Javis v. Board of Ed. of School Dist. of Ypsilanti

• Decision Date: 07 April 1975
• Docket Number: No. 4,4
• Citation: 227 N.W.2d 543,393 Mich. 689
• Parties: Chester Louis JAVIS and Gail Javis, Plaintiff-Appellants, v. BOARD OF EDUCATION OF the SCHOOL DISTRICT OF YPSILANTI, and Marvin Lawrence Baltzell, jointly and severally, Defendant-Appellees. 393 Mich. 689, 227 N.W.2d 543
• Court: Michigan Supreme Court

Page 543

227 N.W.2d 543

Chester Louis JAVIS and Gail Javis, Plaintiff-Appellants, v. BOARD OF EDUCATION OF the SCHOOL DISTRICT OF YPSILANTI, and Marvin Lawrence Baltzell, jointly and severally Defendant-Appellees.

No. 4.

393 Mich. 689, 227 N.W.2d 543

Supreme Court of Michigan.

April 7, 1975.

Lawrence W. Sperling, Ypsilanti, and Sommers, Schwartz, Silver, Schwartz, Tyler & Gordon by Edward R. Stein, Ann Arbor, for plaintiffs.

Burke, Ryan, Rennell, Foster & Hood, Ann Arbor, for defendants-appellees.

Before the Entire Bench.

SWAINSON, Justice.

This is a personal injury action brought by plaintiff-appellants Chester and Gail Javis to recover damages resulting from a motorcycle-school bus collision on March 13, 1969. The trial below resulted in a verdict of no cause of action, upon which judgment was entered. Plaintiff-appellants' motion for a new trial was denied by the trial court. The denial was affirmed by the Court of Appeals. ¹ Plaintiff-appellants appeal from the decision of the Court of Appeals that found no reversible error in the trial court's refusal to give plaintiff-appellants' requested Standard Jury Instruction.

On March 13, 1969, Chester Javis was operating, and Gail Javis was a passenger on, a motorcycle proceeding in a northerly direction along Hogback Road, a paved two-lane highway in Washtenaw County. At the same time, defendant-appellee Marvin Baltzell was operating a school bus owned by defendant-appellee board of education, and was proceeding in a westerly direction along Clark Road, also a paved two-lane highway, heading toward its terminus at Hogback Road. The intersection of Hogback and Clark is controlled by a stop sign for the Clark Road traffic only. The accident occurred when Baltzell, after having stopped his bus at the stop sign, attempted to make a left turn (south) onto Hogback and blocked the path of the northbound motorcycle.

The details of the collision as recounted by Chester Javis and Baltzell are markedly different, and constituted the only trial testimony which related to the accident itself. Although Gail Javis was a passenger on the motorcycle, her view of the intersection and the bus was effectively blocked by the head and body of Chester Javis. There were no other witnesses to the collision. Recounted below are the versions of the accident of each of the drivers involved.

a. The Testimony of Plaintiff-Appellant Chester Javis

Plaintiff-appellant Chester Javis was operating his motorcycle in a northerly direction along Hogback Road at approximately 35 miles per hour, with his wife Gail seated behind him. Because of the unusual topography of Hogback Road, he could not see the intersection of Clark and Hogback until he had rounded a curve, crested a hill, and was 400 to 450 feet south of the intersection. When he reached this point, Javis observed a school bus on Clark Road, stopped at or near the stop sign. The plaintiff-appellant decelerated and cautiously approached the intersection. When he reached a point approximately 100 to 150 feet from the intersection, and having observed no movement of the bus, Javis assumed that the bus would remain at the stop sign until the motorcycle cleared the intersection. Javis then resumed his speed

of 35 miles per hour and attempted to traverse the intersection. Just after he resumed his speed, the bus pulled into the intersection in front of the Javis motorcycle and blocked the northbound lane. Javis immediately applied the brakes of the motorcycle but determined that he could not stop before striking the bus. He therefore attempted to maneuver the motorcycle in front of the bus into the southbound lane. The driver of the bus, however, failed to stop, and the bus and motorcycle collided in the southbound lane of Hogback Road.

b. The testimony of Defendant-Appellee Baltzell

Defendant-appellee Baltzell testified that he brought his bus to a stop at or near the stop sign and checked both the northbound and southbound lanes of Hogback Road. Seeing no traffic on Hogback Road in either direction, Baltzell initiated a left turn into the southbound lane. At or about the time the front wheels of his bus crossed the center line of Hogback Rod, Baltzell first observed the Javis motorcycle rounding the curve approximately 400 feet south of the intersection. Defendant-appellee Baltzell estimated the speed of the motorcycle at this time to have been 60 miles per hour. He further testified that upon observing the Javis motorcycle coming toward him he stopped the 30-foot bus and straddled the center line of Hogback, blocking the northbound lane and partially or wholly blocking the southbound lane. At the time Baltzell brought the bus to a stop, the Javis motorcycle was approximately 100 feet from the bus with Javis attempting to brake and maneuver around the front of the bus into the southbound lane of Hogback. Javis was not, however, able to avoid a collision with the stationary bus.

The facts giving rise directly to the legal issues in the present appeal developed out of the cross-examination of Marvin Baltzell. On cross- examination it was established that Baltzell's trial testimony was, to varying degrees, inconsistent with his testimony at a pretrial deposition. In summary form the following inconsistencies arose:

1. The time taken by the Javis motorcycle to travel the 400 feet from the point it first became visible to Baltzell to the point of collision.

Deposition: 'I believe something around seven seconds.' (D 13).

Trial: '(O)nly a matter of seconds. * * * Well, I believe it's something less than that (seven seconds) not that I think about it and I have been out there driving that road again.' (T 79--80).

2. The speed of the bus as it entered the intersection and began its southbound turn.

Deposition: 'I was proceeding south going about five miles an hour.' (D 12).

Trial: 'Less than five miles an hour. * * * Five or less, around there? (sic)' (T 80).

3. The position of the bus in the southbound lane of Hogback Road at the time of collision.

Deposition: 'I don't believe (Javis) could have (found room to maneuver around the bus) on the paved portion.' (D 16).

Trial: 'I'm not sure if I blocked the whole lane. I know it (the bus) was in that lane, but I don't know how much I blocked.' (T 82).

Based on the above outlined inconsistencies, plaintiffs' attorney requested that Standard Jury Instruction (SJI) 3.01(A) be included in the court's charge to the jury. SJI 3.01(A) entitled 'Impeachment of a Party by Prior Inconsistent Statement or Conduct' instructs a jury as follows:

'In deciding whether you should believe a party who has testified, you may consider that at some earlier time he (said) (did) something that does not agree with what he testified to here on an important point. Because he is a party, what he (said) (did) earlier may be considered not only in deciding whether you should believe him, but also may be considered The trial court refused to give SJI 3.01(A). Instead, the court fashioned its own instruction that it believed adequately covered the law. The court instructed:

as evidence of the facts in this case.'

'You're not bound to accept the testimony of witnesses where it might be unreasonable or not in accord with known facts in the case, but on the other hand, you're not to disregard the testimony of witnesses without case (sic). You may take into account in determining what weight you'll place on the testimony of the witnesses, what they said in Court and also any statements they may have made previously, either in depositions or other times. So, it's up to you what I'm telling you, it's up to you the jury to determine what weight you place on the testimony of any of the witnesses.

'In this case, also, we had certain evidence presented by the reading of depositions. I believe I told you just before the depositions were read that the depositions are a record of the sworn testimony of the persons who were disposed (sic). This was taken before an authorized person and all parties and their attorneys had a right to be present and to examine and cross-examine the witnesses. So, this evidence is entitled to the same consideration as you give the testimony as if the witness testified in open Court from the witness stand.' (T 98--99).

On appeal, plaintiffs urge this Court to hold that the failure of the trial court to deliver SJI 3.01(a) when properly requested to do so constitutes reversible error.

I

Under the direction of GCR 1963, 516.6(2):

'Pertinent portions of Michigan Standard Jury Instructions (SJI) published under authority of this subrule Shall be given in each civil case in which jury instructions are given if (a) they are applicable and (b) they accurately state the applicable law.' (Emphasis supplied.)

This court rule is stated in terms that should leave no doubt concerning the mandatory nature of the SJI. The SJI were compiled in an effort to uniformly present juries in civil cases with clear, concise and unbiased instructions to guide their deliberations. Secondarily, the SJI were also designed to conserve the energies of trial counsel and the trial courts by eliminating the need to draft and select proposed instructions on commonly encountered subjects for jury resolution. These enumerated benefits of the SJI are present, of course, only if the SJI are regularly employed by the trial courts. We therefore wish to clearly state that in our view, and under our supervisory powers we hold, that GCR 1963, 516.6(2) Requires that the SJI be used whenever they are applicable, accurate, and requested by a party.

Stating our position that the SJI are mandatory whenever they are legally applicable to the case and requested by a party does not, however, resolve the difficult issue of whether an appellate court should find reversible error in any failure to give a requested and applicable SJI. Counsel for appellants argues that a strict standard of review is a necessity of the SJI are, in practice, to...