author: Fitzgerald, P. J.

text:
    MacLAREN v. DERMODY WHITE TRUCK COMPANY. SAME v. WHITE MOTOR COMPANY.
    1. Sales — Rescission—Notification.
    A buyer to -whom goods have been delivered cannot rescind the sale if he fails to notify the seller within a reasonable time of his election to rescind (CL 1948, § 440.69 [3]).
    2. Same — Reasonable Use — -Waiver of Right to Rescind.
    Reasonable use by buyer of chattel whieh is induced by seller, or which occurs while latter is endeavoring to make repairs to the chattel or remedy defects in it, will not constitute a waiver of the right to rescission.
    3. Same — Rescission—Unreasonable Delay.
    Buyer’s delay of about 2 months after last repair was made to a truck by seller before buyer attempted to rescind field, to be unreasonable delay as a matter of law, where buyer did not present evidence of further attempt by buyer to have seller remedy defects after last repair, seller denied that buyer complained during the time, and buyer claimed but seller denied that buyer told seller he could not make next payment because he had been unable to use the truck to earn money.
    4. Same — Rescission—Consistent Conduct.
    Conduct of a buyer of a chattel who wishes to rescind a sale must be consistent with rescission, and making a payment is indicative of intent to continue possession.
    References for Points in Headnotes
    [1, 4] 46 Am Jur, Sales § 763.
    [2] 46 Am Jur, Sales § 765.
    [3] 46 Am Jur, Sales § 764.
    Appeal from Kent; Vander Wal (Jo 1m EL), J.
    Submitted Division 3 October 3, 1967, at Grand Rapids.
    (Docket No. 2,773.)
    Decided March 18, 1968.
    Action by Rnssell A. MacLaren and Lorraine E. MacLaren against Dermody White Truck Company, a Michigan corporation, and White Motor Company, an Ohio corporation, to rescind the sale of a White motor truck by defendants for an alleged breach of express and implied warranties. Directed verdict and judgment for defendants. Plaintiffs appeal.
    Affirmed.

      Miller, Johnson, Snell & Cummiskey (Norman E. Jabin, of counsel), for plaintiff.

      Vander Veen, Freihoffer & Cook (Bruce A. Barn-hart, of counsel), for defendant Dermody White Truck Company.

      MoShane, Bovice & Anderson (Michael Jacobson, of counsel), for defendant White Motor Company.
   Fitzgerald, P. J.

Plaintiffs-appellants are before this Court on appeal from a directed verdict in favor of defendants-appellees by the Kent county circuit court. The original action was brought by plaintiffs under the uniform sales act on April 7, 1964, to rescind a sale to them of - a White motor fcqiek by defendants for an alleged breach of express and implied warranties. We have culled the following facts from the 3 different interpretations offered by the parties to this suit as reflective of the essential problems. Hereinafter, the term “plaintiff” will refer to Russell MacLaren and his actions.

Plaintiff and his mother, Lorraine MacLaren, purchased a 1963 White Motor Company truck from Dermody on March 15, 1963, paying $3,500 as a down payment on the total price of $17,702 and securing the balance by chattel mortgage with payments of $489.97 for 36 months thereafter. The truck was plaintiff’s sole source of income while he possessed it and it was used to haul loads over long distances on a brokerage basis for other companies. The evidence showed that the truck was repaired to correct the following defects:

1. Broken tachometer on 3 occasions
2. Clutch problem
3. Steering gear box problem
4. Automatic shutter failure
5. Defective heater
6. Brake problems
7. Transmission problem
8. Steering problem

All bills were paid by Dermody White Truck Company until May 14, 1963, and the total cost was $223.84. During this time, plaintiff continued to drive the truck when it wasn’t being repaired, accumulating a total of 7,268 miles. After May 14, there were no further repairs to the truck according to the evidence produced at the trial, although plaintiff testified that he had further problems with the clutch and the road ranger cable which required on-the-road improvisations by plaintiff. There was no evidence of further breakdown time. The May payment was made, but there was no payment forthcoming for the month of June and the truck was then repossessed on July 1, 1963. From May 14 to July 1, plaintiff drove an additional 9,000 miles and the vehicle had accumulated 16,000 miles in the 31-months that it was in plaintiff’s possession. Plaintiffs then gave notice of rescission of the sale to defendants on July 18, 1963, and brought suit on April 7, 1964, to rescind the sale as stated above. The trial court granted a directed ■ verdict for defendants on the basis that plaintiffs failed to rescind the contract in a reasonable time and that their conduct was inconsistent with snch a remedy.

Thus, we are presented with 2 issues on appeal:

(1) Should the jury instead of the trial court determine whether the plaintiffs’ notice of rescission was given within a reasonable time as required by CL 1948, §440.69(3) (Stat Ann §19.309[3])t

(2) Were the actions of plaintiffs inconsistent with remedy of rescission as a matter of law?

, In order that w;e evaluate the correctness of the use of the directed verdict, it must be shown by appellees that there was insufficient evidence offered by appellants to support their allegation that they gave notice to rescind within a reasonable time. The relevant statute is CL 1948, § 440.69(3) (Stat Ann § 19.309[3]), this section providing as follows:.

“Where the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty when he accepted the goods, or if he fails to notify the seller within a reasonable time of election to rescind.” (Emphasis supplied.)

The trial court made the decision that plaintiffs clearly did not notify the seller within a reasonable time of their intention to rescind, after considering the evidence in the most favorable light to plaintiffs, against whom the directed verdict was sought. Don McCullagh, Inc., v. Dimitroff (1950), 327 Mich 656; Doyle v. Mizner (1879), 40 Mich 160.

All parties to this appeal agree with the trial court that what is a “reasonable time” differs according to the circumstances of the particular case. We refer to 46 Am Jur, Sales, § 764, wherein it is stated:

“Under this and other similar statutes and at common law it is a well-settled rule that a buyer who has a right to rescind for breach of warranty must act promptly, that is, within a reasonable time under all the circumstances, after he has knowledge or is chargeable with knowledge of the breach of warranty; by an unreasonable delay the buyer is deemed to have affirmed the sale, and loses his right to rescind.”

There is no issue concerning the existence of express or implied warranties facing this Court, as the initial effort to rescind was summarily barred by the directed verdict with the court assuming that certain implied warranties exist in the sale of all manufactured goods.

Thus, we look to plaintiffs’ conduct to determine whether there was any evidence of action within a reasonable time so that the jury would be required to evaluate reasonableness as a question of fact. See 46 Am Jur, Sales at p 895, supra; Dulany-Vernay Co. v. Kalamazoo Stationery Co. (1921), 213 Mich 484.

It is apparent that plaintiff had continual problems with the truck from March to May 14, as evidenced by testimony and repair bills. Plaintiff refers to 46 Am Jur, Sales, § 765, p 897:

“Reasonable use by the buyer of a chattel which is induced by the seller, or which occurs while the latter is endeavoring to make repairs to the property or remedy defects therein, will not constitute a waiver of the right to rescission.”

However, the evidence does not so clearly define the actions of plaintiff and Dermody from May 14 to July 1 where no repairs were made. Plaintiff continued to drive the truck and it was repossessed, plaintiff now testifying that he told Dermody that he could not make the June payment because he could not earn money while the truck was in Dermody’s shop during May. Dermody denies any such conversation and. asserts that there were no complaints and that no work was done on the truck after May 14. If it can be determined that plaintiff did drive the truck for a month and a half after the last repair, we can compute the actual time to be that plus the 18 days in July and agree with the trial court that 2 months’ delay is clearly unreasonable. If this is so, then the cases cited by plaintiffs, which leave to a jury the determination of the reasonableness of the rescission where the problem with the vehicle clearly continued to exist at the date of the rescission, are not applicable. Ford Motor Co. v. Cullum (CA 5, 1938), 96 F2d 1, certiorari denied 305 US 627 (59 S Ct 89, 83 L ed 401); Marker v. A. L. Zeckendorf Co. (1924), 226 Mich 191.

Plaintiffs state in their brief that they “were struggling to have the defendants put the vehicle in satisfactory condition.” We do not find any evidence that plaintiffs were undergoing any struggle to remedy defects after May 14, and we agree with the trial court that the conversation between Dermody and plaintiff regarding further repairs, which plaintiff alleges occurred after May 14, was not enough evidence to raise any doubt as to unreasonable delay in attempting to rescind the sale. In further examination of the opinion of the trial court, we find that the court decides the period of July 1 to July 18 to be an unreasonable delay and that this conclusion was properly arrived at by examining-plaintiffs’ relations with Dermody after May 14.

The second issue to be resolved is whether plaintiffs acted inconsistently with the remedy of rescission. In its opinion, the trial court has placed great reliance on the holding in the case of Don McCullagh, Inc., v. Dimitroff, supra. The defendant in that case continued to use a car purchased from plaintiff for 30 days after discovering that the mileage on the car was misrepresented to him. The Supreme Court held, in directing the trial court to enter judgment non obstante veredicto for plaintiff, that defendant acted inconsistently with his remedy of rescission and waived his right to so rescind since he did make an ineffectual effort to return the car, but continued to drive it for 30 days. In attempting to distinguish the present case, plaintiffs contend that since they gave no notice to rescind and expressed no desire to rescind at any time the vehicle was in their possession, that the McCullagh Case should not apply. However, the uniform sales act, OL 1948, § 440.69(Id) (Stat Ann 1959 Rev § 19.309 [Id]) requires that the buyer return or offer to return the goods in order to effectuate rescission. We do not find such a voluntary attempt to surrender the goods in the present case. Also see Schwartz Showell Corp. v. Bonfiglio (1933), 261 Mich 407, where the Supreme Court stated:

“It is true that he [defendant] did complain from time to time about the jog, especially when pressed for payment, but his continued use * * * is a waiver of any default on the part of plaintiff and amounts to an acceptance.”

In addition, the evidence shows that plaintiffs made a payment on the truck in May, which is indicative of their intent to continue possession of the truck. Abram v. Arrighini (1930), 251 Mich 509. The trial court properly said in the present case, “Your conduct must be consistent with your rescission, which means in this particular ease you can’t have your cake and eat it too.”

We hold that the trial court acted correctly in directing a verdict for defendants by finding that plaintiffs clearly did not give notice to defendants to rescind this sale within a reasonable time. The evidence that plaintiff drove the truck over 9,000 miles after the last repair work was properly held to show that plaintiffs desired to continue possession at the time of the repossession of the truck. Such an intent is inconsistent with the remedy of rescission.

Affirmed. Costs to appellees.

Burns and Holbrook, JJ., concurred.


source: Caselaw Access Project

author: Holbrook, J.

license: Public Domain

text:
    KLENKE v. RUSSELL.
    1. Automobiles — Minors—Imputed Negligence.
    Negligence of a host motorist may not be imputed to his guest passenger when the passenger receives injuries in a collision with another ear.
    2. Same — -Imputed Negligence — Instructions.
    An imputed negligence instruction -when requested is necessary in a ease containing the factual alignment of a plaintiff minor passenger against a defendant driver of another car.
    3. Same — Instructions—Proximate Cause.
    Instructions to the jury in action by passenger in one car against driver of other car for injuries received in accident, in whieh: (1) in the first reference to the negligence of the defendant, the court used the phrase “the proximate cause” rather than “a proximate cause” in order to establish liability; (2) there was a failure properly to instruct the jury “it should first determine whether defendant was guilty of negligence and whether such negligence was a proximate cause of the accident”; (3) after instructing the jury concerning the issue of whether plaintiff's driver’s negligence was the sole proximate cause of the accident, it was stated, that fault or lack of fault on the part of the defendant is also a subject for consideration indicating the main issue to be plaintiffs driver’s negligence; and (4) there was a refusal to instruct the jury that plaintiffs driver’s negligence was not to be imputed to plaintiff, held, erroneous in each of these respects, which, considered together, constituted prejudicial error.

      References for Points in Headnotes
    [1-3] 8 Am Jur 2d, Automobiles and Highway Traffic § 668 et seq.

    [é] 53 Am Jur, Trial § 509.

      4. Trial — Purpose op Instructions.
    The purpose tof a charge to the jury is (1) to explain the issues; (2) to notice the claims of the parties and suggest, so far as necessary, the principles of evidence and their application; and (3) to declare what rules of law will apply to any state of faets which may be found on the evidence.
    Appeal from Saginaw; Huff (Eugene Snow), J.
    Submitted Division 3 October 3, 1967, at Grand Rapids.
    (Docket No. 1,546.)
    Decided March 18, 1968.
    Rehearing denied April 25, 1968.
    Leave to appeal denied July 3, 1968.
    See 381 Mich 760.
    Declaration by Robert Klenke against Forrest Russell for injuries sustained when an automobile, in which plaintiff was a passenger, struck defendant’s automobile. Verdict and judgment for defendant. Plaintiff appeals.
    Reversed and remanded.

      Cicinelli, Mossner, Majoros, Harrigan & Alexander, for plaintiff.

      Smith, Brooker, Harvey & Cook (Francis B. Drinan, of counsel), for defendant.
   Holbrook, J.

Plaintiff, Robert Klenke, was injured when the automobile in which he was a front seat passenger struck defendant’s vehicle. The accident occurred on March 4, 1957, at approximately 8:30 p.m. at the intersection of M 46 and Orr road in Saginaw county, Michigan. It was plaintiff’s contention at trial that defendant, Forrest Russell, who was proceeding in a westerly direction on M 46 moved toward the right side of the highway as if to make a right turn on Orr road, and then without any signal or indication of his intention, turned left into the path of the vehicle occupied by plaintiff as it was about to pass defendant’s vehicle. Defendant denied negligence on his part and claimed that his vehicle was proceeding properly in a westerly direction on M 46, that he slowed down preparing to make a left turn on Orr road, and that he signaled as required by law and was in the process of turning when the vehicle occupied by plaintiff collided with the rear of his car. Defendant also claimed that the sole cause of the accident was the negligence of plaintiff’s driver.

In appealing from the jury’s verdict of no cause of action, plaintiff raises several claimed points of error.

First. Plaintiff contends that the trial judge committed error in giving the italicized paragraphs of the following instructions:

“If by the preponderance of the evidence it has been proved that any single negligent act on the part of the defendant Forrest Russell was the proximate cause of the injuries in question here, such proof is sufficient to establish liability and plaintiff should recover in damages from the defendant.
“The court instructs you further that you are to consider this case as one which involves the rights of a passenger Robert Klenke against the driver Forrest Russell of the other automobile.
“The fault or lack of fault on the part of Mr. Day, plaintiff’s driver, is a subject for your consideration in determining whether he was the sole proximate catise of the accident.
“If you find that Mr. Day was the sole proximate cause of the accident, plaintiff cannot recover here and your verdict would be for the defendant.
“However, fault or lack of fault on the part of the defendant Mr. Russell is also a subject for your consideration in determining whether the defendant was guilty of any negligence which contributed to the happening of this accident or plaintiff’s injuries.
“So, if you find that the defendant Russell was guilty of any negligence which contributed to the accident or the plaintiff’s injuries, even though you find plaintiff’s driver Mr. Day also was guilty of negligence in this accident, then your verdict would be for the plaintiff.
“To state it in other words, members of the jury, there may be more than one proximate cause of an accident.
“Therefore, even though you find the driver of the plaintiff ear, Mr. Day, was in some way negligent in his manner of driving, and if you further find that the defendant Russell under the facts also was negligent and that such negligence on the part of the defendant Russell was at least one of the proximate causes of the injuries to the plaintiff, or if you find that the collision occurred as a result of the combined negligence of defendant Russell and the plaintiff’s driver, then you still would be required to bring back a verdict in favor of the plaintiff.” (Emphasis supplied.)

A similar “sole cause” instruction was approved by this court in the case of DePriest v. Kooiman (1966), 2 Mich App 431. However, therein the trial court also instructed the jury that the negligence of plaintiff’s driver was not to be imputed to plaintiff.

The concurring opinion of Mr. Justice Boyles in Sedorchuk v. Weeder (1945), 311 Mich 6, 11, 12, is relevant. It states in part as follows:

“The jury should be instructed that it should first determine whether defendant was guilty of negligence and whether such negligence was a proximate cause of the accident. If the jury should so find, then the negligence of plaintiff’s driver has no bearing in the case. "When the defendant is guilty of negligence which is a proximate cause of the accident, and the plaintiff is a minor, the plaintiff is entitled to recover, because the negligence of plaintiff’s driver, if he was negligent, cannot then be imputed to the plaintiff.”

The instructions in the instant case were improper for 4 reasons: (1) the use of the phrase “the proximate cause” as to negligence of defendant Eussell at the outset of this portion of the charge, (Sedorchuk v. Weeder, supra); (2) a failure properly to instruct the jury that “it should first determine whether defendant was guilty of negligence and whether such negligence was a proximate cause of the accident”; (3) to instruct the jury that “fault or lack of fault on the part of the defendant Mr. Eussell is also a subject for your consideration,” is tantamount to instructing it to determine first the fault or lack of fault of plaintiff’s driver; and (4) the jury should have been instructed that if it finds negligence on the part of defendant, which negligence is a proximate cause of the accident, “then the negligence of plaintiff’s driver [if any] has no bearing in the case.” Sedorchuk v. Weeder, supra, at p 12.

Although the jury in the case at hand was instructed that it was to consider the case “as one which involves the rights of a passenger Eobert Klenke against the driver, Forrest Eussell, of the other automobile,” it was not instructed that the negligence of plaintiff’s driver, if any, was not to be imputed to plaintiff. An imputed negligence instruction is necessary in a case containing the factual alignment of a plaintiff-minor passenger against a defendant-driver.

“ ‘The office of a charge is — 1st, to explain the issues; 2d, to notice the positions taken by the parties and suggest, so far as the case may require it, the principles of evidence and their application; and 3d, to declare what rule or rules of law will be applicable to any state of facts which may be found on the evidence.’ ” Milauckas v. Meyer (1965), 1 Mich App 500, 507, quoting from Souvais v. Leavitt (1883), 50 Mich 108, 111.

See, also, Erickson v. Soyars (1959), 356 Mich 64. An instruction to the effect that the negligence of the plaintiff’s driver was not to be imputed to the plaintiff passenger was given in the DePriest Case, supra, and in the Sedorchuk Case, supra

Second. It is the contention of plaintiff that the trial court committed error in allowing into evidence defendant’s exhibit 8-A, a diagram attached to the accident report. The plaintiff has no basis for complaint on this score, his counsel having consented in effect to the admission of defendant’s exhibit. Also, no recognized legal objection to the admissibility of the exhibit was made and therefore, plaintiff cannot be heard to complain at this late date.

Third. The third issue raised by plaintiff con-, cerning the trial court’s refusal to instruct on contributory negligence need not be considered in view of our ruling herein.

Fourth. The trial court’s failure to give plaintiff’s instruction No. 21 concerning the effect and location of dehris at the scene of the accident need not be considered in view of plaintiff’s failure to protect the proposed instruction in accordance with GCR 1963, 516.2. Hunt v. Deming (1965), 375 Mich 581.

We understand the problems confronting the trial judge .in determining his instructions- evén with the carefully prepared requests to charge presented by the attorneys. The presentation of supplemental instructions on the day the charge was given further complicated the process. Upon completion of the charge, counsel for plaintiff, as provided by court rule, presented the trial judge with another issue, that of imputed negligence. No guidelines as to this issue had previously been outlined in the case law of this State.

The careful and deliberate consideration permitted on review is not present in the trial court which is faced with pressing demands for action. After making this explanatory statement, we are constrained to hold that the instructions to the jury were improper in the following regard: (1) The first reference to the negligence of the defendant used the phrase “the proximate cause” rather than “a proximate cause” in order to establish liability;. (2) a failure to properly instruct the jury that “it should first determine whether defendant was guilty of negligence and whether such negligence was a proximate cause of the accident”; (3) after instructing the jury concerning the issue of whether plaintiff’s driver’s negligence was the sole proximate cause of the accident, it was stated, “however, fault or lack of fault oil the part of the defendant Mr. Rnssell is also subject for your consideration” — indicating the main issue to be plaintiff’s driver’s negligence; and (4) a refusal to instruct the jury that plaintiff’s driver’s negligence ivas not to be imputed to plaintiff. Although any one of these errors standing alone may not constitute prejudicial error, we feel that when considered together, they are prejudicial.

Reversed and remanded for new trial, consistent with this opinion. Costs to appellant.

Fitzgerald, P. J., and Burns, J., concurred.

       In review of the ease, the Michigan Supreme Court stated, “the above eliminates as moot need for discussion of the jury instructions below. Accordingly, we express neither approval nor disapproval of the instructions quoted in the opinion of the Court of Appeals, supra, at pp 433-436.” DePriest v. Kooiman (1967), 379 Mich 44, 50,

       Plaintiff’s counsel, when given an opportunity under GCB 1963, 516.2 to object to the instructions, stated in part as follows:

        “In a elose ease sueli as this wherein plaintiff’s driver, plaintiff’s vehicle, is so clearly associated with the plaintiff that the jury very well may have the plaintiff’s ease stand or fall on the determination as to what indeed the plaintiff’s driver did or did not do and that is to remove all doubt from the jury’s mind that they are not to blame the plaintiff or impute any negligence, I feel that that should be spelled out to the jury.”

       Even before Bricker v. Green (1946), 313 Mich 218 (repudiating the “doctrine of imputed negligence” as it had been previously applied) Michigan ease law held that the negligence of a driver of an automobile could not be imputed to a plaintiff minor passenger. Donlin v. Detroit United Railway (1917), 198 Mich 327; Ommen v. Grand Trunk W. R. Co. (1918), 204 Mich 392; Davis v. New York C. R. Co. (1923), 222 Mich 239.

       The plaintiff passenger in Sedorahuk, supra, was a minor.


text:
    BENMARK v. STEFFEN.
    1. New Trial — Review oe Order Granting New Trial.
    Direct review of an order granting a new trial is now possible on appeal by leave granted.
    2. Appeal and Error — Discretion oe Court.
    Action of trial judge in granting a new trial will not be set aside by the Court of Appeals unless there is an abuse of discretion.
    3. Same — Discretion oe Court.
    Greater latitude is allowed the trial court in granting than in refusing new trials, and the appellate court will interfere more reluctantly where the new trial is granted than where it is denied, sinee in such cases the rights of the parties are not finally settled as they are where the new trial is refused.
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 850 et seq.

    [2-5] 5 Am Jur 2d, Appeal and Error § 851.
    [6-8] 39 Am Jur, New Trial § 5í et seq.

      4. New Trial — Abuse op Discretion.
    Determination that an abuse of discretion exists in granting a new trial requires that the result must be so palpably and grossly violative of fact and logie that it evidenced not the exercise of will but perversity of will, not exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.
    5. Same — Abuse op Discretion.
    First test of trial court’s decision to grant new trial is to inquire whether the reasons assigned by the court for granting a new trial are legally recognized ones.
    6. Same — Improper Conduct.
    Objectionable comments by counsel which were designed to, and did, influence jury improperly and unfairly during the trial held, to constitute a legally recognized ground for granting a new trial (GCR 1963, 527.1[1], 527.1[2], 528.3[3]).
    7. Trial — Argument.
    Reference by defense counsel in closing argument to large sums of money demanded by plaintiff held, not patently improper or prejudicial.
    8. New Trial — Remarks op Counsel — Opper op Judgment.
    Record which fails to show numerous prejudicial remarks by defense counsel in trial on damages only, and shows that no objection was made by plaintiff to what remarks there were, held, not to justify granting of new trial in case where jury verdict was 1/2 of defendant’s offer of judgment made before trial.
    Appeal from Saginaw; Huff (Eugene Snow), J.
    Submitted Division 3 October 3, 1967, at Grand Rapids.
    (Docket No. 2,852.)
    Decided March 18, 1968.
    Complaint by Dora Benmark against Edwin F. Steffen, executor of the estate of Burr H. Thompson, deceased, for personal injuries sustained in an automobile collision. Yerdict and judgment for plaintiff. On appeal judgment reversed and remanded for retrial. Jury verdict for plaintiff in the amount of $7,500. Plaintiff’s motion for new trial granted. Defendant appeals.
    Reversed and judgment ordered entered on the jury’s verdict.

      van Benschoten & van Benschoten, for plaintiff.

      Ward, Plunkett, Cooney, Butt, & Peacock, for defendant.
   Fitzgerald, P. J.

This is an action for personal injuries caused by an automobile accident in Saginaw county. The first trial resulted in a jury verdict for plaintiff in the amount of $50,000. On appeal, the judgment was reversed and the case was remanded for retrial. Benmark v. Steffen (1965), 374 Mich 155. Reversal was ordered “on account of prejudicial misconduct of both trial counsel before the jury, on account of error of the trial judge in failing to discipline the trial properly, and on account of error of the trial judge in refusing to grant defendant’s motion for mistrial.”

On retrial, defendant was represented by other counsel. Plaintiff was represented by the same counsel and (we refrain from commenting on the wisdom of the procedure) the same circuit judge presided. Defendant admitted liability prior to retrial and the case was tried on the issue of damages alone. The jury returned a verdict for plaintiff in the amount of $7,500. Plaintiff moved for a new trial or additur based on alleged misconduct of defense counsel, both in trial of the case and in closing argument, and also claimed that the verdict was inadequate.

No allegation of misconduct was raised during the retrial. One objection was made to a portion of the closing argument, but was overruled by the trial court. No jury instruction regarding improper conduct or argument was requested or given. Without benefit of the transcript, the trial court granted the motion for new trial. The court held that:

“Defense counsel’s baseless, repetitious comments and objections, not only to the presentation of plaintiff’s case, but especially to the rulings of the court throughout the entire trial seemed calculated to create in the minds of the jurors the impression that it was not possible for defendant to have a fair trial in this jurisdiction and so overshadowed and obscured the actual issues of the case that another trial in a more dispassionate, judicial atmosphere appears necessary in the interests of simple justice;”

and that:

“Most of the objectionable comments and tactics of defendant’s counsel were definitely designed to and undoubtedly did influence the jury improperly and unfairly during the course of the trial.”

It is argued by appellant that the court erred in holding that defense counsel’s conduct was prejudicial, and abused its discretion in granting a new trial. Counsel admits that the case was tried with diligence and staunch advocacy, but claims that disagreements with the lower court’s rulings in the presence of the jury were courteous, if insistent, and were not in any manner prejudicial. The court’s findings to the contrary, it is pointed out, are not supported by specific quotations from the transcript.

The issue before us is clear: should the new trial have been granted?

Until rather recently, the granting of a motion for new trial was held not appealable because it did not finally dispose of the case in the trial court. See, by way of example, Wheeler v. Equitable Life Assurance Society of the United States (1940), 294 Mich 520, 525:

“It is the rule of this Court that an unconditional order granting a new trial may not be reviewed on writ of error. Decker v. Fair, (1923), 222 Mich 507; Mifflinburg Bank v. Bickhart (1923), 224 Mich 98; Terzian v. Gordon (1924), 229 Mich 296. The same rule applies to general appeals under the present practice and we cannot review the court’s unconditional order granting the new trial.”

What few cases there were on this subject were brought by way of mandamus, a generally unsuccessful method for attacking a decision involving a large measure of discretion in the trial court.

The practice has now been changed, and orders granting new trials are reviewable upon leave granted. Moreover, “recent decisions indicate a disposition of the [Supreme] Court rather freely to grant leave to appeal for direct review of an order granting a new trial.” 3 Honigman & Hawkins, Michigan Court Rules Annotated, pp 123-124. As a consequence, there is a wealth of recent cases in which guidelines for review of an order granting a new trial are set forth.

All recent cases reiterate that the granting or denial of a motion for new trial rests largely within the discretion of the trial court, which, if not abused, cannot be interfered with on appeal. Some cases hold, further, that:

“Even greater latitude is allowed the trial court in granting than in refusing new trials, and the appellate court will interfere more reluctantly where the new trial is granted than where it is denied, since in such cases the rights of the parties are not finally settled as they are where the new trial is refused.”

Patzke v. C & O Railway Co. (1962), 368 Mich 190, 195, quoting from Hoskin-Morainville Paper Co. v. Bates Valve Bag Corp. (1934), 268 Mich 443, 450. A statement to like effect may be found in the dissent to Sloan v. Kramer-Orloff Co. (1963), 371 Mich 403 at 406.

How much greater latitude should be allowed is open to question. Whereas granting a new trial does not finally determine the controversy between the parties, it does subject both sides to the additional time and expense of re-litigation. In addition, it has the effect of setting aside a jury verdict in favor of one side, a step that should not be taken without sound reasons. See Kalamazoo County Road Commissioners v. Bera (1964), 373 Mich 310, wherein an order granting a motion for new trial was reversed on the ground that it invaded the province of the jury without sufficient cause. See also, Bridwell v. Segel (1960), 362 Mich 102. In addition, Hoskin-Morainville Paper Co. v. Bates, supra, which first adopted the “greater latitude” proposition, reversed the trial court’s grant of a new trial notwithstanding the greater latitude it afforded the lower court’s decision.

What constitutes an abuse of discretion in granting a motion for new trial is difficult to pin down. The standard for judging judicial discretion in this area seems to vary to some degree, depending upon the result reached. In reversing an order granting a new trial, the majority in Herman v. Ploszczanski (1963), 369 Mich 252, said at 257:

“It has been repeatedly indicated by this Court that the action of a trial judge in granting a new trial will not be set aside unless there is an ‘abuse of discretion.’ However, such an order for new trial must be based on the facts involved in a particular situation and may not be predicated on conjecture or mere possibilities. As pointed out in Brookdale Cemetery Association v. Lewis (1955), 342 Mich 14, 18, the term ‘discretion’ means a ‘sound judicial discretion.’ ”

In affirming an .order granting new trial, the majority in Sloan v. Kramer-Orloff Co. (1963), 371 Mich 403, 418, relied on Spalding v. Spalding (1959), 355 Mich 382, 384, for the following definition:

“In order to have an ‘abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.”

The question of the scope of review of orders granting motions for new trials is noted in 3 ITonigman & Hawkins, supra, at p 124, as follows:

“There is general agreement, in theory, that the question is whether the trial judge abused his discretion, and there is some recognition that ‘greater latitude is allowed the trial court in granting than in refusing new trials.’ But there is considerable disagreement as to the latitude left to the trial judge and to the reviewing court under the abuse of discretion formula.”

It is suggested that the most logical way to test the trial court’s decision is to inquire, first, whether the reasons assigned by the court for granting a new trial are legally recognized ones. Justice Souris, speaking for 4 members of an equally divided court, advocated this method in Alder v. Flint City Coach Lines, Inc., (1961), 364 Mich 29, 31, and listed 4 such legally recognized grounds for granting a new trial. See, also, G-CR 1963, 527.1. The second part of the test is whether the reasons assigned by the trial court are supported by any reasonable interpretation of the record. This is based on the language in Herman v. Ploszczanski, supra, to the effect that an order for a new trial “must be based on the facts involved in a particular situation and may not be predicated on conjecture or mere possibilities.” (369 Mich at 257.)

The trial court granted the motion for new trial because of “objectionable comments [which] were definitely designed to and undoubtedly did influence the jury improperly and unfairly during the trial.” This comes within the fourth ground for granting a new trial listed by Justice Souris : that the verdict was “secured by improper methods, prejudice, or sympathy.” (364 Mich at 81.) It also comes within the grounds specified in GCB 1963, 527.1(1) and (2) and 528.3(3): fraud, misrepresentation, irregularity or other misconduct of a prevailing or adverse party. The ground given for granting a new trial is thus a legally recognized one; if the record, by any reasonable interpretation, supports this ground, there cannot be said to have been an abuse of discretion, however that term may be defined.

At this point, we deem it appropriate to incorporate herein the trial court’s opinion in granting the new trial:

Opinion of the Court.

“Upon the first trial of the above entitled case, the jury awarded plaintiff $50,000 damages for injuries sustained in an automobile accident. On the second trial of the same case, following the Michigan Supreme Court decision in Benmark v. Steffen (1965), 374 Mich 155, the jury awarded plaintiff $7,500 damages.
“The matter is now before the trial court on plaintiff’s motion for a new trial or in the alternative for an additur to the jury’s verdict and also upon defendant’s motion to tax costs against plaintiff because her verdict was less than the $15,000 ‘Offer of Judgment’, which defendant filed in the case prior to the second trial (GCB 1963, 519.1).
“As in the previous proceedings, the present motion for a new trial is not based upon any claimed error in reception or rejection of evidence or instructions to the jury, but, rather, upon the contention that the conduct of defendant’s counsel prevented a fair trial and resulted in such a serious miscarriage of justice that the jury’s verdict again must be set aside. No transcript of the trial proceedings has yet been prepared and as a consequence, this court cannot quote the exact language and other details of the trial. The mere fact that the charge can conscientiously be asserted, however, is disturbing and distressing to this court, which made every effort to impress upon counsel the importance of conducting this trial, in particular, upon the high plane so properly prescribed by the Michigan Supreme Court.
“As indicated in paragraphs 1, 2, 3, 7, and 8 of plaintiff’s motion for a new trial, however, defense counsel’s baseless, repetitious comments and objections, not only to the presentation of plaintiff’s case but, especially, to the rulings of the court throughout the entire trial seemed calculated to create in the minds of the jurors the impression that it was not possible for defendant to have a fair trial in this jurisdiction and so overshadowed and obscured the actual issues of the case that another trial in a more dispassionate, judicial atmosphere appears necessary in the interests of simple justice.
“As stated before, this court does not have available at this time a transcript showing all that took place but recalls as an indication of what had transpired throughout the whole trial the colloquy which occurred just prior to the final summation when defense counsel, without any provocation, either then or later, lectured plaintiff’s attorney about not injecting error into his argument to the jury. In view of what had happened previously, the court instructed defendant’s attorney to accept the rulings of the court without the kind of critical, extraneous comment which previously had marred the record. While this particular incident occurred in the absence of the jury, most of the objectionable comments and tactics of defendant’s counsel were definitely designed to and undoubtedly did influence the jury improperly and unfairly during the course of the trial.
“In the opinion of this court, defense counsel’s comment about money in his final argument to the jury would not in itself warrant a new trial as claimed in paragraphs 4, 5, and 6 of plaintiff’s motion; but when taken in conjunction with all the other comments of defense counsel may well have combined to create a total effect, as In re Powers Estate (1965), 375 Mich 150, 178, which amounted to a denial of the fair trial contemplated under the high standards of justice established by the courts of this State.
“In the preceding trial, this court felt that the jury saw through the patently transparent theatrics of trial counsel as clearly and easily as did the judge and returned a verdict well within the evidence. As a consequence, this court accepted the $50,000 verdict, but was pleased that the Michigan Supreme Court, in unmistakable terms, refused to sanction the trial tactics of counsel under any circumstances. It is with the utmost regret that this court contemplates still another trial of this comparatively simple case. Yet a verdict for less than 16% of the previous award and only 1/2 of what defendant had offered to pay plaintiff in settlement of the claim indicates that defense counsel’s objectionable trial tactics in this case were effective to an appreciable extent and should not be permitted to prevail. Both parties in this unfortunate case are entitled to a fair trial on the merits, uninfluenced by passion, prejudice, or improprieties in the presentation of their claims.
“This court has considered the question of a possible additur to the verdict as requested by plaintiff’s counsel and as suggested in somewhat similar circumstances by the dissenting opinion in Alder v. Flint City Coach Lines (1961), 364 Mich 29, 40, 'with view toward possible elimination of the cost and delay both, parties must suffer in event of retrial and possible appeal from judgment on retrial * * * where the only question is that of amount of plaintiff’s unliquidated damages.’
“In this particular case, however, there is a distinct dispute of fact on sharply conflicting evidence as to whether plaintiff’s claimed loss of hearing and arthritic condition and other damages resulted from natural causes or from injuries sustained in the crash caused by defendant’s vehicle proceeding-through a red traffic light at rather a high rate of speed into the side of plaintiff’s automobile. Under our system of justice, these are classic questions for a jury to answer when requested. As the Michigan Supreme Court in Mawich v. Elsey (1881), 47 Mich 10, 16, long ago held: 'As the trial involved an inquiry into the credibility of witnesses, and included the duty of drawing collateral inferences, it is not an occasion for the court to test the result by applying thereto its own judgment, and it matters not what our opinion may be of the abstract justice of the verdict.’
“For the reasons stated, plaintiff’s motion for a new trial will be granted. Under the circumstances, defendant’s motion to tax costs of this trial will be denied pending the outcome of further proceedings. This court will sign orders prepared in conformity with this opinion.”

The opinion of the trial court cites only one example of allegedly prejudicial conduct and it occurred in the absence of the jury (supra, paragraph 5). The only concrete allegation of the plaintiff in her motion for new trial was the reference to large sums of money in defense counsel’s final argument, and we quote it herewith:

“Mr. Cooney: I respectfully suggest to you ladies and gentlemen, consider the evidence as it came from the witness stand, not what Mr. vanBenschoten said or testified to, as I suggest he has been doing-for several days, not what I said, or what you might consider I testified to, I am. not a witness, Mr. vanBenschoten is not a witness, the witnesses were the people that took the witness stand, and you should weigh and evaluate, what did they say? How did they say it? Is it believable, what they said? Is it credible? How do you accept it, find those experiences in life which allow you to judge the honesty, integrity, sincerity, directness, what was the interest, the financial interest, if you please, of the witness who testified? What are we here for? That demonstration oh the blackboard indicates what we are here for — money, lots of money.
“Mr. vanBenschoten: Your Honor, I will' object to that. She has a right to make a claim under the law for her injuries and that is what she is doing. Now this is — ■
“The Court: Counsel may argue the subject here. The objection is overruled.”

To us, this does not appear patently improper or prejudicial, and the trial court propeidy overruled objection to it at the time. In Herman v. Ploszczanski, supra, a similar remark in defendant’s closing argument (“I call your attention, $26,000 or $75,000 is one lot of money”) was held not improper. Noting that plaintiff’s counsel had stressed the amount of the verdict that the jury should return, the Court said:

“In view of the context it is a fair conclusion that counsel was seeking to remind the jury that the rights and duties of both parties to the case were involved. The factual situation presented was not such as to require the granting of a new trial in the interest of justice. The order entered was not in accord with ‘sound judicial discretion.’ ” (369 Mich at 260.)

The trial court in the instant case did not plant his decision on one or two remarks, but referred to “baseless, repetitious comments and objections * * * throughout the entire trial.” Scrutiny of the record simply fails to indicate that they were indeed sufficiently numerous and prejudicial as to require retrial in the interest of justice. Further, it is of exceeding interest that no objections were raised to them at the time and no instruction was requested with regard thereto. See Nowicki v. Podgorski (1960), 359 Mich 18, 27:

“There was no motion for a mistrial, instructions to the jury, or even for the issuance of a reprimand to plaintiff’s attorney. It was an incident such as sometimes occurs in the trial of contested cases. Excessive zeal or loss of temper on the part of an attorney during the course of a trial is scarcely conducive to the proper and orderly administration of justice. In the instant case, however, the record before us does not indicate that the matter was of such serious nature as to require the granting of a new trial.”

The trial court granted a new trial without benefit of the transcript. The few instances of allegedly improper conduct specified do not appear to justify a new trial. Plaintiff objected to only one comment and that objection was properly overruled. A full review of the record in this case does not support the trial court’s ground for granting a new trial.

Reversed, and judgment ordered entered on the jury’s verdict. Costs to appellants.

Burns and Holbrook, JJ., concurred.


text:
    WEEKS v. CONSERVATION DEPARTMENT.
    1. Appeal and Error — Nonjury Cases — Findings of Fact — Evidence.
    Court of Appeals will not reverse the findings of a trial court sitting without a jury unless it is clear that the evidence preponderates in the opposite direction.
    2. Negligence — Contributory Negligence — Burden of Proof.
    Burden of proving plaintiff’s contributory negligence is on the defendant (GCR 1963, 111.7).
    3. Automobiles — Arterial Highway — Favored Driver.
    Favored driver on an arterial highway must take steps to avoid collision with' a subordinate driver when it becomes obvious, or should become obvious to the reasonably prudent arterial driver, that his right-of-way is being contested.
    4. Same — Arterial Highway — Favored Driver — Excessive Speed.
    Plaintiff motorcyclist, overtaking a slow-moving tractor-trailer which made a left turn in front of him without signalling for the turn so that he struck the right rear of the trailer in attempting to avoid it, held, to have been eontributorily negligent in going so fast at the time the truck slowly began its turn that he eould only have passed it on the right, and in not sounding his horn to notify truck driver that he intended to overtake and pass on the left.
    5. Same — Motorcycles—Contributory Negligence.
    Overtaking motorcyclist approaching a slow-moving tractor-trailer should take some affirmative action to make his presence known.
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 839 et seq.

    [2] 38 Am Jur, Negligence § 286.
    [3-5] 7 Am Jur 2d, Automobiles and Highway Traffic § 219 et seq.

    [6] 5 Am Jur 2d, Appeal and Error § 1010.

      6. Costs — State Agency.
    No eosts are allowed in appeal by plaintiff against State agency for motor vehicle negligence in whieli court of claims judgment of no cause of action is affirmed.
    Appeal from Court of Claims; Peterson (William G.), J., presiding.
    Submitted Division 3 October 4, 1967, at Grand Rapids.
    (Docket No. 2,740.)
    Decided March 18, 1968.
    Leave to appeal denied May-16, 1968.
    See 380 Mich 769.
    Complaint by John G. Weeks against the Conservation Department of Michigan to recover for injuries sustained when the motorcycle he was riding collided with a tractor-trailer rig owned by defendant. Judgment for defendant. Plaintiff appeals.
    Affirmed.

      Marcus\ McCroshey, Libner, lleamon, Williams & Dilley (Vernon D. Kotering, of counsel), for plaintiff.

      White, Spaniola, Knuds en & Stariha, for defendant.
   Fitzgerald, P. J.

Plaintiff-appellant was riding his Honda motorcycle north on a 2-lane highway in Muskegon county on June 30, 1964, with his 8-year-old son as passenger. He collided with a tractor-trailer rig owned by defendant-appellee as the rig was making a left turn from the east shoulder of plaintiff’s lane into the parking lot of a store on the west side of the highway.

Much of the dispute in the present case concerns the distance at which plaintiff first observed the rig, the location of the rig prior to its turn, and the distance at which plaintiff first attempted to avoid hitting the rig. Uncontroverted are the facts that defendant’s turn signals did not work, that plaintiff was traveling at 55 miles per hour; that he frequently looked in his rearview mirror to watch his wife who was following him in an automobile; that he accelerated slightly with the initial intention of passing the slow-moving rig on the left; that the rig was traveling at 5 miles an hour or less; that the rig was 36 feet 5 inches long and the highway 22 feet wide; that plaintiff attempted to swerve to pass the rig on the right shoulder when he discovered his peril, and that plaintiff struck the rig on the right rear ramp with the motorcycle landing in the center of the highway.

Plaintiff suffered serious injury and commenced action in the court of claims, the case being heard on August 22 and 23 of 1966. Defendant admitted negligence in its closing argument and alleged contributory negligence of plaintiff as an affirmative defense. The court agreed and entered a judgment of no cause of action in favor of defendant, with plaintiff filing a claim of appeal to this Court.

We are asked to consider whether there was sufficient evidence presented for the proper finding of contributory negligence on the part of the plaintiff.

At the outset, it must be remembered that this Court does not reverse the findings of a trial court sitting without a jury unless it is clear that the evidence preponderates in the opposite direction. See G-CB 1963, 517.1; also see Shaw v. Wiegartz (1965), 1 Mich App 271; Baxter Realty Co. v. Manning (1966), 3 Mich App 409; St. Paul Fire & Marine Insurance Company v. Michigan Consolidated Gas Company (1966), 4 Mich App 56. In the present case, the trial court was faced with the determination of the distance at which plaintiff first saw defendant’s rig and the distance at which plaintiff first attempted to avoid hitting the turning rig, and discusses this issue as follows:

“The exact location of the motorcycle at the moment Mr. Whittaker [the driver of the rig] commenced his turn is uncertain. The court has attempted to determine where it was, assuming Mr. Whittaker’s measurement of the distance the automobile [driven by plaintiffs wife behind the motorcycle] was when he observed it was accurate, namely a quarter of a mile, the motorcycle could be placed anywhere between the car and the trailer, depending upon what testimony you look at.
“Mr. Dixon, who was following, driving the Weeks’ automobile, testified that he was following the motorcycle by half a block to 500 feet behind the motorcycle. This would place the motorcycle from 750, 700 to 1,000 or 1,100 feet from the truck. The trouble was Mr. Dixon also gave a statement about which he was questioned on cross-examination in which he indicated he was following the motorcycle by 1,200 to 1,500 feet, which would have put the motorcycle right at the truck when the truck commenced to turn. I am satisfied that that isn’t true.' But he did indicate his uncertainty by this cross-examination, and at one point cross-examination indicated that he may have been only a half a block behind the motorcycle as he followed it.
“Mr. Weeks’ testimony was that he saw the conservation department rig some 1,500 feet ahead of him. As I view his testimony it was that the rig was on the pavement when he then saw it. Now he testified on direct examination that when he first saw the trailer it had its two wheels on the pavement and two wheels on the shoulder. That he judged it to be 1500 feet ahead of him, moving at 15 miles an hour. That he observed there were five feet of clear space between the left edge of the trailer and the center line; that when he was 400 to 500 feet from the trailer he believed the trailer to be slowing. Seeing no brake light he assumed the unit was coasting to a stop; that going at a rate of 55 miles an hour he accelerated, 3, 4 or 5 miles, intending to pass the truck near the center line without leaving his lane. It is clear that he did not sound his horn or any audible signal of intention to pass. He testified that the truck then began to turn left without any signal when he was within 100 to 150 feet away; that he closed his throttle, that he braked, and headed toward the right-hand shoulder, attempting to clear the trailer behind it, that he was not successful in doing so. * * *
“On cross-examination his testimony indicated that he may have been only 75 to 100 feet behind the trailer when he started his speed-up, established to the court’s satisfaction that the trailer was observed by him to have been entirely on the pavement when he saw it, although at the extreme right-hand side, and that he never did see the truck when it was wholly on the shoulder of the road. * * *
“The court is satisfied that the trailer was, in fact, largely across the highway, and that it had in fact proceeded more than half way in the course of completing its turn, and that the right-hand, or easterly one half of the northbound lane was open at the time of impact. * * *
“Considering its speed at less than 5 miles an hour, 12 or more times less than the rate of speed of the motorcycle, it is apparent to the court Mr. Weeks must necessarily have seen the tractor entering into and going across the highway at a point some distance back from it, had he been looking, and paying close attention to what was there to be seen; and that had he paid sufficient attention, had he made a proper observation ahead of him, he would have seen the obstruction of the highway by the truck sufficiently in time to have permitted him to slow, to clear the trailer to the rear, and to have passed the trailer on the right.
“I really believe that when Mr. Weeks said he saw this tractor 1,500 feet away that it was already beginning its turning operation and that his attention was distracted or at least was not focused adequately upon the combination tractor and trailer to observe what was happening. Relative rates of speed, the place at which this collision occurred just don’t make it possible for the court to arrive at any other conclusion. And I simply find it impossible to believe that this vehicle commenced its turn at a point when Mr. Weeks was only 75 to 150 feet to the rear and still have the collision occur in the manner in which it did.”

We can reasonably conclude that there was ample evidence to support a finding of contributory negligence by the trial court and that the court was fully aware of and considered all of the evidence before it. We now consider whether the interpretation of the evidence was, in fact, correct.

In his brief to this Court, plaintiff argues that the burden of proving contributory negligence rests with the defendant and we fully concur. OCR 1963,111.7. Plaintiff then contends that, as a favored driver on an arterial highway, he only had the duty and obligation of exercising reasonable care for his own protection, referring to the holding in the case of Noyce v. Ross (1960), 360 Mich 668. The Supreme Court in that case, after discussing the duty of reasonable care to be placed on a favored driver when he is faced with a subordinate driver, quotes from McGuire v. Rabaut (1958), 354 Mich 230, 236, stating that the duty comes into operation:

“Only at that point when his continuing observations [which he must make, despite the fact that he is on an arterial highway] reveal, or should reveal to the reasonably prudent man an impending danger. It is at this time that his duty of care with respect to the subordinate driver arises, and his post-observation negligence, or lack thereof, is measured by ]iis actions after this point.”

The Noyce Case and the others cited to this Court by plaintiff deal with intersection cases and the duty of a favored driver on a high speed or arterial highway. Churukian v. LaGest (1959), 357 Mich 173. It may be contended that plaintiff had a duty in the present case which was somewhat greater than that of an arterial driver’s duty in the intersection cases, as it is clear that it was daylight, the road ahead of plaintiff was empty of other traffic, flat and dry, and the plaintiff first saw the rig in his own lane from a distance of 1,000 to 1,500 feet. It is true that we require a driver to take steps to avoid collision with a subordinate driver (p 183): “Only * * * when it becomes obvious, or should become obvious to the reasonably prudent arterial driver, that his right-of-way is, in truth, being contested.” Churukian v. LaGest, supra. However, the favored driver is not so favored by the law that he may give only scant and cursory attention to subordinate drivers. Noyce v. Ross, supra. Plaintiff also cites this Court to an observation by Justice Black in the case of Cousino v. Briskey (1962), 366 Mich 1, 20, first quoting from Ware v. Nelson (1958), 351 Mich 390, 396, wherein it is stated:

“ Tf our test of contributory negligence was whether or not plaintiff had done all that he conceivably could have done, or even all that, in retrospect, it is obvious he should have done for his own safety, no negligence action could ever be maintained.’

The Court then adds (p 20):

“I wonder how many motorists, even expert and ultraeareful ones like high court judges, do ‘decelerate, even slightly’ as they proceed on favored ways toward and into each blind or partly blind intersection.”

Plaintiff was not faced with any situation of blindness when he approached defendant’s rig, unlike the intersection cases, and these cases are distinguished by the Noyce court at p 677. Plaintiff, acting as a reasonably prudent and observant driver, should not have been traveling so fast at the time the truck slowly began its turn that he could only have passed it on the right. "We also note that plaintiff did not signal his initial intention to pass a slow moving vehicle on the left, and quote from 2 Blashfield, Cyclopedia of Automotive Law and Practice, § 945, Duty to Guard Against Turning Movements of Front Car:

“[A motorist] is not required to anticipate that the other vehicle will turn suddenly to the left without giving a proper signal. Thus his failure to stop in time to avoid a collision under such circumstances does not amount to contributory negligence.
“A contrary result may be expected * * * where the driver of the overtaking automobile has attempted to pass without sounding his horn.” Citing the case of Jacoby v. Schafsnitz (1935), 270 Mich 515.

It is true that this holding in the Jacoby Case was based on CL 1929, § 4706. That section was repealed by an act having no absolute statutory requirement that an overtaking vehicle always signal his intention to pass, but we find that the reasonably prudent motorcycle driver, upon observing and approaching a slow moving tractor-trailer, should take some affirmative action to make his presence known.

"We hold that the trial court did not err in any aspect of this case, and that its detailed considerations of all the circumstances properly led to a conclusion which will not be upset on this appeal. It was proper to find from the evidence that plaintiff was guilty of not exercising the duty and care in observation required of a reasonably prudent driver. The evidence certainly does not clearly preponderate in the opposite direction, and we agree that plaintiff’s failure to observe what was there to be seen and avoided was a proximate cause of his injuries.

Affirmed. No costs, a governmental agency being involved.

Burns and Holbrook, JJ., concurred.

       PA 1949, No 300, § 636 (CLS 1961, § 257.636 [Stat Ann 1960 Rev § 9.2336]).


text:
    POWERS v. HUIZING.
    1. Negligence — Standard of Care.
    The occupier of land is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection.
    2. Same — Standard of Care — -Invitees.
    The oceupier of land must not only use care not to injure the visitor to his premises by negligent activities and warn him of latent dangers of which the oeeupier knows, but he must also inspect the premises to discover possible dangerous conditions of whieh he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use.
    References for Points in Headnotes
    [1] 38 Am Jur, Negligence § 92 et seq.

    [2, 3] 38 Am Jur, Negligence § 96 et seq.

    [4, 5] 4 Am Jur 2d, Amusements and Exhibitions § § 93, 106.
    Liability of operator of skiing, tobogganing, or bobsledding facilities for injury to patron or participant. 94 ALR2d 1431.
    [6] 5 Am Jur 2d, Appeal and Error, § 839; 58 Am Jur, Witnesses § 862.
    [Y, 8] 38 Am Jur, Negligence § 301 et seq.

      3. Same — Standard of Care — Premises Open to Public.
    The fact that premises are open to the public will call for greater care by the oecupier of land than in the ease of a visitor at a private home.
    4. Same — Evidence.
    The presence of slush in a concrete toboggan chute was a dangerous condition.
    C. Same — Standard of Care.
    Defendant operators of a toboggan run were required in fulfilling their duty to plaintiffs, paid customers using the run, properly, to inspect the toboggan ehutes for obstructions, or other dangerous conditions, including slush that was present close to the bottom of the run.
    6. Witnesses — Credibility—Judges.
    The credibility of witnesses is left to the judge sitting without a jury and findings of fact will not be set aside unless elearly erroneous.
    7. Negligence — Evidence—Toboggan Bun.
    Evidence presented in nonjury action by patrons of toboggan run against its owner for injuries received while using run held, to support trial court’s finding of causative negligence on part of defendant owner, there being no resort to express or implied application of the doetrine of res ipsa loquitur.

    8. Same — Bes Ipsa Loquitur — Proximate Cause.
    Binding negligence from a condition which is shown to have existed and which could have caused the damage complained of, when all other possible explanations are excluded, is not an application of the doctrine of res ipsa loquitur.

    Appeal from Ottawa; Smith. (Raymond L.), J.
    Submitted October 4, 1967, at Grand Rapids.
    (Docket No. 2,803.)
    Decided March 18, 1967.
    Complaint by Roy and Shirley Powers against Louis and Joan Hnizing, to recover for injuries sustained by Shirley Powers while tobogganing at defendant’s toboggan run. Judgment for plaintiffs. Defendants appeal.
    Affirmed,

      Alexander 8. Jaross, for plaintiffs.

      Schmidt, Smith $ Howlett, for defendants.
   Holbrook, J.

Plaintiffs, Roy and Shirley Powers, husband and wife, brought suit against defendants Louis and Joan Huizing, doing business as “Hula Heights,” to recover for injuries sustained by Shirley Powers while tobogganing at Hula Heights. The trial court sitting without a jury entered a judgment for plaintiffs. Defendants appeal from the trial court’s denial of their motion to vacate judgment.

The pertinent facts are as follows: Defendants maintained, near Hudsonville, the Hula Heights toboggan run containing 6 concrete chutes designed to guide toboggans down a slope along predetermined paths. Each chute was constructed with curbing on both sides to prevent the descending toboggans from deviating from their paths. Ice was built up on the chutes by a slow process of water spraying and natural freezing. The accident occurred on the evening of December 26, 1960, after unseasonably warm weather with temperatures ranging up to 41 degrees the day before and 38 degrees at 4 a.m. on the day in question according to the records of the Kent county weather station.

Plaintiffs and 2 other couples arrived together at the toboggan run at about 8:30 p.m., paid the admission fee, and proceeded down one of the iced chutes on a toboggan furnished by defendants. There was testimony by several of the participants in the group going down on this particular ride that as the toboggan reached the bottom of the first hill at a high rate of speed, the sound of wood grating on concrete was heard, the rate of speed was sharply reduced, the toboggan veered to one side, then to the other and jumped the curbing, leaving only 2 of the 6 riders remaining on the toboggan. Mrs. Powers was one of those thrown from the toboggan and as a result, suffered a knee injury. There was abundant uncontradieted testimonial evidence that at the point of sudden deceleration the- chute was covered with slush for at least several feet.

One of the participants, Mrs. Brown, who had many years of tobogganing experience, testified that she believed the slush slowed down the toboggan and caused the accident resulting in plaintiff’s injuries. Mr. Van Til, a former chute attendant at defendants’ toboggan run, who also had extensive previous experience in tobogganing, agreed from the witness stand that slush at the bottom of the hill would tend to slow down the toboggan. Defendant, Louis Huizing, admitted that slush on a run has the effect of slowing down a toboggan. He testified, however, that he believed the accident was caused by a deliberate rocking and twisting of the toboggan by the lead man to give the group an extra thrill. The lead man, Mr. Mersman, and other members of the group testified that this was not true.

Three questions are raised for review which can be stated as follows:

(1) Was there sufficient testimony to permit the trial court to properly find that the defendants failed to exercise ordinary care either with respect to the maintenance of their facility or the giving of warning of possible danger that they knew or should have known about by proper inspection?

(2) Did the trial court improperly apply res ipsa loquitur in holding defendants liable?

(3) Could the plaintiffs sustain their burden of proof without any expert testimony and in the face of defendant Louis Huizing’s expert testimony that slush on a toboggan slide would not affect a toboggan loaded with 6 adults traveling 50 to 60 miles per hour ?

The trial judge in his written opinion made the following finding:

“The finding, by the court, of the presence of slush at the bottom of the slide is tantamount to a finding that the work of creating ice and the inspection made at that time was faulty. There was evidence that the preceding two days had been warm and that by reason of this fact slush would have been created during the warmth of the daytime which conditions would have to be dealt with in [the] cool of the evening before the chutes could have been used with safety. The fact that a toboggan with one person aboard made the descent in safety does not alter the court’s finding that slush was encountered on the following descent when the toboggan was occupied by 6 grown persons. The increased weight certainly would account for the different experiences.
“The court finds the defendants guilty of ordinary negligence in failing to maintain the chute in a safe condition considering the use to which the premises were put. The court likewise fails to find the plaintiffs guilty of contributory negligence.”

We believe that the first and third issues may be considered together.

The standard of care required of defendant is succinctly stated in Prosser on Torts (3d ed), pp 402, 403, as follows:

“The occupier is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection. But the obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm. The occupier must not only use care not to injure the visitor by negligent activities, and warn him of latent dangers of which the occupier knows, but he must giso inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use. The obligation extends to the original construction of the premises, where it results in a dangerous condition. The fact that the premises are open to the public must be taken into account, and will call for greater care than in the case of a visitor at a private home.” Also, see Kroll v. Katz (1965), 374 Mich 364. (Footnotes omitted.)

The undisputed testimony was to the effect that there was slush in the toboggan chute close to the bottom of the run. There was positive evidence from plaintiffs’ witnesses that this caused the toboggan to leave the chute. The presence of slush in the concrete toboggan chute was a dangerous condition, and if not testified to directly, was a permissible inference from the physical facts present in this case. Kaminski v. Grand Trunk Western Railroad Company (1956), 347 Mich 417. Defendants were required in fulfilling their duty to plaintiffs to properly inspect the toboggan chute for obstructions, or other dangerous conditions, including the slush that was present. This defendants did not do.

There was conflicting evidence as to the issues of causation and foreseeability. Even aside from the propriety of inferences that may be drawn from the established physical facts, the evidence presented by the plaintiffs, and believed by the trial court in this case, was sufficient to justify the verdict, notwithstanding the fact that defendant Louis Huizing, as an expert witness, gave his opinion to the contrary. The credibility of the witnesses is left to the judge sitting without a jury and findings of fact will not be set aside unless clearly erroneous. Kirilloff v. Glinisty (1965), 375 Mich 586, 592. Also, see In re Estate of Donley (1966), 3 Mich App 458, 462,

Plaintiffs assert that the trial judge improperly-applied the rule of res ipsa loquitur in holding for plaintiffs in this case. In a recent case ruled on by this Court, Haase v. DePree (1966), 3 Mich App 337, we stated on p 346 as follows:

“The applicability of the rule in Michigan appears to be limited to allowing on occasion the trier or triers of the facts to infer negligence from all the circumstantial evidence present in a ease.”

In the instant case, the doctrine was not mentioned or applied sub silentio by the trial court. There was no lack of proof here and causative negligence was not established in vacuo but from competent evidence.

“ ‘It is not an application of the doctrine of res ipsa loquitur to find negligence from a. condition which is shown to have existed and which could have caused the damage, and all other possible explanations are excluded.’ ” Holmes v. Gargaro Company (1962), 368 Mich 589, 591.

Affirmed. Costs to appellees.

Fitzgerald, P. J., and Burns, J., concurred.


text:
    McDANIELS v. SCHROEDER.
    1. Specific Performance — Parol Contract — Discretion of Court.
    Specific performance of a parol contract is not a matter of course, but rests in the sound judgment and discretion of the court under all the circumstances of each ease, and it is not arbitrary and capricious, but regulated by well-settled principles.
    2. Same — Contracts—Mutuality—Certainty—Performance.
    Parol bilateral contract, to be specifically enforceable, must be mutual and a tie reciprocal, it must be certain in all essential particulars, and there must be acts of part performance unequivocally referring to and resulting from the agreement which, as set up in the complaint, must appear to be the one claimed to have been performed.
    3. Appeal and Error — Nonjury Cases — Findings of Fact.
    Findings of fact by a trial court in a nonjury action will not be reversed on appeal unless the findings are clearly erroneous (GCR 1963, 517).
    4. Specific Performance — Oral Contract To Make A Will — Evidence.
    Evidence presented in aetion for specific performance of decedent’s oral contract to make a will in return for plaintiff’s care during decedent’s remaining years where decedent said he “promised his stuff” several times held, sufficient to show decedent clearly manifested an intent to agree with plaintiff and that he, in fact, believed he did agree with plaintiff that, he would provide for her upon his death.
    References for Points in Headnotes
    [1, 2] 49 Am Jur, Specific Performance § 21.
    [3, 7] 5 Am Jur 2d, Appeal and Error § 839 ef seq,
    [4-6] 57 Am Jur, Wills § 192 et seq.

      5. Contracts — Oral Contract To Make A Will — Declarations— Presence of- Promisee.
    Declarations of the promisor which show that he had made a contract to make a will may be sufficient to establish the existence of such a contract, even if such declarations are not made in the presence of the promisee.
    6. Specific Performance — Oral Contract To Make A Will — Evidence.
    Evidence which showed plaintiff eared for deeedent for about 10 years in her home, deeedent paid only $10 a week to plaintiff for rent, plaintiff paid all household bills, and decedent’s repeated promissory statements to witnesses that he had “promised his stuff” to plaintiff held, sufficient to support finding that there was a specifically enforceable oral contract to make a will, especially where extreme demands placed on plaintiff by decedent caused her to change her mode of life and to perform unusual duties.
    7. Appeal and Error — Chancery Cases — Evidence.
    An appellate court will uphold the decision of a lower eourt in a ehaheery ease on an issue of fact, where the evidence elearly does not preponderate in an opposite direction.
    Appeal from Calhoun; Ryan (Ronald M.), J.
    Submitted Division 3 October 4, 1967, at Grand Rapids.
    (Docket No. 3,281.)
    Decided March 18, 1968.
    Complaint by Irene McDaniels against Joseph E. Schroeder, administrator of the estate of Julius Emmerich, deceased, for specific performance of an oral contract to make a will. Judgment for plaintiff. Defendant appeals.
    Affirmed.

      Golden £ Golden, for plaintiff.

      Schroeder, Schroeder £ DeGraw, for defendant.
   Fitzgerald, P. J.

Plaintiff, a 71-year-old woman, brought suit in the Calhoun county circuit court against defendant, who is the administrator of the estate of Julius Emmerich, for specific performance of an alleged oral contract to make a will. Plaintiff was barred from testifying by the dead man’s statute, but it was shown at the trial that decedent was an elderly German naan who lived with plaintiff, died in her home, and relied heavily on her for transportation and companionship until the date of his death.

Testimony at ■ the trial. was given by Mr. Hendricks,'plaintiff’s nephew, who stated that on one occasion decedent “promised to leave all that he had to Irene [plaintiff] because she had done so much for him and had taken care of him so well,” and-that another time decedent told Mr. Hendricks that he “intended to buy her [plaintiff] a car of this type [Volkswagen] because her other car had worn out.”

Mrs. Margaret Eipper, a friend of both' plaintiff and deceased, often visited with deceased and testified that she talked with deceased about household bills, and deceased said that plaintiff paid such hills while deceased paid her $10 a week, stating to Mrs. Eipper, “That’s just now, but later on I promised to give her all my stuff anyway.” Mrs. Eipper also testified that she often questioned deceased about making a will and that deceased stated on one occasion, “I promised all my stuff to Irene,” and on another occasion, “I promised I would make a will, I left everything to Irene.” .

No will was made. Plaintiff did not know of any of these statements made by deceased to Mrs. Eipper or to Mr. Hendricks. Prom this evidence and testimony, the trial court concluded that an oral contract was established by decedent to make a will of all his property definite enough to entitle plaintiff to specific performance. We will decide the issue of whether plaintiff has proved all the elements neces-. sary to support such a decision.

The requirements set by the Supreme Court as necessary to prove parol contracts are found in the case of Woods v. Johnson (1934), 266 Mich 172, 174, 175:

“Specific performance is not a matter of course but rests in the sound judgment and discretion of the court under all the circumstances of each particular case. Such discretion' is not arbitrary and capricious but regulated by well-settled principles. The contract or agreement sought to he enforced must he mutual and a tie reciprocal. It must he certain in all essential particulars. There must he acts of part performance, unequivocally referring to and resulting from the agreement. The agreement set up in the hill of complaint must appear to he the one claimed to have heen performed.” (Emphasis supplied.)

It must be remembered that the findings of fact by a trial court in a nonjury action such as this will not be reversed on appeal unless the findings are clearly erroneous. See GCR 1963, 517.

We shall briefly examine the above requirements of Woods, supra, with a consideration of the law and the facts of this particular case. As noted above, plaintiff is barred from testifying by the “dead man’s act”, CLS 1961, § 600.2160 (Stat Ann 1962 Rev § 27A.2160). The Supreme Court, in the case of Teason v. Miles (1962), 368 Mich 414, recognizes the difficulty in determining what was the actual agreement between a deceased person whose testimony is forever lost, and a party to the suit who is barred by the dead man’s statute, the Court stating (p 416):

“Like most such agreements, this one was oral and, as far as is disclosed by the record, was not formally entered into in the presence of witnesses, nor was it ever subsequently affirmed by either party in the presence of the other party to the agreement and in the presence of others. In support of his claim, plaintiff relied upon proof of the services he rendered to his mother during her lifetime, statements made by her to others from which a fair inference of such asserted agreement could be drawn, and an undelivered letter in the mother’s handwriting-addressed to an attorney in which she expressed a desire for the preparation of a will which would have implemented such an agreement.”

The Court in the Teason Case, quoting from Paris v. Scott (1934), 267 Mich 400, also places a heavy burden of proof upon the proponent of statements of witnesses as to what decedent stated and intended, recognizing that what conversations are remembered by witnesses often become blurred with the passage of time (p 417):

“ ‘In cases of this kind, the testimony of witnesses must be viewed with great caution, because of the frailties of memory, the improbability of repeating the precise language of a person since deceased, of fairly expressing the full state of mind of such person, and because the change of a word may mean the difference between a binding- contract and a mere expression of intention. Care must also be taken lest the court, out of considerations of equity or sympathy, make a contract for the parties where none existed, even though such contract might or would express their desires. Where the alleged contracting parties cannot testify, their acts loom largo as compared with what witnesses say they said.’ ”

Thus, plaintiff emphasizes that the witnesses all testified to conversations with decedent where he “promised” his things to Irene. Likewise, defendant urges that the court must carefully examine such testimony, as “promised” could be construed to be a binding contract or only to be a “mere expression of intention.” Appellant also alleges that decedent’s repeated nse of the word “promise” should not be held to prove a contract, because decedent was of foreign birth and had difficulty expressing himself in the English language. However, we find that deceased did say he “promised his stuff” several times. We will not agree with appellant that he did not promise and agree merely because he was not so conversant with the English language to know that the definition of “promise”, as given in Black’s Law Dictionary, is different from the word “give”, which is what appellant would have us believe decedent intended to say. We find that decedent clearly manifested an intent to agree with plaintiff and that he, in fact, believed that he did agree with plaintiff that he would provide for her upon his demise.

Appellant cites several cases to this Court wherein specific performance was denied and attempts to draw parallels to the present case. Instead, we find that the common thread running through these cases is a lack of testimony showing relationships as close as this one, insufficient promissory language, and little evidence of agreement or contract which would have motivated the plaintiff to render unusual services. Appellant relies heavily on the case of Moyer v. Hafner (1935), 272 Mich 52, for support of his allegations. In the Moyer Case, the Supreme Court found that decedent was a bachelor and plaintiff was a neighbor who often had worked as a housekeeper. She agreed to work for decedent, and did so for 4 years. In denying specific performance to plaintiff, the Court found that there was no contract by stating (p 56).:

“That she was of great help to the physically and matrimonially handicapped decedent is clear, but she also received her living and eventually that of her children. # * * Her services were not of an unusual character, nor did she change her condition in life by working for [decedent]. She had been doing similar work elsewhere and was always at liberty to make other arrangements if she chose to do so.”

The only testimony as to decedent’s statements offered in the Moyer Case came from plaintiff’s young-children, and the Court chose to find them insufficient. In the case before us, plaintiff’s services were unusual in that she certainly changed her condition in life by permitting decedent to live with her for about 10 years, while driving- him around southwestern Michigan, feeding him, doing- his laundry, paying for the rent and heat, and cleaning up after his urinary problems, which often resulted in strong-odors throughout her home. It is also noted that the plaintiff in the Moyer Case “received her living and eventually that of her children,” while in the present case plaintiff received only $10 a week from decedent while employed elsewhere.

It is appropriate now to quote from the case of Applebaum v. Wechsler (1957), 350 Mich 636, wherein the Court states (p 645):

“The question at this point is not the quantum of acts performed but the reason for their performance. Was there, in fact, an agreement, pursuant to which these acts were performed, or were they merely gestures of mercy, of kindness to a lonely and distraught old man?”

Relevant is plaintiff’s statement in the present case made to Mrs. Eipper, to wit: “Well, I feel sorry for him. I have tried to help him. I feel sorry for him.” But this does not mean that agreement cannot be based on feelings of mercy. Appellant also notes that following decedent’s demise, plaintiff said to Mrs. Eipper, “I don’t know anything about his will,” and “I guess he didn’t leave me anything, I guess he didn’t care to,” in concluding that there was. no agreement. Plaintiff’s statement to Mrs. Eipper following decedent’s death only revealed to this Court that she was greatly disappointed in not receiving a portion of decedent’s estate. However, appellant would have us find that there was no possibility of an agreement as plaintiff never stated to Mrs. Eipper that an agreement existed. We refer to 1, Page on Wills, § 10.48, p 545:

“The declarations of the promisor [decedent] which show that he had made a contract [or an agreement] to make a will may be sufficient to establish the existence of such a contract, even if such declarations are not made in the presence of the promisee.”

Plaintiff continued to care for deceased in many ways for about 10 years, in her home, and when we carefully consider the small amount of rent paid and the inferences to be drawn from decedent’s repeated promissory statements to witnesses (Teason v. Miles, supra) we find evidence that there was an agreement to make a will between plaintiff and deceased. The Supreme Court stated in In re Cramer’s Estate (1941), 296 Mich 44 (p 49):

“In the absence of other than mere declarations, the factor that the court considered was whether the person claiming the contract had changed the tenor of his life in performance thereof. If there is such a change as to be unusual for the average person, then the fair inference would be that the partiés had a contract.”

We find that the extreme demands placed on plaintiff by decedent in the instant case caused her to change her mode of life and to perform duties which would be unusual for the average person.

The agreement in this case admittedly turns on a close question of fact, but this Court does not find difficulty in agreeing with the trial court’s conclusion that an oral contract and agreement was created. The evidence clearly does not preponderate in a direction opposite the lower court’s decision and we are persuaded to uphold that decision in granting-specific performance to plaintiff.

Affirmed. Costs to appellee.

Burns and Holbrook, JJ., concurred.

       Repealed by PA 1967, No 263. See, currently, PA 1961, No 236, § 2166, as added by PA 1967, No 263 (Stat Ann 1968 Cum Supp § 27A.2166).