Krzysiak v. Hinton , 104 Mich. App. 134 ( 1981 )

104 Mich. App. 134 (1981) 304 N.W.2d 823

KRZYSIAK
v.
HINTON

Docket No. 46998.

Michigan Court of Appeals.

Decided March 3, 1981.

Skinner & Gustafson (by Charles E. Binder), for plaintiffs.

William E. Jungerheld, for defendant.

Before: V.J. BRENNAN, P.J., and ALLEN and BEASLEY, JJ.

BEASLEY, J.

Plaintiffs sue defendant for damages to property and for personal injury arising out of an automobile collision that occurred on May 16, 1975, at approximately four in the afternoon, when plaintiffs' car was struck by a car operated by defendant while plaintiff, Joseph Krzysiak, Jr., was waiting to make a left-hand turn. The case was tried before a jury in May, 1979, which rendered a verdict of no cause of action in favor of defendant. Plaintiffs appeal as a matter of right. After full appellate review, we affirm.

The first and major issue raised by plaintiffs is whether the trial court erred in failing to direct a verdict in favor of plaintiffs on the issue of defendant's liability.

The testimony is undisputed that plaintiff, Joseph Krzysiak, Jr., was stopped for a matter of seconds preparing to make a left turn when his car was struck in the rear by defendant. Defendant testified that she did not see plaintiffs' car until just prior to the impact and that when she did see plaintiffs' car she slammed on her brakes and struck plaintiffs' car in the rear.

Plaintiffs cite Davids v Goodyear Tire & Rubber Co^[1] in support of their position. In Davies, we held that where the testimony regarding a fact is undisputed, the jury should be instructed to find that fact in accordance with that testimony.^[2]

The negligence question is taken from the jury only where there are no facts in dispute and the negligence is "crystal clear".^[3] It must be a very clear case to justify a trial judge in taking a negligence question from the jury.^[4] In short, if we mean what we say when we say the jury is the sole determiner of the facts, we should be extremely reluctant to take fact questions from the jury. The right to find the facts includes the right to be wrong. Or, to put it another way, who is to decide which is right and which is wrong.

Defendant testified that she noticed a light-colored car signaling a left-hand turn in the lane in front of her and gauged her distance and speed in relation to that car. She noticed a dark-colored car passing her rapidly on her right, she glanced to the left, and when she looked back in front of her she saw a dark-colored car, plaintiffs' car, in front of her and immediately slammed on her brakes. Therefore, viewing the evidence most favorably to defendant, she was not necessarily negligent. Thus, we decline to find reversible error in the trial court's denial of plaintiffs' motion for a directed verdict on the issue of liability.

At the opening of trial, plaintiffs submitted to the court a series of proposed jury voir dire questions. Two of these questions the trial court refused to ask the jury. They were:

"9. Have you, your spouse, or any member of your immediate family ever worked for an insurance company as a claims adjustor or an insurance adjustor?

"11. This accident involves two automobiles. One was driven by a woman, Faith Hinton, the defendant in this case. The other was driven by Joseph Krzysiak, the plaintiff. Do you hold any opinions about woman drivers, or, for that matter, male drivers, which might effect your determination of the facts surrounding this accident?"

Plaintiffs say this refusal constituted reversible error. Defendant responds first by asserting that since plaintiffs failed to raise this issue in their motion for judgment notwithstanding the verdict or, in the alternative, for new trial, that it has not been preserved for raising on appeal. We agree with defendant. Plaintiffs were obligated to raise this issue in their motion for new trial and failure to do so constitutes waiver of the question on appeal. Failure to raise the issue in the motion for new trial deprives us on appeal of the benefit of the trial court's view regarding its reason for denial. In spite of this, we will, however, discuss this issue.

The purpose of voir dire is to provide counsel an opportunity to obtain sufficient information upon which to develop a rational basis for excluding prospective jurors whether for cause or by peremptory challenge.^[5] The scope of voir dire examination of jurors is within the discretion of the trial judge, and his decision will be set aside only where there is an abuse of discretion.^[6]

During voir dire, the trial court asked the prospective jurors their name, their occupation, the name and occupation of their spouse, if any, and if they or their spouse have more than one occupation and, if so, to indicate what it was. Thus, it is apparent that if any of the prospective jurors had worked for an insurance company in any capacity, it would have been brought out on voir dire.

The trial court was not required to inquire or to ask prospective jurors in exactly the form suggested and requested by plaintiffs' counsel. Rather, it was sufficient if the information was obtained for possible use by counsel. We do not find that the trial court erred in refusing to ask the question requested by plaintiffs' counsel regarding insurance.

The second request that plaintiffs make on appeal relates to the possibility that a juror might believe that women make bad drivers, or some such prejudice. In fact, the trial court asked the jurors if they could decide the case on the evidence that they heard from the witness box and from any exhibits that might be admitted. They indicated that they could. This was sufficient. A specific inquiry regarding a sexual prejudice regarding automobile driving was not called for under these circumstances.

Plaintiffs also claim that in the light of the testimony it was error for the trial court to fail to instruct that defendant had violated the assured clear distance ahead statute as a matter of law. At trial, plaintiffs did not object to the trial court's instruction to the jury on the subject of the assured clear distance ahead statute. Also, plaintiffs did not raise this issue in their motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Since there was not any objection made to this aspect of the jury instruction at trial, the question would not appear to be preserved for appeal.^[7]

As a matter of fact, plaintiffs appeared to request the court to give the assured clear distance ahead instruction, saying:

"We'll withdraw 12.02 and ask that the Court put MCL 257.402 under the statutory instructions, the `assured clear distance' — "

Under these circumstances, we hold that plaintiffs have not preserved this issue for consideration upon appeal.^[8] In this connection, plaintiffs also argue on appeal that the trial court erred in denying their request to give SJI 23.01, which provides as follows:

"The defendant has admitted that he is liable to the plaintiff for any (injury) (damages) which he caused. You are to decide only [what (injuries) (damages) were caused by defendant and] the amount to be awarded to the plaintiff for such (injury) (damages)."

SJI 23.01 is appropriate only where a defendant admits liability. In the instant case, the testimony of defendant did not rise to the level of a judicial admission. There was no error in not giving SJI 23.01.

Plaintiffs also claim that, under the circumstances of this case, it was reversible error to fail to instruct the jury that contributory negligence was not an issue. In this case, trial commenced on May 3, 1979, a few months following the decision in Placek v Sterling Heights,^[9] which was decided on February 8, 1979. Placek indicated that the rule announced, namely, that of comparative negligence, was applicable to all cases in which the trial commenced after the date of the opinion.

In this case, defense counsel requested that the trial be conducted and the jury instructed pursuant to Placek. However, the trial court refused, holding that it was too late to raise the issue since the parties had stipulated that the pleadings were in order, which excluded the question of contributory negligence, since it had not been raised up to that point. Nonetheless, defense counsel asked that the jury be instructed as to comparative negligence and filed proposed jury instructions to that effect.

We would be inclined to believe that the trial should have been conducted under the theory of comparative negligence. However, on appeal, neither party raises this issue. Consequently, since the issue has not been briefed nor raised on appeal, we consider it abandoned.^[10] Consequently, we decline to find error in the failure to conduct this trial under Placek, supra.

In this case, defendant did not raise any issue of contributory negligence in her pleadings or otherwise. It was not argued. The proposed jury instructions submitted by plaintiffs did not include a request for the standard jury instruction on contributory negligence. The only reference to a jury instruction on contributory negligence was hand written in the record and filed with the court on May 18, 1979, which was subsequent to the trial. Furthermore, plaintiffs' counsel did not object to the trial court's failure to give that instruction. We conclude it was not properly preserved for appeal. But, even if it had been preserved, it would not appear to constitute reversible error.

The trial court did not charge the jury immediately before its deliberation as to the issue of contributory negligence. However, when defendant attempted to raise it on cross-examination, the court did give a limiting instruction to the jury. This was during trial. Moreover, after review of closing arguments, it is not apparent that defense counsel attempted to raise the issue by implication. Under these circumstances, we do not find error in the trial court's refusal to include such an instruction in its final charge to the jury.

Plaintiffs also claim that it was error to submit to the jury the issue under the statute of serious impairment of bodily function. There was conflicting expert testimony concerning the extent of plaintiff's injury. We do not find that this evidence was sufficient to require the trial judge to find, as a matter of law, that the threshold of serious impairment was reached.^[11]

Plaintiffs further claim that the trial court's instruction on the issue of "serious impairment of body function" failed to state the substance of the law on this question and cites Stevens v Hogue,^[12] where we stated:

"We do not mean to intimate that the statutory phrase must be amplified. We hold that the trial court's amplification in this case did not detract from the statute or invade the province of the jury. Plaintiff was thus not prejudiced by the instruction."

Review of the instruction given by the trial court in the instant case indicates that the instruction as given did not detract from the statutory standard. If anything, the instruction given provided the jury an opportunity to define the statutory phrase in a more liberal and expansive way than the statute appears to contemplate. We decline to find that reversible error was committed in failing to give a more complete definition of the term "serious impairment of body function".

Plaintiffs also claim that it was error for the trial court to limit cross-examination of defendant based upon a police report concerning which she admitted familiarity. The transcript indicates that during the course of defendant's cross-examination, she voluntarily and without prompting stated her familiarity with a police report covering the accident giving rise to this case. While defendant indicated familiarity with the fact that a police report had been made, she did not indicate intimate knowledge of all of the details contained in the police report. Plaintiffs' claims here are without merit, and the cases cited, namely, Schratt v Fila^[13] and People v Couch,^[14] do not support the proposition for which plaintiffs cite them.

In this case, plaintiffs do not attempt to offer the police report in evidence as substantive evidence by way of the police officer who made out the police report. In general, police reports are offered to prove the truth of their contents and, thus, constitute hearsay.^[15]

The police report could be received in evidence if the proponent is able to demonstrate that the report constitutes its author's past recollection recorded, or it can be used by a witness to refresh his recollection if the appropriate foundation is established. In this case, the police report could not be properly received in evidence because plaintiffs were not able to demonstrate that the report constituted its author's past recollection recorded. Defendant did not write the police report. Plaintiffs were unable to establish that the report had been adopted by defendant when the matter was fresh in her memory as required by MRE 803(5). Thus, the police report could not be received in evidence based on past recollection recorded.

In this case, after being shown the police report, defendant did not indicate that her memory had been refreshed. She was not able to agree or disagree with many of the notations on the police report. We do not find error in the trial court's refusal to allow plaintiffs' counsel to cross-examine defendant based upon the police report.

We find plaintiffs' other allegation of reversible error to be without merit.

Affirmed.

NOTES

[1] 91 Mich. App. 347; 282 NW2d 172 (1978).

[2] Id., 351.

[3] Nabozny v Hamil, 361 Mich. 544; 106 NW2d 230 (1960).

[4] Kaminski v Grand Trunk W R Co, 347 Mich. 417; 79 NW2d 899 (1956).

[5] Carter v Braunstein, 89 Mich. App. 119; 279 NW2d 596 (1979).

[6] People v Harrell, 398 Mich. 384; 247 NW2d 829 (1976).

[7] Hunt v Deming, 375 Mich. 581; 134 NW2d 662 (1965).

[8] Harper v National Shoes, Inc, 98 Mich. App. 353; 296 NW2d 1 (1979).

[9] Placek v Sterling Heights, 405 Mich. 638; 275 NW2d 511 (1979).

[10] Royal Indemnity Co v H S Watson Co, 93 Mich. App. 491; 287 NW2d 278 (1979).

[11] See, Watkins v City Cab Corp, 97 Mich. App. 723; 296 NW2d 162 (1980).

[12] 85 Mich. App. 185, 189, fn 4; 270 NW2d 735 (1978).

[13] 371 Mich. 238; 123 NW2d 780 (1963).

[14] 49 Mich. App. 69; 211 NW2d 250 (1973).

[15] Moncrief v Detroit, 398 Mich. 181; 247 NW2d 783 (1976).