Johnson v. White

• Decision Date: 07 March 1988
• Docket Number: No. 79469,79469
• Citation: 430 Mich. 47,420 N.W.2d 87
• Parties: Joan C. JOHNSON, Individually and as Personal Representative of the Estate of L. Dee Johnson, Deceased, Plaintiff-Appellee, v. Donald H. WHITE and Montmorency County Board of Road Commissioners, Defendants. 430 Mich. 47, 420 N.W.2d 87
• Court: Michigan Supreme Court

Page 87

420 N.W.2d 87

Joan C. JOHNSON, Individually and as Personal Representative of the Estate of L. Dee Johnson, Deceased, Plaintiff-Appellee, v. Donald H. WHITE and Montmorency County Board of Road

Commissioners, Defendants.

No. 79469.

430 Mich. 47, 420 N.W.2d 87

Supreme Court of Michigan.

Argued Oct. 7, 1987.

Decided March 7, 1988.

Sumpter & Perry, P.C. by Jerry L. Sumpter, J.D., Cheboygan, for plaintiff-appellee.

Bensinger, Combs & Cotant, P.C. by Michael D. Combs, Gaylord, for defendants.

BOYLE, Justice.

In this case we are asked to determine (1) whether the Court of Appeals erred in addressing on remand the question whether the testimony of witnesses Beadle and Schwartz should not have been admitted into evidence, and (2) whether the trial court's failure to give the requested jury instruction, SJI2d 10.08, requires reversal.

We hold that because this Court denied leave to appeal the issues in plaintiff's cross appeal concerning the testimony of Francis Beadle and Deputy Schwartz, the initial Court of Appeals adjudication of these issues became the law of the case and was not subject to further review by the Court of Appeals on remand from this Court.

We further hold that if it was error to refuse to instruct on the presumption of due care as framed in SJI2d 10.08, the error does not require reversal. The record is conclusive that there was no opportunity for the instruction to have been considered during the jury's deliberations and no defect in the trial so that the failure to set aside the verdict would be inconsistent with substantial justice. ¹ Therefore, the decision of the Court of Appeals is reversed.

FACTS

Plaintiff's decedent, L. Dee Johnson, died as a result of a two car accident on September 11, 1979. The accident occurred at approximately 6:05 p.m. at the intersection of County Road 451 and Lake Avalon Road in Montmorency County.

The driver of the other car was defendant Donald White who was traveling southbound on County Road 451. Plaintiff's decedent was traveling eastbound on Lake Avalon Road. There was a stop sign at the intersection which required plaintiff to come to a stop and yield the right of way to defendant, White.

Plaintiff filed a complaint alleging wrongful death, negligence, and nuisance. Also named as defendants were Francis R. Beadle, doing business as Avalon Bar, owner of the bar at the intersection where the accident occurred, and the Board of County Road Commissioners for the County of Montmorency. This appeal concerns only the claim against defendant White.

Plaintiff's theory of the case at trial was that defendant White had failed to drive his vehicle in a reasonable manner given the conditions existing at the time of the accident.

Mr. White, the only identified eyewitness, testified that he was on his way home from work when the accident occurred. It had been a rainy, cloudy day although it was not raining at the time.

As he approached the intersection, he observed three vehicles parked at the Avalon Bar. When the farthest vehicle began to back into Road 451, Mr. White swerved and crossed the centerline to avoid it. While still straddling the centerline, Mr. White saw the Johnson vehicle creeping into the intersection from Lake Avalon Road. Mr. White attempted to stop, but could not avoid hitting the Johnson vehicle.

Francis Beadle, owner of the Avalon Bar, was permitted to testify over plaintiff's objection, that an unidentified eyewitness to the accident claimed that Mr. Johnson failed to bring his vehicle to a complete stop before pulling out into the intersection and into the path of defendant's truck. Similarly, Deputy Schwartz was permitted to testify over plaintiff's objection that Mr. Johnson had failed to yield the right of way.

At the close of all proofs, plaintiff requested inter alia the standard jury instruction, SJI2d 10.08, to the effect that because Mr. Johnson had died and could not testify, the jury must presume that he exercised ordinary care for his safety at or before the time of the occurrence. Without explanation, the trial court refused to give this instruction.

The case was submitted to the jury and a verdict of no cause of action was returned.

On appeal to the Court of Appeals, the verdict of no cause of action was vacated and the cause was remanded pursuant to Javis v. Ypsilanti Bd. of Ed., 393 Mich. 689, 702, 227 N.W.2d 543 (1975), for failure to give a properly requested standard jury instruction. The Court of Appeals expressly addressed the propriety of Deputy Schwartz' and Francis Beadle's testimony and found no error.

Defendant White sought leave to appeal to this Court the decision of the Court of Appeals. Plaintiff applied for leave to cross-appeal the issues concerning the testimony of Francis Beadle and Deputy Schwartz.

While these appeals were pending, this Court decided Johnson v. Corbet, 423 Mich. 304, 377 N.W.2d 713 (1985), which overturned Javis, supra, upon which the Court of Appeals relied. Subsequently, in lieu of granting defendant's application for leave to appeal, this Court 424 Mich. 869, 383 N.W.2d 71 (1986), remanded the case to the Court of Appeals for reconsideration in light of Johnson v. Corbet. Plaintiff's application for leave to cross-appeal was denied for failure to persuade that the questions presented should be reviewed by this Court.

On remand, the Court of Appeals concluded that even in light of Johnson v. Corbet, a new trial was required for failure to give the requested jury instruction. In addition, the Court of Appeals reversed its earlier opinion and held that the testimony of Francis Beadle and Deputy Schwartz should not have been admitted, 154 Mich.App. 425, 397 N.W.2d 555 (1986).

This Court granted defendant's application for leave to appeal limited to the issue whether the trial judge properly refused the presumption of due care instruction, SJI2d 10.08. On defendant's motion for reconsideration of the order granting leave to appeal, this Court also agreed to consider whether the Court of Appeals erred in determining that certain testimony of witnesses Beadle and Schwartz should not have been admitted into evidence.

I. The Evidentiary Issues

We denied plaintiff's cross-appeal which raised the evidentiary issues regarding the testimony of Francis Beadle and Deputy Schwartz. Nevertheless, after we remanded the case to the Court of Appeals for reconsideration in light of Johnson v. Corbet, the Court of Appeals reversed itself on those issues and held that the testimony was improperly admitted. This was clearly beyond its jurisdiction on remand.

As a general rule, an adjudication on an issue in the first appeal is the law of the case in all subsequent appeals in which the facts are substantially the same. 5B C.J.S., Sec. 1821, p. 181. CAF Investment Co. v. Saginaw Twp., 410 Mich. 428, 454, 302 N.W.2d 164 (1981). The reason for the rule is the need for finality of judgment and the want of jurisdiction in an appellate court to modify its own judgments except on a rehearing. Lyon v. Ingham Circuit Judge, 37 Mich. 377, 378 (1877); Thompson v. Hurson, 206 Mich. 139, 172 N.W. 544 (1919); 5B C.J.S., Sec. 1821, p. 190.

Where a case is taken on appeal to a higher appellate court, the law of the case announced in the higher appellate court supersedes that set forth in the intermediate appellate court. Rulings of the intermediate appellate court, however, remain the law of the case insofar as they are not affected by the opinion of the higher court reviewing the lower court's determination. 5B C.J.S., Sec. 1964, p. 574.

In the case at bar, this Court's order denying leave to appeal the plaintiff's cross appeal which concerned the testimony of Francis Beadle and Deputy Schwartz left undisturbed the Court of Appeals adjudications of those issues. Those adjudications are the law of the case and were not subject to further review by the Court of Appeals on remand from this Court. Accordingly, the Court of Appeals decision as to these issues must be vacated.

The dissenting opinion would hold that our mandate on remand necessarily included a review of the evidentiary issues in order to determine whether the use of SJI2d 10.08 was required under MCR 2.516(D)(2). However, a court speaks through its orders and judgments and not through its opinions. Miskinis v. Bement, 325 Mich. 404, 38 N.W.2d 897 (1949). The rationale of the dissenting opinion would render the order denying plaintiff's cross appeal on the evidentiary issues a nullity.

The dissenting opinion also reasons that disposition of the evidentiary issues by the first Court of Appeals panel was unnecessary to the holding that plaintiff was entitled to a new trial and, therefore, that the holdings were dicta and not subject to the doctrine of the law of the case.

However, assuming for the moment that the dissenting opinion is correct that a determination of whether a jury instruction should be given requires review of the evidentiary issues, the first Court of Appeals panel was obliged to adjudicate the trial court's decisions on the evidentiary issues in order to determine whether it was error to refuse the instruction. Accordingly, under the view espoused by the dissent, because it was necessary to adjudicate the evidentiary issues in order to determine the instruction issue, the holdings on the evidentiary issues by the first panel of the Court of Appeals are not dicta and are subject to the doctrine of the law of the case.

Properly speaking, however, the rationale of the dissent is not so much incorrect as it is misapplied. On first appeal to the Court of Appeals, the Court of Appeals was required to determine if the properly requested SJI was applicable to the case at bar. See GCR 1963, 516.6(2), presently MCR 2.516(D)(2). If so, then, under Javis, the failure to give the SJI required reversal without the necessity of establishing manifest injustice. Under the facts of this case, the Court of Appeals was required to...