Jamison v. Lloyd
| Decision Date | 04 March 1974 |
| Docket Number | Docket No. 14688,No. 1,1 |
| Citation | 215 N.W.2d 763,51 Mich.App. 570 |
| Parties | Lewis JAMISON, Plaintiff-Appellee, v. Elizabeth LLOYD, also known as Aletha Lloyd, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Demetre J. Ellias, Pappas & Ellias, Detroit, for defendant-appellant.
Eric E. Zisman, Detroit, for plaintiff-appellee.
Before V. J. BRENNAN, P.J., and T. M. BURNS and VanVALKENBURG,* JJ.
Defendant appeals from a jury verdict of $6,726.55 in favor of the plaintiff for labor performed on two houses owned by the defendant.
At trial the evidence disclosed that during the latter part of 1966, the plaintiff was employed by the defendant to do masonry work on two houses owned by the defendant. Although plaintiff was not licensed to enter contracts repairing or remodelling homes for fixed sums, or to bring suit for the enforcement of such contracts, he was nonetheless able to accept employment of this nature on an hourly basis. See M.C.L.A. § 338.1501; M.S.A. § 18.86(101); M.C.L.A. § 338.1502(b), (c); M.S.A. § 18.86(102)(b), (c); M.C.L.A. § 338.1516; M.S.A. § 18.86(116). Conflicting testimony was presented regarding the type of agreement reached by the parties. Plaintiff testified that he was to be paid $6.50 per hour for the work in question and that since he had worked nine to ten hours a day, seven days a week, over a period of several months, the defendant owed him approximately $14,000. On the other hand the defendant related that plaintiff agreed to make the repairs for $1,000 and that plaintiff had been adequately compensated for the work performed. After all of the evidence was presented, the jury returned a verdict in favor of the plaintiff. Defendant appeals, raising several issues which will be discussed and decided in the manner presented below.
The pretrial summary in the case at bar specified Inter alia that the suit was to be tried without a jury and that only the witnesses listed in the pretrial summary were to be called. The trial court modified the pretrial summary by granting plaintiff's motion for a jury trial and by permitting both the defendant and plaintiff to call witnesses who were not listed in the pretrial summary.
Defendant argues that the submission of the case to a jury adversely affected the preparation and presentation of the case and that the trial court erred by affording no opportunity to exercise the right of discovery before it allowed plaintiff to call a witness who was not listed in the pretrial summary.
A pretrial conference is conducted before trial in order to simplify and to narrow the issues of the case and to avoid traps and surprises. Applebaum v. Wechsler, 350 Mich. 636, 87 N.W.2d 322 (1957). It is, therefore, fundamental that the pretrial summary issued by the court after the pretrial conference controls the subsequent course of the litigation. GCR 1963, 301.3. However, the trial court in its sound discretion may modify the pretrial summary either at or before trial to prevent manifest injustice. Bednarsh v. Winshall, 374 Mich. 667, 133 N.W.2d 202 (1965); Reinhardt v. Bennett, 45 Mich.App. 18, 202 N.W.2d 847 (1973). See also GCR 1963, 301.3.
With these principles in mind, we turn to the question of whether the trial court erred by granting the plaintiff a trial by jury. To preserve the right to trial by jury the party requesting the jury must make a demand in writing within 30 days after the answer or reply is filed and also pay the requisite fee before the close of the pretrial conference. Const.1963, art. 1, § 14; M.C.L.A. § 600.2537; M.S.A. § 27A.2537; GCR 1963, 508.2(1), 508.4. Even though a party fails to abide by the foregoing procedures, the trial court may in its sole discretion grant a jury trial. Ritchie v. Macinkowicz, 3 Mich.App. 275, 142 N.W.2d 45 (1966).
There is no evidence presented here that plaintiff made a written demand for a jury. Nonetheless the record reveals that the jury fee was paid at the pretrial conference. However, as previously recounted, the pretrial summary stated the case would be tried without a jury. Although plaintiff's counsel did not object to this apparent discrepancy in the pretrial summary and should have been more diligent in bringing the matter to the trial court's attention, he requested a jury at the beginning of trial and the request was granted. It is important to note that the defense counsel was present at the pretrial conference when the jury fee was paid and accordingly was put on notice that plaintiff expected the case to be tried before a jury. In light of this factor, we cannot find that the defendant was either surprised or prejudiced by the trial court's decision to empanel a jury. Therefore, under these circumstances we hold that the trial court's decision to submit the case to the jury, which in effect modified the pretrial summary, was not an abuse of discretion.
Having determined that the trial court did not err by granting plaintiff's request for a jury, we next examine whether defendant was denied the right of discovery when the trial court allowed the plaintiff to call a witness who was not listed in the pretrial summary.
The defendant's brief states that the trial court erred by permitting the defendant to call a witness who was not listed on the pretrial summary and 'who the defense counsel had no opportunity to subject to discovery'.
The trial court has the discretionary power to allow the parties to call witnesses who are not listed on the pretrial summary. This is borne out by GCR 1963, 301.10, which provides that witnesses not mentioned on the lists of witnesses counsel are required to exchange within ten days after receiving the notice of the pretrial conference may not be called at trial 'except by leave granted upon a showing of good cause.' 1 The lists of witnesses exchanged by counsel were not produced on appeal. However, inasmuch as the witness in question called by the plaintiff was not noted on the pretrial summary we will assume for the purpose of this appeal that the witness's name did not appear on the lists exchanged by counsel.
While it is true that a witness called by the plaintiff was not listed on the pretrial summary, the record belies defendant's contention that there was no chance for discovery. A review of the record reveals that the trial court afforded defense counsel ample opportunity to question the witness before the witness was...
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...issue by not moving for remittitur in the trial court. McFadden v. Tate, 350 Mich. 84, 91, 85 N.W.2d 181 (1957); Jamison v. Lloyd, 51 Mich.App. 570, 576, 215 N.W.2d 763 (1974); see also McLemore v. Detroit Receiving Hosp., 196 Mich.App. 391, 401-402, 493 N.W.2d 441 (1992) (failure to provid......
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