OTIS M. SMITH, J.
Plaintiff brought suit to recover for the alleged wrongful death
In order to make a proper disposition of this case it is necessary only to discuss question No. 3 in appellant's statement of questions involved. Her attorney phrases it this way: "Were the statutory violations by the defendants indisputably proven?" More properly, the question should be phrased, were the questions raised by the plaintiff's claim of statutory violations fairly and accurately submitted to the jury in view of the pleadings, proofs and requests to charge? This begs the question of whether or not the law was properly construed and followed.
Plaintiff's declaration filed on November 13, 1957, alleged that the defendants committed 1 or more acts of negligence in connection with the operation and maintenance of the building. The breaches of duty complained of by the plaintiff were numerous, including violations of statutes, ordinances, and the common law. Paragraph 8, subparagraph (i), alleges the statutory violations, generally, and reads as follows:
"8. That at said time and place and prior thereto, the defendants and each of them, and by their agents and servants, committed 1 or more of the following acts of negligence: * * *
"(i) In negligently violating the statutes of the State of Michigan in such case made and provided, which statutes were specifically enacted for proper protection in the instance of fire and lightning damage in such buildings as the instant one, wherein the public in great numbers were openly invited for financial gain to the said ballroom."
"First, plaintiff alleges that the defendant violated a number of ordinances and statutes.
"12. I charge you that if you find the defendant violated a Michigan statute, that the violation of such statute is `negligence per se.' Holmes v. Merson, 285 Mich. 136.
"13. I further instruct you that `a failure to observe the mandates of a statute designed to guard against injuries to person and property constitutes negligence per se; and if you find from a preponderance of the evidence in this case that the defendant was guilty of such failure and that, as a proximate result thereof, plaintiff's decedent was killed as alleged, no further showing of negligence is necessary to warrant a recovery by plaintiff.' 14 Am Jur Pleading and Practice Forms, p 644.
"15. I further charge you that inasmuch as the manager of the defendant admitted in open court without equivocation that the management and the owners of Edgewater Park violated the second paragraph of Rule No 10, to wit: `It shall be the duty of the owner or operator of each place of public assembly, to provide and properly train sufficient regular employees in the use of fire appliances, so that such appliances can be quickly put into operation. It shall be the duty of the owner or operator of such place of public assembly to institute and maintain, under the direction of the commissioner or the fire chief, monthly fire drills so that each employee shall be trained to do a certain portion of the work of preventing or extinguishing fire and providing for the safety of human life. Drill work shall include inspections of the stage, vents, exit doors, other means of egress, and all fire devices or appliances.'
It is plain from plaintiff's request to charge, just quoted, it is assumed that the rules of the commissioner are incorporated by reference into the statute, so as to make a violation of the rules a violation of the statute and, hence, negligence per se. Appellees did not challenge this interpretation. Apparently the trial judge made the same assumption as may be seen from his charge to the jury on this point:
"First, plaintiff alleges that the defendant violated a number of ordinances and statutes.
"I charge you that if you find the defendants violated a Michigan statute, that the violation of such statute is negligence per se, which is negligence in and of itself.
"I further charge you that the second paragraph of Rule No 10, was to-wit: `It shall be the duty of the owner or operator of each place of public assembly to provide and properly train sufficient regular employees in the use of the fire appliances, so that such appliances can be quickly put into operation. It shall be the duty of the owner or operator of such place of public assembly to institute and maintain, under the direction of the commissioner or the fire chief, monthly fire drills so that each employee will be trained to do a certain portion of the work of preventing or extinguishing fire and providing for the safety of human life. Drill work shall include
There can be no question but that under existing opinions of this Court, the violation of a statute is negligence per se. However, no authority is cited for the proposition that the violation of a duty imposed by administrative rules and regulations issued under statutory authority is negligence per se; nor have we been able to find any such precedents in Michigan. In the absence of specific language in the statute incorporating by reference other materials there is simply no such authority. We hold further that violations of duties imposed by such rules and regulations are evidence of negligence. The rigidity of the negligence per se doctrine should not be extended to administrative rules and regulations.
It seems undisputed that the ballroom was built in 1927. It is quite clear that the fire prevention act was passed in 1941, and that the rules and regulations were promulgated in 1943. Plaintiff quoted Rule No 1 in his request to charge. Rule No 1 attempts to make clear that it was applicable to then-existing
On March 17, 1960, during the course of the trial, the manager of the ballroom answered to certain questions on cross-examination as follows:
"Q. Mr. Mangan, have you had any meetings with your employees prior to the fire, as to methods of handling any emergencies, or did you rely upon your judgment and experience, primarily?
"A. No meetings.
"Q. None at all?
"Q. Did you arrange with the fire marshal or the fire department to have instructions as to methods of handling fire emergencies and how to save lives?
"Q. Are you familiar with the Michigan fire regulations?
"A. Technically, no."
It is not denied that this testimony on the part of defendants' manager constituted a breach of Rule No 10. Plaintiff was entitled to an instruction that Rule No 10 had been violated. It was reversible error for the trial judge to instruct the jury, in effect, that their prerogative to determine whether or not the rule had been violated, when the testimony was not in dispute. We said in Holbert v. Staniak, 359 Mich. 283, 290:
"It is an old established rule of law that where the facts are unquestioned from which a rule of law is to be deduced, the judge cannot leave it to the jury to deduce the rule, but must do it himself, and give them positive instructions upon the facts. Stearns v. Vincent, 50 Mich. 209 (45 Am Rep 37).
"Where the testimony as to a fact is not disputed, the jury should be instructed to find it accordingly. Dondera v. Frumveller, 61 Mich. 440.
"Where all of the evidence on both sides tends clearly to prove a fact, such fact may, and generally should, be assumed as proved; and in such case a charge to the jury indicating that it is competent for them to find either way is error. Druse v. Wheeler, 26 Mich. 189."
In view of this and many other cases presenting issues on jury instructions, we hark back to Barton v. Gray, 57 Mich. 622, 631:
"Undoubtedly it is the duty of the court to present to the jury the substantial issues in the cause, and to state to them the principles of law governing the rights of the parties, whether any specific instructions are requested by counsel or not."
See Martiniano v. Booth, 359 Mich. 680, and cases cited thereunder.
CARR, C.J., and DETHMERS and KELLY, JJ., concurred with OTIS M. SMITH, J.
BLACK, J. (concurring in reversal).
We face again, this time without positive Michigan precedent pointing either way, forked trails of divergent legal travel. Once a court of last resort, standing thus before ways to left and right, conducts as it must an election between the 2, that court is committed to continue the way of choice regardless of unseen turns, grades and washouts that may lie ahead. It is committed because, appellate judges being both human and prideful, not one likes ever to admit he has erred. Further, once committed, the judge usually — as he may — dons the protective and altogether comfortable robe of stare decisis.
Today's choice, then, should be made with deliberate care. Reliance upon available and dependable precedent is in order; not casual reference to the this-or-that conclusions of textwriters. As and for such precedent I tender the following rule, taken from New Amsterdam Casualty Co. v. Novick Transfer Co. (CCA 4), 274 F.2d 916, 919, noting that in each cited instance the court was speaking of safety regulations adopted in pursuance of express statutory authority:
"These regulations have been in effect since June 1, 1952, and must be complied with by all motor carriers (49 CFR 193.1). Having been made in pursuance of constitutional statutory authority, they have the same force as though prescribed in terms by the statute. Atchison, T. & S.F.R. Co. v. Scarlett (1937), 300 U.S. 471, 474 (57 S.Ct. 541, 81 L ed 748); Interstate Motor Lines, Inc., v. Great Western R. Co. (1947) (CCA 10), 161 F.2d 968."
"It is settled by many recent decisions of this court that a regulation by a department of government, addressed to and reasonably adapted to the enforcement of an act of congress, the administration of which is confided to such department, has the force and effect of law if it be not in conflict with express statutory provision. United States v. Grimaud, 220 U.S. 506 (31 S.Ct. 480, 55 L ed 563); United States v. Birdsall, 233 U.S. 223, 231 (34 S.Ct. 512, 58 L ed 930); United States v. Smull, 236 U.S. 405, 409, 411 (35 S.Ct. 349, 59 L ed 641); United States v. Morehead, 243 U.S. 607 (37 S.Ct. 458, 61 L ed 926). The law is not different with respect to the rules and regulations of a department of a State government."
The commissioner's rules and regulations quoted in Justice OTIS M. SMITH'S opinion were designed, upon legislative authority, to protect from the dangers of fire persons gathered or having duty in places of public assembly. Violation either of the statute itself or the "rules and regulations of the commissioner lawfully issued thereunder" is made penal by express wording (CL 1948, § 29.22 [Stat Ann 1961 Rev § 4.559(22)]). Such rules and regulations are of State-wide, distinguished from local, effect. Their preventive purpose is public safety. Strict enforcement thereof by the courts as well as by the commissioner and his appointees (see section 2; CL 1948, § 29.2 [Stat Ann 1961 Rev § 4.559(2)]) will surely tend to reduce fire hazards in places "where an assemblage of more than 50 people may congregate."
Violation by Edgewater of Rule No 10 having been concededly established, plaintiff was entitled to grant of her request to charge No 15, either in the language of that request or in equivalent phrasing. Edgewater on account of such conceded violation was guilty of negligence per se, leaving only for jury consideration the liability issues of causal connection (between violation and death) and contributory negligence.
For the reason given above, that of the refusal by the trial judge to grant the wording or the likeness of plaintiff's request No 15, I concur in reversal.
KAVANAGH, J., concurred with BLACK, J.
SOURIS, J., did not sit.
O'HARA, J., took no part in the decision of this case.
"R 28.101. Rule 1. Scope of rules.
"(a) To whom applicable: These rules shall apply to the construction or remodeling of buildings for public assembly; to school auditoriums and any other room in a school where an assemblage of people may gather; and to new and existing buildings where an assemblage of more than 50 people may congregate. (Section 9 shall apply regardless of the number of persons that may congregate.) * * *
"R 28.109. Rule 9.
"It shall be unlawful to use in any building described herein, used or intended to be used for the purposes of assembly, amusement or instruction, or any building or portion of a building defined as a place of assembly, flimsy decorations of any type such as: paper, paper streamers, cloth, artificial plants, trees, flowers, vines, leaves, moss, shrubs, grass, cotton batten or any other material or a combination of such materials, for decorative purposes or for the covering of ceilings, walls, windows or doors, or for sound-proofing, accoustical, insulating, artistic enhancement or any other similar purpose, that will produce a quick or fast burning fire, regardless of whether it is flameproofed or not. * * *
"R 28.110. Rule 10. Fire appliances.
"The commissioner, or any of his assistants, or the local fire chief, shall survey, or cause to be surveyed, each place of assembly and shall designate suitable fire appliances in and near boiler rooms, kitchens, storage rooms and other occupied areas where such appliances are deemed necessary. Such fire appliances may consist of automatic fire alarm systems, automatic sprinkler, standpipe and hose or portable extinguishers. All fire appliances shall be kept in working condition, and all extinguishers and hose and similar appliances shall be visible and handy at all times.
"It shall be the duty of the owner or operator of each place of public assembly to provide and properly train sufficient regular employees in the use of fire appliances, so that such appliances can be quickly put into operation. It shall be the duty of the owner or operator of each place of public assembly to institute and maintain, under the direction of the commissioner or the fire chief, monthly fire drills so that each employee shall be trained to do a certain portion of the work of preventing or extinguishing fire and providing for the safety of human life. Drill work shall include inspections of the stage, vents, exit doors, other means of egress, and all fire devices or appliances." (Emphasis supplied.)