This is an appeal from a summary judgment
The court ordered testimony taken on the motions for summary judgment. The result was an extremely copious testimonial record.
It is not to the point of decision here that no jury was demanded and that Judge Piggins would have been, under the pleadings, the trier of the facts and the sole judge of the credibility of the witnesses. We think perhaps this fact may have led to the error which compels us to reverse.
At the conclusion of the testimony, the trial judge held as follows: He denied the motions of defendants Metropolitan and American Adjustment for summary judgments on their counterclaims against plaintiff for malicious prosecution. He dismissed the original action as to Metropolitan for failure to state a cause of action against it. From these dispositions defendant Smith only claimed appeal. We limit our consideration to that appeal claimed.
We reverse as to his entry of summary judgment for plaintiffs against defendant Arthur N. Smith, because in order to grant summary judgment against defendant Smith, the judge had to accept the plaintiffs' version of the testimonial record as credible and to reject that of the defendant as unworthy of credence. We think the sharp issue of fact as to
"As I say I would like to bend over backwards and give the defendant his full day in court, but I can't quite accept it." (Emphasis supplied.)
The "it," we think, the court referred to was defendant Smith's testimony. We note he further added on the question of nondelivery of the voting rights:
"The testimony indicates to the contrary."
We are mindful that Judge Piggins, sitting as the trier of the facts, would have been the sole judge of the weight of the testimony including what inferences might be properly drawn therefrom. He would as well have been the sole judge of the credibility of the witnesses. Passing only as he was on the question of whether an issue of fact existed, we are constrained and hold he entered upon the area that was reserved for the trier of the facts, whether court or jury. It is the more important that we so hold here in this case where no jury was demanded so that the circuit bench and profession may know that the rule concerning the inviolability of resolution of genuine fact issues is for the trier of facts alone. Justice BLACK, for a unanimous participating Court, in Hughes v. John Hancock Mutual Life Insurance Co., 351 Mich. 302, wrote at p 308, setting forth the rule:
"As was said by Justice COOLEY (in Woodin v. Durfee, 46 Mich. 424, 427, where the trial judge had directed a verdict for the plaintiff):
Further in the same case, the following language was noted with approval from Reid v. Maryland Casualty Co. (CCA5), 63 F.2d 10, at p 309:
"This appeal presents the single question whether the district judge was right in his view, that since he disbelieved plaintiff's testimony, and had made his mind up that if plaintiff had a verdict he would not let it stand, he had the right to withdraw the case from the jury and himself determine the credibility of the witnesses.
"`We think it beyond question that he was not. District judges are pronouncing no mere rigmarole when, in law cases, they charge jurors that they are the sole and exclusive judges of the credibility of the witnesses, and the weight to be given to their testimony. They are setting forth the very substance of a jury trial as guaranteed by the Seventh Amendment to the Constitution. Its purpose and aim "is not to preserve mere matters of form and procedure, but substance of right. This requires that questions of fact in common-law actions shall be settled by a jury, and that the court shall not assume, directly or indirectly, to take from the jury or to itself such prerogative." Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 596 (17 S.Ct. 421, 422, 41 L ed 837). It requires that except in cases where the evidence is such that reasonable minds can draw only one conclusion from it upon the issues, cases tried to a jury must go to a jury for their verdict. Especially is this so where, as here, the case turns upon the credibility of the witnesses.'"
We add again for emphasis and in the event that litigants and their counsel may choose to entrust
For the reasons hereinbefore detailed, the denial of the motion to set aside the summary judgment as to defendant Arthur N. Smith is vacated. The case is remanded for further proceedings consistent with our holding herein. No costs may be taxed, no party having prevailed in full.
ADAMS, J., concurred with O'HARA, J.
SOURIS, J. (concurring).
I agree with Mr. Justice O'HARA that the summary judgment entered by Judge Piggins against defendant Smith must be reversed.
While plaintiffs' motion for summary judgment asserted that there was no genuine defense set forth by defendants, its real thrust, considering the affidavits in support of it, was as a motion filed under GCR 1963, 117.2(3) asserting the right to summary judgment because there were no genuine issues of material fact.
It was quite evident when the motion was called for hearing that the plaintiffs were not entitled to summary judgment without more. What was lacking was sought to be supplied by testimony from the defendant Smith and from the plaintiff Lawrence Zamler. That testimony appears in 32 typewritten pages of the record made below.
T.M. KAVANAGH, C.J., and DETHMERS and SMITH, JJ., concurred with SOURIS, J.
KELLY and BLACK, JJ., concurred in result.