Johnson v. White
397 N.W.2d 555
Mich. Ct. App.
1986
Check Treatment
M. J. Kelly, J.

This case is before us once again on remand from the Michigan Supreme Court for reconsideration in light of Johnson v Corbet, 423 *427 Mich 304; 377 NW2d 713 (1985). In Johnson, the Court abandoned a rule announced in Javis v Ypsilanti Bd of Ed, 393 Mich 689, 702-703; 227 NW2d 543 (1975), which provided that an omission or deviation from an applicable and accurate standard jury instruction which was requested at trial is presumed to be prejudicial error. We relied upon this rule to vacate a judgment of no cause of action against the plaintiff in this case due to the trial court’s refusal to grant plaintiff’s request for SJI2d 10.08. Johnson v White, 144 Mich App 458; 376 NW2d 130 (1985), remanded 424 Mich 869 (1986). We must now reconsider the effect of the trial court’s ruling in light of the new standard of review announced in Johnson v Corbet, i. e., that the failure to give a requested instruction constitutes reversible error only when it "amounts to an 'error or defect’ in the trial so that the failure to set aside the verdict would be 'inconsistent with substantial justice.’ ” 423 Mich 326.

The jury instruction refused by the trial court provided as follows:

Because [name of decedent] has died and cannot testify, you must presume that [he/she] was in the exercise of ordinary care for [his/her] safety (and for the safety of others) at and before the time of the occurrence, unless you find the presumption is overcome by the evidence.
In deciding whether the presumption is overcome, you must weigh the presumption with all the evidence. If, after so weighing, you are unable to decide that the presumption has been overcome, then you must find that [name of decedent] was not negligent. [SJI2d 10.08.]

The effect of this presumption is to place upon defendant the burden of showing that the decedent failed to exercise due care. Salvati v Dep’t of State *428 Highways, 92 Mich App 452, 462; 285 NW2d 326 (1979). The trial court may eliminate an instruction on the presumption when direct, positive and credible rebutting evidence is presented. Stockman v Kinney, 29 Mich App 432, 436; 185 NW2d 568 (1971). However, "when circumstantial evidence of doubtful value is the only rebutting evidence offered, the question should be submitted to the jury, and if they decide that the circumstantial evidence should be disregarded, the presumption is still sufficient to establish plaintiffs case as to the exercise of proper care by the deceased.” Stock-man, supra, p 437, quoting Gillett v Michigan United Traction Co, 205 Mich 410, 416; 171 NW 536 (1919). Finally, the mere fact that there is an eyewitness to the accident does not excuse the failure to give the jury instruction. Bolser v Davis, 62 Mich App 731, 735; 233 NW2d 845 (1975).

We think that even under the standard of review announced in Johnson v Corbett, supra, reversible error occurred in this case when the trial court refused to give SJI2d 10.08. The evidence introduced at trial regarding the decedent’s failure to exercise due care was inconclusive and contradictory and thus did not constitute direct, positive or credible rebuttal evidence justifying the trial court’s refusal to give the requested instruction. Because we think the instruction was applicable and that its omission constituted an error or defect affecting the fairness of the trial and verdict, we reaffirm our earlier decision to vacate the judgment and remand for a new trial.

We further address two additional issues which may arise on remand. In our earlier opinion, two members of the panel agreed that the trial court properly admitted testimony of bar owner Francis Beadle to the effect that he was informed by an unidentified eyewitness at the scene of the acci *429 dent that decedent had failed to bring his vehicle to a complete stop before pulling out into the intersection and into the oncoming truck driven by defendant White. The panel concluded that the testimony was admissible under the present sense exception to the hearsay rule. MRE 803(1). On remand, however, a majority of the panel concludes for the reasons stated in my earlier concurring opinion that the testimony of Francis Beadle does not qualify under the present sense exception to the hearsay rule and was thus improperly admitted. 144 Mich App 471. With the exclusion of this very prejudicial hearsay testimony, the evidence introduced at trial is somewhat less conclusive as to the decedent’s exercise of care. On remand, Francis Beadle’s testimony regarding the eyewitness’ statement shall be excluded.

Second, a majority of this panel now also agrees that the opinion testimony of Deputy Schwartz as to decedent’s failure to yield the right-of-way must be excluded at the trial on remand because it is not supported by a sufficient foundation. Other than the unidentified witness’ hearsay observation, there is nothing in the record to support the deputy’s conclusion.

Reversed and remanded for new trial.