Felgner v. Anderson

¶1(concurring in affirmance). This case, having been previously assigned to the writer according to our practice, was submitted May 8th last. Accordingly, and on May 28th an opinion was submitted to the other members of the Court, proposing that the circuit court’s judgment be affirmed by flatly overruling, in answer to the principally posed question of assumption of risk (stated question 3),* the patently errant case of Waltanen v. Wiitala, 361 Mich 504; and by holding for specified reasons that defendant-appellant’s combinative questions 1 and 2 call for negative answers. Since then Justice Souris, reaching the same conclusions and results as were thus earlier submitted, has written separately and more exhaustively to affirm. I concur fully, as verified below.

¶2*58Too many of our decisions in recent years have been made and recorded, regrettably in critically important cases, by means of divisive or separate opinions the sum of which, far from furnishing that reasonably certain guidance every court of last resort is supposed to provide, spell no more than a “contend and decide as you please” message to bar and bench. The sad result has been a fecund procreant of litigation rather than a dependable composer thereof, with each new contender appraising as best he can, not the discordantly written “law” to which I refer, but the fallible human element of the judicial process, that is, the philosophical bent of the reinless trial judge.

¶3In effort to arrest, whenever possible, repetition of such judicial disservice, I have decided — and have already started — to adopt the practice of withdrawing opinions submitted in situations such as have developed here, the better to eliminate need for reading evermore bulging pagination of our reports and to gain unequivocal majority support of a definitely controlling opinion; an opinion upon which lawyers and judges may fairly depend. I do so here. In token thereof my signature has been affixed to Justice Souris’ aforesaid opinion, and my May 28th opinion is now withdrawn.

¶4The opinion of Justice Souris covers inter alia all authorities, including the 2 recent and pungent New Jersey cases,* which in such withdrawn opinion were aimed at abrupt rejection of that incredible folly recorded under the name of Waltanen v. Wiitala. I repeat here, for the record, what was written in such withdrawn opinion of the situation in New Jersey:

*59“Late last fall the supreme court of New Jersey .was compelled to speak again, this time with bluntness. In McGrath v. American Cyanamid Co., 41 NJ 272, 274, 276, (196 A2d 238, 240, 241), having referred to Meistrich as follows:

“ ‘It was our hope that after Meistrich the bench and bar would focus upon the true issues, but unhappily some cling to the terminology of assumption of risk and continue to be misled by it even while purporting to think of it as merely a convertible equivalent of negligence or contributory negligence,’ the court concluded:

“ ‘Experience, however, indicates the term “assumption of risk” is so apt to create mist that it is better banished from the scene. We hope we have heard the last of it. Henceforth let us stay with “negligence” and “contributory negligence”. ’ ”

¶5I would iterate and reiterate the above for Michigan. Unlike Justice Souris, I would go just as “far as did New Jersey’s supreme court to eliminate the confusion and possible injustice resulting from the misuse of the assumption of risk doctrine.” However, since a majority of the Court agrees with Justice Souris’ milder method of treatment, I have joined him for the sake of as much unanimity as the case at hand can possibly brew for this area of negligence law.