Van Every v. Southeastern Michigan Transp. Authority

• Decision Date: 19 June 1985
• Docket Number: Docket No. 77163
• Citation: Van Every v. Southeastern Michigan Transp. Authority, 369 N.W.2d 875, 142 Mich.App. 256 (Mich. App. 1985)
• Parties: Caribel VAN EVERY and Robert Van Every, Plaintiffs-Appellants, v. SOUTHEASTERN MICHIGAN TRANSPORTATION AUTHORITY, Defendant-Appellee. 142 Mich.App. 256, 369 N.W.2d 875
• Court: Court of Appeal of Michigan

Page 875

369 N.W.2d 875

Caribel VAN EVERY and Robert Van Every Plaintiffs-Appellants, v. SOUTHEASTERN MICHIGAN TRANSPORTATION AUTHORITY Defendant-Appellee.

Docket No. 77163.

142 Mich.App. 256, 369 N.W.2d 875

Court of Appeals of Michigan.

Submitted Jan. 17, 1985.

Decided March 13, 1985.

Released for Publication June 19, 1985.

[142 MICHAPP 257] Zeff, Zeff & Materna by Howard J. Radner, and Charles P. Reisman, Detroit, for plaintiffs-appellants.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by Robert G. Kamenec, Detroit, for defendant-appellee.

[142 MICHAPP 258] Before CYNAR, P.J., and BEASLEY and ROBINSON, ^* JJ.

PER CURIAM.

Plaintiffs, Caribel Van Every and Robert Van Every, appeal as of right from a judgment of no cause of action rendered in favor of defendant, Southeastern Michigan Transportation Authority (SEMTA), on a jury verdict.

On appeal, plaintiffs raise four issues. First, plaintiffs claim that the trial court erred in denying their request to reread SJI 50.03. The trial court instructed the jury as follows:

"You should include each of the following elements of damage which you decide has been sustained by the Plaintiff to the present time: Physical pain and suffering, mental anguish, fright and shock, denial of social pleasures and enjoyments, the loss or impairment of the neck and back, the loss of earning capacity.

"You shall also include each of the following elements of damage which you decide has been sustained by the Plaintiff that the Plaintiff is reasonably certain to sustain in the future. That will be the physical pain and suffering, mental anguish, denial of social pleasure and enjoyments, the impairment of the neck and back and the loss of earning capacity."

Plaintiff's counsel objected, claiming that the trial court omitted the word "disability" from the instruction:

"MR. RADNER: Judge, there was, I think it was 50.02.

"THE COURT: What is that/ [sic]

"MR. RADNER: 50.03, elements of damage, disability and disfigurement. You said the loss or impairment of the neck or back. The problem is it should say disability, including the loss or impairment of the neck or back. What you said was the loss or impairment of the neck or [142 MICHAPP 259] back. I just want that read over.

"THE COURT: I'm not going to read it over. they [sic] got the context.

"MR. RADNER: I told them what I thought the elements were in my Closing Argument.

"THE COURT: First of all, I didn't notice it. You've got your cards up there, and they have no business being up there while I'm charging the jury. I don't know whether I used the word disability of [sic] did not, but I'm not going to repeat it."

The proper instruction reads as follows:

"You should include each of the following elements of damage which you decide has been sustained by the plaintiff to the present time: a. (physical pain and suffering) b. (mental anguish) c. (fright and shock) d. (denial of social pleasure and enjoyments) e. (embarrassment, humiliation or mortification) the (disability including the loss or impairment of the neck and back and the loss of earning capacity).

"You should also include each of the following elements of damage which you decide plaintiff is reasonably certain to sustain in the future: a. (physical pain and suffering) b. (mental anguish) c. (fright and shock) d. (denial of social pleasure and enjoyments) e. (embarrassment, humiliation or mortification) the (disability including the loss or impairment of the neck and back and the loss of earning capacity)." See SJI2d 50.01, 50.02, and 50.03.

On appeal, plaintiffs contend that the trial court's omission of the word "disability" from the instruction and its failure to correct itself constitute reversible error pursuant to Javis v. Ypsilanti Bd. of Ed. ¹ The general rule is that, if requested, Michigan Standard Jury Instructions must be given if they are applicable and accurately state [142 MICHAPP 260] the law. ² The Javis Court adopted a strict rule to be applied when the trial court omits or deviates from an applicable and accurate standard jury instruction:

"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; and, provided that in those cases where error is charged as a result of a deviation from a SJI, said deviation was brought to the attention of the trial court prior to the commencement of jury deliberations." Javis, supra, pp. 702-703, 227 N.W.2d 543.

In Citizens National Bank of Cheboygan v. Mayes, ³ referring to Javis, we said: "This test presumes prejudice; it does not allow for a rebuttable presumption." Thus, where the omitted instruction (1) applies under the facts of the case as tried, (2) is accurate, and (3) is requested, this Court has usually reversed. ⁴

In this case, defendant argues primarily that the deviation does not constitute prejudicial error, saying that (1) the term "disability" is a generic term for the loss or impairment of the neck and back; (2) the jury, by finding that plaintiff did not suffer a serious impairment of the body function, never determined the amount of damages pursuant to SJI2d 50.03; (3) reversal based upon a deviation from SJI2d 50.03 would constitute an absurd result; and (4) there is only a rebuttable presumption that prejudicial error results from a deviation from SJI2d 50.03.

[142 MICHAPP 261] In Snow v. Freeman, ⁵ we said that while "[s]ometimes it would appear that, rather than serving the good purpose for which it was intended, the strict rule of Javis causes injustices", and that if the Javis rule is to be moderated, the high court should do so. We further said in Snow that the high court had not chosen to take the opportunity, citing 412 Mich. 909; 315 N.W.2d 125 (1982), where the Supreme Court denied leave to appeal. Additionally, the Javis Court acknowledged that the strict rule will at times constitute wasted efforts:

"It is our judgment at this time that the Court should put its supervisory authority behind the consistent and uniform application of the SJI and hence we adopt a strict standard for SJI errors. 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." Javis, supra, p. 699, 227 N.W.2d 543.

Ten years have now passed since Javis was decided. Part of the purpose of Javis was to impress trial judges that the Standard Civil Jury Instructions were mandatory and must be followed. A long enough period has now passed for that purpose to be accomplished. We believe that the time has come to relax the inflexibility of the Javis rule in cases such as this where it is perfectly clear that no prejudice to plaintiffs could have resulted from the slight omission from the standard instruction. For these reasons, we believe plaintiffs' extensive arguments for reversal may be rejected.

[142 MICHAPP 262] Second, plaintiffs claim that the trial court erred in allowing the doctor called by defendant to read Ms. Van Every's medical chart to the jury and in allowing the chart's introduction into evidence. In the within case, defendant sought to have Ms. Van Every's gynecologist, Dr. Pickens, testify. Although defendant's witness list did not specifically list Dr. Pickens, it did inform plaintiffs that defendant intended to call "plaintiff's treating and examining Doctors". As defendant points out, plaintiffs should have been on notice that Dr. Pickens was a treating physician of Ms. Van Every, since plaintiffs' counsel, in their answers to defendant's interrogatories, had identified Dr. Pickens as a physician by whom Ms. Van Every was examined since February 26, 1980. Additionally, plaintiffs, in their witness list, reserved the right to call "all witnesses indicated in the Answers to Interrogatories and Depositions". Dr. Pickens was listed in plaintiffs' answers to interrogatories.

Further, this Court has permitted the testimony of medical witnesses not named as witnesses in the pretrial summary if the defendant had "preserve[d] the right to call any and all doctors who [had] examined and/or treated plaintiff". ⁶ Thus, while Dr. Pickens was not specifically named as a witness in the pretrial summary, he clearly falls within the proviso of defendant's witness list which reserved the right to call "plaintiff's treating and examining doctors". Since plaintiffs were impliedly on notice concerning Dr. Pickens' testimony, there was no error in allowing him to testify.

Plaintiffs also contend that the testimony of Dr. Pickens regarding Ms. Van Every's medical chart lacks proper foundation and constitutes inadmissible[142 MICHAPP 263] hearsay, since most of the medical entries were not made by him and since he was allowed to read entries concerning Ms. Van Every's diagnosis. Dr. Pickens testified that the medical chart was used for treating Ms. Van Every, who was his patient from the summer of 1980 through the fall of 1981. He stated that Ms. Van Every's September 22, 1977, visit, as denoted on the chart and of which Dr. Pickens had no independent knowledge, indicated that she had complained of sudden chest pains on and off for the past month and that she was diagnosed as having anxiety reaction and not coronary insufficiency. The October 24, 1977, office note diagnosed a sprained right shoulder. Dr. Pickens indicated that the December 8, 1977, note revealed that plaintiff hurt her back and experienced dizzy spells. The November 14, 1976, entry indicated that plaintiff complained of dizziness and nerves. The March 29, 1977, notation indicated that plaintiff had a white discharge and lower back and abdominal pain. The November 30, 1979, notation was...