Johnson v. White

420 N.W.2d 87, 430 Mich. 47

• Court: Michigan Supreme Court
• Decided: March 7, 1988
• Docket: 79469, (Calendar No. 5)
• Status: Published

Opinions

Boyle, J.

In this case we are asked to determine (1) whether the Court of Appeals erred in addressing on remand the question whether the testimony of witnesses Beadle and Schwartz should not have been admitted into evidence, and (2) whether the trial court’s failure to give the requested jury instruction, SJI2d 10.08, requires reversal.

We hold that because this Court denied leave to appeal the issues in plaintiffs cross appeal concerning the testimony of Francis Beadle and Deputy Schwartz, the initial Court of Appeals adjudication of these issues became the law of the case and was not subject to further review by the Court of Appeals on remand from this Court.

We further hold that if it was error to refuse to instruct on the presumption of due care as framed in SJI2d 10.08, the error does not require reversal. The record is conclusive that there was no opportunity for the instruction to have been considered during the jury’s deliberations and no defect in the trial so that the failure to set aside the verdict would be inconsistent with substantial justice.¹ Therefore, the decision of the Court of Appeals is reversed._

PACTS

Plaintiffs decedent, L. Dee Johnson, died as a result of a two car accident on September 11, 1979. The accident occurred at approximately 6:05 p.m. at the intersection of County Road 451 and Lake Avalon Road in Montmorency County.

The driver of the other car was defendant Donald White who was traveling southbound on County Road 451. Plaintiffs decedent was traveling eastbound on Lake Avalon Road. There was a stop sign at the intersection which required plaintiff to come to a stop and yield the right of way to defendant White.

Plaintiff filed a complaint alleging wrongful death, negligence, and nuisance. Also named as defendants were Francis R. Beadle, doing business as Avalon Bar, owner of the bar at the intersection where the accident occurred, and the Board of County Road Commissioners for the County of Montmorency. This appeal concerns only the claim against defendant White.

Plaintiffs theory of the case at trial was that defendant White had failed to drive his vehicle in a reasonable manner given the conditions existing at the time of the accident.

Mr. White, the only identified eyewitness, testified that he was on his way home from work when the accident occurred. It had been a rainy, cloudy day although it was not raining at the time.

As he approached the intersection, he observed three vehicles parked at the Avalon Bar. When the farthest vehicle began to back into Road 451, Mr. White swerved and crossed the centerline to avoid it. While still straddling the centerline, Mr. White saw the Johnson vehicle creeping into the intersection from Lake Avalon Road. Mr. White attempted to stop, but could not avoid hitting the Johnson vehicle.

Francis Beadle, owner of the Avalon Bar, was permitted to testify over plaintiffs objection, that an unidentified eyewitness to the accident claimed that Mr. Johnson failed to bring his vehicle to a complete stop before pulling out into the intersection and into the path of defendant’s truck. Similarly, Deputy Schwartz was permitted to testify over plaintiffs objection that Mr. Johnson had failed to yield the right of way.

At the close of all proofs, plaintiff requested inter alia the standard jury instruction, SJI2d 10.08, to the effect that because Mr. Johnson had died and could not testify, the jury must presume that he exercised ordinary care for his safety at or before the time of the occurrence. Without explanation, the trial court refused to give this instruction.

The case was submitted to the jury and a verdict of no cause of action was returned.

On appeal to the Court of Appeals, the verdict of no cause of action was vacated and the cause was remanded pursuant to Javis v Ypsilanti Bd of Ed, 393 Mich 689, 702; 227 NW2d 543 (1975), for failure to give a properly requested standard jury instruction. The Court of Appeals expressly addressed the propriety of Deputy Schwartz’ and Francis Beadle’s testimony and found no error.

Defendant White sought leave to appeal to this Court the decision of the Court of Appeals. Plaintiff applied for leave to cross-appeal the issues concerning the testimony of Francis Beadle and Deputy Schwartz.

While these appeals were pending, this Court decided Johnson v Corbet, 423 Mich 304; 377 NW2d 713 (1985), which overturned Javis, supra, upon which the Court of Appeals relied. Subse quently, in lieu of granting defendant’s application for leave to appeal, this Court remanded the case to the Court of Appeals for reconsideration in light of Johnson v Corbet Plaintiffs application for leave to cross-appeal was denied for failure to persuade that the questions presented should be reviewed by this Court.

On remand, the Court of Appeals concluded that even in light of Johnson v Corbet, a new trial was required for failure to give the requested jury instruction. In addition, the Court of Appeals reversed its earlier opinion and held that the testimony of Francis Beadle and Deputy Schwartz should not have been admitted.

This Court granted defendant’s application for leave to appeal limited to the issue whether the trial judge properly refused the presumption of due care instruction, SJI2d 10.08. On defendant’s motion for reconsideration of the order granting leave to appeal, this Court also agreed to consider whether the Court of Appeals erred in determining that certain testimony of witnesses Beadle and Schwartz should not have been admitted into evidence.

I. THE EVIDENTIAKY ISSUES

We denied plaintiff’s cross appeal which raised the evidentiary issues regarding the testimony of Francis Beadle and Deputy Schwartz. Nevertheless, after we remanded the case to the Court of Appeals for reconsideration in light of Johnson v Corbet, the Court of Appeals reversed itself on those issues and held that the testimony was improperly admitted. This was clearly beyond its jurisdiction on remand.

As a general rule, an adjudication on an issue in the first appeal is the law of the case in all subsequent appeals in which the facts are substantially the same. 5B CJS, § 1821, p 181. CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). The reason for the rule is the need for finality of judgment and the want of jurisdiction in an appellate court to modify its own judgments except on a rehearing. Lyon v Ingham Circuit Judge, 37 Mich 378 (1877); Thompson v Hurson, 206 Mich 139; 172 NW 544 (1919); 5B CJS, § 1821, p 190.

Where a case is taken on appeal to a higher appellate court, the law of the case announced in the higher appellate court supersedes that set forth in the intermediate appellate court. Rulings of the intermediate appellate court, however, remain the law of the case insofar as they are not affected by the opinion of the higher court reviewing the lower court’s determination. 5B CJS, § 1964, p 574.

In the case at bar, this Court’s order denying leave to appeal the plaintiff’s cross appeal which concerned the testimony of Francis Beadle and Deputy Schwartz left undisturbed the Court of Appeals adjudications of those issues. Those adjudications are the law of the case and were not subject to further review by the Court of Appeals on remand from this Court. Accordingly, the Court of Appeals decision as to these issues must be vacated.

The dissenting opinion would hold that our mandate on remand necessarily included a review of the evidentiary issues in order to determine whether the use of SJI2d 10.08 was required under MCR 2.516(D)(2). However, a court speaks through its orders and judgments and not through its opinions. Miskinis v Bement, 325 Mich 404; 38 NW2d 897 (1949). The rationale of the dissenting opinion would render the order denying plaintiffs cross appeal on the evidentiary issues a nullity.

The dissenting opinion also reasons that disposition of the evidentiary issues by the first Court of Appeals panel was unnecessary to the holding that plaintiff was entitled to a new trial and, therefore, that the holdings were dicta and not subject to the doctrine of the law of the case.

However, assuming for the moment that the dissenting opinion is correct that a determination of whether a jury instruction should be given requires review of the evidentiary issues, the first Court of Appeals panel was obliged to adjudicate the trial court’s decisions on the evidentiary issues in order to determine whether it was error to refuse the instruction. Accordingly, under the view espoused by the dissent, because it was necessary to adjudicate the evidentiary issues in order to determine the instruction issue, the holdings on the evidentiary issues by the first panel of the Court of Appeals are not dicta and are subject to the doctrine of the law of the case.

Properly speaking, however, the rationale of the dissent is not so much incorrect as it is misapplied. On first appeal to the Court of Appeals, the Court of Appeals was required to determine if the properly requested sji was applicable to the case at bar. See GCR 1963, 516.6(2), presently MCR 2.516(D)(2). If so, then, under Javis, the failure to give the sji required reversal without the necessity of establishing manifest injustice. Under the facts of this case, the Court of Appeals was required to first review assignments of error relating to the admission or exclusion of evidence on the issue of plaintiffs negligence in order to determine the applicability of the instruction.²

The rationale of the dissenting opinion does not apply, however, when the second Court of Appeals panel revisited this case on remand from this Court. Our order denying plaintiffs cross appeal required the second Court of Appeals panel to reconsider the instruction issue under Johnson v Corbet as if the evidentiary issues were beyond dispute. Therefore, the Court of Appeals exceeded its authority on remand when it reversed the decision of the first Court of Appeals panel which had been finalized by the action of this Court.

There is some authority for the proposition that the doctrine of the law of the case should not be applied where the decision on first appeal is incorrect. See anno: Erroneous decision as law of the case on subsequent appellate review, 87 ALR2d 271. Whether this exception should be recognized for purposes of the instant case need not be addressed, however, for the holdings of the prior Court of Appeals panel are not clearly erroneous.

Plaintiff objected to the admission of Francis Beadle’s testimony on the basis that it was hearsay. Defendant submitted that the testimony fell within the present sense exception, MRE 803(1), or the excited utterance exception, MRE 803(2), to the hearsay rule.

The present sense exception pertains to "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” MRE 803(1). In an opinion issued prior to trial, the trial court ruled that the testimony would be allowed under Rule 803(1):

[I]t appears that the statements sought to be admitted were made immediately after the event in question, that is to say between two (2) and ten (10) minutes. The declarant was in a position to observe the accident since he was following the decedent driver in his own automobile. Therefore, he had the ability to perceive the event or condition about which the statement was made. Finally the statement was not a statement of opinion, but was a factual statement as to how the accident occurred. Namely, the decedent driver proceeded through a stop sign intersection without stopping.

The excited utterance exception applies to "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” MRE 803(2). The trial judge further stated that this exception might apply but reserved ruling on the issue until he had an opportunity to observe the witness and consider the context of the statement.

At trial, the court admitted the statement without specifying which exception applied. The first Court of Appeals panel affirmed the ruling of the trial court under the present sense exception. In doing so, it rejected the concurring opinion’s reliance on Hewitt v Grand Trunk W R Co, 123 Mich App 309; 333 NW2d 264 (1983), for the interpretation that the phrase "immediately thereafter” in MRE 803(1) required that the statement be made "instantly” after the event.

The second Court of Appeals panel adopted the reasoning of the concurrence and ruled that the present sense exception was inapplicable. Wg agree with the first Court of Appeals majority that Hewitt v Grand Trunk W R Co is distinguishable from the case at bar. In Hewitt, the Court of Appeals took a restrictive view of the phrase "immediately thereafter” in excluding a statement made at least several, and possibly as much as thirty, minutes after the subject event. In this case, a fair reading of the record indicates that no more than four minutes intervened between the accident and statement. Because Beadle’s testimony indicated that the time frame could have been less than four minutes, the trial court could properly find, after hearing and observing the witness, that the declarant’s statement was made immediately after he perceived the accident. Compare United States v Medico, 557 F2d 309, 315 (CA 2, 1977).

Plaintiff also objected to the admission of Deputy Schwartz’ testimony claiming that an insufficient foundation was laid for his opinion that the decedent failed to yield the right-of-way just before the accident occurred. We agree with the first Court of Appeals panel that the information gathered by Deputy Schwartz through his own observations and the observations of others at the scene properly supported his opinion. The fact that defendant White’s testimony might indicate that the decedent stopped at the stop sign is not inconsistent with the deputy’s conclusion that the decedent failed to yield the right of way. The decedent was required to wait for the trafile to clear as well as to stop at the stop sign. Therefore, even without the testimony of Francis Beadle as to the statement of the unidentified witness, the information gathered at the scene from observation of the vehicles and skid marks would support the conclusion of the deputy.

In sum, the first panel deciding the evidentiary issues at the Court of Appeals did not err in upholding the trial court. Therefore, there is no reason to depart from the doctrine of the law of the Case.

II. THE INSTRUCTION ISSUE

Prior to the adoption of comparative negligence in this state, the contributory negligence of a plaintiff operated as a complete bar to recovery. As part of a prima facie case, the plaintiff was required to establish not only that the defendant’s negligence was the proximate cause of the injury suffered, but also that the plaintiff acted with due care. Teipel v Hilsendegen, 44 Mich 461, 462; 7 NW 82 (1880).

In a wrongful death case where there were no eyewitnesses, the rule was not relaxed, but the plaintiff did enjoy the benefit of the presumption, in the absence of evidence to the contrary, that the decedent used ordinary care, and the presumption was sufficient to permit the plaintiff to recover upon showing negligence of the defendant. Adams v Iron Cliffs Co, 78 Mich 271, 277; 44 NW 270 (1889); Teipel, supra. The presumption operated to relieve the plaintiff of the burden of going forward with evidence establishing due care on his own part until the defendant came forward with evidence establishing the contrary. Gillett v Michigan United Traction Co, 205 Mich 410, 415; 171 NW 536 (1919).

The presumption did not vanish immediately upon the introduction of any evidence tending to show negligence on the part of the deceased. Rather,

[a] distinction has been recognized between direct, positive and credible rebutting evidence and mere circumstantial evidence having but a slight or inconclusive tendency to rebut the presumption. When direct, positive and credible rebutting evidence is introduced, the presumption ceases to operate; but 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. Moreover, it is only in cases where direct testimony of credible eyewitnesses as to the negligence of deceased is uncontradicted, that the court is warranted in directing a verdict for the defendant on the ground of decedent’s contributory negligence. If the testimony is contradicted by other witnesses, or rendered improbable by the circumstances, or if the credibility of the witnesses is attacked, the question must be submitted to the jury, but in such case the jury must weigh merely the evidence, unaided by the presumption. [Id., 415-416. Emphasis in the original.]

Where the presumption applies, the jury is to be instructed accordingly:

Presumption of Ordinary Care — Death Case

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.][³]

In Johnson v Corbet, supra, 326, a majority of this Court held that a jury verdict should not be vacated for failure to give a properly requested accurate and applicable jury instruction unless the failure to set aside the verdict would be inconsistent with substantial justice. Applying this standard to the instant case, we hold that the failure to give SJI2d 10.08, if error, does not require reversal.

The trial judge correctly instructed the jury on the operation of comparative negligence. SJI2d 11.01. Hence, the jury was clearly informed that the negligence of the decedent, if any, would not bar recovery by the plaintiff against the defendant, but that the total amount of damages to which the plaintiff would otherwise be entitled would be reduced by the percentage of the decedent’s negligence that was a proximate cause of his death. Therefore, it cannot be argued that the jury was compelled to find no negligence by the decedent in order to justify a recovery against the defendant.

The jury was also provided with a special jury verdict form that prescribed the order of their deliberations. SJI2d 66.01. Pursuant to this form, the jury was required to first determine whether defendant White was negligent. The second question required the jury to determine whether the defendant road commission was negligent. If the answer was no to both of those questions, the jury was instructed not to proceed further.

Not until question six was the jury asked to determine whether Mr. Johnson was negligent. However, the jury never got beyond the second question because it determined that neither defendant White nor defendant road commission was negligent.

The dissent contends that in the absence of the presumption of due care instruction, the jury may have considered the circumstantial evidence of decedent’s negligence so as to preclude a finding that defendant White or the road commission was negligent. However, this speculative conclusion totally disregards the fact that the jury was instructed that the plaintiffs negligence would not be a bar to recovery. The jury was completely free to decide the issue of the defendant’s negligence without regard to the question of the plaintiffs negligence.

In light of this record, there can be no speculation as to what the result would have befen had the jury been instructed on the presumption. The record is conclusive that the issue of the plaintiffs due care was never reached by the jury because it first found that the defendants were not negligent. Hence, there was no opportunity for the instruction to have been considered during the jury’s deliberations and no defect in the trial so that the failure to set aside the verdict would be inconsistent with substantial justice.

The decision of the Court of Appeals is reversed.

Riley, C.J., and Brickley and Griffin, JJ., concurred with Boyle, J. Cavanagh, J., concurred in the result only.

1 Because the error was harmless, if error at all, we do not address the question whether the instruction on the presumption of due care, SJI2d 10.08, remains viable where principles of comparative negligence are applied.

2 Under the view of the first Court of Appeals panel, the instruction was supported by the record notwithstanding the holdings on the disputed evidentiary issues. 144 Mich App 458; 376 NW2d 130 (1985). Under the view of the second Court of Appeals panel, the evidentiary issues were wrongly decided. However, whether the evidentiary issues were wrongly decided or whether the first Court of Appeals panel was correct in finding the jury instruction applicable has no bearing on the question whether the evidentiary issues were necessary to the adjudication of the instruction issue.

In addition, because these issues were raised, briefed, and argued by the parties, disposition of the issues was at worst judicial dicta. Unlike obiter dicta, judicial dicta are not excluded from applicability of the doctrine of the law of the case. 5 Am Jur 2d, Appeal and Error, § 753, pp 196-197.

3 The Supreme Court Committee on Standard Civil Jury Instructions has substantially revised SJI2d 10.08. See 66 Mich B J 1270-1271 (1987).