Clingerman v. Bruce, Docket No. 3030

• Decision Date: 03 April 1968
• Docket Number: Docket No. 3030,No. 2,2
• Citation: 11 Mich.App. 3,160 N.W.2d 614
• Parties: Adam B. CLINGERMAN, Plaintiff-Appellee, v. Robert T. BRUCE and R. N. Bruce, individually and as co-partners, d/b/a R. N. Bruce Construction Company, and Syend Petersen, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 614

160 N.W.2d 614

11 Mich.App. 3

Adam B. CLINGERMAN, Plaintiff-Appellee, v. Robert T. BRUCE and R. N. Bruce, individually and as co-partners, d/b/a R. N. Bruce Construction Company, and Syend Petersen Defendants-Appellants.

Docket No. 3030.

Court of Appeals of Michigan, Division No. 2.

April 3, 1968.

Released for Publication Sept. 4, 1968.

Matthew Davison, Jr., Gault, Davison & Bowers, Flint, for appellants.

Max Dean, Leitson, Dean, Dean, Abram, Segar & Hart, Flint, for appellee.

Before McGREGOR, P.J., and LEVIN and QUINN, JJ.

QUINN, Judge.

November 25, 1963, plaintiff was involved in a near head on collision with a truck owned by Robert T. Bruce and operated by an employee of the defendant partnership in the course of his employment. Plaintiff was proceeding south on M--15 in the northerly portion of Goodrich, Genesee county, at the time of the accident, and the vehicle of defendants was going north on the same highway. Plaintiff sued to recover for the damages he sustained in such accident, and he recovered a jury verdict of $40,000. Judgment entered thereon and defendants moved for a new trial, which was denied. Defendants appeal from the judgment and from denial of their motion for new trial.

The errors assigned by defendants as a basis for requesting this Court to grant them a new trial relate to a requested instruction, allegedly not given, errors in instructions given, admission of improper evidence, and that the verdict was so excessive as to indicate prejudice or sympathy and that it was contrary to the great weight of the evidence.

Due to the nature of the errors assigned, we find it unnecessary to recite fully the factual aspects of the case and will confine factual discussion to facts pertinent to the issues discussed.

Defendants first ask, 'Did the trial court err in not giving defendants' theory of the case as set forth in defendants' request to charge no. 1?'* Defendants pleaded the theory indicated in this request and there was evidence in the record to support it. They were entitled to an instruction on this theory (Camden Fire Insurance Company v. Kaminski (1958), 352 Mich. 507, 90 N.W.2d 685), but there is no error in refusing to give the instruction in the exact language requested if the court does instruct on the point in its own language. (Schattilly v. Yonker (1957), 347 Mich. 660, 81 N.W.2d 343). Here the court charged on this point as follows:

'In this action, the plaintiff, Mr. Clingerman, is seeking an award of money from Mr. Petersen and the Bruce Construction Company, charging that Mr. Petersen was negligent in the operation of the pickup truck, that such negligence was a proximate cause of the injury, and that damages resulted. The defendants deny any negligence, deny the negligence, if there was any, was a proximate cause of the damages, and in addition the defendants affirmatively claim that Mr. Clingerman was guilty of what we call contributory negligence which caused the damage, and therefore he cannot recover.'

While more succinct than defendants desired, this instruction does cover defendants' theory, and it is discretionary with the trial court to comment on or to detail facts supporting such theory. GCR 1963, 516.1. This was not a protracted trial, the issues were clear cut and uncomplicated, the 2 drivers involved were the only witnesses to the accident, and it was not an abuse of discretion for the trial judge to say no more than he did on defendants' theory, especially when plaintiff's theory was treated in a similar manner.

Defendants rely on Snyder v. United Benefit Life Insurance Company (1963), 371 Mich. 36, 123 N.W.2d 234, to sustain their contention that it was reversible error for the trial court to refuse to give their requested instruction No. 1. We do not so read Snyder in which the reversible error found in the charge was its unfairness to defendant because the trial judge detailed evidence supporting plaintiff's theory and failed to detail defendant's opposing evidence, though requested to do so.

The following statement is found in the court's charge with reference to contributory negligence:

'However, negligence or contributory negligence of the plaintiff, if you find there was some, would not bar the right of the plaintiff to recover unless you find that plaintiff's contributory negligence was a proximate cause of the damage, and plaintiff's contributory negligence is legally contributory and a proximate cause only if it is a Substantial factor in bringing about his harm.'

It is defendants' claim that because the trial court failed to make a similar statement with respect to defendants' negligence being a proximate cause of the accident, the charge fixed a higher standard for determining what contributory negligence barred the action that it did for determining what negligence supported the action. We cannot agree with this position. In defining proximate cause with respect to the defendants' negligence, the court stated,

'A proximate cause, when it is legally significant is the cause which in its natural and continual sequences, unbroken by any new cause produces an event, without which the event would not have occurred. In short, it's the real cause, the actual cause, with no other cause intervening to bring injury about.'

It is inherent in this definition that to support the action defendants' must be a 'substantial factor' in bringing about the harm to plaintiff.

In its charge, the trial court read part of C.L.S.1961, § 257.647 (Stat.Ann.1960 Rev. § 9.2347) which prescribes the duties of a driver intending to turn at an intersection. Since the accident did not occur at an intersection, defendants 'fail to see how this charge could be relevant under the circumstances of this case, and the injection of this statute into the instructions merely confuses the issue as to what defendant Petersen should or should not have done under the circumstances.' We can accept this quoted statement as true and remain unconvinced on this record that the inclusion in the charge of part of the above statute was an error that materially affected substantial rights of defendants. (See GCR 1963, 13 and 527.1).

During cross-examination of plaintiff's medical witness by defendants' counsel, reference was made to a written report by the witness to plaintiff's counsel, a copy of which had also been furnished to defendants' counsel. It is not clear from the record before us whether this reference was for the purpose of refreshing the witness's recollection, as contended by defendants, or to establish a prior inconsistent statement, as contended by plaintiff. On redirect examination, plaintiff offered the report in evidence, and it was received over defendants' objection. To support this alleged reversible error, defendants cite Koehler v. Abey (1911), 168 Mich. 113, 133 N.W. 923, and Grusiecki v. Jaglay (1932), 260 Mich. 9, 244 N.W. 211. Each case held it was not error to exclude memoranda; neither held it was reversible error to admit it, and neither the record nor defendants' brief demonstrates that admission of the report materially affected substantial rights of defendants.

Finally defendants say the verdict was so excessive as to indicate prejudice or sympathy and the verdict was against the great weight of the evidence. There is record evidence of physical injuries which limited plaintiff's activities to time of trial and evidence that such injuries were permanent. It is the jury's province to believe or disbelieve such evidence. The jury chose to believe it, and this element of damage precludes us from saying the verdict was so excessive or so against the weight of the evidence that a new trial should be ordered.

Affirmed, with costs to plaintiff.

LEVIN, Judge (dissenting).

The defendants requested the judge to charge the jury on their theory of the case. ¹ Defendants' theory was supported by evidence and, therefore, they had a right to an instruction thereon. ² The majority acknowledges that rule of law but rejects defendants' claim of error, finding the trial judge complied when he gave the charge set out in the majority opinion. And this is where we disagree.

The judge's charge that each party claimed the other was negligent did not satisfy the court's obligation to charge a requesting party's theory, if supported by evidence, even though the 'theory may be controverted by evidence of the opposing party.' ³

The judge's charge told the jury little, if anything, more than they knew from their own experience. As soon as they learned this was an automobile collision case, the jury knew that, in all probability, each party charged the other with fault and denied his own culpability.

The simple statement that plaintiff asserts defendant was at fault, while defendant denies fault and, additionally, asserts plaintiff's faulty conduct caused his injury, is not what we mean by a 'theory of the case.' That statement is the 'theory' of almost every negligence case. It is not, however a statement of either the plaintiff's or defendant's theory in particular.

True, there is no set formula for jury instructions. The trial judge need not charge the precise words requested. ⁴ However, he cannot discharge this obligation by a statement adding nothing to the jury's understanding of the case. If the right to the charge is to be meaningful, and if the charge is to serve its intended purpose of enlightening the jury and assisting it in its deliberations, the trial judge must relate the opposing concepts of the evidence to the disputed issues the jury is about to resolve. We know the evidence must be related to the issues in a statement of the 'theory',...