Smith v. Jones , 382 Mich. 176 ( 1969 )

382 Mich. 176 (1969) 169 N.W.2d 308

SMITH
v.
JONES.

Calendar No. 5, Docket No. 51,752.

Supreme Court of Michigan.

Decided August 4, 1969.

Marcus, McCroskey, Libner, Reamon, Williams & Dilley, for plaintiffs.

Cholette, Perkins & Buchanan (Edward D. Wells, of counsel), for defendant Heriberto Miranda.

KELLY, J.

Plaintiff Ollie Mae Smith was injured on July 11, 1963, when an automobile owned by defendant Heriberto Miranda, and driven by named defendant Louis Jones, struck the front porch of plaintiffs' residence where Ollie Mae Smith had been seated, causing a piece of wood to strike her on the leg.

Plaintiffs filed complaint against both Miranda and Jones seeking damages for injuries, pain and suffering, impairment of earning capacity, and the medical expense for care and treatment of Ollie Mae incurred by her husband, Ollie Z. Smith. Jones was never served with process.

A jury returned verdicts against defendant, Miranda, awarding Ollie Mae Smith $2,500, and her husband, Ollie Z. Smith, $719.85 for expense incurred in the care and treatment of his wife.

Judgments were entered on the verdicts and the trial court file discloses payments thereof to the Kent county clerk, who is holding same in escrow pending final determination of the case.

Plantiffs did not file a motion for new trial and appealed to the Court of Appeals.^[1]

The Court of Appeals, affirming the trial court, stated (p 94):

"Plaintiffs appeal and assert a multitude of errors, some of which would clearly require reversal if the jury verdicts had not been in plaintiffs' favor. However, plaintiffs recovered and they made no claim below nor do they claim here that the verdicts were inadequate or against the weight of the evidence. No motion for new trial on the basis of inadequacy was made in the trial court. Since the errors complained of would only be prejudicial with respect to the amount of the verdicts, we believe Davis v. Jermstad (1957), 350 Mich. 439, is dispositive of this appeal and we decline further comment on the errors asserted by plaintiffs."

Plaintiffs sought in the Court of Appeals and are presently seeking a decision reversing the trial court's instruction on damages. Davis v. Jermstad, supra, is not "dispositive of this appeal." In Davis we held that (p 444) "the charge as given to the jury carefully and fully covered the material issues in the case."

In Bunda v. Hardwick (1965), 376 Mich. 640, 672, we held that a motion for new trial was not necessary to preserve for appellate review alleged errors ruled upon by the trial judge.

We will consider in this appeal two claimed instructional errors, both of which were extensively discussed and argued in the "Proceedings In Chambers" by plaintiffs and defendant Miranda, namely:

(1) Was error committed by the trial court's refusal to permit the jury to consider the gross negligence of defendant Miranda and an award of exemplary damages to plaintiffs; and

(2) Did the trial court err in permitting the jury to consider and determine issues upon which no evidence was submitted.

1.

Plaintiffs call attention that:

"Both the unserved defendant, Jones, and Miranda were charged with wanton misconduct. The charge against Jones was based upon his manner of operating the Miranda vehicle immediately prior to and at the time of this collision. The charge against Miranda was based upon his knowingly permitting an intoxicated person to operate his automobile."

Plaintiffs analyze our decisions of the past by stating that "at first blush, it might appear" that our decisions before 1948^[2] would sustain the trial court's refusal to permit the jury to consider exemplary damages, but that our decisions subsequent to 1948^[3] establish the Court's error.

The Peyton v. Delnay and Karney v. Upton Cases, upon which plaintiffs rely, involved actions under the guest portion of the statute and not under the ownership liability provisions involved in this appeal.

In the Peyton Case, defendant claimed that if the driver was guilty of gross negligence, then under our Wieczorek and Geib decisions the owner would not be liable under CLS 1961, § 257.401 (Stat Ann 1968 Rev § 9.2101), holding that only ordinary negligence would be imputed to the owner.

This Court, in rejecting plaintiff's claim, and explaining the difference between the Wieczorek and Geib Cases and the Peyton Case, said (p 248):

"Appellants rely for a contrary view upon Wieczorek v. Merskin, 308 Mich. 145; and Geib v. Slater, 320 Mich. 316. Neither was a case involving suit by a guest passenger. Neither held that where the operator (driving with the owner's consent) was found guilty of gross negligence or wilful and wanton misconduct that this acted to relieve the owner of liability."

That the Karney v. Upton decision did not overrule Wieczorek or Geib is evidenced by the following from that decision (p 265):

"It may be noted that the recent decision of this Court in Peyton v. Delnay, 348 Mich. 238, is squarely in point. See, also, Wieczorek v. Merskin, 308 Mich. 145."

Under our decisions of the past, which we are reaffirming in the present appeal, we hold that the trial court did not commit error in refusing to instruct on gross negligence and exemplary damages.

2.

We next consider the court's instructions regarding plaintiff Ollie Mae Smith's duty to minimize her damages by obtaining proper medical or surgical treatment. That such a duty exists is well established.^[4]

A review of plaintiff Ollie Mae Smith's efforts to obtain such treatment discloses that within one hour after defendant's car struck the porch a neighbor drove her to the Grand Rapids Butterworth Hospital Emergency Department, where X-rays were taken which disclosed no broken bones in the leg; that two weeks later because of continuous pain she sought aid from Dr. Jones, of Grand Rapids, who prescribed the use of an elastic bandage to wrap the leg, some pills, and instructions to keep off the leg as much as possible and keep it elevated; that on August 23, 1963, she went from her home in Grand Rapids to the office of Dr. Lauretti, in Muskegon, who diagnosed her complaint as being a thrombophlebitis of the left leg, because either the nerves of the leg were somewhat inflamed or the diameter of the vein was smaller than ordinary; that because Dr. Lauretti felt physiotherapy was necessary, she went to a Mr. Beam, a physiotherapist in Grand Rapids, 19 times between September 4, 1963 and October 16, 1963, where whirlpool treatments and massage were administered; that Dr. Lauretti again examined plaintiff on October 18 and November 19, 1963, and on January 2, 1964; that her next visit to a doctor was on April 2, 1965, to a Dr. Johnston; that Dr. Johnston, on August 23, 1965, operated and tied off a vein in plaintiff's leg.

Plaintiff was examined as a witness at the trial and on direct examination related her visits to Dr. Lauretti. Plaintiff's cross-examination was confined to a few questions in regard to a knee injury she received in 1961, and a swollen leg resulting from medical treatment in 1958. Nothing was said by plaintiff on direct examination that even implied that Dr. Lauretti had recommended surgery, and the only question about Dr. Lauretti which defendant asked her on cross-examination was whether her attorney told her "to see Dr. Lauretti in the fall of 1963 so you made two or three trips over there" to Muskegon.

In the opening statement to the jury, defense counsel stated:

"It is our claim and our theory that she knew she needed the operation as of January, 1964, and if it had been done at that time she would have been completely cured at least within a couple of months."

An extended discussion and argument between counsel took place in the judge's chambers previous to instructing the jury. It was plaintiffs' counsel's contention that there was no testimony that Dr. Lauretti ever advised plaintiff, or her counsel, that surgery was necessary.

The court read aloud to counsel from Dr. Lauretti's deposition as follows:

"Q. Does it respond readily to conservative treatment?

"A. If it doesn't — sometimes it does. But most often it doesn't. And if it doesn't then you have to think of other things.

"Q. Such as what?

"A. Surgery."

and then asked defendant's counsel,

"Do you claim that that [surgery] was conveyed to her?"

Defendant's counsel answered:

"No, but I claim the law is, if she feels, if the jury finds she failed to procure necessary treatment for whatever reason, if she failed to act as a reasonably prudent person, failed to procure medical treatment and the jury so finds, she cannot recover."

The court specifically charged the jury:

"In his deposition, the doctor from Muskegon [Dr. Lauretti] then recommended surgery. Whether that was communicated to the plaintiff or not is part of that deposition that was read to you."

The record sustains plaintiffs' contention that:

"Upon examination of the record, it is evident that there was no reference at all made to any knowledge on the part of Mrs. Smith that she should have surgery, nor of any opinion being expressed by Dr. Lauretti that she should have had surgery prior to the actual date of surgery. The most that is found in the record is a statement in Dr. Lauretti's deposition that was read into evidence at the trial, wherein he said upon cross-examination by Mr. Souter [defendant's attorney]:

"`Q. So that the next recommendation at that point would normally be surgery?

"`A. Yes.'

"This is not a statement by Dr. Lauretti that, at the time he last saw Mrs. Smith in January of 1964, he recommended surgery. It is merely an answer to Mr. Souter's question that ordinarily at the point to which Mrs. Smith's case had progressed, he would recommend surgery. The trial record is totally devoid of any indication that Dr. Lauretti ever made any recommendation of surgery, or, in fact, that Mrs. Smith ever had any idea that surgery might be required prior to the initial examination by Dr. William L. Johnston."

We do not agree with defendant that "The jury might infer that the doctor had recommended surgery to plaintiff and she did not want it," nor do we agree with defendant's conclusion that: "Even if there were no evidence at all on the point, which is strenuously denied, then an intelligent jury would not make an erroneous finding on the point anyway."

Hospital records were introduced disclosing that five years before the accident here involved, plaintiff Ollie Mae Smith was hospitalized with chest pains of pleuritic nature and that on discharge (July 8, 1958) the summary sheet stated: "Final diagnosis atypical pneumonia. Thrombophlebitis." Further, that on June 12, 1961, plaintiff again came to the hospital complaining of her left knee which had been injured two weeks earlier in an automobile accident. In this regard plaintiff testified her left knee hit the dashboard of the car in which she was riding at the time of that accident.

The only medical testimony was given by Dr. Lauretti and Dr. Johnston.

The questions asked Dr. Lauretti on cross-examination in regard to either of the above mentioned hospital recorded incidents were confined to the following:

"Q. Would the fact that she had had, assuming that there had been a diagnosis of, a diagnosis of thrombophlebitis in 1958, would this be significant to you at all?

"A. I don't know that it would, because an accident the way she described, causing pain and swelling, at least I would think along the lines of an aggravation.

"Q. You mean that there had been a condition that this may have aggravated?

"A. Yes."

On direct examination, Dr. Johnston, after stating he had reviewed the above mentioned hospital records, and that those records disclosed there was no further finding of any thrombophlebitis after 1958, was asked whether he attached any significance to the 1958 thrombophlebitis with respect to the present case. He answered:

"Well, what I found at surgery certainly could have initiated with her initial injury. I have no way of evaluating what she had in 1958 but the fact that she went from 1958 until 1963 without any swelling, pain, cramps or any other diagnosis in the innumerable hospitalizations and innumerable clinic visits is pretty conclusive that this process she had in 1958 had subsided completely. It must have been a localized process, it did not ascend up her leg or give her enough scarring to produce this picture."

On cross-examination of Dr. Johnston, the following questions were asked and answers given:

"Q. Well, assuming she had the phlebitis that the hospital records show in 1958, do you mean that this would have completely cleared or disappeared?

"A. Yes. * * *

"Q. Do you feel that 1958 phlebitis was not significant then?

"A. I don't think it has any relationship to this [case]."

The court in its instructions to the jury in regard to defendant's claim, said:

"It is the claim of the defendant that what injuries Mrs. Smith complained of were not caused by this piece of wood coming in contact with her leg.

"It is the further claim of the defendant that she had a thrombus condition, thrombophlebitis condition back in 1958; that she was in an automobile accident in 1961 and that her thrombosis or thrombophlebitis was not the direct result of any negligence on the part of either Mr. Jones or Mr. Miranda."

Further on in the instructions, the court stated,^[5] and again reiterated^[6] that the jury could find that plaintiff was not entitled to any damages even though the evidence proved defendant's negligence.

The only evidence introduced other than that of the doctors, that could in any way throw any light upon the question as to whether plaintiff's operation was caused by the act of defendant or because of her condition previous to said act, was the testimony of the plaintiff Ollie Mae Smith, which refuted defendant's claim.

"An instruction not based on the evidence is erroneous in that it introduces before the jury facts not presented thereby, and is well calculated to induce them to suppose that such state of facts in the opinion of the court is possible under the evidence and may be considered by them." 53 Am Jur, Trial, § 579, pp 455, 456.

In Fortner v. Koch (1935), 272 Mich. 273, 283, we held that it is impossible to determine the effect upon the minds of the jury resulting from an instruction erroneously assuming the existence of certain facts.

We have also held that if the error is such that the result might well have been different if not committed, a new trial is justified. Rouse v. Gross (1959), 357 Mich. 475, 481, 482.

Applying these above mentioned tests, we conclude that a new trial should be granted because of instructions which permitted the jury to consider and determine issues upon which no evidence was submitted.

Reversed and remanded for new trial. Costs to appellants.

ADDENDUM

This addition to my opinion is written subsequent to receiving Justice ADAMS' and Justice BLACK'S opinions.

The common-law liability of defendant Miranda was not considered in my original opinion because it was not raised in either the trial of this case or in the appeal to the Court of Appeals.

Plaintiffs, in their brief, admit that even though the evidence would sustain an instruction in regard to "the wanton misconduct of defendant Miranda," and an instruction in regard to "imputation of the wanton misconduct of defendant Jones to defendant Miranda," there still would remain the "critical issue" in regard to exemplary damages, by the statement to this Court:

"However, if the Court determines that the question of gross negligence should have been presented to and decided by the jury, then plaintiffs' entitlement to exemplary damages becomes a critical issue in the case."

Admitting that if the Court approves submitting to the jury the question of exemplary damages, it will be doing so for the first time, plaintiffs state:

"Although there are numerous Michigan cases involving the allowance of exemplary damages under varied fact situations, there are none directly in point with reference to a claim for personal injuries sustained in an automobile collision."

The cases cited by Justice ADAMS do not refute this statement.

The common law came into existence and was developed before the day of the automobile. Realizing this, the Michigan legislature has by enactment extensively provided for the "rules of the road" in regard to driving, stopping, and parking. Up to now we have abided by those rules in determining the question of negligence in automobile accident cases and have not placed the burden upon the trial court or jury to first determine whether there was proof of negligence and then determine the amount or kind of negligence except in guest passenger cases. Determining the question of the amount of negligence is a major problem which has been proven by the guest passenger cases that have been appealed to this Court.

The only legislative reference to gross negligence or wilful and wanton misconduct is in the guest passenger statute and this provision was not included for the purpose of giving to the injured guest an added right to exemplary damages, but was inserted in a restrictive sense, namely: that no guest passenger could recover damages unless there was proof of gross negligence or wilful and wanton misconduct.

Nothing has been presented since my original writing that causes me to conclude differently than I did then, i.e.:

"Under our decisions of the past, which we are reaffirming in the present appeal, we hold that the trial court did not commit error in refusing to instruct on gross negligence and exemplary damages."

T.E. BRENNAN, C.J., and DETHMERS, J., concurred with KELLY, J.

ADAMS, J. (concurring in reversal and remand).

I agree with Justice KELLY that if a driver of an automobile is guilty of gross negligence, the owner would not be liable for such gross negligence under CLS 1961, § 257.401 (Stat Ann 1968 Rev § 9.2101) as only ordinary negligence would be imputed to the owner. In this case, however, we are concerned with the claimed tortious conduct of two persons — Louis Jones, the driver of the automobile that injured plaintiff Ollie Mae Smith, and Heriberto Miranda, the owner of the automobile, who was present in the automobile. The trial court refused to permit the jury to consider the question of whether Miranda's own actions amounted to wanton misconduct on his part and as to whether plaintiff Ollie Mae Smith was entitled to exemplary damages.

Upon the trial of this case, there was testimony that on the afternoon of July 11, 1963, Miranda and Jones met at a pool hall on South Division Street in Grand Rapids. Over a period of time, Miranda and another acquaintance, Shannon Anderson, made three trips to a nearby bar, consuming at least one bottle of beer on each trip. Jones accompanied them on at least one trip. Sometime after the third trip to the bar, Jones asked to borrow Miranda's 1955 Pontiac automobile to conduct some business. Miranda refused to loan the car. Jones made repeated requests. Miranda finally permitted him to use the car on the condition that Miranda accompany him. Jones drove a short distance. He then stopped to pick up a friend, Norris Darby. Darby testified that upon entering the car, he was invited to have a drink from an open bottle of wine that was in the rear seat. After pulling away from the curb, each of the men drank from the wine bottle and the drinking continued during the trip from Cass avenue to the point of collision.

Darby further testified that while Jones was driving west on Franklin street, he "told Louis Jones to take it easy, I was not ready to die yet, because he was zigzagging across the street. He almost hit one or two cars, so I said take it easy or else let me out." He said, "Ah, what is the matter, are you chicken, or afraid, or something like that?" Darby also testified that it seemed to him that Miranda also told Jones to take it easy, or something like that. Finally, he testified that when he first encountered Jones and Miranda on Cass avenue, "there was no doubt about" the fact that they had been drinking.

Minutes before the collision, which occurred at approximately 4:55 p.m., Robert J. Miller, an attorney, was stopped at a red light at the corner of Franklin street and Jefferson avenue, headed westerly on Franklin street, when he first observed the Miranda car. The car "pulled rapidly out of the gasoline station, which is on the southwest corner of Jefferson and Franklin, pulled into Franklin street at a rapid speed, nearly hit a car that was proceeding in a westerly direction, which car was in the north lane on the westbound traffic. Having barely missed that car it then proceeded to swerve in a southwesterly direction into the south lane of the westbound traffic and proceeded westward."

Miller saw the car stop at a red light at the Franklin-Sheldon avenue intersection and observed that the occupants were "laughing and talking boisterously." When the light changed, the Miranda car pulled away "again at a rather rapid accelerated speed," and then continued west "at a greater speed and pulled away from me probably by a block or two." Miller watched the car continue west on Franklin street to the intersection of Grandville, it appearing "first as if the car was going to go directly through the intersection with the green light and go westward through the intersection but all of the sudden they made a quick turn to the right or north into Grandville avenue, were over the center line of Grandville avenue traffic and came into contact with another car which it hit."

At the time of the collision, William R. Maier, a self-employed accountant, was driving an automobile southbound on Grandville avenue, near the Grandville avenue-Franklin street intersection. He was stopped in the inner southbound traffic lane, waiting for the traffic signal to change to green for Grandville avenue. After the light changed to green, he remained stationary for a short time, and then "heard this squealing of brakes, noticed the Pontiac come around the corner at a high rate of speed," which he judged to be "between 40 and 50 miles an hour." As the Pontiac made the right turn from Franklin street to Grandville avenue, "it was leaning on, pretty close to a 30-degree angle and I just sat there hoping that it would miss me (Maier); and as it did hit the left front headlight of my car, the left front corner of my car [, it] careened off that over and hit a porch of a house on the east side of Grandville."

Maier testified that "Well, as we got the driver out he could barely stand up, and the odor of alcohol was all present around him. He couldn't talk clearly, as a matter of fact, he tried to say he was not even driving, and we just helped him out from behind the wheel." Maier also observed that "the front seat passenger (Miranda) also smelled strongly of alcohol. As we opened the door there were some bottles fell out. There were other bottles in the car." The bottles were later identified as wine bottles.

John Corey was employed at a barber shop on the corner of the Franklin street-Grandville avenue intersection at the time of the collision. He heard "wheels squealing, going around the corner," then saw the Miranda vehicle "hit the car on the opposite side of the street, that would be the west side of Grandville avenue." He "could smell wine" on the person of the driver of the Miranda car; "it appeared that they had been drinking and as the door on the right hand side opened there I saw the wine bottle drop out."

Police Officer Richard A. Holmgren, who investigated the collision, observed that "all the individuals that were in the car, or had been in the car, had appeared or did appear that they had been drinking." And with respect to Jones and Miranda, "There was odors on both of their breath, which definitely were of an alcoholic content, I couldn't distinguish what they had been drinking; however, I do know they had been drinking."

CLS 1961, § 257.401 (Stat Ann 1968 Rev § 9.2101), to which Justice KELLY refers, relates to the civil liability of owners of motor vehicles for injury occasioned by negligent operation — imposing liability on the owner, where the motor vehicle is being driven by another, only if such operation is with the owner's consent and, in the case of an injured guest-passenger, imposing liability only if the injury is caused by the gross negligence or wilful and wanton misconduct of the owner or operator of the motor vehicle.

In this case, Miranda was present in the motor vehicle at all times prior to the accident. There is testimony that when Jones asked Miranda for the loan of his automobile, he was refused, that only after repeated requests by Jones did Miranda consent to allow him to use the automobile and then only if Miranda accompanied him. From such testimony as to the stipulation upon the use of the automobile by Jones, a jury could find that Miranda retained the right of control of the vehicle at all times and that he was therefore a joint tort-feasor with Jones.

Whether Miranda refrained from directing or encouraging the reckless operation of his car by Jones does not change his liability because it is the right of control rather than the actual exercise of it which is material. The rule is stated in 2 Restatement, Torts (Second), § 318, as follows:

"§ 318. Duty of Possessor of Land or Chattels to Control Conduct of Licensee.

"If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor

"(a) knows or has reason to know that he has the ability to control the third person, and

"(b) knows or should know of the necessity and opportunity for exercising such control."

In the comment which follows the above section, this statement appears:

"The duty to exercise reasonable care to control the conduct of third persons for the protection of others requires the actor to exercise his ability to control such third person's conduct not only when he knows of the necessity for so doing, but also when as a reasonable man he should know of it."

See, also, Dortman v. Lester (1968), 380 Mich. 80, 85, and Parks v. Pere Marquette R. Co. (1946), 315 Mich. 38.

Although CLS 1961, § 257.401 (Stat Ann 1968 Rev § 9.2101) refers to "gross negligence or wilful and wanton misconduct" in connection with liability to a guest passenger, under this Court's most recent pronouncements as to the above quoted phrase, in Peyton v. Delnay (1957), 348 Mich. 238, and McKenzie v. McKenzie (1965), 374 Mich. 320, the test is a "wilful and wanton disregard for public safety." Applying the test to this case, and bearing in mind that the totality of the facts is to be considered — Stevens v. Stevens (1959), 355 Mich. 363, and Anderson v. Gene Deming Motor Sales, Inc. (1963), 371 Mich. 223 — a jury could have found Jones guilty of gross negligence or wilful and wanton misconduct within the meaning of the statute if a guest passenger had been involved. Such conduct could equally be found to be wilful and wanton with regard to other persons — a pedestrian, the occupant of another automobile, the occupant of one's own front porch, i.e., Mrs. Smith — as it would be to a guest passenger.

If the operation of the automobile by Jones was limited in that Miranda permitted such operation only under his supervision and presence, a jury could find that the injuries to Mrs. Smith resulted from a concert of action by Jones and Miranda in the wrongful operation of the motor vehicle. "Where there is concerted action toward a common end, both parties are liable for all acts within the scope of the undertaking." King v. Herfurth (1943), 306 Mich. 444, 448. In Benson v. Ross (1906), 143 Mich 452, where plaintiff was injured by a stray bullet shot by 1 of 3 defendants, this Court said:

"There was testimony tending to show that the three defendants were acting in concert in an act, not only violating a city ordinance, but palpably and grossly negligent. If the jury found such concert of action, all would be liable as joint tort-feasors."

See, also, McCoy v. DeLiefde (1965), 376 Mich. 198, and Fisher v. Rumler (1927), 239 Mich. 224, 227, 228.

Miranda's misconduct (if found to exist) is no different in causal relation to the injuries inflicted on Ollie Mae Smith than it would be under the guest statute. Because a jury could find that Miranda had authority to act under the circumstances, it could also find that his conduct amounted to recklessness and a wilful and wanton disregard for public safety.

Exemplary Damages.

Plaintiffs' attorney sought an instruction on exemplary damages.^[1] The instruction is not a correct statement of the law with regard to exemplary damages and plaintiff Ollie Mae Smith was not entitled to have it given. Plaintiffs' attorney also made objection to the trial court's failure to give any instruction to the jury on exemplary damages. Defendant-appellee maintains that no instruction as to exemplary damages should have been given.

The question as to what constitutes exemplary damages has been considered at length in a number of Michigan cases. In Detroit Daily Post Company v. McArthur (1868), 16 Mich. 447, an action for libel, the Court said (p 453):

"It is in connection with the various degrees of blameworthiness chargeable on wrongdoers, that the discussions have arisen upon the subject of vindictive or exemplary damages, which, inasmuch as they rest upon actual fault, are by some authorities said to be designed to punish the wrong intent, while, according to others, the damages usually so called are only meant to recompense the sense of injury which is in human experience always aggravated or lessened in proportion to the degree of perversity exhibited by the offender. While the term exemplary or vindictive damages has become so fixed in the law that it may be difficult to get rid of it, yet it should not be allowed to be used so as to mislead, and we think the only proper application of damages beyond those to person, property or reputation, is to make reparation for the injury to the feelings of the person injured. This is often the greatest wrong which can be inflicted." (Emphasis added.)

In Welch v. Ware (1875), 32 Mich. 77, an action for assault and battery, the Court, in discussing the right to recover exemplary damages, said (pp 84, 85):

"When the law gives an action for willful wrongs, it does it on the ground that the injured person ought to receive pecuniary amends from the wrongdoer. It assumes that every such wrong brings damage upon the sufferer, and that the principal damage is mental, and not physical. And it assumes further that this is actual, and not metaphysical damage, and deserves compensation. When this is once recognized, it is just as clear that the willfulness and wickedness of the act must constitute an important element in the computation, for the plain reason that we all feel our indignation excited in direct proportion with the malice of the offender, and that the wrong is aggravated by it." (Emphasis added.)

In Scripps v. Reilly (1878), 38 Mich. 10, an action for libel, Justice MARSTON, writing for a unanimous Court, set forth a summary of the rules applicable to the recovery of damages. Rules 1 through 6 are pertinent here. They read as follows (pp 23 and 24):

"1. In any injury entitling the party to redress, damages to the person, property and reputation, together with such special damage as may be shown are recoverable.

"2. Where the act done is one which from its very nature must be expected to result in mischief, or where there is malice, or willful or wanton misconduct, carelessness or negligence so great as to indicate a reckless disregard of the rights or safety of others, a new element of damages is allowed, viz.: for injury to the feelings of the plaintiff.

"3. Damages for injuries to feelings are only allowed in those torts which consist of some voluntary act or very gross neglect, and depend in amount very much upon the degree of fault evinced by all the circumstances.

"4. Where the tort consists of some voluntary act, but no element of malice, carelessness or gross negligence, is shown to have existed, but that the wrong was done in spite of proper precaution, the damages to be awarded on account of injured feelings, will be reduced to such sum as must inevitably have resulted from the wrong itself.

"5. Where, however, the elements exist in a case, entitling a party to recover damages for injured feelings, the amount to be allowed for shame, mental anxiety, insulted honor, and suffering and indignation consequent on the wrong, may be increased or aggravated by the vindictive feelings, or the degree of malice, recklessness, gross carelessness or negligence of the defendant, as the injury is much more serious where these elements, or either of them, are shown to have existed.

"6. This increase of damages dependent upon the conduct of the defendant must be considered in this State as actual damages, although usually spoken of as exemplary, vindictive or punitory, and the amount thereof to be recovered, where recoverable at all, as they are incapable of ascertainment by any other known rule, must rest in the fair and deliberate judgment and discretion of the jury acting upon their own sense of justice in view of all the circumstances, both mitigating and aggravating, appearing in the case, and which can fairly be said to give color to or characterize the act, aided, however, by such instructions from the court as will tend to prevent the allowance of damages merely fanciful, or so remote as not fairly resulting from the injury." (Emphasis added.)

In Lucas v. Michigan Central R. Co. (1893), 98 Mich. 1, an action by a passenger who claimed he had been wrongfully ejected from a train by the conductor, this Court said (p 4):

"Under the circumstances of this case, if the jury believed the testimony introduced on behalf of plaintiff, the plaintiff was entitled to recover, not only those damages which are ordinarily termed `actual damages,' but for whatever injury to his feelings or of indignity, pain, and disgrace such conduct would tend to produce in view of the time, place, and circumstances. Conduct may be so hasty and ill-timed, and so far disregard proper precaution and the rights of others, as to be reckless and oppressive, and the law regards recklessness and oppression as aggravating the injury. [Citations omitted.] If plaintiff's legal rights were violated by the expulsion from the train, it was for the jury to consider the injury to his feelings that such conduct would be likely to produce, in view of his consciousness that he was without fault, and had a right to remain upon the train to his destination." (Emphasis added.)

Finally, in the more recent case of McFadden v. Tate (1957), 350 Mich. 84, which was an action for damages arising from an assault and battery, Justice CARR, writing for the Court said (p 91):

"Plaintiff was entitled to reasonable compensation for pain and suffering undergone by him and, likewise, if the injury was maliciously and wantonly inflicted, for the sense of indignity and humiliation resulting to him."

From the above quoted discussions from Michigan cases, it must be concluded that allowance of exemplary damages in a proper case is made for injury to the feelings of a plaintiff. It should be further noted that this Court has held that such a right of recovery is restricted to the person who has received the physical injury. Hyatt v. Adams (1867), 16 Mich. 180. This Court has also stressed again and again that such exemplary damages are not to be allowed by way of punishment of defendant. See Stilson v. Gibbs (1884), 53 Mich. 280; Wilson v. Bowen (1887), 64 Mich. 133; Stuyvesant v. Wilcox (1892), 92 Mich. 233; Boydan v. Haberstumpf (1901), 129 Mich. 137; McChesney v. Wilson (1903), 132 Mich. 252; Hink v. Sherman (1911), 164 Mich. 352; and Wise v. Daniel (1922), 221 Mich. 229.

Defendant Miranda maintains that exemplary damages in Michigan at common law have been allowed only in cases involving intentional torts. The right to recover exemplary damages arises out of the outrageous nature of the acts of a defendant. Such acts are variously described in the cases: "the degree of perversity exhibited by the offender" (Detroit Daily Post Company, supra); "the willfulness and wickedness of the act" (Welch, supra); "willful or wanton misconduct, carelessness or negligence so great as to indicate a reckless disregard of the rights or safety of others * * * very gross neglect * * * carelessness or gross negligence * * * recklessness" (Scripps, supra); "Conduct may be so hasty and ill-timed, and so far disregard proper precaution and the rights of others, as to be reckless * * * and the law regards recklessness * * * as aggravating the injury" (Lucas, supra); and "injury * * * maliciously and wantonly inflicted" (McFadden, supra).

The above described conduct usually, but not necessarily, involves the element of an intent to do injury to a specific person. This is by no means always the case, however, especially in this day and age when instrumentalities under the control of an individual — such as an automobile — can be so recklessly and wantonly used as to endanger and injure whoever is unfortunate enough to encounter the wrongdoer. As we have seen, gross negligence or wilful and wanton misconduct in the operation of an automobile, because it can be an impersonal disregard for the life and limb of other persons, has come to be defined as a "willful and wanton disregard for public safety." "In all cases where an act is done which from its very nature must be expected to result in mischief, or where there is negligence so great as to indicate a reckless disregard of the rights or safety of others, a new element of damages is allowed to be considered." Detroit Daily Post Company, supra. When conduct of this kind occurs, it matters little to the innocent injured person that he or she is the victim of acts lacking in any specific intent by defendant to inflict injury upon him. This is not the mechanical action of delivering a blow from the arms of a windmill referred to in Welch, supra, or the kick in the face by bovine reaction of a cow referred to in Wise, supra — rather this is the act of a human being having the mentality to comprehend the nature of an act in utter disregard for public safety. It transcends mere negligence.

We have permitted recovery of exemplary damages for unnecessary suffering arising when a man misconceives his legal rights and proceeds in an oppressive fashion, Raynor v. Nims (1877), 37 Mich. 34. In the present situation, where it could be concluded that defendants deliberately flaunted the law, the unfortunate victim should be allowed to recover damages, mental as well as physical, resulting from the injury. Since 1868, this Court has recognized that injury to the feelings "is often the greatest wrong which can be inflicted."

It is defendant-appellee's further contention that plaintiff failed to plead exemplary damages, that exemplary damages are items of special damage governed by GCR 1963, 112.8, and that it is required they be specifically pled. Defendant cites Sherman v. Kilpatrick (1885), 58 Mich. 310. The opinion in Sherman contains no cited authority. The case has never been cited by this Court. The correct rule is set forth in Wise v. Daniel (1922), 221 Mich. 229. In that case it was claimed that the declaration made no claim of exemplary damages and, therefore, none could be awarded. The Court said (p 234):

"The declaration sufficiently averred the nature of the acts on the part of the defendant authorizing exemplary damages. The accompanying circumstances aggravating the injury by reason of the wanton and malicious conduct of the defendant need not be specially pleaded for they are not substantive elements of damages, but only serve in the capacity of characterizing the acts complained of and as an aid in measuring compensation to be awarded."

In this case, the complaint avers the gross negligence and wanton misconduct of Jones and Miranda and that Ollie Mae Smith sustained personal injuries, both physical and mental, which caused her past and future pain and suffering. Based upon the authority of Wise, supra, the complaint was sufficient.

Finally, defendant-appellee asserts that there was absolutely no testimony from which a jury could find that plaintiff, Ollie Mae Smith, suffered injury to her feelings as a result of the actions of defendants. Mrs. Smith testified that at the time of the injury she was seated on her front porch combing the hair of her little girl. The questions and answers continue as follows:

"Q. After you completed combing Tamera's hair, what did you do?

"A. When I finished Tamera's hair, she got down, then I started combing Karen's hair.

"Q. How old was Tamera at that time?

"A. Tamera was about four.

"Q. Where did Tamera go after you put her down?

"A. She was standing on the steps.

"Q. What happened next?

"A. She was standing on the steps, I was sitting there combing Karen's hair, all at once I heard something bump. I looked up, when I looked up this car was headed straight to me and my baby sitting on the chaise lounge so I grabbed her in my arms. I ran to the door, just as I attempted to open the door, something hit me on the leg. Tamera was standing on the steps. My husband came from work. I was trembling, crying and screaming, she was crying. I thought she was under the car, I thought she was down under the car but she had gone in the house with her dad.

"Q. Go ahead, what happened?

"A. So then after I found out she was gone in the house with her Dad, Karen was still scared. Tamera was screaming so I took her. We was just standing there shuddering, with the girls. My cousin next door, she ran the beauty shop, one of the police come up to the porch, he said, anybody hurt up there.

"Q. Now, and with respect to anybody else, don't tell us what they said because you are not allowed to tell us what they said, but tell us what happened.

"A. Police come, say is anybody hurt. I said I don't know I am so nervous, I don't know what to do. About that time I looked down, blood was running down my leg."

In this case, a mother was seated with two of her small children on her own front porch when the intrusion occurred. The circumstances of that intrusion were such, according to the testimony, that a jury could find she suffered both physical and mental injury.

Upon new trial, the jury should be properly instructed as to exemplary damages in accordance with this opinion.

I agree with Justice KELLY that the case must be reversed and remanded for a new trial. However, I would do so, in addition to the reasons given by him, because the trial judge erred in refusing to allow the jury to consider the question of whether the actions of Miranda amounted to gross negligence or wilful and wanton misconduct on his part as a joint tort-feasor with Jones and because the judge refused to charge the jury as to exemplary damages.

T.M. KAVANAGH, J., concurred with ADAMS, J.

BLACK, J. (concurring specially in reversal and remand).

With Justices KELLY and ADAMS I vote to reverse and remand for new trial.

My separate view is that the trial judge erred reversibly in refusing to submit to the jury question whether defendant Miranda's conduct rendered both defendants joint tort-feasors according to commonlaw standards. The conduct to which I refer is outlined, favorably to the plaintiff as is due for present purposes, in Justice ADAMS' opinion.

I find no other evidence of reversible error.

Plaintiff should have costs of all courts thus far sustained.

T.G. KAVANAGH, J., took no part in the decision of this case.

NOTES

[1] Smith v. Jones (1967), 6 Mich. App. 92.

[2] Wieczorek v. Merskin (1944), 308 Mich. 145; Geib v. Slater (1948), 320 Mich. 316.

[3] Peyton v. Delnay (1957), 348 Mich. 238; and Karney v. Upton (1958), 353 Mich. 262.

[4] 48 ALR2d 346, 349, 350; Poikanen v. Thomas Furnace Co. (1924), 226 Mich. 614; Kricinovich v. American Car & Foundry Co. (1916), 192 Mich. 687.

[5] "If you should find that her injuries were the result of her condition in 1963, was the result of what happened in 1958 or 1961, and what happened in July 1963 had nothing to do with her condition of course then she cannot recover the damages that I have outlined to you, because, this defendant would be liable for only the direct results or responsible for the damages that are directly traceable to the accident that happened on July 11, 1963."

[6] "But, if you should find that her condition in July and subsequent months was a direct cause or relate back to what happened in 1958 and 1961 then of course they were not the direct result of this accident on July 11, 1963. * * *

"If on the other hand you find these injuries that she complained of, were not caused by, — were not directly caused by the negligence of Mr. Jones, if any, and that was solely due to her condition in 1958 or 1961, of course then her resulting injuries and damages were not a direct cause of this accident and she cannot recover."

[1] "I have previously instructed you that, should you find defendant Miranda guilty of gross negligence or willful and wanton disregard of public safety, then you may award Mrs. Smith what are called `exemplary' damages.

"It is the law of Michigan that, when a person sustains injuries as a result of the gross negligence, or willful and wanton misconduct of another party, then the jury may award the injured person additional damages because of the gravity of the defendant's recklessness, willfullness, wantonness or gross negligence. No hard and fast rule can be laid down, properly measuring or limiting damages which you may award if you should find that defendant Miranda was guilty of gross negligence, except that they must not be oppressive, or such as to shock the common sense of fair-minded men, and they are therefore left to your reasonable discretion.

"Under the facts of this case, if you should find that defendant Miranda was guilty of gross negligence, or willful and wanton disregard of public safety, then any amount which you may choose to award Mrs. Smith as exemplary damages `must rest in the fair and deliberate judgment and discretion of * * * [you as members of] * * * the jury acting upon * * * [your] own sense of justice in view of all the circumstances, both mitigating and aggravating, appearing in the case.'"