Bachor v. City of Detroit , 49 Mich. App. 507 ( 1973 )

Danhof, J.

Plaintiffs appeal from the trial court’s finding of no cause of action and judgment for defendants entered on November 24, 1970.

Plaintiff, Helen Bachor, is an 80-year-old widow. Her daughter, Dorothy Bachor, is a 58-year-old single woman who is deaf. Neither has had any formal legal training. They initiated the present action against defendants on October 23, 1969, with the filing of a complaint. They proceeded in pro per, because they had been allegedly thwarted by the prohibitive fees of private attorneys and the inaction by pro bono legal aid services.

Plaintiffs sought to recover Detroit police pension benefits as survivors of Walter Bachor, a former Detroit police lieutenant who, after retiring in 1939, died November 26, 1947. Plaintiffs also sought to recover the wages of Walter Bachor which allegedly were withheld by defendants between 1932 and 1934, plus accrued interest and punitive damages.

On November 18, 1969 defendants filed an answer which raised several affirmative defenses, among which were included: lack of standing by Dorothy Bachor, laches and the statute of limitations as to past wages, and the defense that plaintiffs were not entitled to any retirement or survivors’ benefits "in that they did not attain any eligibility nor did any subsequent amendments to the Charter of the City of Detroit retirement provisions retroactively include the plaintiffs, and therefore they are barred from any recovery”.

On November 26, 1969, plaintiffs filed an untitled pleading which was interpreted by the trial court as a reply to defendants’ answer. On the same date, plaintiffs filed a written demand for a jury trial. Thereafter, the record reveals a number of letters from plaintiffs to the trial court between January 20, 1970 and September 29, 1970. The correspondence consisted of affirmations by plaintiffs of their entitlement to relief and a history of the attempts by plaintiffs to obtain relief from Federal and city agencies — all of which resulted in failure. Plaintiffs also replied to the trial court’s advice that they seek legal representation by saying that all of the attorneys that had been consulted either thought they had no cause of action or took no action. Finally plaintiffs filed a motion for early pretrial and trial. The motion was granted and trial was ordered for November 23, 1970.

No jury fee payment was ever made by plaintiffs. On November 23, 1970, without objection by plaintiffs, a bench trial was had. Defendants made a motion for directed verdict early in the proceedings.¹ After plaintiffs had testified, defendants’ motion was granted.

By order dated September 3, 1971 this Court waived its filing fees and ordered placed on the docket plaintiffs’ application for delayed appeal. By order dated January 10, 1972, plaintiffs’ application for delayed appeal was granted by this Court. The sole issue which confronts us is whether the trial court erred in failing to grant to plaintiffs a jury trial, where a request was filed, but where no payment of the jury fee was ever made.

The relevant statutory provision is MCLA 600.2537; MSA 27A.2537:

"In every case where a trial by jury is demanded, the party making the demand shall, at the time of filing the demand, pay to the clerk of the court the sum of $20.00. Failure to pay the fee within the time provided in the court rules constitutes, a waiver of the right to a jury trial. Such sum shall be taxed in favor of the party paying the same, in case he recovers a judgment for his costs.”

Also relevant is GCR 1963, 508.4, which in part states:

"The failure of a party to file a demand as required by this rule or to deposit the jury fee by the close of the pretrial conference constitutes waiver by him of trial by

This Court has on different occasions discussed the interpretation of GCR 1963, 508.4. In the case of Jinkner v Widmer, 3 Mich App 155, 157, 158, 159; 141 NW2d 692, 693-694 (1966), the question was "whether the trial court erred by ruling * * * that the admitted failure to pay the jury fee by the close of the pretrial conference constituted a waiver of trial by jury”. The Court held:

"The right to trial by jury is a substantive right guaranteed by the Constitution of the State of Michigan; see Const 1963, art 1, § 14. The manner in which this right is perfected is procedural and is governed by statute and court rule.

"Though it may be that this writer in passing upon the motion in the first instance might have provided a different result under the circumstances of this case, there is nothing shown herein to indicate that the trial court abused its discretion in denying the plaintiff a jury trial.”

In Ritchie v Macinkowicz, 3 Mich App 275, 279; 142 NW2d 45, 46-47 (1966), no written demand for a jury trial was made, nor was a jury fee paid, but the pretrial judge in his summary docketed the case for the jury calendar. The trial judge, finding no record of a written demand for a jury trial, nor proper payment of the jury fee, denied plaintiff a trial by jury. This Court, in affirming, said:

"Failure to demand a jury trial and to pay the jury fee by the close of the pretrial conference constitutes a waiver of the right to trial by jury. Const 1963, art 1, § 14, GCR 1963, 508.4. Although a jury trial may be granted after the close of the pretrial conference, notwithstanding the failure to demand a jury trial and nonpayment of the fee prior thereto, it lies within the sole discretion of the trial judge. Basmajian v Detroit, 256 Mich 539; 240 NW 87 (1932); Richey v Board of Education of County of Monroe, 346 Mich 156; 77 NW2d 361 (1956).”

Thus the law in Michigan, at the time these occurrences transpired, was clear. In filing their timely demand for a jury trial, plaintiffs had satisfied but one-half of the requirements laid down by statute and court rule. Once the close of pretrial conference had passed without payment of the jury fee, plaintiffs’ entitlement to a jury trial became a matter of discretion with the trial court. We hold that the trial court did not abuse its discretion by holding a bench trial in the case at bar. Admittedly, the trial court overlooked plaintiffs’ demand for a jury trial. This oversight would not have occurred, however, had plaintiffs either paid the fee, pleaded their inability to pay, or requested an exercise of the court’s discretion when it later became apparent that the trial was going to be held without a jury. Plaintiffs in this action decided to proceed in pro per, even though counsel had been repeatedly recommended. The right to a jury trial in civil cases must be carefully guarded, but it is nevertheless governed by statute and court rule. Appearance in pro per does not excuse all application of court rules, and neither should it in this instance.

Finally, plaintiffs claim that their indigency offers an excuse for failing to pay the requisite jury fee, citing Boddie v Connecticut, 401 US 371; 91 S Ct 780; 28 L Ed 2d 113 (1971). First of all, the holding of Boddie was narrowly confined to divorce actions, where state courts are the only avenue by which a citizen can obtain dissolution of a marriage. Secondly, plaintiffs were not denied access to the court, as were the plaintiffs in Boddie. Thirdly, plaintiffs in the instant case did not inform the trial court, until these proceedings had concluded, that their failure to pay the jury fee was caused by indigency. In a letter sent by plaintiffs to the trial court, dated August 28, 1970, plaintiffs did not claim indigency, but on the contrary expressed a willingness to pay the fee. They stated further, that they were told by someone that the fee did not have to be paid until the case was heard.

Although GCR 1963, 120.3 is not applicable to this appeal because it became effective October 4, 1971, its provisions are illustrative. Waiver or suspension of fees and costs is mandatory only upon the filing of an affidavit by a person stating facts showing that inability to pay fees and costs is due to indigency. Absent a timely request by plaintiffs to the trial court based on indigency, we cannot hold that the trial court abused its discretion by failing to Waive the jury fee.

Affirmed. No costs.

Adams, J., concurred.

1 A motion to dismiss under GCR 1963, 504.2 would have been more appropriate.