Cassidy v. McGovern , 86 Mich. App. 321 ( 1978 )

86 Mich. App. 321 (1978) 272 N.W.2d 644

CASSIDY
v.
McGOVERN

Docket No. 77-2507.

Michigan Court of Appeals.

Decided October 3, 1978.

John D. Hayes, for plaintiffs.

Gillett & Carpenter, for defendants.

Before: D.E. HOLBROOK, JR., P.J., and BASHARA and R.M. MAHER, JJ.

PER CURIAM.

The concurrence/dissent adequately states the facts in this case and satisfactorily disposes of most of the issues facing us. We differ on two points, however. Plaintiffs in this case argue that the trial court erred in refusing to include in its instructions the holding of McKendrick v Petrucci, 71 Mich. App. 200; 247 NW2d 349 (1976). As our brother does, we reject plaintiffs' argument basically because a "trial court does not err in refusing to charge as to a particular party's theory of another case". But in discussing McKendrick, we must not de-emphasize the language concerning "particular body function". While the language is not part of the holding of the case, it does have a significance which our brother seems to deny.

The choice of the words "particular body function" was not inadvertent: the McKendrick Court interpreted the statute as not requiring impairment of the total body function, e.g., through a life-sustaining organ such as the heart or liver. The Court chose the word "particular" to suggest that impairment of one specific body function comes within the ambit of the statute. The very nature of the impairment at issue in McKendrick, tendonitis of the biceps tendon of plaintiff's right arm, implies that the Court was referring to a particular body function, not simply "body function". Although not the holding of the case, we believe it is one of its important implications and should not be obscured.

On a second issue we differ more fundamentally with our brother. Plaintiff argued that as a matter of law he satisfied the threshold requirement of the no-fault act for serious impairment of bodily function. He therefore moved for a directed verdict. In denying the motion, the trial judge stated:

"Mr. Hayes [plaintiffs' attorney], the McKendrick case defeats your argument. It is very clear in the McKendrick case that the Court has decided that the issue of serious impairment of body function is a fact question for the jury, and your motion is denied."

McKendrick does not conclude that every question of whether a particular impairment falls under the act must be submitted to the fact finder. In Vitale v Danylak, 74 Mich. App. 615; 254 NW2d 593 (1977), this Court, consistent with McKendrick, allowed a trial judge to rule by summary judgment that plaintiff's injuries (a stiff neck) did not, as a matter of law, meet the standard of serious impairment of body function. The Vitale Court stated that no specific "permissible limits" had been drawn but that the Court was of the opinion that "if any class of cases could approach such limitation, the case at bar must be included in that class".

Just as there is a class of cases, of which Vitale is representative, in which the trial court can rule as a matter of law that plaintiff's injury is so minor that it fails to reach the threshold, so there is a class of cases in which, as a matter of law, the threshold of serious impairment is reached by the very nature of the injury, i.e., reasonable minds could not differ on the question of whether the threshold is met. In such a case, the trial judge should not give the issue to the jury for determination.

The trial judge in the instant case used an erroneous standard. He thought, because of a misinterpretation of McKendrick, that he was forced to send the issue to the jury. He did not perceive that McKendrick does not foreclose the possibility of the court determining as a matter of law that the threshold was reached. In denying plaintiffs' motion for a directed verdict, the judge here was unaware of this alternative.

We therefore remand to the trial court with instructions to the judge that McKendrick does not force him in all circumstances to send the issue of serious impairment to the jury. He should recognize that he may grant a directed verdict for plaintiffs, if the nature of Leo Cassidy's injury was such as to meet the threshold of serious impairment as a matter of law.

BASHARA, J. (concurring in part, dissenting in part).

Plaintiffs appeal from a jury verdict of no cause for action. The suit arose from a claim, under the no-fault act,^[1] for damages sustained in an automobile collision. Plaintiff Leo Cassidy sustained complete breaks in both bones of his lower right leg, as well as other contusions and abrasions. Just prior to trial, defendants admitted fault, reserving for trial only the issues of threshold liability and damages. Plaintiffs raise several issues, which will be dealt with seriatim.

I

Plaintiffs claim the jury was misled and misinformed about the threshold tort requirement of the no-fault act. They argue that defendants' argument and medical testimony showing that "serious impairment" requires permanency was erroneous. They also contend that the trial court's instructions to the jury were not couched in statutory language but instead employed the objectionable phrase "serious impairment of a body function and/or permanent serious disfigurement".

A review of the record reveals that when the jury returned for further instructions, the trial judge clarified any ambiguity as to whether serious impairment of body function requires permanency. He indicated that impairment need only be serious, whereas disfigurement must be permanent and serious.

In Krisher v Duff, 331 Mich. 699, 711; 50 NW2d 332 (1951), the Supreme Court stated:

"* * * it is not necessarily error to refuse to mention the existence of the statute provided the judge states the law as embodied in the statute."

See also Lepley v Bryant, 336 Mich. 224; 57 NW2d 507 (1953).

Plaintiffs failed to object to defense counsel's allegedly improper argument, thereby precluding appellate review in the absence of a manifest injustice. In view of the trial court's clarification of the issues for the jury, I find no manifest injustice.

Finally, I would also reject plaintiffs' argument that the trial court erred in refusing to include in its instructions the holding of McKendrick v Petrucci, 71 Mich. App. 200; 247 NW2d 349 (1976). The McKendrick Court concluded that the trial court erred in granting summary judgment on the grounds that plaintiff did not suffer serious impairment of body function by virtue of tendonitis in his right arm.

However, the "particular body function" language used in McKendrick does not appear to be the holding of the Court. The words were used only as an analogy relating to the existence of a material issue of fact relating to summary judgment. The Court clearly appeared to be distinguishing between impairment and serious impairment.

A trial court does not err in refusing to charge as to a particular party's theory of another case. This is so especially where the theory may be ambiguous or inapplicable. Nowicki v Suddeth, 7 Mich. App. 503; 152 NW2d 33 (1967).

While the trial court's initial instruction as to the threshold for serious impairment of body function may have been ambiguous, when the record is viewed as a whole, no reversible error was committed.

II

Plaintiffs contend the trial judge erred in refusing to advise the jury that defendants had limited immunity because they acquired and maintained proper security for payment. Further, that it was an abuse of discretion to instruct the jury to disregard any consideration of insurance.

MCL 500.3030; MSA 24.13030^[2] does not appear to have been repealed by the no-fault act. That act provides that no reference be made to an insurer or to the question of carrying insurance during trial.

Even if the statute were considered to have been impliedly repealed by the no-fault act, mention of insurance coverage could be precluded based on the common law, Broitman v Kohn, 16 Mich. App. 400; 168 NW2d 311 (1969). See also Heuss v Rockwell Standard Corp, 495 F2d 1207 (CA 6, 1974).

In the case at bar, the existence of defendants' liability insurance was totally irrelevant to the threshold damage issues. Consequently, the trial court's refusal to allow any reference thereto was not erroneous.

III

I likewise find no error in the trial court's refusal to allow photographic evidence of the vehicles involved subsequent to the collision. The evidence had little relevance, since serious damage to an automobile does not always mean serious damage to its occupants. Considering the danger of undue prejudice, the evidence could properly be excluded, People v Surles, 29 Mich. App. 132; 185 NW2d 126 (1970), lv den, 385 Mich. 764 (1971).

Relevancy and admissibility of evidence are matters within the trial court's discretion. This Court will not reverse unless there is a clear abuse of that discretion, People v Amison, 70 Mich. App. 70; 245 NW2d 405 (1976), Carreras v Honeggers & Co, Inc, 68 Mich. App. 716; 244 NW2d 10 (1976).

IV

Plaintiffs argue that it was improper for the trial court to admonish the jury to disregard plaintiffs' counsel's first closing argument as to the legislative intent regarding the no-fault act; and that the court further erred in interpreting some of counsel's arguments as a request to punish defendants. Plaintiffs failed to timely object or move for a mistrial. Secrist v Detroit, 299 Mich. 393; 300 N.W. 137 (1941), Lucy v Dowd, 285 Mich. 530; 281 N.W. 314 (1938).

Therefore, I would reverse on this ground only where there is such a clear abuse of discretion on the part of the trial judge that manifest injustice can be shown. Secrist, supra, and Lucy, supra.

A review of the record reveals that plaintiffs' counsel attempted a rather extensive explanation of the no-fault statute. An attempt was made by counsel to interpret the words used in the statute in their "common meaning" for the benefit of the jurors. Not all of the argument was perhaps necessary or relevant. The trial judge is allowed great discretion in the manner and style of his charge to the jury. Pratt v Berry, 37 Mich. App. 234; 194 NW2d 465 (1971). Viewing the record as a whole, I cannot say that discretion was abused.

V

Plaintiffs finally argue that the injuries sustained by plaintiff Leo Cassidy qualify as a "serious impairment of body function" as a matter of law, and therefore, the trial judge erroneously denied a directed verdict as to the threshold requirement of the no-fault act.

The trial judge denied the motion, on the basis of McKendrick v Petrucci, supra. I cannot find reversible error on the part of the trial judge. However, I must respectfully observe that McKendrick did not conclude that every question of whether a particular impairment falls under the act must be submitted to the fact finder.

In Vitale v Danylak, 74 Mich. App. 615, 619; 254 NW2d 593 (1977), this Court interpreted McKendrick and the Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441; 208 NW2d 469 (1973) as follows:

"We do not read the language of the Supreme Court as a complete prohibition of the use of summary judgment whenever a ``serious impairment' or ``permanent serious disfigurement' is alleged in the pleadings. While we recognize that generally the trier of fact must make the qualitative decision of whether a particular injury is serious or permanent, it does not follow that the trial judge is in all cases precluded from consideration of those questions."

It cannot be said with any confidence that, under the facts of the instant case, interpretation of the term, "serious impairment of body function" "* * * approaches or breaches permissible limits * * *". The question of whether plaintiffs met the threshold requirements of the no-fault act was properly submitted to the jury.

Conclusion

For the foregoing reasons, I believe that no reversible error was committed in the conduct of the trial. I also note that the recent Supreme Court opinion of Shavers v Attorney General, 402 Mich. 554; 267 NW2d 72 (1978), does not appear to invalidate any of the holdings of this opinion.

I would affirm with costs to defendants.

NOTES

[1] MCL 500.3135(1); MSA 24.13135(1) states:

"A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement."

[2] "Sec. 3030. In the original action brought by the injured person, or his or her personal representative in case death results from the accident, as mentioned in section 3006, the insurer shall not be made or joined as a party defendant, nor shall any reference whatever be made to such insurer or to the question of carrying of such insurance during the course of trial."