Vannoy v. City of Warren

Per Curiam.

By statutory action for wrongful death (MCLA 600.2922; MSA 27A.2922 and counterpart MCLA 702.115; MSA 27.3178 [185]) the plaintiff recovered judgment against the defendants in the sum of $200,000. The action was tried and the circuit court’s judgment was entered in 1967, after Currie v Fiting, 375 Mich 440 (1965) was released, after the 1965 and 1966 amendments of the interest upon judgments statute had been made effective (MCLA 600.6013; MSA 27A.6013), and before Balog v Knight Newspapers, Inc, 381 Mich 527 (1969) was decided.¹

Plaintiff, reviewing Division 2’s final ruling against her (see 15 Mich App 158,168 and rehearing, 26 Mich App 283-289), is here insisting that she is entitled to interest calculated on the amount of her judgment from the date her complaint was filed (July 20, 1962), rather than from the date of the judgment (March 6, 1967). Defendants City of Warren and Johnson & Anderson, Inc., insist that Division 2 was right in ruling:

“Combining the principles of both the statute and Currie, we hold the following. In a wrongful death action, where a claim accrues as of a date certain, the jury is to be instructed to include as part of its award of damages interest from the date of injury to the date the complaint was filed. When the verdict is returned the defendant shall immediately be liable for statutory interest from the date of the complaint to the date the judgment is paid computed in accordance with MCLA § 600.6013 (Stat Ann 1970 Cum Supp § 27A.6013).”

The trouble with plaintiff’s allegation of error is that her counsel requested that the jury be instructed otherwise. Her request to charge No. 23 read as follows:

“23. Interest at a rate of five percent (5%) should be awarded from date of death on those damages which accrued at death, if you find any to exist and if you find liability against either of the defendants or both of them as to the plaintiff’s estate. The jury should ascertain the date when damages accrued and add interest on same from date of accrual to date of its verdict. After having made your calculations as to interest, you will then report your verdict, if any, by giving a lump-sum verdict. (Currie vs. Fiting, 375 Mich. 440 (1965).)”

In specific substance the trial judge did so instruct. Whether the instruction delivered did or did not constitute error, and if so amounted to error reversible, became of no moment when the jury entered upon the deliberations which led up to its verdict reported. Plaintiff is estopped to assert error as alleged. McDonald v Minneapolis, S P & SS M R Co, 105 Mich 659 (1895); Hamilton v Arnold, 116 Mich 684 (1898); Leder v National Union Fire Insurance Co, 175 Mich 470 (1913), and Collins v Michigan C R Co, 193 Mich 303 (1916)²

Assuming error as claimed, that error comes within the purview of what of tradition and common sense is known as “invited error”. That topic has received thorough and recent attention; 5 Am Jur 2d, Appeal and Error, §§ 713-722, pp 159-166. Precisely applicable to the instant appeal is § 719 of the text, headed “Instructions.” The first full paragraph of the section reads:

“The doctrine of invited error has found wide application with regard to error in instructions. A party may not ask for appellate review of an error in giving an instruction which he himself requested, or which is substantially identical with one requested by him. A complaint about inconsistency in instructions given by the court below may not be raised, on appeal, by the party who caused the inconsistency by requesting and obtaining an instruction which was not in harmony with another instruction that was correct.”

Affirmed. Costs accruing since our mentioned order of July 23, 1969 to defendant-appellees.

T. M. Kavanagh, C. J., and Black, Adams, T. E. Brennan, T. G-. Kavanagh, Swainson, and Williams, JJ., concurred.

1 When this case of Vannoy appeared here initially, we remanded it “for reconsideration”. 382 Mich 771.

2 “At all events, the court having instructed the jury on this matter just as requested by defendant, it would seem that it should be estopped from questioning the correctness of the instructions given.” (Prom the Collins case, at 312).