Cox v. LaLonde

Beasley, J. In the evening of July 7, 1977, a car driven by defendant, Lance C. LaLonde, slid into the rear end of a car driven by plaintiff Rexford P. Cox. There was evidence that a third car, the identity of whose driver and owner is unknown, was negligently involved in the collision. Plaintiff Rexford P. Cox claimed damages for alleged serious impairment of body function and/or permanent serious disfigurement sufficient to take the case out from under the no-fault insurance law, and plaintiff Helen Cox sought damages for loss of consortium. The jury returned a verdict of no cause of action against plaintiffs, holding that defendant was not negligent and that plaintiff Rexford P. Cox did not suffer serious impairment of body function or permanent serious disfigurement. After their motion for new trial was denied, plaintiffs appeal as of right, raising four issues. Plaintiffs assert error under SJI 12.01 in failing to grant their request to instruct the jury regarding two statutes, the following too closely statute 1 *346 and the careless driving statute. 2 However, the tral court did instruct the jury under SJI 12.01 regarding the not driving at a speed greater than will permit stopping within the assured clear distance ahead statute 3 and the rear end collision presumption of negligence statute, 4 as requested by plaintiffs. In reviewing this claim of error, we consider four matters. First, did plaintiffs request the trial court to give the instructions which they now complain were not given. Plaintiffs filed a written request for jury instructions, the pertinent portion of which is as follows: "16. SJI 12.01 Violation of Statute by Defendant. We have State Statute which provide [sic] as follows: "A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, and shall have due regard for the speed of such vehicles and the traffic upon and the condition of the highway. MSA 9.2343. "B. Any person who operates any vehicle upon a highway in a careless or negligent manner likely to endanger any person or property but without wantonness or recklessness, shall be guilty of careless driving. MSA 9.2326(2). "C. No person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured, clear distance ahead. MSA 9.2327(a). "If you find that the Defendant violated one or more of the stated statutes before or at the time of the occurence [sic], then the Defendant was negligent as a matter of law. You must then decide whether such negligence was a proximate cause of the occurrence. "17. Statutory Presumption — Defendant SJI 12.02. We have a state statute which provides: When it is *347 shown by competent evidence that a vehicle overtakes and strikes the rear end of another vehicle proceeding in the same direction or lawfully standing upon a highway, the driver of the first-mentioned vehicle shall be deemed prima facie guilty of negligence. MSA 9.2102.” Second, did the trial court give the instructions which were requested? In this connection, the court instructed as follows: "Now, we have a Michigan State statute which provides in part as follows, and I will read it to you: A person driving a vehicle on a highway shall drive at a careful and prudent speed, not greater nor less than is reasonable and proper, having due regard to the traffic, surface, and the width of the highway, and of any other conditions then existing. And a person shall not drive a vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. "Now, we also have another statute which provides in any action in any Court in this State when it is shown by competent evidence that a vehicle traveling in a certain direction overtook and struck the rear end of another vehicle proceeding in the same direction, or lawfully standing upon any highway within this State, the driver or operator of such first mentioned vehicle shall be deemed prima facie guilty of negligence. "Now, if you find that the defendant, Lance LaLonde, was in violation of either or both of these statutes, this is prima facie proof of negligence. This means that it is sufficient to prove the case unless it is disproved by evidence to the contrary. "Now, such rebuttal could include or would include strong evidence of a sudden emergency which is unexpected or unusual or for some other justifiable reason the defendant could not comply with these statutes. "Now, when I have used the words proximate cause, I mean first that there must have been a connection between that conduct of the defendant which the plaintiff claims was negligence and the injuries sustained by *348 the plaintiff. And, second, that the occurrence which is claimed to have produced that injury was the natural and probable result of such conduct of the defendant. "By the same token, when I use the term proximate cause with respect to the conduct of the plaintiff which the defendant claims caused or contributed to his own injury which the plaintiff sustained, and that the occurrence which is claimed to have produced the injury was a natural and a probable result of such conduct of the plaintiff. "Now, there may be more than one proximate cause. To be a proximate cause the claimed negligence of the plaintiff or defendant need not be the only cause nor the last cause. A cause may be proximate although it and another cause act at the same time or in combination to produce the occurrence. "If you decide that the defendant was negligent and that such negligence was a proximate cause of the occurrence, it is not a defense that the conduct of the driver of the unidentified car, who was not a party to this suit, may also have been a cause of this occurrence. However, if you decide that the only proximate cause of the offense was the conduct of someone not a party, then your verdict should be for the defendant.” 5 Third, were the instructions applicable? And fourth, did the requested instructions accurately state the law? In resolving these four matters, w.e follow Socha v Passino, 6 where the Supreme Court held: "We do not believe Javis [v Ypsilanti Board of Education, 393 Mich 689; 227 NW2d 543 (1975)] 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.” (Footnote omitted.)_ *349 We find that the instructions requested by plaintiffs here do not accurately state the law. While the Standard Civil Jury Instructions have provided that, where an applicable statute is violated, a defendant is negligent as a matter of law, Zeni v Anderson, 7 decided subsequent to adoption of the SJI, holds otherwise. Zeni is authority for changing the language of the standard jury instruction from "negligence as a matter of law” to "prima facie proof of negligence”. Thus, we hold the trial court was correct in instructing the jury that, if they found defendant was in violation of the statute, it was prima facie proof of negligence. Plaintiffs’ request that the jury be instructed that violation of a statute is negligence as a matter of law was an erroneous statement of the law. In addition, in their requests to charge, plaintiffs omitted any request or reference to sudden emergency. SJI 12.01 provides that if sudden emergency is an issue in the case, then SJI 12.01(A) must be given. SJI 12.01(A) provides: "However, if you find that defendant was confronted with a sudden emergency not of his own making and, if you find that he used ordinary care and was still unable to avoid the violation because of such emergency, then his violation is excused.” Under the evidence in this case, there was clearly a question of fact of whether or not the sudden emergency doctrine should be applied. It would have been error here to neglect to instruct the jury regarding the law of sudden emergency. We also note that although plaintiffs requested SJI 12.02 and set forth the first paragraph, they *350 omitted the following two paragraphs, which are essential parts of SJI 12.02 and which provide: "If you find that the defendant violated this statute before or at the time of the occurrence, then the law presumes that he was negligent. However, if you find that defendant was confronted with a sudden emergency not of his own making and if you find that he used ordinary care and was still unable to avoid the occurrence because of such emergency, then the presumption is overcome. "In deciding whether the presumption is overcome you must weigh the presumption with all the evidence of claim of sudden emergency. If, after so weighing, you are unable to decide that the presumption has been overcome, then you must find that the defendant was negligent.” Thus, we hold that plaintiffs’ proposed instructions did not accurately state the law. Where a litigant’s request to charge is inaccurate and incomplete, we do not permit him then to obtain reversal and a new trial on the basis that the trial court refused to give the charge that he requested. For example, in Green v Richardson, 8 where the plaintiff requested that SJI 11.01(6) be given, we said: "But they cannot invoke the strict rule where they have not strictly requested the standard jury instruction but instead their own amended version.” Of similar import is Nowicki v Suddeth, 9 where we said "the court does not have a duty to give an instruction which is erroneous”. We also note in connection with plaintiffs’ request for an instruction regarding the careless *351 driving statute that the trial court instructed as follows: "It was the duty of Lance LaLonde [defendant] in connection with this occurrence to use ordinary care for the safety of Rexford Cox and Rexford Cox’s property.” As we indicated in Bugar v Staiger, 10 it is unnecessary to give repetitious instructions, saying: "Moreover, as the statute allows passing on the right in certain conditions if done 'in safety’, an instruction based on the statute would, in this case, merely have been a restatement of a driver’s duty of due care. It is not reversible error to refrain from issuing duplicate instructions on the duty to use reasonable care.” In summary, since plaintiffs requested instructions regarding four closely inter-related statutes which were generally applicable under the evidence, the trial court instructed regarding two of the four statutes, plaintiffs’ request to charge was not a correct statement of the law and the trial court’s instruction was not clearly erroneous, we hold there was no reversible error. Plaintiffs also claim that it was error for the trial court to instruct the jury with its own version of SJI 5.01(1). During trial, plaintiffs’ only objection to the instruction was on the ground that the adverse inference instruction was not applicable to the case. The instruction, as given by the trial court, was as follows: "Now, there has been some testimony in this case that the plaintiff was treated by Dr. Billhart. This evidence was under the control of the plaintiff and could have been produced by him and no reasonable *352 excuse for plaintiffs failure to produce this evidence was given. You may infer that some part of that evidence would have been adverse to the plaintiff.” No objection was made at trial to the language of the instruction. GCR 1963, 516.2 clearly contemplates that objections should be made before the jury retires so that the trial court has opportunity to reinstruct if deemed necessary. Consequently, we hold that this question has not been properly preserved for review. However, even if we were to hold the question preserved for appellate review, we would not be inclined to find that the conclusions of the trial judge were clearly erroneous in deciding to give an adverse inference instruction. The changes from the SJI are so slight as not to possess any significance in this matter. Plaintiffs also claim that it was error for the trial court to deny their motion for a directed verdict with respect to both liability and damages. We disagree. The proofs were sufficient to raise issues of fact for determination by the jury, both with respect to whether or not there was serious impairment of bodily function and with respect to liability. Last, plaintiffs claim that it was error for the trial court to include the interrogatory on serious bodily impairment in the form of verdicts submitted to the jury. While plaintiffs made a specific objection to the verdict form, no objection to the court’s inclusion of a special interrogatory on serious impairment of bodily function, as is raised here, was raised at trial. Under these circumstances, we hold that the question has not been preserved for appellate review. Affirmed. Footnotes [1] MCL 257.643(a); MSA 9.2343(a). [2] MCL 257.626(b); MSA 9.2326(2). [3] MCL 257.627(a); MSA 9.2327(a). [4] MCL 257.402(a); MSA 9.2102(a). [5] Also, the trial court instructed the jury as to the parties’ theories of their respective cases in exactly the language they requested. [6] 405 Mich 458, 467; 275 NW2d 243 (1979). [7] 397 Mich 117; 243 NW2d 270 (1976). [8] 69 Mich App 133, 136-137; 244 NW2d 385 (1976). [9] 7 Mich App 503, 511; 152 NW2d 33 (1967). [10] 66 Mich App 32, 35-36; 238 NW2d 404 (1975).