Johnson v. Corbet, Docket No. 65951
| Decision Date | 19 October 1983 |
| Docket Number | Docket No. 65951 |
| Parties | Andrew JOHNSON, Plaintiff-Appellee, v. Pat CORBET and William Eugene Emery d/b/a Bella Vista Bar, Defendants, and Jack Peterson d/b/a Buckhorn Bar and Swede's Bar, Defendant-Appellant. 127 Mich.App. 804, 339 N.W.2d 648 |
| Court | Court of Appeal of Michigan — District of US |
[127 MICHAPP 805] Tercha & Daavettila (by Robert T. Daavettila), Houghton, for plaintiff-appellee.
Platt, Peacock, Vinocur & Brewster, P.C. (by John D. Peacock), Sault Ste. Marie, for defendant-appellant.
Before CYNAR, P.J., and J.H. GILLIS and WAHLS, JJ.
Defendant Jack Peterson, doing business as Buckhorn Bar and Swede's Bar, appeals from a jury verdict against him and defendant Pat Corbet. A default was entered against Corbet shortly after commencement of this action. The jury returned a verdict of no cause of action in favor of defendant William E. Emery, doing business as Bella Vista Bar. The trial court denied Peterson's motion for a new trial or in the alternative, for remittitur. Judgment was entered on July 1, 1982, against defendants Corbet and Peterson in the amount of $200,000. This appeal is as of right.
This case arose from a beating inflicted by defendant Corbet on plaintiff.
Plaintiff's cause of action against defendant Corbet was based upon the assault and battery, while the actions against the bars are based upon their [127 MICHAPP 806] liability under the Michigan dramshop act. M.C.L. Sec. 436.22(5); M.S.A. Sec. 18.993(5).
The sole question submitted for our consideration is whether the lower court erred in failing to charge the jury pursuant to SJI2d 5.03--impeachment by proof of conviction of crime--as requested by defendant Peterson.
The record supports the following proofs to be relevant and material to the resolution of the issue before us.
Defendant Corbet was called as a witness on behalf of the plaintiff. Defendant Corbet testified that prior to the date of the incident herein, October 5, 1980, he had been drinking continuously for a week. On October 5, 1980, he allegedly consumed eight cans of beer before going out to the Bella Vista Bar, where he allegedly drank blackberry brandy and beer. Defendant Corbet stated that, after leaving Bella Vista, he and Warren Selden consumed intoxicating beverages at the Buckhorn Bar, Swede's Bar, and the Buckhorn Bar again. He is an alcoholic who has received repeated treatment and attributes his violent temper to the consumption of intoxicants. He had at some time in the past been convicted of burglary in Chicago.
Warren Selden, called as a witness by the plaintiff, stated that he had been drinking on October 4, 1980, and that he had consumed several cases of beer on October 5, 1980. He admitted that his testimony regarding the entire incident was not very reliable. He testified that he had been convicted of larceny from a building in 1978.
The testimony of bartenders and employees of Peterson who worked in his bars on the day of the incident indicated that they had not served defendant[127 MICHAPP 807] Corbet on the day in question, and only one of them observed him anywhere near the bars.
In accordance with the summary pretrial conference order, attorney for defendant Emery made a timely request to instruct the jury pursuant to SJI2d 5.03, which provides as follows:
The parties having rested their cases, the jury was excused, and a discussion followed pertaining to the jury instructions to be given by the court. The trial court indicated that all requested standard jury instructions would be given except those instructions which the court felt were not applicable or which would be repetitious.
On behalf of defendant Peterson, SJI2d 5.03 on impeachment by proof of conviction of crime was requested. The trial judge stated:
That'll be denied. That takes care of that."
Further the trial judge stated that the request for SJI2d 5.03 on behalf of defendant Emery would not be given.
The trial judge, in the absence of the jury, invited corrections or suggestions to the court's instructions. SJI2d 5.03 was again requested on behalf of defendant Peterson. The trial judge responded that he would not change his ruling. Other than as indicated, the court stated no basis in support of its denial to instruct pursuant to SJI2d 5.03.
GCR 1963, 516.6(2) makes mandatory the giving of an applicable standard jury instruction whenever such an instruction is requested. Javis v. [127 MICHAPP 808] Ypsilanti Bd. of Ed., 393 Mich. 689, 697-698, 227 N.W.2d 543 (1975). The Javis Court found that the harmless error standard for reviewing discrepancies in civil proceedings contained within GCR 1963, 529.1 had no application in those cases where a trial court had deviated from GCR 1963, 516.6(2). Accordingly, the Court found that deviation from an applicable and accurate standard jury instruction would give rise to the presumption of prejudicial error provided that the instruction was properly requested at trial. Javis, supra, p. 702, 227 N.W.2d 543.
In Socha v. Passino, 405 Mich. 458, 466-468, 275 N.W.2d 243 (1979), the Supreme Court reaffirmed its position in Javis, noting:
(Footnote omitted.) Socha, supra, p. 467, 275 N.W.2d 243, citing Zeni v. Anderson, 397 Mich. 117, 243 N.W.2d 270 (1976).
Therefore, the proper review of the record by this Court is to ascertain...
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Johnson v. Corbet
...failed to include in his jury instructions SJI2d 5.03 as requested by Peterson in his proposed instructions to the jury. 127 Mich.App. 804, 339 N.W.2d 648 (1983). In reversing, the Court of Appeals held that since SJI2d 5.03 was accurate, applicable, and had been requested by Peterson, the ......
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Warner v. General Motors Corp.
...can be found in the record. Javis v. Ypsilanti Bd. of Ed., 393 Mich. 689, 697-698, 227 N.W.2d 543 (1975); Johnson v. Corbet, 127 Mich.App. 804, 807-808, 339 N.W.2d 648 (1983). Deviation from an applicable and accurate standard jury instruction gives rise to the presumption of prejudicial er......