Socha v. Passino

• Court: Michigan Supreme Court
• Writing for the Court: FITZGERALD; COLEMAN; RYAN
• Citation: Socha v. Passino, 405 Mich. 458, 275 N.W.2d 243 (Mich. 1979)
• Decision Date: 05 February 1979
• Docket Number: Docket No. 60354,No. 16,16
• Parties: Thomas C. SOCHA, Plaintiff-Appellant, v. Jack PASSINO and Jaclyn Passino, Defendants-Appellees. Calendar

Page 243

275 N.W.2d 243

405 Mich. 458

Thomas C. SOCHA, Plaintiff-Appellant, v. Jack PASSINO and Jaclyn Passino, Defendants-Appellees.

Docket No. 60354.

Calendar No. 16.

Supreme Court of Michigan.

Argued Oct. 6, 1978.

Decided Feb. 5, 1979.

Sumpter, Harrington & Loznak, P. C., by James J. Harrington, III, Cheboygan, for plaintiff-appellant.

Nathaniel W. Stroup, Clark, Stroup, Brown, MacKenzie & Pointner, Petoskey, for defendants-appellees.

FITZGERALD, Justice.

Plaintiff was injured while removing a mattress from the home of the defendants, plaintiff's ex-wife and her husband. As plaintiff handed the mattress from a second-story balcony to friends below, he leaned against a railing constructed by defendant Jack Passino. The railing gave way and plaintiff fell approximately 15 feet to the ground below.

Plaintiff filed suit alleging negligence in:

"a. Using an inadequate means of attaching said railing to the side of a wood-sided house.

"b. Failing to warn plaintiff that the railing thus constructed might or would give way if weight were placed against it, although he (Jack Passino) was then and there present at the time of the said injury.

"c. Failing to construct the said railing properly.

"d. In failing to maintain his premises in a reasonably safe condition."

The jury returned a verdict of no cause of action in a February 1976 trial. On appeal the Court of Appeals affirmed, stating in a memorandum opinion, "(a) fter a careful review of the record and briefs in this case, we find no reversible error".

We granted leave to appeal, limited to two questions:

"(1) whether the trial court's refusal to give, on request, Standard Jury Instruction (Civil) 2.06, was reversible error; and (2) whether the refusal to allow the depositions of the two defendants into evidence violated GCR 1963, 302.4, so as to require a new trial." 402 Mich. 881 (1978).

I

The first question, whether refusal to give SJI 2.06 on plaintiff's request was reversible error, arises from questions asked by plaintiff's attorney of plaintiff's expert witness. The record reveals that plaintiff's expert, a general building contractor, had spoken with plaintiff's attorney and had visited the accident scene with him. Direct examination of the witness began as follows:

"Q. Mr. Hunsaker, do you remember the month of August, 1974?

"A. Yes.

"Q. And you were contacted by myself, do you recall that?

"A. Yes.

"Q. What did you do in reference to that contact?

"A. You asked me to go out and look at a railing that had broken and somebody had been hurt.

"Q. And did you do that?

"A. Yes.

"Q. Who did you go out there with?

"A. Yourself.

"Q. All right. What did you do after you got there?

"A. We stood on the ground looking up around at the railing. Because your question to me was what would possibly cause that railing to let go.

"Q. And how long were you out there?

"A. About a half hour.

"Q. What else did you do while you were out there?

"A. Observing, in the process of observing, I looked down on the ground and I seen some wood screws.

"Q. What did you do with those screws?

"A. Reached over and picked them up and looked at them.

"Q. What did you do with them thereafter?

"A. Held them in my hand while I was on the site.

"Q. And then what did you do?

"A. Later at your office I inserted them into an envelope and signed the envelope."

At the close of the instructions to the jury, plaintiff objected to the court's not having given requested SJI 2.06, which reads:

"It has been brought out that an attorney has talked with a witness. An attorney may properly talk with a witness for the purpose of learning what the witness knows about the case and what testimony he will give."

Both the trial judge and defense counsel thought the instruction unnecessary:

"The Court : I don't really have any reluctance to give 2.06 if it's important, Mr. Sumpter (plaintiff's counsel). It seems to me that there really wasn't any testimony brought out that an attorney talked to a witness, unless you want to infer that the deposition represents an attorney talking to a witness. But I would think that would be rather unnecessary. But if you want 2.06 given, I can give that.

"Mr. Stroup (defense counsel) : There was no argument even that anybody was giving distorted testimony by reason of having been with an attorney or being interviewed by one.

"The Court : No, I really don't see the necessity for it, Mr. Sumpter."

In denying plaintiff's motion for a new trial, the trial judge stated, in a written opinion:

"Plaintiff now relies upon Javis v. Ypsilanti Board of Education, 393 Mich. 689, 227 N.W.2d 543 (1975). This court does not believe Javis requires reversal.

"Javis requires only that applicable instructions be given and SJI 2.06, under the circumstances of this case, was inapplicable. The omission of such instruction could not have affected the jury verdict.

"This trial court cannot believe that Javis was intended to so constrict the discretion and judgment of the trial court as to make trial judges robots and automatons by requiring the recitation of (standard jury instructions) that do not fit the sense of the case. If the function of the trial judge is reduced to the role of a computer, and the trial judge must deliver instructions when the button is pressed, then much has been lost in the administration of justice."

Thus, we are required to revisit Javis. We stated in Javis that GCR 1963, 516.6(2) ¹ makes mandatory the giving of an applicable standard jury instruction when requested. We chose a strict standard of review for whether an appellate court should find reversible error in failure to give such instruction. We rejected a harmless error standard, finding that standard not unreasonable, but:

"(O)ur responsibility is to adopt the position that we believe will best serve the state's jurisprudence. It is our judgment at this time that the Court should put its supervisory authority behind the consistent and uniform application of the SJI * * *." 393 Mich. 689, 699, 227 N.W.2d 543, 547.

And:

"We accordingly adopt a strict rule that we believe will provide economy in administration and fairness to the parties: Where there is an omission of, or a deviation from an applicable and accurate SJI, prejudicial error will be presumed; provided that the erroneously omitted SJI was properly requested at trial; * * *." 393 Mich. 689, 702, 227 N.W.2d 543, 548.

In the instant case the record shows a discussion between an attorney and an expert witness and a visit to the accident scene. Thus SJI 2.06 concerning attorney contact with a witness was clearly applicable. While no issue was made of the attorney-witness contact in the sense of defendants' suggesting any impropriety, we do not believe whether or not defendant suggested impropriety controls the applicability of the instruction. The standard is applicability, not necessity. While the instruction may serve a curative function when impropriety has been suggested in attorney-witness contact, clearly the instruction has an informative function as well. The comment to the instruction so indicates:

"This instruction is unnecessary unless the fact of an interview has been mentioned during the trial. The court may wish to give this instruction at the time this fact is brought out." Michigan Standard Jury Instructions Civil (Ann Arbor: Institute of Continuing Legal Education), p. 2.06.

We do not believe Javis totally constrains the discretion of trial judges. The judge's discretion is still required in determining whether or not the instruction is applicable and whether or not the instruction accurately states the law. ²

We have reconsidered the Javis rule in the factual context of this case. We reaffirm what we said in Javis :

"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." 393 Mich. 689, 697, 227 N.W.2d 543, 546.

We have reevaluated the arguments for and against the strict rule announced in Javis and reassert:

"Whatever wasted effort that will result from the reversal of those few cases wherein a trial court erroneously deviates from the SJI will be overcome by the benefits of conserved trial court time at the instruction stage, certainty to trial counsel as to how the law will be stated to the jury, and a clear and concise instruction for the jury to work with." 393 Mich. 689, 699, 227 N.W.2d 543, 547.

In this case, SJI 2.06 was applicable. It was accurate. The instruction was requested. ³ Refusal to give the instruction was reversible error.

II

The second issue upon which we granted leave to appeal concerns the proper method by which deposition testimony is to be introduced into evidence at trial. In this case plaintiff called each defendant to the stand for cross-examination. ⁴ After attempting to impeach each defendant by way of reading questions and answers from the deposition, plaintiff moved to admit the entire typewritten transcript of each defendant's deposition as an exhibit. Defendant objected on the ground that the depositions contained irrelevant and prejudicial matter. Plaintiff contends the trial judge's refusal to admit the typewritten deposition transcripts is reversible error.

While GCR 1963, 302.4 ⁵ states that "any part or all of a deposition" is admissible, and GCR 1963, 302.4(2) provides that the deposition of a party may be used by an adverse party for any purpose, both provisions are silent concerning the method by which the deposition is to be admitted.

Two of our cases note that a question-by-question approach is the appropriate method by which to...