CHUNKO
v.
LEMAITRE.
Docket No. 2,614.
Michigan Court of Appeals.
Decided March 29, 1968.*492 A.T. Lee, for plaintiffs.
Patterson & Patterson, Barrett & Whitfield (Gerald G. White, of counsel), for defendant.
McGREGOR, P.J.
This appeal is from a directed verdict of no cause of action. The defendant below filed a cross-appeal from a denial of a motion for accelerated judgment on another issue, in an apparent strategy to secure the results he desired, regardless of the outcome of the original appeal.
On April 1, 1964, the plaintiff wife and defendant were drivers of two of the automobiles involved in a three-car auto accident on a busy urban street. Defendant undisputedly came to a quicker-than-usual stop in the centermost lane of the westbound lanes on this multi-lane main artery of traffic. Plaintiff wife, who was driving the auto immediately behind the defendant, was able to avoid striking defendant's auto by rapidly applying the brakes and turning slightly into the next westbound lane. If there had been but these two autos on the street, no collision would have occurred. However, a third westbound auto crashed into the rear of plaintiffs' auto and forced it into the rear of defendant's auto. Therefore, instead of a near miss of a collision, what resulted was a three-car collision with substantial property damage to the autos and claimed personal injuries.
Action was commenced in Oakland county in September, 1964, against both the defendant and the third party. In April, 1965, the case against the third party was dismissed upon stipulation, after *493 an out-of-court settlement. In December, 1965, the insurance company subrogee of the plaintiffs in this action brought an action in the common pleas court for the city of Detroit against the defendant in this action and the third party, for property damages. The common pleas action resulted in a ruling of no cause of action against the defendant here, and fixed liability only upon the third party. The defendant made a motion for accelerated judgment on the theory that the common pleas action was res judicata. This motion was denied. After the opening statements of counsel in the trial of this case, defendant made a motion for a directed verdict of no cause of action. A directed verdict was granted by the trial judge, who gave the following opinion:
"From this and the opening statement wholly speaking, the [defendant's] car came to a sudden stop. This was followed by the stopping of the [plaintiffs'] car behind, and the[defendant's] and [plaintiffs'] vehicles did not collide. If there had been no [third party] car, there would be no case in court between [defendant] and [plaintiffs]. There is a case in court because the [third party] car admittedly, after the stop and non-contact of the [defendant's] and [plaintiffs'] cars, collided with the [plaintiffs'] car, forcing it into the stopped [defendant's] car.
"On this version of the facts which I believe is that alleged and portrayed by the plaintiffs, the motion must be granted as a matter of law, and it is.
"I am reluctant to grant the motion, because courts no more have a right to invade the province of the triers of the facts than do the triers of the facts to invade the province of the judge in the law. Certainly, I recognize if the [plaintiffs'] car had suffered damage because of a sudden, illegal, stop of the [defendant's] car, then that could be a proximate *494 cause contended for in liability. But then I reflect upon the fact that the [defendant's] and [plaintiffs'] cars stood there without harm to each other, whether for seconds or longer, and then the damage began flowing and was occasioned when the [third party's] car collided with the [plaintiffs'] car."
Plaintiffs challenge the ruling that as a matter of law the defendant was not guilty of negligence which was the proximate cause of the accident, because plaintiff wife was able to avoid a collision with the defendant. Plaintiffs therefore seek a new trial, in which the negligence of the defendant and its causal relationship to the accident would go to the trier of the facts. In the event of a reversal on the basis of plaintiffs' theory, defendant's cross-appeal would renew the theory that the circuit court action was controlled by the common pleas case under the principles of res judicata and the rule against splitting causes of action.
On the first issue, the defendant's brief concentrates on the facts and is totally devoid of legal citations. While defendant's treatment of this issue is not conclusive proof that no precedents were available to him to buttress his argument, the cases decided on this issue are markedly one-sided.[*] A driver stopping on the highway has the statutory duty to first see that the stop can be made in safety, CLS 1961, § 257.648 (Stat Ann 1960 Rev § 9.2348), with the question of whether the statutory duty was performed being a question of fact. Linaberry v. LaVasseur (1960), 359 Mich. 122; Rossien v. Berry (1943), 305 Mich. 693. Even in the absence of a statute there is a common-law duty of ordinary care in operating a motor vehicle which would require *495 due care in stopping. In this era of crowded urban streets and thoroughfares, it is error to consider, in vacuum-like manner, only the actions of the first two autos involved in a multi-auto collision. The mere fact that the plaintiff wife was able to avoid striking defendant's auto does not necessarily mean that the defendant is completely blameless for the damages which resulted to the plaintiffs. This issue should have gone to the trier of facts and it was error to keep it from so doing.
A closer question is presented on the issue of whether the previous common pleas case served as a bar to this case through estoppel by judgment. There is little question that the general rule is that valid decisions of inferior courts can be res judicata, see 50 CJS Judgments § 689, p 146, and in order to avoid vexatious multiple suits against defendants there is a deeply ingrained bias in the law against splitting of actions. Jones v. Chambers (1958), 353 Mich. 674. It is also recognized that the rule against splitting of actions is at odds with the modern insurance practice of assignments of claims to insurance carriers. This case is fairly typical of the standard practice in these matters, that is, the insurance companies have proceeded to a conclusion of the property damages by use of the simplified procedures of common pleas court while the personal injury claim awaited what is the relatively slow process of litigating a personal injury suit in circuit court. Michigan courts have long recognized that these modern insurance subrogation practices are often a more satisfactory method of adjudicating the legal questions raised by automobile accidents involving both property damage and personal injuries. See Republic Automobile Insurance Company v. Maedel (1931), 253 Mich. 663; National Liberty Insurance Company v. Foth (1931), 254 *496 Mich 152; Heck v. Henne (1927), 238 Mich. 198; also see 2 Callaghan's Michigan Civil Jurisprudence, Automobiles and Motor Vehicles, § 213 at p 268. More recently, this problem has been handled in Michigan by court rules, GCR 1963, 201.2 and 205. The committee note on GCR 1963, 205 presents a very informative and interesting essay on the background and rationale for the rules of joinder of insured and insurer. 1 Honigman & Hawkins, Michigan Courts Rules Annotated (2d ed), committee comment (3), pp 541-544. As pointed out by the committee comment on page 543, the purposes of the court rules in this area are to recognize that a single tort claim can be split and to provide that each party holding an interest shall have a right to his day in court, but at the same time, allowing a defendant to protect himself from vexatious litigation. This result is accomplished by GCR 1963, 201.2 and 205 working together to provide that the defendant must make a timely assertion of the position that separate suits violate the rule against splitting of actions. If the defendant fails to make such a timely assertion he waives the right to make such a claim; in effect, the defendant acquiesces in splitting causes of action by not raising timely objection. The time for this defendant to have raised objections to the splitting of causes of action was when the common pleas action was filed. By allowing that action to proceed to a conclusion while the personal injury suit was pending, the right to raise the issue of splitting a cause of action was waived. Under the facts of this case the common pleas case concerning property damages was not res judicata in the circuit court personal injury action. To hold otherwise would prevent a real litigation of the personal injury claim, would be contrary to the logic and reality of automobile accident subrogation law, *497 and would ignore the complex court rules which were designed to meet this very situation.
Also raised is the issue of whether it was proper for the jury to know of the settlement with the third party. The precedent of this state is that it was not only proper, but that the jury should be informed of such a settlement. Larabell v. Schuknecht (1944), 308 Mich. 419; King v. Greyhound Corporation (1966), 4 Mich. App. 364.
The judgment of no cause of action is reversed and this case is remanded for a new trial. Costs to plaintiffs-appellants.
LEVIN and QUINN, JJ., concurred.
NOTES
[*] For an impressive collection of precedent on this issue, see Annotation, Sudden or unsignaled stop or slowing of motor vehicle as negligence, 29 ALR2d 5 (1953).