments were entered on the verdicts and the trial court file discloses payments thereof to the Kent county clerk, who is holding same in escrow pending final determination of the case.
Plantiffs did not file a motion for new trial and appealed to the Court of Appeals.1
The Court of Appeals, affirming the trial court, stated (p 94):
“Plaintiffs appeal and assert a multitude of- errors, some of which would clearly require reversal if the jury verdicts had not been in plaintiffs’- favor. However, plaintiffs recovered and they made no claim below nor do they claim here that the verdicts were inadequate or against the weight of the evidence. No motion for new trial on the basis of inadequacy was made in the trial court. Since the errors complained of would only be prejudicial with respect to the amount of the verdicts, we believe Davis v. Jermstad (1957), 350 Mich 439, is disposi-tive of this appeal and we decline further comment on the errors asserted by plaintiffs.”
Plaintiffs sought in the Court of Appeals and are presently seeking a decision reversing the trial [184]*184court’s instruction on damages. Davis v. Jermstad, supra, is not “dispositive of this appeal.” In Davis. we held that (p 444) “the charge as given to the jury carefully and fully covered the material issues in the case.”
In Bunda v. Hardwick (1965), 376 Mich 640, 672, we held that a motion for new trial was not necessary to preserve for appellate review alleged errors ruled upon by the trial judge.
We will consider in this appeal two claimed instructional errors, both of which were extensively discussed and argued in the “Proceedings In Chambers” by plaintiffs and defendant Miranda, namely:
(1) Was error committed by the trial court’s refusal to permit the jury to consider the gross negligence of defendant Miranda and an award of exemplary damages to plaintiffs; and
(2) Did the trial court err in permitting the jury to consider and determine issues upon which no evidence was submitted.
1.
Plaintiffs call attention that:
“Both the unserved defendant, Jones, and Miranda were charged with wanton misconduct. The charge against Jones was based upon his manner of operating the Miranda vehicle immediately prior to and at the time of this collision. The charge against Miranda was based upon his knowingly permitting an intoxicated person to operate his automobile.”
Plaintiffs analyze our decisions of the past by stating that “at first blush, it might appear” that our decisions before 19482 would sustain the trial [185]*185court’s refusal to. permit the jury to consider exemplary damages, but that our decisions subsequent to 19483 establish the Court’s error.
The Peyton v. Delnay and Karney v. Upton Cases, upon which plaintiffs rely, involved actions under the guest portion of the statute and not under the ownership liability provisions involved in this appeal.
In the Peyton Case, defendant claimed that if the driver was guilty of gross negligence, then under our Wiecsoreh and Geib decisions the owner would not be liable under CLS 1961, § 257.401 (Stat Ann 1968 Rev § 9.2101), holding that only ordinary negligence would be imputed to the owner.
.This Court, in rejecting plaintiff’s claim, and explaining the difference between the Wiecsoreh and Geib Cases and the Peyton Case, said (p 248):
“Appellants rely for a contrary view upon Wieczorek v. Merskin, 308 Mich 145; and Geib v. Slater, 320 Mich 316. Neither was a case involving suit by a guest passenger. Neither held that where the operator (driving with the owner’s consent) was found guilty of gross negligence or wilful and wanton misconduct that this acted to relieve the owner of liability.”
That the Karney v. Upton decision did not overrule' Wieczorek or Geib is evidenced by the following from that decision (p‘ 265) :
“It may be noted that the recent decision of this Court in Peyton v. Delnay, 348 Mich 238, is squarely in point. See, also, Wieczorek v. Merskin, 308 Mich 145.”
. Under our decisions of the past, which we are reaffirming in the present appeal, we hold that the [186]*186trial court did not commit error in refusing to instruct on gross negligence and exemplary damages.
2.
We next consider the court’s instructions regarding plaintiff Ollie Mae Smith’s duty to minimize her damages by obtaining proper medical or surgical treatment. That such a duty exists is well established.4
A review of plaintiff Ollie Mae Smith’s efforts to obtain such treatment discloses that within one hour after defendant’s car struck the porch a neighbor drove her to the Grand Rapids Butterworth Hospital Emergency Department, where X-rays were taken which disclosed no broken bones in the leg; that two weeks later because of continuous pain she sought aid from Dr. Jones, of Grand Rapids, who prescribed the use of an elastic bandage to wrap the leg, some pills, and instructions to keep off the leg as much as possible and keep it elevated; that on August 23, 1963, she went from her home in Grand Rapids to the office of Dr. Lauretti, in Muskegon, who diagnosed her complaint as being a thrombophlebitis of the left leg, because either the nerves of the leg were somewhat inflamed or the diameter of the vein was smaller than ordinary; that because Dr. Lauretti felt physiotherapy was necessary, she went to a Mr. Beam, a physiotherapist in Grand Rapids, 19 times between September 4, 1963 and October 16, 1963, where whirlpool treatments and massage were administered; that Dr. Lauretti again examined plaintiff on October 18 and November 19, 1963, and on January 2, 1964; that her next visit to a doctor was on April 2, 1965, to a [187]*187Dr. Johnston; that Dr. Johnston, on Angnst 23, 1965, operated and tied off a vein in plaintiff’s leg.
Plaintiff was examined as a witness at the trial and on direct examination related her visits to Dr. Lauretti. Plaintiff’s cross-examination was confined to a few questions in regard to a knee injury she received in 1961, and a swollen leg resulting from medical treatment in 1958. Nothing was said by plaintiff on direct examination that even implied that Dr. Lauretti had recommended surgery, and the only question about Dr. Lauretti which defendant asked her on cross-examination was whether her attorney told her “to see Dr. Lauretti in the fall of 1963 so you made two or three trips over there” to Muskegon.
In the opening statement to the jury, defense counsel stated:
“It is our claim and our theory that she knew she needed the operation as of January, 1964, and if it had been done at that time she would have been completely cured at least within a couple of months.”
An extended discussion and argument between counsel took place in the judge’s chambers previous to instructing the jury. It was plaintiffs’ counsel’s contention that there was no testimony that Dr. Lauretti ever advised plaintiff, or her counsel, that surgery was necessary.
The court read aloud to counsel from Dr. Lau-retti’s deposition as follows:
“Q. Does it respond readily to conservative treatment?
“A. If it doesn’t — sometimes it does. But most often it doesn’t. And if it doesn’t then you have to think of other things.
“Q. Such as what?
“A. Surgery.”
and then asked defendant’s counsel,
[188]*188“Do you claim that that [surgery] was-conveyed to her?”
Defendant’s counsel answered:
' “No, but I claim the law is, if she feels, if the jury finds she failed to procure necessary treatment for whatever reason, if she failed to act as a reasonably prudent person, failed to procure medical treatment and the jury so finds, she cannot recover.”
The court specifically charged the jury:
“In his deposition, the doctor from Muskegon [Dr. Lauretti] then recommended surgery. Whether that was communicated to the plaintiff or not is part of that deposition that was read to you.”
The record sustains plaintiffs’ contention that:
“Upon examination of the record, it is evident that there was no reference at all made to any knowledge on the part of Mrs. Smith that she should have sur7 gery, nor of any opinion being expressed by Dr. Lauretti that she should have had surgery prior to the actual date of surgery. The most that is found in the record is a statement in Dr. Lauretti’s deposition that was read into evidence at the trial, wherein he said upon cross-examination by Mr. Souter [defendant’s attorney] : •
“ ‘Q. So that the next recommendation at that point would normally be surgery?
‘“A. Yes.’
“This is not a statement by Dr. Lauretti that, at the time he last saw Mrs. Smith in January of 1964, he recommended surgery. It is merely an answer to Mr. Souter’s question that ordinarily at the point to which Mrs. Smith’s case had progressed, he would recommend surgery. The trial record is totally devoid of any indication that Dr. Lauretti ever made any recommendation of surgery, or, in fact, that Mrs. Smith ever had any idea that surgery might be [189]*189required prior to the initial examination by Dr. William L, Johnston.”
" We do not agree with defendant that “The jury might infer that the doctor had recommended surgery to plaintiff and she did not want it,” nor do we agree with defendant’s conclusion that: “Even if there were no evidence at all on the point, which is strenuously denied, then an intelligent jury would not make an erroneous finding on the point anyway.”
■ Hospital records were introduced disclosing that five years before the accident here involved, plaintiff Ollie Mae Smith was hospitalized with chest pains of pleuritic nature and that on discharge (July 8, 1958) the summary sheet stated: “Final diagnosis atypical pneumonia. Thrombophlebitis.” Further, that on June 12, 1961, plaintiff again came to the hospital complaining of her left knee which had. been injured two weeks earlier in an automobile accident. In this regard plaintiff testified her left knee hit the dashboard of the car in which she was riding at the time of that accident.
The only medical testimony was given by Dr. Lauretti and Dr. Johnston.
The questions asked Dr. Lauretti on cross-examination in regard to either of the above mentioned hospital recorded incidents were confined to the following :
“Q. Would the fact that she had had, assuming that there had been a diagnosis of, a diagnosis of thrombophlebitis in 1958, would this be significant to you at all?
“A. I don’t know that it would, because an accident the way she described, causing pain and swelling, at least I would think along the lines of an aggravation.
“Q. You mean that there had been a condition that this may have aggravated?
■ “A. Yes.”
[190]*190■On direct examination, Dr. Johnston, after stating he had reviewed the above mentioned hospital records, and that those records disclosed there was no further finding of any thrombophlebitis after 1958, was asked whether he attached any significance to the 1958 thrombophlebitis with respect to the present case. He answered:
■ “Well, what I found at surgery certainly could have initiated with her initial injury. I have no way of evaluating what she had in 1958 but the fact that she went from 1958 until 1963 without any swelling, pain, cramps or any other diagnosis in the innumerable hospitalizations and innumerable clinic visits is pretty conclusive that this process she had in 1958 had subsided completely. It must have been a localized process, it did not ascend up her leg or give her enough scarring to produce this picture.”
On cross-examination of Dr. Johnston, the following questions were asked and answers given:
“Q. Well, assuming she had the phlebitis that the hospital records show in 1958, do you mean that this would have completely cleared or disappeared?
• “A. Yes. * * *
' “Q. Do you feel that 1958 phlebitis was not significant then?
“A. I don’t think it has any relationship to this [case]
The court in its instructions to the jury in regard to defendant’s claim, said:
“It is the claim of the defendant that what injuries Mrs. Smith complained of were not caused by this piece of wood coming in contact with her leg.
“It is the further claim of the defendant that she had a thrombus condition, thrombophlebitis condition back in 1958; that she was in an automobile accident in 1961 and that her thrombosis or [191]*191thrombophlebitis was not the direct result of any negligence on the part of either Mr. Jones or Mr. Miranda.”
Further on in the instructions, the court stated,5 and again reiterated6 that the jury could find that plaintiff was not entitled to any damages even though the evidence proved defendant’s negligence.
The only evidence introduced other than that of the doctors, that could in any way throw any light upon the question as to whether plaintiff’s operation was caused by the act of defendant or because of her condition previous to said act, was the testimony of the plaintiff Ollie Mae Smith, which refuted defendant’s claim.
“An instruction not based on the evidence is erroneous in that it introduces before the jury facts not presented thereby, and is well calculated to induce them to suppose that such state of facts in the opinion of the court is possible under the evidence and may be considered by them.” 53 Am Jur, Trial, § 579, pp 455, 456.
In Fortner v. Koch (1935), 272 Mich 273, 283, we held that it is impossible to determine the.effect upon the minds of the jury resulting from an instruction erroneously assuming the existence of certain facts.
[192]*192We have also held that if the error is such that the result might well have been different if not committed, a new trial is justified. Rouse v. Gross (1959), 357 Mich 475, 481,482.
Applying these above mentioned tests, we con: elude that a new trial should be granted because of instructions which permitted the jury to consider and determine issues upon which no evidence was submitted.
Reversed and remanded for new trial. Costs to appellants.
ADDENDUM
This addition to my opinion is written subsequent to receiving Justice Adams’ and Justice Black’s opinions.
The common-law liability of defendant Miranda was not considered in my original opinion because it was not raised in either the trial of this case or in the appeal to the Court of Appeals.
Plaintiffs, in their brief, admit that even though the evidence would sustain an instruction in regard to “the wanton misconduct of defendant Miranda,” and an instruction in regard to “imputation of the wanton misconduct of defendant Jones to defendant Miranda,” there still would remain the “critical issue” in regard to exemplary damages, by the statement to this Court:
“However, if the Court determines that the question of gross negligence should have been presented to and decided by the jury, then plaintiffs’ entitlement to exemplary damages becomes a critical issue in the case.”
Admitting that if the Court’ approves submitting to the jury the question of exemplary damages, it will be doing so for the first time, plaintiffs state:
[193]*193“Although there are numerous Michigan cases involving the allowance of exemplary damages under varied fact situations, there are none directly in point with reference to a claim for personal injuries sustained in an automobile collision.”
The cases cited by Justice Adams do not refute this statement.
The common law came into existence and was developed before the day of the automobile. Realizing this, the Michigan legislature has by enactment extensively provided for the “rules of the road” in regard to driving, stopping, and parking. Up to now we have abided by those rules in determining the question of negligence in automobile accident cases and have not placed the burden upon the trial court or jury to first determine whether there was proof of negligence and then determine the amount or kind of negligence except in guest passenger eases. Determining the question of the amount of negligence is a major problem which has been proven by the guest passenger cases that have been appealed to this Court.
The only legislative reference to gross negligence or wilful and wanton misconduct is in the guest passenger statute and this provision was not included for the purpose of giving to the injured guest an added right to exemplary damages, but was inserted in a restrictive sense, namely: that no guest passenger could recover damages unless there was proof of gross negligence or wilful and wanton misconduct.
Nothing has been presented since my original writing that causes me to conclude differently than I did then, i.e.:
“Under our decisions of the past, which we are reaffirming in the present appeal, we hold that the [194]*194trial court did not commit error in refusing to instruct on gross negligence and exemplary damages.”
T. E. Brennan, C. J., and Dethmers, J., concurred with. Kelly, J.