Harper v. National Shoes, Inc , 98 Mich. App. 353 ( 1979 )

98 Mich. App. 353 (1979) 296 N.W.2d 1

HARPER
v.
NATIONAL SHOES, INC

Docket No. 78-2550.

Michigan Court of Appeals.

Decided October 5, 1979.

Rains, Block & Dean, for plaintiff.

Lakin & Worsham, P.C., for defendant.

Before: J.H. GILLIS, P.J., and R.B. BURNS and N.J. KAUFMAN, JJ.

PER CURIAM.

This is a negligence action. On July 26, 1972, Channell Harper, then 3 years old, accompanied her mother and aunts who were shopping at the Crosby Shoe Store. Crosby was owned by the defendant. While her mother was looking at shoes in another part of the store, Channell walked into the corner of a glass shelf, striking her left eye. Plaintiff alleged that Channell was distracted by certain flashing lights and mirror glass tiles. Plaintiff further alleged that those conditions rendered the premises unreasonably dangerous and that this proximately caused the injury.

Trial was held in Wayne County Circuit Court on May 16-18, 1978. At the conclusion, the jury returned a verdict of $11,000 in plaintiff's favor. The defendant appeals from the judgment entered pursuant thereto as a matter of right. GCR 1963, 806.1.

Defendant assigns as error the lower court's act of permitting Channell Harper's aunt, Carol Jacobs, to testify. In the course of her opening statement, plaintiff's counsel stated, "* * * we will be introducing Mrs. Harper's sister [Carol Jacobs] who was a witness to this accident * * *". Defense counsel objected to such witness testifying, claiming unfair surprise. Defendant noted that in response to its interrogatory seeking the name of any person who was an eyewitness to the accident, plaintiff replied, "None". Plaintiff responded that the witness in question was listed on the defendant's pretrial statement and incorporated by reference into the plaintiff's. Plaintiff further stated that the deposition testimony of Shirley Harper put the defendant on notice that Carol Jacobs may have been an eyewitness. It was argued that the defendant had ample opportunity to depose the witness had it so chosen. The lower court denied defendant's request for an adjournment and an opportunity to depose the witness. The trial commenced and the witness was permitted to testify.

The effect of answers to interrogatories as a basis in limiting the proofs has been explained as follows:

"`Although answers to interrogatories may limit the issues and define the contentions of the parties, the party should not be held irrevocably to them. The court has discretion to limit the proof in the light of answers to the interrogatories, but this is a discretion which should be exercised with attention to the view that the great goal of the rules is that the judgment be given on the facts as they actually exist.' Barron and Holtzoff, Federal Practice & Procedure § 771, at pp 391-392." 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 160.

In the present case, the witness's name was listed on the defendant's pretrial statement and incorporated by reference into the plaintiff's. Furthermore, the deposition testimony of Shirley Harper, taken approximately 2-1/2 years prior to trial, indicated that the witness may have seen the accident. The defendant does not contend that it was unaware that the witness would testify but rather argues that it was unaware of the probable content of her testimony. We disagree.

The deposition testimony put the defendant on notice as to the possible extent of Carol Jacobs' testimony. This notice belies defendant's contention of unawareness. The lower court did not abuse its discretion in refusing to limit plaintiff's proofs in light of the answer to the interrogatory. The court's decision cannot be said to be the result of passion, bias, perversity of will, or illogic. Spalding v Spalding, 355 Mich. 382; 94 NW2d 810 (1959). Permitting the witness to testify was without error.

The defendant next contends that the trial court's failure to give Standard Jury Instruction 34.03 (future damages — reduction to present cash value) mandates reversal for a new trial as to damages.

Defense counsel did not request that the instruction be given and failed to object to its exclusion. Furthermore, counsel expressed his satisfaction with the instructions as given. No party may assign as error the trial judge's failure to give a jury instruction unless that party objects thereto before the jury retires to begin its deliberations. GCR 1963, 516.2, Hunt v Deming, 375 Mich. 581, 584; 134 NW2d 662 (1965). This preclusion is reinforced when the party also expresses satisfaction with the charge. Baldridge v Eastman's, Inc, 52 Mich. App. 1, 6; 216 NW2d 615 (1974). That is not to say that this Court may not, to prevent manifest injustice, take note of instructions which err with respect to basic and controlling issues even though objection thereto was not made before the jury retired. Hunt v Deming, supra, at 585.

The inquiry becomes whether the failure to instruct on the reduction of future damages was erroneous. If so, was the error of such a serious nature as to merit appellate consideration and reversal as a manifest injustice?

Michigan law requires that damages for future losses be reduced to present value. Currie v Fiting, 375 Mich. 440, 454; 134 NW2d 611 (1965). The trial court is under an obligation to instruct the jury that they are to reduce an award of future damages to present value even in the absence of a request for such an instruction. Freeman v Lanning Corp, 61 Mich. App. 527, 529; 233 NW2d 68 (1975), SJI 34.03, GCR 1963, 516.6(2). Accordingly, the lower court's failure to so instruct was erroneous.

Under the circumstances of the present case, however, such error did not result in manifest injustice. Neither a new trial as to damages nor a remand for remittitur is appropriate.

Affirmed. Costs to appellee.