Kaniewski v. Emmerson , 44 Mich. App. 737 ( 1973 )

44 Mich. App. 737 (1973) 205 N.W.2d 812

KANIEWSKI
v.
EMMERSON.

Docket No. 12341.

Michigan Court of Appeals.

Decided February 21, 1973.

Sugar, Schwartz, Silver, Schwartz & Tyler (by Leonard Natinsky), for plaintiff.

Dice, Sweeney & Sullivan, P.C. (by Thomas L. Young), for defendant Emmerson.

Kitch & Suhrheinrich, P.C. for defendant Fetzer.

Before: QUINN, P.J., and V.J. BRENNAN and O'HARA,^[*] JJ.

QUINN, P.J.

This action was commenced by plaintiff against defendants for medical malpractice and negligence. Plaintiff's theory at trial was that the defendants had either expressly or inferentially by word or actions advised the plaintiff that she had cancer, when in fact she did not, and that defendants knowing her true condition were negligent for not advising her that she did not have cancer. The jury returned a verdict of no cause of action. Plaintiff appeals.

Plaintiff first assigns as error the failure of the trial court to give her request that Michigan Standard Jury Instruction 5.01(3), permissive inference against a nontestifying party, be given. The defendants, though present at trial, did not testify nor offer any evidence in their behalf except the deposition of defendant Emmerson which was read into the record. We find that this assignment of error is without merit for two reasons:

1. Both defendants were present in court and available to plaintiff for cross-examination under MCLA 600.2161; MSA 27A.2161. The requested instruction is not applicable when the witnesses are equally available to plaintiff and defendant, Barringer v Arnold, 358 Mich 594, 602 (1960).

2. Plaintiff admitted at oral argument that she did not call defendants to testify and hoped that they would not take the stand as deliberate strategy to obtain the requested instruction. As stated in Barringer, supra, the reason behind the rule embodied in the requested instruction is to prevent suppression of evidence. Plaintiff's strategy promoted suppression of evidence.

Plaintiff also assigns as error the giving of a jury instruction which was not supported by evidence in the record. A review of the record does not sustain this assignment of error.

Affirmed with costs to defendants.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.