FALCONER
v.
SALLIOTTE
Docket No. 47339.
Michigan Court of Appeals.
Decided January 23, 1981.Calder, Kirkendall & Loegman, P.C., for plaintiff.
Ellis, Talcott & Ohlgren, P.C. (by Ralph C. Keyes), for defendants.
Before: DANHOF, C.J., and M.F. CAVANAGH and MacKENZIE, JJ.
PER CURIAM.
This was a negligence action arising out of plaintiff's alleged injury in the collapse of a fire escape at his apartment. A jury returned a verdict of no cause of action and plaintiff now appeals by right.
Plaintiff requested, and the trial court refused to give, the following instruction:
"Continuation of a Tenant's Rights Until Eviction
"In this case, there was undisputed testimony that Mr. Falconer was not evicted from his apartment at 127 *237 College Place until November 21, 1977. According to the law, Mr. Falconer, until the time of his eviction, enjoyed the same rights as any other tenant in that building and Mr. and Mrs. Salliotte owed the same duty of care to him as to any of the other tenants at 127 College Place until his eviction."
It appears that defendants served a seven-day notice to quit on plaintiff on September 16, 1977, at which time plaintiff was in arrears on rent. It further appears that plaintiff's lease would have expired May 14, 1978. The alleged date of plaintiff's injury was September 19, 1977.
Plaintiff's theory was that defendants had a duty to their tenants to inspect and repair the fire escape where defendants knew or should have known of its defective condition. MCL 125.471; MSA 5.2843, MCL 554.139; MSA 26.1109, Hockenhull v Cutler Hubble, Inc, 39 Mich. App. 163; 197 NW2d 344 (1972), lv den 387 Mich. 809 (1972), and Raatikka v Jones, 81 Mich. App. 428; 265 NW2d 360 (1978). However, counsel for defendants argued to the jury at length concerning plaintiff's failure to pay rent and expressly told the jury to consider plaintiff's failure to pay rent in its consideration of the matter of the degree of accountability of the parties.
Refusal to give a requested instruction that states the applicable law and is supported by evidence is error. If the error is one without which the Court can say the result might well have been different, the error is reversible. See, Richman v City of Berkley, 84 Mich. App. 258, 264; 269 NW2d 555 (1978), lv den 405 Mich. 804 (1979).
The requested instruction here correctly stated the applicable law. At the alleged time of injury, defendants did not even have a cause of action for possession of the premises in summary proceedings, *238 since the seven days had not expired. MCL 600.5714; MSA 27A.5714. Defendants could not have obtained a writ of restitution until ten days after entry of a judgment for possession, and plaintiff could have retained possession by paying the rent owed and costs. MCL 600.5744; MSA 27A.5744. Since plaintiff was in possession of the premises pursuant to a valid lease, and since plaintiff's right to possession had not legally been terminated, defendants owed plaintiff the duty of care they owed to any other tenant. In view of defendants' emphasis on this point in closing argument, we are persuaded that this error is one without which the result might well have been different. Reversal and a remand for a new trial is therefore necessary.
The other issues raised by plaintiff do not require reversal; however, we will briefly discuss them to clarify them for retrial. The eviction proceedings were relevant to plaintiff's credibility, in view of defendants' theory that plaintiff fabricated the story of the accident in a spirit of revenge. The trial court has discretion to admit such evidence if it finds that its probative value outweighs its prejudicial effect. See MRE 403. Counsel for defendants is admonished to refrain from diverting the jury from the issues in the case and appealing to its passion and prejudices in argument. Williams v Wheels, Inc, 407 Mich. 417; 286 NW2d 239 (1979), Wayne County Board of Road Comm'rs v GLS LeasCo, 394 Mich. 126; 229 NW2d 797 (1975). In particular, counsel overstepped the bounds of propriety by telling the jury, among other things, to consider plaintiff's unemployed status in determining the parties' accountability. Only the failure by plaintiff's counsel to object to such arguments prevented reversal on *239 this issue. Hill v Husky Briquetting, Inc, 78 Mich. App. 452; 260 NW2d 131 (1977), lv den 402 Mich. 893 (1978). Finally, plaintiff's requested instruction on the relationship of plaintiff's pre-existing physical condition to his burden of proof relative to proximate cause did not accurately state the law. If defendants' wrongful conduct had been proved by a preponderance of the evidence to be a proximate cause of an aggravation of a latent disability, defendants would be liable for such an aggravation. However, this rule does not remove from plaintiff the burden of showing that the negligence of the defendants was a proximate cause of the injury. See McNabb v Green Real Estate Co, 62 Mich. App. 500, 518-519; 233 NW2d 811 (1975), lv den 395 Mich. 774 (1975).
Reversed and remanded for a new trial. Plaintiff may tax costs.