Taylor v. Murphy, Docket No. 1681

• Decision Date: 28 March 1967
• Docket Number: No. 2,Docket No. 1681,2
• Citation: 6 Mich.App. 398,149 N.W.2d 210
• Parties: Shirley M. TAYLOR, Administratrix With Will Annexed of the Estate of Edward M. Taylor, Deceased, Plaintiff-Appellant, v. Duane Mark MURPHY, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 210

149 N.W.2d 210

6 Mich.App. 398

Shirley M. TAYLOR, Administratrix With Will Annexed of the Estate of Edward M. Taylor, Deceased, Plaintiff-Appellant, v. Duane Mark MURPHY, Defendant-Appellee.

Docket No. 1681.

Court of Appeals of Michigan, Division No. 2.

March 28, 1967.

Phillip C. Kelly, Kelly, Kelly & Kelly, Jackson, for appellant.

Konrad D. Kohl, Davidson, Gotshall, Kelly, Halsey & Kohl, Detroit, for appellee.

Before T. G. KAVANAGH, P.J., and GILLIS and McGREGOR, JJ.

T. G. KAVANAGH, Presiding Judge.

This is an action for damages brought under the Michigan wrongful death act. C.L.S.1961, § 600.2922 (Stat.Ann.1962 Rev. § 27A.2922). Plaintiff's decedent, Edward M. Taylor, driving from Chicago to his home in Jackson, Michigan, stopped at the American Legion Post at Hudson, Michigan at about midnight. He appeared to be sober, but did not look well and said he was not feeling well. He had been afflicted with periods of faintness over a period of several months and had recently submitted to a surgical operation. He had one drink and part of a second drink and then left.

Defendant had entered the bar at about 10 p.m. the same evening, drank several bottles of beer and left about 1 a.m., approximately 15 minutes after plaintiff's decedent. Defendant's car was parked in front of the door to the bar. Decedent's car was parked next to defendant's on the right side (passenger side) of defendant's car. As he left the bar defendant approached the two cars from the front. He testified that he did not look through the opening to the parking area behind them, but that he did look down the left side of his car before entering it, and saw nothing. He further testified that upon entering his car he looked through the rear view mirror but saw nothing because it was a misty night. It had been raining and his rear window was obscured with rain and mist. Defendant did not attempt to clean off the rear window.

Defendant started his car and in backing up, he rolled over decedent's body which had been lying on the ground behind the car, thereby causing his death.

The cause was tried to a jury which returned a verdict of no cause for action. Plaintiff has appealed to this court alleging that the trial judge erred in giving his instruction to the jury and in refusing to grant plaintiff's request for instructions, and further alleging that the trial judge committed error in refusing to allow defendant to make a test of his view to the rear of his car.

Appellant assigns error to the refusal of the trial judge to give requested instructions relating to subsequent negligence, or last clear chance and relating to defendant's duty of care.

With one exception having no significance here, appellant made no objection before the trial court to the court's refusal to give requested instructions, to its charges as given or to any ruling of the court. Nor does he claim that he was denied opportunity to object. The Michigan Court Rules are explicit that on appeal a party cannot assign error to any action of the trial court unless he has made a timely objection, so that the court has had a chance to correct any alleged error before the jury retires to deliberate. GCR 1963, § 516.2. See Snyder v. New York Central Transport Co. (1966), 4 Mich.App. 38, 143 N.W.2d 791.

It appears that the trial court did not indicate to appellant what action it would take with regard to the written requests, in accordance with GCR 1963, § 516.1. However, the failure of the trial court to observe that rule does not excuse the parties from their duty of timely objection. The only exception to this general rule is where the trial court refused to grant the opportunity to object. Herndon v. Woodmen of the World (1965), 1 Mich.App. 141, 134 N.W.2d 825. But here appellant had adequate opportunity to object.

Even had timely objection been made we find no prejudicial error. 'The jury was entitled to have before it during its consideration of the case both plaintiff's and defendant's theories (where, as here, there was evidence to support them) and the law applicable thereto.' Gapske v. Hatch (1957), 347 Mich. 648, 81 N.W.2d 337. But a party is not entitled to a charge in the exact from requested. It is enough if the court covers the subjects concerned in the requests in appropriate language. Knickerbocker v. Samson (1961), 364 Mich. 439, 111 N.W.2d 113. The charges given by the court in this case, in our view, adequately covered each item of appellant's theory and request.

The use of hypothetical illustration in charging the jury may be questionable but it is objectionable only if it tends to mislead the jury. It is rendered innocuous by a proper warning to the jury. Beecher v. Venn (1877), 35 Mich. 466. In this instance, the trial court stated that its hypothetical illustration was 'completely unrelated' and 'farfetched.' At the conclusion of the illustration, the court applied it to the facts in issue. We find no reason to conclude the jury was misled.

Appellant complains of the following language in the court's charge:

'Now, a reasonable man coming out of the Legion at 1 a.m. doesn't have to expect or assume someone would be lying on the ground in the parking lot to the rear of the car or that someone will fall behind his car before or as he backs out.'

This, he says, constitutes an invasion by the judge of the province of the jury. However, the court continued:

'The question here...