Moskalik v. Dunn

583 v Dunn v DUNN MOSKALIK Opinion Court Compliance—Prejudice—Appeal 1. Trial —Court Rules — and Er- ror. judge comply per Failure a trial with a court rule is not se it reversible error unless is so offensive to the maintenance of judicial process regarded sound that it can never be as harm- decides, reasons, prophylactic require less or the court undeviating compliance particular rule; otherwise, awith ab- prejudice complaining party sent suffered attributable rule, appropriate. the failure to observe the reversal is Appeal Impression- 2. Error —New Trial —Issue First

Preservation of Issue. simply To reverse and order newa because the case involves which, Michigan Supreme ignores an issue if the Court preserve issue, impression, failure to becomes first disproportionate. 3. Trial —Instructions—Standard Instructions —Court Object Rules —Failure to —Fair Trial. provides although A court rule the Standard Instruc- [4-6, 8,10,15,17] ^[2] [12-14, 16,19] ^[18] [7] [9,10] ^{[11] [3] [1] [22] [21] [20]} Power 5 Am Jur 58 Am Jur 53 Am 53 Am 20 Am Jur 5 Am Jur 5 Am Jur 58 Am 53 Am 158 ALR 715. 53 Am 4 Am Jur Jur, Jur, Jur, Jur, Jur, court to 2d, Appeal 2d, 2d, 2d, 2d, 53 Am Trial 540. Trial References Trial 512 et Witnesses 565. Trial 2d, Appeal Appeal New Trial 23.§ Appeal Courts 57 Am Jur prescribe § § §§ Jur, § 827. and Error 723. §§ and Error §§ and Error §§ Trial § 82-86. and Error 172. for Points in Headnotes 833. 2d, Negligence rules seq. §§ § pleading, § etseq., 667. 955. 76.§ 844-847. practice, procedure, given on a certain no instruction tions recommend case, "necessary proper may, instruct matter, judge in a law”; is, therefore, applicable it accurately neces- to state determine sary merits to whether instruc- to the to advert that, clearly wrong so even given a case was tion in such voiced, plaintiffs deprived objection were of a though was no (GCR 1963, 516.6[3p. fair trial Emergency Negligence Man —Conduct—Standard 4. —Sudden of Action. Test —Course one, part person caught is emergency, is in of the if a A sudden light his at that in of which conduct time is the circumstances is one which would disturb judged, the situation and if be man, considered; judgment that fact is to be of the standard the of of took one the courses action the actor the test is whether taken, emergency might have in that which a standard man though negligent even it led an is not and such a course by adopting might prevented injury been an alter- have which of course action. native Emergency Negligence 5. of —Choice Action —Reasona- —Sudden bleness. emergency a is confronted with sudden The that the actor fact requires determining rapid factor decision is a in which determining his of in character of choice action reasonable negligent is toward another. whether his conduct Emergency Negligence 6. —Standard of Care. —Sudden emergency The to be observed in an standard care one no than situation is different the standard of care to be ob- generally; inquiry person served is whether the acted as prudent person reasonably under same or would a circumstances, similar emergency is but and the existence of an one of be into factors to taken consideration. Instructions—Objections—Court 7. Rules. Trial — purpose requiring objection timely to a instruction and, perchance improper improper tois an avoid given, instruction which be corrected has been to facilitate can verdict, thereby avoiding costly its correction before new trials 516.2). (GCR1963,

Dissenting Opinion J., Kavanagh, T. M. C. JJ. Swainson and Instructions—Negligence—Standard 8. Trial — of Care —Emer- gency Appeal Jury Situation — and Error —Standard In- structions. Trial court instruction on the standard care an individual owed v Dunn reversibly emergency light

in situation erroneous in the Jury Michigan of the Standard Instruction recommendation 13.04). (SJI given that no instruction be such Appeal Supreme Sponte. Sua 9. and Error — Court —Review

Generally, Michigan Supreme extremely Court reluctant to properly preserved appeal; however, discuss issues not for preserved right sponte Court has its nonetheless to review sua appropriate in cases. Appeal Sponte 10. and Error —Review Sua —Instructions—Fail- Object ure to —Standard Instructions —Imminent

Peril —Court Rules. plaintiffs Case in which claim an instruction should not have given presence been due to the of Standard Instruction given which that no instruction duty recommends peril although they object imminent failed to to the charge appropriate sponte is an case sua review because importance impression raising its aas case of ffrst the issue of of a effect recommendation that no instruction be Michigan Jury the Standard Instructions and because it is a impression interpreting enabling ease of ñrst the court rule 13.04). (GCR1963, 616.6; SJI Object Jury 11. Trial —Instructions—Failure:™ —Standard In- structions —Court Rules. eases, object, Failure to in future to the trial court’s failure to Jury rule, provid- follow the Standard Instructions and court ing "[wjhere Report that the SJI Committee recommends that given matter, particular no instruction be on a the court shall give speciñcally not an instruction on the matter unless it finds (a) for reasons stated on the record that such an instruction is (b) necessary accurately applicable to state the law and the adequately by pertinent matter is not covered other Standard Jury generally dispositive precluding will Instructions” be held (GCR 516.6). raising appeal 1963, 516.2, the of this issue on Jury 12. Trial —Instructions—Standard Instructions —Court Rules. Jury The instructions in Standard Instructions do not have either rules; however, the force effect of court the court rule governing Jury every the use Standard Instructions is bit as binding upon any portion trial courts as other court rule and a unequivocal "[wjhere that rule is in its command that the 392 Mich given Report no recommends that instruction be SJI Committee give matter, particular the shall not an court on a speci&cally Snds for it reasons stated on matter unless the (a) necessary is an instruction to such state the record that (b) applicable accurately the matter is not ade- law pertinent Jury quately Standard Instructions" other covered (GCR1963, 516.6, 516.6[3]). 516.6[1], Instructions—Record—Judges—Attorney and Client 13. Trial — Jury Charge Objections—Standard —Requests Instruc- to — Rules. tions —Court making obligation under court rule of an the direct While giving speci&cally appropriate prior to instructions not record Instructions, placed Jury has been recommended Standard nonetheless, counsel, through judge, written on the trial opportunity object requests to the court’s instruct and assuring given, a substantial burden instructions as bear Jury proper appropriate Instructions use of Standard Jury governing Instruc- to a court rule Standard adherence is, course, tions; greater upon counsel no this "burden" than attorney’s guard against duty normal erroneous instruc- (GCR proceedings error-free tions in order to assure 516.6, 516.6[3j). Jury 14. Trial —Instructions—Standard Instructions —Court Rules. indicates, in As a court rule areas of the law which Standard covered, not Instructions have the trial court has within (GCR 1963, power giving its additional instructions 516.6[2],516.6[4j). 15. Rules. Trial —Instructions—Perilous Situation —Court upon giving charge duty perilous in a of a situation, contrary provides part to the court rule which Report recom- where Standard Instruction Committee matter, particular mends no instruction be on a (GCR matter, give shall court an instruction on the error 1963, 516.6[3j). Jury 16. Trial —Standard Instructions —Court Rules. regarding A a (GCR Stan- strict adherance the words of court rule 516.6). 1963, required dard Instructions is 17. In- Trial —Instructions—Perilous Situation —Standard Record—Appeal structions — and Error. record, reasons, Trial court’s on for not failure to state its Moskalik v Dunn following Jury Instruction a Standard recommendation that no subject duty instruction be on the of the of one in a (GCB 1963, perilous 516.6[3j; situation is reversible error SJI 13.04). Charge Evidence—Appeal Instructions—Requests 18. — Trial — and Error. properly requested, upon party’s Failure to instruct when cause supported evidence, of action is admitted or which (GCB 516.7) 1963, error 19. Trial —Instructions—Husband and Wife —Action—Derivative Expenses Appeal Cause of Action —Medical — and Error— Reversible Error. point jury There is no error on reversible should specifically have been instructed on the husband’s derivative damages cause of action for medical where the returned a action; verdict of no cause this instructional error could not any way jury. have affected in the result reached Appeal Supreme Prejudice. 20. and Error — Court — Michigan Supreme Court will not reverse where error in the trial

proceedings changed would not and could not have the result prejudice. and there is no Appeal Object. 21. and Error —Failure Technically, plaintiffs’ speciffcally object failure to to a line of questioning grounds appeal precludes assign- raised ment of error. Holdup Ap- 22. Trial —Cross-Examination—Unrelated Incidents — peal Hearsay—State Error — Mind. questioning Defense counsel’s holdup witness on unrelated error; questioning incidents was not concerned relevant knowledge issue whether or not defendant’s incidents, i.e., of such unrelated prompting act, his state mind him to shared or hearsay reasonable and it was not immaterial as the witness was not asked about the truth of the matter but queried instead he was about his "state mind”. Appeal from Court Appeals, Division V. J. Brennan, J.,P. and T. M. Burns and Paul L. Ad- ams, JJ., reversing Wayne, Stelt, James R. (No. Submitted May 1974. 6 May Term 54,954.) Docket No. 6, 1974. September Decided op Opinion the Court Moskalik and Judith Mos- Ronald Complaint by Dunn, Jr., damages for for Albert against kalik being from shot in de- sustained injuries Judith Judgment expenses. for medical bar and fendant’s to Court appealed Plaintiffs for defendant. Reversed, appeals. Defendant Reversed. Appeals. verdict reinstated. Ochs, P. plaintiffs. Norman for Miller, Lehman, Lucow, Garan, Seward & Winiemko), for defendant. Ronald C. Cooper (by a Levin, colleagues declare that J. Our to instruct on a matter who decides judge, Instruction Committee recom- the Standard given, errs reversibly no instruction be if he mends 516.6(3), requiring comply fails to with GCR case, in such find for judge, specifically (a) record that such an "reasons stated accurately to necessary is state (b) is applicable adequately law and the matter not Standard pertinent covered other Instruc- tions”.

I judge comply Trial failure to with court rule per it se reversible error unless is so offensive judicial process to the maintenance of a sound regarded it can never be as harmless or the court decides, reasons, prophylactic for unde- require compliance viating particular with a rule. Other- wise, complaining prejudice absent suffered party attributable the failure observe rule, ap- reversal is not other appropriate. Any proach to our reviewing responsibility mani- would festly unworkable. v Dunn Opinion of the Court their, predicate opinion do not colleagues

Our judge’s oifensiveness of depar- reversal grounds. rule or on prophylactic from the On ture they "that in future contrary, the declare cases to the trial court failure to object failure follow 1963, and GCR the Standard Instructions 516.6, dispositive will generally precluding be held raising appeal. the issue GCR of 516.2.” Appeals, of in unpublished

While the Court an opinion, gave reversed because the judge an im- charge,1 colleagues our proper expressly decline to consider the "substantive adequacy, accuracy, Thus, of necessity this instruction”. they do not predicate opinion their for reversal on a conclusion instruction was prejudicial. erroneous and importance Cases where defects of fundamental in trial, although the conduct of a pre- not properly served, recognized were out of concern that may are, been fair party deprived have of a trial point. in accordingly, not

To reverse and order a new simply trial because which, the case involves an if issue the Court issue, ignores preserve the failure to becomes first impression of strikes me disproportion- ate. sometimes,

While although courts limiting Appeals Court The declared: confusing given clearly charge "The erroneous judge in this case illustrates the reason for the recommendation say judge give the committee. This is not to that a should never an required instruction as to the standard of care in the face of immi peril. judge proper nent It is the task of the trial to determine the jury, depending upon instructions to be to a the contentions and proofs regard particular in the case and with the need to instruct the general, to the same. In the recommendations the Commit tee on Standard 516.6(3). Instructions should followed. GCR case, reversibly by giving In this the trial an court erred (Court charge.” Dunn, improper Appeals Moskalik v Docket No. 1, 1973 [unreported]). decided March Opinion the Court grant to the pronouncement, new of a

retroactivity of the decision as a benefit litigant successful encourage- issue and advancing the for reward as. law, reform of the our for press to others ment prospective neither nor here opinion colleagues’ sum, In only. case to this applies retroactive —it with comply failure to trial judge declare they error; 516.6(3) but future is reversible Rule recognized not be error will cases, such general, however, in this object; not does appellant appellant although ordered trial will be a new case issue. preserve not did departed have, frequently, too perhaps we While ruling/ no error formu- no objection/ the no from appellate lation, not remarkable it is still assignments of error to entertain to refuse court plaintiffs in this case preserved. properly of the with the benefit rewarded not be would but colleagues’ opinion, in our pronouncement it. exception an with

II 516.6(3) although the Stan- that provides Rule that no instruc- recommend Jury Instructions dard matter, may, the judge a certain tion be case, if to state "necessary instruct proper in a applicable law”. accurately the therefore, the mer- is, to advert necessary It its, Appeals, to determine the Court of as did that, wrong so clearly whether the instruction was voiced, plaintiffs though objection even no of trial. deprived were a fair with a defendant bar owner was confronted The entered gunmen armed emergency sudden when law, by stated pertinent his establishment. respected authority: still current and v Dunn Opinion of Court person caught emergency, "If a is in sudden is light in part of of the circumstances which his judged. be conduct at that time is to And the situa- is judgment tion standard one which would disturb the of the man, to be that fact is considered. The test is whether took one of the the actor courses of action emergency might in that which a taken, man standard have negligent a course is not even though and such it might prevented which have injury led been adopting Harper an alternative course action.” & James, Torts, 16.11, pp 938-939. § Law determining "In negligent whether conduct is toward another, fact actor is confronted with a requires emergency rapid sudden factor in which decision is a determining the reasonable character of his Torts, 2d, 296, p choice of action.” Restatement 64. § (4th Prosser, ed), Similarly, 168; see Torts p § 2d, §90, 57 Am Jur Negligence, pp 437-438; 65 CJS, Negligence, pp 603-614; 18 Michigan § Civil Jurisprudence, Negligence, pp 198-200. § Michigan agree case law inis accord.2 I that we consideration, should defer until a case where the issue properly preserved is presented, whether policy it would be better not to instruct at all on this issue to avoid undue emphasis on but the factors to considered the jury in of. deciding up whether the actor measured to the law’s deciding standard care. Before that ques tion might comprehensive we benefit from more statement views of SJI Committee and case, other amici. For this it enough to say that was, general, accordance with the law.

Ill was, The indeed, instruction erroneous 2 v Paugh, 308; (1957); Pampu Schow 350 Mich 618, 624-625; 86 NW2d 261 v Detroit, (1946); Myler Bentley, 315 Mich 24 NW2d v (1924). 384, 386; 226 Mich 197 NW 521 Williams, Opinion Dissenting J. actor confronted with that an a it stated extent "is not held to the same emergency stan- sudden of care to be The standard observed dard of care”. situation is no emergency different in an by one care to be observed generally. the standard than acted as person would is whether inquiry The under" the same person reasonably prudent The existence of an emer- circumstances. similar the factors to be taken one of into gency is but consideration.

However, judge next sentence very in the stated, must exercise such care as correctly "[H]e exercise under person would those the reasonable unlikely that the error in the It is circumstances”. of confusion or misled instruction was a source jury. requested

The instruction was defendant’s writing in advance. Plaintiffs’ counsel counsel instructed, not before the nor object did asked, he after object, did when instructions given. were requirement timely objection is not an

arbitrary purpose improper one. Its is to avoid and, perchance improper instruc- given, tion which can be corrected has been verdict, thereby facilitate its correction before avoiding trials. The defect in- costly new magnitude struction was of such as to consti- plain requiring tute error a new trial without regard bring to the failure to it to the attention of judge. Appeals jury’s

The Court of is reversed. The verdict is reinstated. Kavanagh,

T. Coleman, G. M. S. and J. W. Fitz- JJ., gerald, Levin, concurred J. with (dissenting). presents This case v Dunn Dissenting Opinion by Williams, J. plaintiffs the form by three raised of issues in from alleged stemming the trial court’s errors negligence handling this unusual action. of Those questions are:

(1) Was the trial court stan- in owed an individual an emergency dard care light in of the reversibly situation erroneous Mich- igan Instruction recommendation Standard given? that no instruction be such (2) failure to Was the trial court instruct on co- plaintiff action husband’s....cause for medical expenses reversible error?

(3) Was it error reversible the trial court to question allow defense counsel two witnesses regarding knowledge their holdup unrelated incidents of a similar character as the incident at bar? question posed

We answer the first in the affir- mative and accordingly affirm the of Ap- Court peals’ reversal on this point. Though unnecessary cause, to disposition of in guide this order remand, trial court on we answer the second and third questions negative, in reversing Court of Appeals on these points. two In the question second there was error but not reversible error.

I. FACTS litigation The instant stems from a. barroom precipitated shoot-out by attempted holdup. Co- plaintiff Judith Moskalik was in wounded the arm aby bullet fired by one of three would-be robbers during attempt the course of holdup which took place in the early hours June 1969. At Moskalik, the time the shooting, Ms. one of a bar, dozen people sitting was to the bar next 392 Dissenting Opinion defendant, Dunn, Albert Jr. operator, owner waiting go out on the bar present was She bartender. date with the Moskalik, shot, striking Ms. the shot

The first robbers. It was contro- of the fired Dunn defendant "drew” at trial whether verted gun reaching for his own or whether the shot and returned the robber’s pistol for his he reached case, wounded. In any was fire after Ms. Moskalik gunfire, the robbers were exchange an after off. driven (who husband claimed and her

Ms. Moskalik resulting from his wife’s expenses medical only 5, 1969, damages August on for injury) filed suit in drawing action alleging that defendant’s warning every- the robber’s to firing gun his after "Freeze, holdup”, this is a was a in the bar: respect care with reasonable failure to exercise invitee. After a full co-plaintiff, alleged business 16, 1971, commencing a ver- November resulting was returned dict for defendant on November of no cause action judgment 1971. unpublished per in an Appeals,

The Court of reversed, remanding for new trial opinion, curiam "errors”, of three the same three on basis (Docket appeal. on this No. parties issues the raise [unreported]). We decided March 26, 1973. appeal September granted leave (1973). 390 Mich 776

II. EMERGENCY SITUATION INSTRUCTION

(ISSUE #1) A. THE INSTRUCTION trial court instruc- portion The relevant of the tion under attack reads as follows: v Dunn Dissenting Opinion by Williams,

"Your verdict will be for the Plaintiff if she was injured negligent and the Defendant was and such negligence proximate injuries. cause of her happening premises or occurrence of an incident on the negligence. evidence of The duty proprietor of a protect guest against a customer or agression parties premises of third is that [sic] exercise No such of the of ordinary keeping premises care in safe. duty arises until the owner knowledge has by the exercise of such care could have discovered the safety hazard to the customers use reasonable care to eliminate it. and thereafter fails to "In determining whether or not the Defendant em- ployed holdup upon you rasonable care discovery of the [sic] men, I should instruct that the law of State of fright makes allowances for and lack of coolness judgment when one is faced with the emergency and he is not held to the same standard of care which he himself usually exercises when he finds perilous situation. He must exercise such care as the reasonable person would exercise under those circumstances.”

Plaintiffs claim that the last paragraph of this instruction should not have given been due to the presence (Civil) of Standard Jury 13.04 Instruction which recommends that no instruction given be on point, that, case, and in any given was a substantively erroneous negligence standard for emergency situations.

B. LACK OF OBJECTION The threshold consideration before us is lack of objection to charge plaintiffs. Subsequent instructing the jury, the trial judge specifically sought objections from both parties to the instruc- tions for the Plaintiffs, record. time, at that made objections, two neither applicable to this issue. Defendant contends this instructional issue was therefore not properly preserved appeal. for

Generally, this Court is extremely reluctant 583 392 596 Mich Dissenting Opinion preserved appeal. properly issues discuss Noble, v 91; Sinnott 516.2; 390 Mich GCR (1973). 842 211 NW2d noted on numerous occa-

However, we have preserved right our sions, we have nonetheless People v cases. sponte sua appropriate in review Crittle, 367, 370-371; 212 NW2d 196 390 Harrison, 269, 275; 386 Mich (1973); People v 191 Dorrikas, (1971); People v 354 Mich 371 NW2d Steeneck, People v (1958); 303, 316; 92 NW2d (1929); People v 583; 226 NW 247 Mich Holmes, 212, 215-216; 290 NW 384 292 Mich 715, 719; People Kelsey, v (1940); 303 Mich (1942). NW2d sponte case for sua appropriate

This case is importance its as a case of first because of review issue of the of a raising the effect impression no instruction recommendation Michigan Standard Instructions and be- impression interpreting cause it is a case of first rule, 516.6. enabling GCR As a result we Appeals, pro- the Court of follow the lead of this issue.1 ceed to the merits of C. THE EFFECT OF SJI RECOMMENDATION

NOOF INSTRUCTION Michigan The draftsmen Standard (SJI) carefully specifically Instructions consid- problem ered the whether an instruction was appropriate duty peril of one imminent The following towards others. recommendation and conclusion were reached: course, mind, It should object in future be borne cases failure to the trial court failure to follow the Standard 1963, 516.6, generally dispositive and GCR Instructions precluding will be held 1963, raising appeal. the of this issue on GCR 516.2. Moskauk v Dunn Opinion Williams, Dissenting by Imminent and Duty Responsi-

"13.04 of One in Peril Causing the Perilous bility the Situation Person "The no committee recommends instruction be peril given duty either of one in imminent or the causing perilous responsibility person the the situa- tion.

"Comment required degree of of one "The care confronted with peril vary merely imminent does because of the higher unusual circumstances. The standard is neither lower, inquiry remaining nor the same as to charged sought whether the one to be negligence with negligence contributory reasonably acted a careful person would act under the same or similar circum- 17, 286 Mich. Way, stances. Triestam v 13 at 281 N.W. (1938). at liability causing perilous "The situation is governed general by principles negligence law.

"The special committee recommends that no instruc- given concerning principles tion be suggested this matter. The part negli- are treated instructions on (10.00 gence 11.00), (12.01(A) and sudden emergency and (14.01). 12.03(A)), subsequent negligence and Any addi- may misleading argumenta- tional instructions be argument tive and the matter should left counsel.”

The instructions in SJI do not have either force or the effect of court GCR rules. 516.6(1). However, 516.6, GCR the court rule governing the use of SJI every binding bit as upon trial courts as any other court rule. GCR 516.6(3) is unequivocal in its that: command "(3) Report Where SJI Committee recommends matter, particular that no instruction be on give court shall not matter unless specifically it finds for reasons on the record that stated (a) necessary accurately such an instruction is to state (b) applicable adequately law the matter is not Mich 583 392 598 Opinion by Dissenting Williams, J. pertinent Standard Instruc- by other

covered tions.”2 completely this by is controlled The instant case (Civil) point is on in directly 13.04 SJI rule. court inter on, of, recommendation and its consideration alia, peril in an imminent situa- duty the of supra, recommendation, full quoted in tion; its given. at all be Yet defense instruction is that no gave trial and the court a requested,3 counsel upon "perilous this charge directly focused which of giving charge, The such issue.4 situation” rule, is error. to the court contrary conclusion, it important is to reaching In Due of this case. to the appellate posture the note the requirements to meet trial court failure 1963, 516.6(3), not us we do have before GCR concerning adequacy, the substantive questions of this instruction. Instead accuracy, necessity or question posed solely any the whether instruc have been without an point tion on could requirement This the trial court state reasons the record justifying in its failure to follow recommendations found SJI is a requirement "mandatory” "pattern jurisdic common in instructions” generally Annotation-Construction of Statutes or Rules tions. See Approved Making Mandatory Instructions, Use of Pattern Uniform 128, 141-142. 49 ALR3d paragraph of the court The controverted last trial apparently large part from under in obtained “Defend discussion Request Charge ant’s to #2”. 1963, 516.6(3), obligation making While the direct under GCR an appropriate mended trial nity prior giving specifically record to instructions not recom- nonetheless, SJI, placed upon judge, has the been trial counsel, through requests opportu- written to instruct and given, object to court’s instructions as bear substantial assuring proper appropriate use of SJI and adherence burden in is, course, upon to GCR 516.6. This "burden” no counsel guard greater attorney’s against duty erroneous than normal proceedings. to assure Cf. instructions Professional order error-free Code Canons, Responsibility and Canon 7. indicates, in As the court rule areas of the law which SJI has covered, power giving court has within its additional 516.6(2) Polk, App (4); Hughes GCR 40 Mich instructions. v (1972). 634, 642-643; 199 NW2d 224 v Dunn Dissenting Opinion hold, explanatory statement record.5 We following 516.6(3), of GCR the clear dictates could not given. that such an instruction be would, effect, To hold otherwise be emascu- purpose late effect of SJI. Standard hardly Jury Instructions would "standard” caprice their use was dictated the whim or of the Bench Bar. on Accordingly go or we record as today requiring a strict adherence to the words 1963, of purpose GCR 516.6. Our to promote is lawful, understandable, effective and uniform in- throughout structions courtroom every the state. reasons,

The court’s failure to state its on (Civil) record, not following for the SJI 13.04 recommendation that no given on 516.6(3). 1963, subject, this is reversible error. GCR Appeals’ The Court of reversal of the trial court point is affirmed. III. FAILURE TO INSTRUCT ON HUSBAND’S (ISSUE #2)

CAUSE ACTION ERROR OF supra, As we noted reversal on the SJI issue being dispositive, consideration remaining two issues is to our necessary disposition of However, this cause. we nonetheless consider these appellate posture significance. major This difference in is encap mere existence of SJI does not mean that the substantive law necessarily longer open therein sulated is accurate that nor it is no change Applicability or attack. Cf. of MAI Instructions v The Sub Missouri, City stantive Law of 39 U of Mo at Kansas L Rev 129 (1970). spells appropriate procedural GCR 516.6 out the route to challenging particular follow in instruction or the substantive law behind a SJI judge recommendation. Had the trial the instant 516.6(3) (or appropriate case made an record under GCR if he record), explicit objection had refused to do so over counsel’s on the (Civil) question the accurately represents adequately substantive whether SJI or 13.04 Michigan, substantive law would then properly have been before us. 392 Opinion by Dissenting Appeals, in order to issues, the Court did

two remand. upon court the trial guide the instructions called question, Without Judith Moskalik. against or for verdict only for a specif- should have been contend Plaintiffs causes of action of both instructed ically requested such in- specifically Plaintiffs plaintiffs. objected to specificálly plaintiffs struction to so instruct. trial court failure Appeals finding of the Court of agree We with properly when re- tó instruct error. The failure cause of action which is party’s quested, upon evidence, by the error. supported admitted did not contest at 516.7. Defendant GCR Ronald now, trial, plaintiff contest does not expenses medical right to recover Moskalik’s found defendant was treatment wife Judith’s his jury. to Judith liable However, qualification latter leads it is this no defendant there is reversi- agree us to with Ronald Moskalik’s cause of point. error on this ble in nature. If Judith’s entirely action is derivative failed, obligation defendant had no cause of action expenses not of defend- to reimburse Ronald succeeded, making. If her cause of action had ant’s have liable for the medical defendant would been this damages stipulated by parties. as the Thus in any error could not have affected instructional way by jury.6 the result reached the . 6 damages by It noted that the claimed Ronald Moskalik should be included in instructions. The trial

in his cause of action were the gave following court instruction: damage following "You should include each of the elements of present you by which decide has been sustained the Plaintiff to the time, fright pain, physical pain suffering, anguish, and mental embarrassment, shock, pleasure enjoyments, and humiliation or denial of social and mortification, disability impairment or or loss of Plaintiff, disfigurement expenses the the of the the reasonable services, necessary ñgures care treatment and there is medical $1,750.00, agreed to on the board which has been added.) attorneys. "(Emphasis 601 v Dunn Dissenting Opinion proceedings

Where error in the would not result, changed the it is and could not have well jurisdiction this law in established where Court will not prejudice, there is no reverse. Burton, v Knoper 1963, 529.1; 383 Mich GCR Thompson Peters, (1970); v 386 68; 202 173 NW2d 532, 538; 301 (1972); McGuire v 194 NW2d Mich Rabaut, 230, 237-238; 354 Mich 92 NW2d 299 Horowitz v (1958); Blay, 498; Mich Rupert, v Fowles NW 143 Mich (1916); Bresnahan, Manning v 248; (1906); 106 NW 873 (1886). 584, 587; 30 NW 189 Thus we find no reversible error in the trial specifically court failure to instruct to Ronald and, accordingly, Moskalik’s cause of action we Appeals reverse the Court of on this issue. IV. SIMILAR QUESTIONING ON UNRELATED (ISSUE #3)

INCIDENTS The of Appeals Court found reversible error in questioning, defense counsel’s over objec- plaintiffs’ tions, of the bartender Judy Moskalik about knowledge their at the time of the robbery of holdups similar area. following two colloquies dispute: brief are in bartender.) (Questioning A. Fennelly, James "Q. you Were familiar with some incidents that oc- time, say curred around Bar Miami and a places few in that area? [plaintiffs’ "Mr. attorney]: going Ochs I object am any occurring parts. other in any incidents I other situation, don’t it is think material to this Your Honor. go "Mr. Schwartz attorney]: may It [defendant’s the frame of mind. answer, may "The Court: The witness if he knows. $1,750 figure represented stipulated expenses, The ages medical dam- only by claimed Ronald Moskalik. 392 Opinion Dissenting specific incident. any "The Not Witness: Schwartz) Well, you familiar were with "Q. (By Mr. closing just at time robbers had where incident some entered they bars, robbery off a and shot after carried other money? gotten the had I remember one. "A. provoked by though they anybody weren’t "Q. Even right? them,

shooting at say. "A. I couldn’t Honor, clearly this is Your irrele- say, I "Mr. Ochs: using It is like case. another particular

vant bearing on this case whatsoever. It has no accident. Overruled, completed you the area. but "The Court: Yes, Your Honor.” "Mr. Schwartz: Moskalik.) (Questioning of Judith B. any holdups at that time of "Q. you aware Where [sic] people had been shot notwith-

in the area when the standing gave up? they the fact that heard, yes. "A. I had notwithstanding the

”Q. people That had been shot money had turend over? fact that been [sic] going testify? Obpection Is he "Mr. Ochs: [sic] asking cross-examination. I am "Mr. Schwartz: This is aware of it. She indicated she was. she was holdups, I don’t I heard about but "The Witness: money turned know had been over. whether Schwartz) "Q. people shot? (By Mr. And had been "A.Yes. closing

"Q. time? Around "A. know time.” I don’t what questioning of Judith Moskalik raises no immediately real issue. It should be noted plaintiffs’ objection questioning counsel’s upon Ms. was not the substantive based grounds put appeal directed now forward on but counsel’s leading instead at form of defense specifi- question. plaintiffs’ failure to Technically, questioning line cally object to this v Dunn Dissenting Opinion Williams, J. appeal precludes assignment grounds raised on question error, however, the same is raised re Fennelly, we next consider. James which plaintiffs’ grounds allegation advanced respect questioning to the error with Fennelly, immateriality bartender, James were irrelevancy. find neither of We these elements questioning present. The was not irrelevant as it the relevant issue whether or concerned not de- knowledge incidents, fendant’s of such unrelated prompting i.e., his act, state of mind him to was well, not, shared reasonable. As it was as the Appeals hearsay concluded, Court of immaterial as the witness was not asked about the truth of the urged, instead, matter but as defense counsel he queried about his "state of mind”. Allowance questioning permissi- of such was well within the range ble of trial court discretion.7 questioning Thus we find defense counsel’s on holdup unrelated incidents not to be error. The Appeals Court of is reversed on this issue.

V. CONCLUSION We hold that the trial court’s failure to state its following reasons on the record for not the Stan- (Civil) dard Instructions 13.04 recommenda- subject tion that no instruction be on this is 516.6(3). reversible error. GCR The Court of Appeals point. is affirmed on this We further hold that the trial court erred not instructing jury co-plaintiff Ronald Moska- lik’s cause of action. However, because this error unnecessary issue, While to our resolution note of this we argued plaintiffs persuasively defendant also has estopped sel himself should be complaining questioning plaintiffs’ from about this coun attempted question Judith Moskalik about such an unrelated incident. 392 Opinion Dissenting any verdict not affected have could prejudicial way, harmless, it is we hold Appeals The Court reversed on not reversible. point. question- finally defense counsel’s hold that We regarding knowledge ing their of un- of witnesses holdup of a similar incidents character as related not reversible error. incident at bar was Appeals is affirmed as to the The Court of first to the other two issues. The issue reversed reversed and we remand for trial court new trial. appellees.

Costs to J., J., T. M. C. Kavanagh, Swainson, con- curred with

Case Details

Case Name: Moskalik v. Dunn

Court Name: Michigan Supreme Court

Date Published: Sep 6, 1974

Citation: 221 N.W.2d 313

Docket Number: 6 May Term 1974, Docket No. 54,954

Court Abbreviation: Mich.