Annoni v. Henson

Watts, J. This is a civil suit by Anthony Annoni against Ronald L. Henson, Theodore Henson, Glenn L. Mohney, Jr., and Glenn L. Mohney, Sr., for personal injuries and damage to motor vehicle sustained in a collision with one of two cars engaged in a race. Case was heard subsequent to January 1, 1963 (effective date of GCR 1963, 514). Judgment for plaintiff; defendants appeal. At noon on June 4, 1960, an automobile driven by defendant Ronald L. Henson collided with a truck driven by plaintiff Anthony Annoni at the intersection of Eight Mile road and Greeley street in the city of Detroit. The weather was clear and the pavement dry. There is competent testimony that defendants Ronald L. Henson and Glenn L. Mohney, Jr., were engaged in a race. The testimony is undisputed that defendant-driver Henson did not see the Annoni truck until just before the impact and that plaintiff Annoni did not see the Henson car until just before the truck and the car collided. Plaintiff Annoni, driving a 1955 Ford pick-up truck, entered the westbound traffic lanes of the Eight Mile road at Dequindre and continued to operate said motor vehicle in a westerly direction on Eight Mile road to a place where the same intersects with Greeley street. Plaintiff testified that he made a left turn at the said intersection and brought his vehicle to a stop at the northerly curb line of the eastbound traffic lanes on Eight Mile road, at which time he observed traffic traveling in an easterly direction on Eight Mile road approximately four blocks west of Greeley; he could not judge the speed of the approaching traffic. He started to drive across the eastbound lanes of Eight Mile road when his truck was struck on the right midside by the front — 693 — of an eastbonnd 1957 Plymouth driven by Ronald L. Henson. The collision occurred in the center of the eastbound lanes of Eight Mile road. Plaintiff Annoni and defendant-driver Henson were injured in the accident; Annoni’s truck and the Henson automobile were damaged. The testimony is undisputed that defendant-driver Mohney did see the Henson car and the Annoni truck before the accident; and at the time the Annoni truck and the Henson automobile collided, the car that he (Mohney) was driving was approximately 1-1/2 to 2 blocks from the scene of the accident. The trial court in the first instance instructed the jury to render a general verdict and further instructed the jury on the form to be used. The instructions were adequate, clear, and applicable to the instant case. The record indicates that the members of the jury were uncertain as to the application of the court’s instructions to the jury on the facts relating to defendants Mohney during their deliberation: “Foreman of the jury. If we find that Henson was guilty of gross negligence and that a race was started between Henson and Mohney, and that Annoni was guilty of contributory negligence, in Henson’s case, how does this affect the liability of Mohney? * * * “The Court. If you should find that Henson and Mohney were engaged in a race; if you should further find that the driver Henson is guilty of gross negligence,' as previously defined by the court, then it would be necessary for you to bring in a special verdict, or an answer to a so-called special question. The court would require you to bring in to be received by the clerk of this court, a finding as to whether young Mohney was guilty of ordinary negligence, as defined, or guilty of gross negligence. — 694 — “Thereafter the Court and able counsel will take it up as a matter of law. “Do you understand what my answer is? “Jury members. Yes. “The Court. On an ‘iffy’ basis, if you find as I have indicated in response to your question given to the court now, the court would still require you to bring in a specific finding as to whether or not young Mohney was guilty of ordinary negligence or gross negligence. “Is it clear? “Foreman of the jury. Your Honor, this means we go back and make certain decisions, and then we will return for further instructions? “The Court. No, this contemplates you will resume your deliberations and bring in a verdict, a general verdict, hut also bring in an answer to the question I have given you, namely, an answer to the question whether you find driver Mohney guilty of ordinary negligence or gross negligence.” The trial court’s answer to the question of the foreman of the jury is reflected in the finding of the jury which is inconsistent with the general verdict: “Foreman of the jury. We find for the plaintiff. “We find for Henson, son and father, guilty of gross negligence. “We find Annoni was guilty of contributory negligence. “We find Mohneys, son and father, guilty of ordinary negligence. “We find for a total of $40,000.” The trial court instructed the jury to bring in a general verdict and at the same time told the jury: “Thereafter, the court and able counsel will take it up as a matter of law.” — 695 — The statement by the court is inconsistent with the court’s instruction (to bring in a general verdict) and may have added to the uncertainty of the jury as to the application of the court’s instructions on the facts relating to defendants Mohney. In Sahr v. Bierd (1958), 354 Mich 353, 364, Justice Talbot Smith writing the opinion of the Court quoted, in part, a leading article by Professor Sunderland in 29 Yale LJ 253, 258-260 (Verdicts, General and Special): “ ‘The peculiarity of the general verdict is the merger into a single indivisible residuum of all matters, however numerous, whether of law or fact. It is a compound made by the jury which is incapable of being broken up into its constituent parts. No judicial reagents exist for either a qualitative or a quantitative analysis. The law supplies the means for determining neither what facts were found, nor what principle's of law were applied, nor how the application was made. There are therefore 3 unknown elements which enter into the general verdict: (a) the facts; (b) the law; (c) the application of the law to the facts. And it is clear that the verdict is liable to 3 sources of error, corresponding to these 3 elements. It is also clear that if error does occur in any of these matters it cannot be discovered, for the constituents of the compound cannot be ascertained. No one but the jurors can tell what was put into it and the jurors will not be heard to say. The general verdict is as inscrutable and essentially mysterious as the judgment which issued from the ancient oracle of Delphi. Both stand on the same foundation—a presumption of wisdom. The court protects the jury from all investigation and inquiry as fully as the temple authorities protected the priestess who spoke to the suppliant votary at the shrine. It is quite probable that the law is wise in not permitting jurors to testify as to how they compounded their verdict, for all stability would disap — 696 — pear if such inquiries were open. But it does not follow that there is not some better way of deciding controversies than by means of this mysterious agency. If the compound cannot be subjected to analysis perhaps it can be dispensed with. * * * The special verdict compels detailed consideration. But above all it enables the public, the parties, and the court to see what the jury really has done. The general verdict is either all wrong or all right, because it is an inseparable and inscrutable unit. A single error completely destroys it.’ ” General verdicts accompanied by interrogatories were eliminated from the rules of civil procedure in Michigan by GCR 1963, 514. Revised judicature act, § 223 (CLS 1961, § 600.223 [Stat Ann 1962 Rev § 27A.223]): “The Supreme Court has authority to promulgate and amend general rules governing practices and procedure in the Supreme Court and all other courts of record, including but not limited to authority: # * * “(2) to prescribe the practices and procedure in the Supreme Court and other courts of record concerning : * * * “(b) special verdicts.” GCR 1963, 514, reads in part as follows: “The court may require the jury to return a special verdict in the form of a special written finding upon each issue of fact and in such cases no general verdict shall be returned.” GCR 1963, 516.4, reads as follows: “While the jury is deliberating the court may in its discretion further instruct the jury, in the presence of or after notice to counsel. Objections thereto shall be made in a motion for new trial.” It is our opinion that the jury’s failure to render a proper verdict is reversible error. — 697 — We have considered defendant’s other assignments -of error and find them to be without merit. The case is remanded to the Wayne county circuit court for a new trial. Costs to abide final result. McGregor, J., concurred with Watts, J.