Johnson v. Corbet ( 1985 )

Levin, J.

(concurring). In Javis v Ypsilanti Bd. of Ed, 393 Mich 689, 702; 227 NW2d 543 (1975), this Court declared that "[w]here there is an omission of, or a deviation from an applicable and accurate sji, prejudicial error will be presumed” where the erroneously omitted sji was properly requested, and ordered a new trial because of the failure to give an applicable sji. In Socha v Passino, 405 Mich 458; 275 NW2d 243 (1979), this Court held, in the application of that rule, that the failure to give an applicable sji was "reversible error.”

A majority of the Court is of the opinion that the rule announced in Javis should be rescinded because the failure to give an applicable sji does not justify "automatic reversal.” I would, for the reasons stated by Chief Justice Williams, retain the Javis rule, but, because some have been under the impression that the Javis rule calls for automatic reversal, make clear, what I always understood Javis to mean, that the presumption of error is rebuttable on a showing that the instructional error could not possibly have prejudiced the appellant.

The opinion of the Court states, and I agree, that the applicable harmless-error rule, before Javis and now that the rule of Javis has been rescinded, is set forth in MCR 2.613 which states:

(A) Harmless Error. An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.

I write further principally because I think it is important to set forth, at the same time the Javis rule is clarified, the precedents that explicate the meaning of the court rule.

I

The court rule is, as set forth in the Committee Comment,¹ based on a statute enacted in 1915,² which was reenacted in the Judicature Act of 1915.³ Because the subject matter is now dealt with in a court rule, the statutory language was not continued in the Revised Judicature Act of 1961. The court rule, like the statutory provisions, speaks in terms of "substantial justice.”

In Soltar v Anderson, 340 Mich 242, 244; 65 NW2d 777 (1954), commenting on the statutory language, this Court, speaking through Justice Dethmers, said:

The [harmless error] statute is ineffective to change the rule always in effect in Michigan, both before and after the enactment, that the question of reversal is controlled by determination of whether the error was prejudicial.

Earlier, in commenting on the same language in the Code of Criminal Procedure,⁴ this Court speaking through Justice Wiest, said:

That statutory provision is not a cure-all for it must serve within constitutional limitations or else be declared void. Minor errors which clearly can be held not to have affected the result may be mollified by this statutory provision, but errors which deprive an accused of the right of due process of law cannot be composed thereby to the detriment of an accused. The responsibility of maintaining the right of fair trial and due process of law is placed with the judicial branch and cannot be otherwise by legislative permission. We are not concerned with the guilt or innocence of the accused, for we are not triers of the facts and must apply the law to the case as tried. [People v Bigge, 288 Mich 417, 421; 285 NW 5 (1939).]

The issue, as set forth in Soltar and Bigge, is whether the appellant was prejudiced. Soltar does not, however, in terms state whether prejudice must be proved or whether it must be disproved, that is to say whether the error must be shown to be harmful or harmless. The answer is suggested by Germiquet v Hubbard, 327 Mich 225, 234; 41 NW2d 531 (1950). There, this Court found prejudicial error on a determination that "[i]t cannot be said that . . . testimony [erroneously introduced] did not materially affect the conclusions of the jury.” Id., 235. This decision is consistent with earlier authority suggesting that instructional error must be proved harmless, not harmful, which is to say, prejudice must be disproved, not proved.⁵

The standard by which prejudice must be disproved and error proved harmless should also be set out. In a civil case, the harmlessness of the error need not be established beyond a reasonable doubt.⁶ What needs to be established is that there is very clear evidence showing the error was harmless.⁷ "In order to prevent a party, bringing a case to this Court for review, of the benefit of his exceptions, where well taken, upon the ground that he was not injured by the rulings made against him, it should very clearly appear that upon the case as made, he should not in any view that might be taken of it succeed.” Toledo & AAR Co v Johnson, 49 Mich 148, 150; 13 NW 492 (1882). Justice Traynor has said, "Unless the appellate court believes it highly probable that the error did not aifect the judgment, it should reverse.”⁸ Requiring the error to be proved harmless by very clear evidence has minimized the risk of enforcing a judgment that was quite possibly influenced by error without requiring reversal when it is highly improbable that an error contributed to the judgment.

II

The opinion of the Court additionally speaks to the question when a judge may refuse to give an applicable sji. That question is not presented because, as acknowledged in, and indeed it is the predicate of, the opinion of the Court, the instruction at issue in the instant case was applicable. Thus there is no occasion to address the question, in the instant case, when a judge may refuse to give an applicable sji, and it is not appropriate to do so.

1 1915 CL 13763.

"This section is similar to Act 89 of 1915, being C. L. '15, 14565, which, however covered criminal as well as civil cases. Act 89 has not been expressly repealed but since it has been superseded in respect to criminal cases by Compilers’ § 17354 it would now seem to be superseded in entirety and does not therefore appear in the present compilation.”

2 1915 PA 89.

"No judgment or verdict shall be set aside or reversed, or a new trial be granted by any court of this State in any case, civil or criminal, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”

3 1915 PA 314, ch L, § 28.

"No judgment or verdict shall be set aside or reversed, or a new trial be granted by any court in any civil case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”

4 1929 CL 17354; MSA 28.1096.

5 Iwrey v Fowler, 367 Mich 311, 316; 116 NW2d 722 (1962) ("It cannot be affirmatively said that the jury could not have been misled to the prejudice of plaintiffs by the language . . . quoted from the charge); Gapske v Hatch, 347 Mich 648, 659; 81 NW2d 337 (1957) ("Under another factual situation we might not feel that his omission here in his charge on negligence was prejudicial .... But under all the circumstances ..., we feel that the instruction . . . might well have altered the result”); Painter v Lebanon Land Co (On Rehearing), 164 Mich 266, 267; 130 NW 205 (1911); Toledo & A A R Co v Johnson, 49 Mich 148, 150; 13 NW 492 (1882).

6 See Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967), concerning the standard in a criminal case.

7 Painter v Lebanon Land Co (On Rehearing), 164 Mich 266, 267; 130 NW 205 (1911) ("Where the jury proceeds to verdict under an erroneous instruction, it should very clearly appear that the defeated party could not, in any view of the case, have succeeded; otherwise prejudice must be presumed to follow the error”).

8 Traynor, The Riddle of Harmless Error, p 35. Traynor explains that requiring the appellate court to reverse unless it is highly probable the error did not affect the judgment is less stringent than the Chapman standard of requiring proof beyond a reasonable doubt that the error did not affect the judgment, but more stringent than requiring proof that it is more probable than not that the error did not affect the judgment. Id., pp 34, 35, 44.