SNOW
v.
FREEMAN
Docket No. 61198.
Michigan Court of Appeals.
Decided September 22, 1982.Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Richard E. Shaw), for plaintiff.
Cozadd, Shangle, Smith & Andrews (by Daniel J. Andrews), for defendants.
Before: T.M. BURNS, P.J., and BEASLEY and C.W. SIMON,[*] JJ.
BEASLEY, J.
In this wrongful death case, retrial before a jury was held in September-October, 1981. The jury rendered a verdict of no cause of action with respect to the claim of plaintiff, Rosemary Snow, administratrix of the estate of Bobby Gene Snow, deceased, against defendant Dr. Richard Freeman, but awarded damages in the sum of $329,408 in favor of plaintiff against defendants Dr. Andre Parras and Outer Drive Hospital. Defendants Parras and Outer Drive Hospital appeal as of right.
In the first trial, at the close of the instructions to the jury, plaintiff, among other things, objected *679 to the trial court's incomplete reading of a requested standard jury instruction, SJI 1.05.[1] This instruction reads as follows:
"When at least five of you agree upon a verdict, it will be received as your verdict. In your deliberations, you should weigh the evidence with due regard and consideration for the opinions of each other. You should listen to each other's arguments with an open mind, and make every reasonable effort to reach a verdict."
In lengthy and comprehensive jury instructions, the trial court omitted the second and third sentences of SJI 1.05. The jury rendered a unanimous verdict of no cause of action in favor of all three defendants and against plaintiff. Plaintiff's motion for a new trial was reluctantly granted by the trial court on the basis that the inadvertent omission of the two sentences from SJI 1.05 was error as a matter of law where, as here, plaintiff had requested that it be given.[2]
The case was retried before a new jury with the result indicated above.[3]
On appeal, defendants raise only one issue, maintaining that the trial court erred in holding that under GCR 1963, 516.6(2) prejudicial, reversible error occurs whenever a trial court deviates from a requested, applicable, and accurate standard jury instruction.
Additionally, defendants assert that plaintiff's *680 objection to the trial court's deviation was insufficient to preserve the issue for a new trial motion or appeal.
Plaintiff offered the following objection to the trial court's reading of SJI 1.05:
"The court gave an instruction on if 5 out of 6 agree on a verdict, that should constitute their verdict. I think it should be given under 1.05 your Honor, which indicates they should listen to the opinions of others and listen to each others arguments which is what is presented in the Standard Jury Instructions."
The trial court responded:
"Your objections, of course, have been recorded and noted. Please tell the jury to proceed with their deliberations."
GCR 1963, 516.6(2) provides:
"(2) Pertinent portions of Michigan Standard Jury Instructions (SJI) published under authority of this subrule shall be given in each civil case in which jury instructions are given if (a) they are applicable and (b) they accurately state the applicable law."
In Javis v Ypsilanti School Dist,[4] the Supreme Court held that the trial court erred reversibly by failing to give an applicable and accurate standard jury instruction which was requested by a party. The Javis Court stated:
"We accordingly adopt a strict rule that we believe will provide economy in administration and fairness to the parties: Where there is an omission of, or a deviation from an applicable and accurate SJI, prejudicial error will be presumed; provided that the erroneously *681 omitted SJI was properly requested at trial; and, provided that in those cases where error is charged as a result of a deviation from a SJI, said deviation was brought to the attention of the trial court prior to the commencement of jury deliberations."[5]
In the matter at bar, it is clear that plaintiff complied with the requirements delineated in Javis, as she requested the giving of SJI 1.05 at trial and objected to the trial court's failure to read the instruction in its entirety. Consequently, the trial court did not err in granting plaintiff's motion for a new trial. Sometimes it would appear that, rather than serving the good purpose for which it was intended, the strict rule of Javis causes injustices. However, if the rule is to be moderated, the high court must do so. In this case, the high court did not choose to take the opportunity.[6]
Defendants also challenge the constitutionality of GCR 1963, 516.6(2). Inasmuch as this issue was not raised in the trial court, appellate review is foreclosed.[7]
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] SJI 1.05 is now SJI 60.01.
[2] Judge Thomas Roumell presided over the first jury trial and granted the motion for a new trial.
[3] The second jury trial was presided over by Judge Patrick J. Duggan. Prior to retrial, defendants' petition for leave to appeal was denied by this Court on December 8, 1980. Also prior to retrial, on April 22, 1981, defendants petitioned the Supreme Court for leave to appeal from the grant of new trial, but the Supreme Court delayed deciding defendants' petition for leave until January 28, 1982, after the retrial was over. See Snow v Freeman, 412 Mich. 909; 315 NW2d 125 (1982).
[4] 393 Mich. 689; 227 NW2d 543 (1975).
[5] Javis, pp 702-703.
[6] See 412 Mich. 909, supra, denying leave in the within case. But also see the persuasive dissent of Justice RYAN.
[7] Wanstead v Fisher, 278 Mich. 68, 76; 270 N.W. 218 (1936); Buxton v Alexander, 69 Mich. App. 507, 509-510; 245 NW2d 111 (1976), lv den 399 Mich. 827 (1977); 1 Michigan Law & Practice, Appeal, § 61, pp 551-553; 7A Callaghan's Michigan Pleading & Practice (2d ed), § 57.02a, p 272.