Moody v. Pulte Homes, Inc.

• Decision Date: 13 November 1985
• Docket Number: Docket No. 71841
• Citation: 378 N.W.2d 319,423 Mich. 150
• Parties: Marvin MOODY and Annie Moody, Plaintiffs-Appellants, v. PULTE HOMES, INC., a Corporation and Clyde Cinader, jointly and severally, Defendants-Appellees. 423 Mich. 150, 378 N.W.2d 319
• Court: Michigan Supreme Court

Page 319

378 N.W.2d 319

Marvin MOODY and Annie Moody, Plaintiffs-Appellants, v. PULTE HOMES, INC., a Corporation and Clyde Cinader, jointly and severally, Defendants-Appellees.

Docket No. 71841.

423 Mich. 150, 378 N.W.2d 319

Supreme Court of Michigan.

Argued March 5, 1985.

Decided Nov. 13, 1985.

Kelman, Loria, Downing, Schneider & Simpson by Nicholas J. Rine, Detroit, for plaintiffs-appellants.

Michelle A. Thomas, Sullivan, Ward & Bone, P.C., Detroit, for defendants-appellees.

RYAN, Justice.

This is an action for personal injury damages arising out of a construction-site accident in which the plaintiff, Marvin Moody, lost a portion of the fingers of his left hand. We granted leave to appeal in order to consider a number of assignments of error relating to the trial court's handling of the jury-instruction phase of the trial, specifically, the court's refusal to advise counsel before final argument what instructions the jury would be given, the failure to give the "material substance" of the plaintiffs' theories of the case, and the refusal to give a number of proposed jury instructions requested by the plaintiffs.

The facts of the case insofar as they are pertinent to our decision are as follows: Pulte Homes, Inc., was the developer and general contractor for a residential construction project in the City of Troy. Defendant Clyde Cinader was employed by Pulte Homes as a subcontractor under a written contract with Pulte to provide backfill and grading work at the construction site. Clyde Cinader was not present when the plaintiff was injured, although his employee and son, Scott Cinader, and another employee, Duane Joyce, were present. Marvin Moody was hired by Clyde Cinader to haul dirt at the project.

The testimony of the various witnesses differs sharply as to how Moody was injured. It appears incontrovertible, however, that the injury occurred when Moody's left hand was caught between a fan belt and a pulley while Moody was helping Scott Cinader start a bulldozer. There was sharply conflicting testimony whether Scott Cinader started the bulldozer while Moody's hand was in the area of the fan belt and pulley, or whether Moody started the engine himself by placing a piece of metal across a solenoid.

Moody and his wife filed a two-count complaint against Pulte Homes and Clyde Cinader. Count I of the complaint alleged that the work undertaken by Pulte Homes through its contractor, Clyde Cinader, was inherently dangerous and that Pulte Homes was "vicariously liable" for the negligent acts of Cinader and directly liable for its own negligence in hiring a careless and incompetent contractor, in failing to exercise control over the personnel and equipment on the project, and in failing to supervise the project. Count I also alleged that Cinader was directly negligent in hiring incompetent employees and permitting them to operate heavy equipment and in failing to adequately supervise and inspect the project. Plaintiffs also alleged that Cinader was vicariously liable for the negligence of his employee and son, Scott Cinader, in starting and operating the bulldozer without warning to the plaintiff, ¹ and without permitting the plaintiff to leave the vicinity of the bulldozer.

Count II of the complaint alleged that plaintiff was a third-party beneficiary of a written contract between the defendants that imposed various duties upon each of them regarding project safety and the safety of personnel on the job site. At the close of plaintiffs' proofs, the trial court granted a motion for a directed verdict as to Count II in favor of Pulte Homes. At the close of all the proofs, the jury returned a verdict of no cause of action, and the Court of Appeals affirmed. 125 Mich.App. 739, 337 N.W.2d 283 (1983).

I

In the first of the assignments of error we address, plaintiff claims to have been unfairly prejudiced by the trial court's failure to advise counsel, prior to closing arguments, which of the proposed jury instructions requested by the parties would be given and which would not.

At the close of the proofs, counsel for all the parties presented to the court their requests for jury instructions. After listening to argument concerning the proposed instructions, the court directed the attorneys to proceed with closing arguments, without indicating which of the parties' requested instructions, if any, would be given. The plaintiff objected. The following occurred:

"The Court: Bring in the jury Mr. Grekonich.

"[Plaintiff's Counsel]: Your Honor, may we have a ruling on the instructions?

"The Court: No. Just follow along. I'll give the instructions to the jury.

"(Whereupon the jury was escorted into and seated in the Courtroom)

"[Plaintiff's Counsel]: Could we approach the bench?

"The Court: Yes.

"(Whereupon counsel approached the bench, off the record.)"

After closing arguments, the following occurred:

"(Whereupon the Court Officer was duly sworn the the [sic] jury excused from the Courtroom at approximately 5:45 p.m.) "The Court: The record should reflect that [plaintiff's counsel] asked earlier that the Court rule in advance on the various discussions or conflicts between their attitudes about the proposed jury instructions. Go ahead.

"[Plaintiff's Counsel]: Yes, your Honor. I simply want the record to show a clear objection to the Court's failing to rule before our having to argue to the jury.

"The Court: Yes, and I want the record to show that you are not now just bringing it up. You did bring it up earlier.

"[Plaintiff's Counsel]: Yes, thank you your Honor. And I assume and the Court presumes there is an objection to the Court's failure to give many of the proffered instructions that were not given?

"The Court: Yes. Let the record reflect, because this is the time, and I take it neither counsel has abandoned your request for the jury instructions that you made that were not given. Any that were not given, you have not abandoned that request.

"[Plaintiff's Counsel]: Yes, that is correct.

"[Defense Counsel]: That is correct.

"[Plaintiff's Counsel]: And I object to the Court's refusal to give those that the Court did not give.

"The Court: Likewise true?

"[Defense Counsel]: Yes, but I'm happy."

Plaintiff claims that the court's refusal to advise counsel prior to closing arguments which, if any, of the requested jury instructions would be given is error.

We agree.

GCR 1963, 516.1 ² stated, in pertinent part:

"Request for Instructions. At or before the close of the evidence, any party may, or at any time the Court reasonably directs, the parties shall, file written requests that the Court instruct the jury on the law as set forth in the request. A copy of such requested instructions shall be served on the adverse parties in accordance with [GCR 1963,] 107. The court shall inform counsel of its proposed action on the requests prior to their arguments to the jury, and, subject to the provision of subrule 516.3, shall instruct the jury after the arguments are completed." (Emphasis supplied.)

The court gave no reason for its failure to comply with the court rule, and none is evident from the record.

The purpose of the rule that requires that counsel shall be informed, prior to addressing the jury, of the court's decision concerning requested instructions is, of course, to enable counsel to tailor the closing argument to the facts of the case in the context of the law that the court will advise the jury is applicable. If the court decides not to give one or more instructions requested by counsel, particularly instructions critical of a party's theory of recovery, counsel should know that before addressing the jury, not only to avoid embarrassment and the appearance of ineptness, but to avoid needless comment upon irrelevant matters, to avoid the risk of alienating jurors with what may appear, to them, to be unfair attention to inconsequential or inappropriate matters or even an attempt to confuse them. More important, compliance with the rule tends to preclude prejudice to a party that may follow upon any of the foregoing. See Hunt v. Deming, 375 Mich. 581, 585, 134 N.W.2d 662 (1965).

Here, as will be seen shortly, counsel for plaintiff requested at least ten instructions that the trial court did not give, and the court required plaintiff's counsel to argue without knowing whether or not the instructions would be given.

It is obvious from the language of Rule 516.1 that the trial court erred in violating its mandate.

Having found error in the trial court's failure to comply with Rule 516.1, we must now consider whether such error can be considered harmless. GCR 1963, 529.1. Because we reverse in part the judgment of the Court of Appeals and vacate, on other grounds, the jury's verdict of no cause of action against defendant Cinader, it is not necessary to address plaintiff's claim of unfair prejudice from the violation of Rule 516.1 with respect to plaintiff's claims against Cinader. It suffices to repeat that the rule is mandatory and does not confer upon trial courts the freedom to ignore it. Hunt, supra, p. 584, 134 N.W.2d 662.

As stated below, however, we affirm the Court of Appeals judgment affirming the verdict of no cause of action in favor of Pulte Homes, Inc. Given the lack of evidence in support of plaintiff's claims against Pulte, we do not think that the trial court erred in failing to give to the jury plaintiff's proposed special instructions concerning Pulte's liability. (See n. 19.) Since the evidence did not warrant giving these instructions, the plaintiff was not unfairly prejudiced by the trial court's failure to inform counsel that it was not going to give them.

Moreover, our refusal to reverse and remand for a new trial against Pulte Homes on the basis of the trial court's failure to comply with Rule 516.1 is not "inconsistent with substantial justice," Rule 529.1, because the lack of evidence supporting plaintiff's claims against Pulte would have justified the trial court's...