Zwiller v. DETROIT COCA-COLA BOTTLING CO.

144 Mich. App. 505 (1985) 376 N.W.2d 137

ZWILLER
v.
DETROIT COCA-COLA BOTTLING COMPANY

Docket No. 76946.

Michigan Court of Appeals.

Decided May 23, 1985.

Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C. (by James M. Prahler), for plaintiffs.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by James S. O'Leary and Ernest R. Bazzana), for defendant.

Before: WAHLS, P.J., and SHEPHERD and E.A. QUINNELL,^[*] JJ.

PER CURIAM.

Plaintiffs appeal as of right from a judgment on a jury verdict of no cause of action entered by the trial court on February 16, 1984. We affirm.

As plaintiff Edward Zwiller was carrying a 6-pack of soda pop down his basement stairs to a refrigerator, a bottle dropped from the pack and fell several steps. Plaintiff placed the 6-pack inside the refrigerator and then walked over to the fallen bottle and picked it up. As he was placing the bottle in the refrigerator, the cap exploded from the bottle and flew into his eye. During trial, defendant, Detroit Coca-Cola Bottling Company, requested that the jury instructions include SJI 10.04 and 11.01 on comparative negligence. Although defense counsel did not specifically mention the defense of comparative negligence in his opening statement, closing argument or theory of the case, he did solicit testimony from plaintiff indicating there may have been negligence. Over plaintiff's objection, the instructions were given. The jury was then given a special verdict form which directed it to address the issue of whether defendant was negligent first, and then address whether defendant had breached an implied warranty. Only if the jury answered either of these two questions affirmatively was it to address the final issue of plaintiff's negligence. The jury answered the first two questions in the negative and, therefore, never reached the third question.

A standard jury instruction must be given when applicable, accurate and requested by a party. Javis v Ypsilanti School Dist Bd of Ed, 393 Mich. 689; 227 NW2d 543 (1975), GCR 1963, 516.6(2). The determination of the applicability of a requested standard jury instruction is addressed to the trial court's discretion. Zmija v Baron, 119 Mich. App. 524; 326 NW2d 908 (1982). Plaintiff's testimony on cross-examination was evidence of his comparative negligence. Therefore, the trial court's ruling was correct.

Plaintiffs contend that the instructions should not have been given because of defendant's failure to raise comparative negligence in its opening statement, closing argument or theory of the case. However, it is a well established rule that a defendant may avail itself of a defense, not referred to in the opening statement, which is presented by testimony. Petherick v General Assembly of Order of the Amaranth, 114 Mich. 420; 72 N.W. 262 (1897). Furthermore, failure to present a defense in defendant's theory of the case or closing argument does not operate as a waiver of the defense. People v Blankenship, 108 Mich. App. 794, 800; 310 NW2d 880 (1981), lv den 412 Mich. 857 (1981). Therefore, there was no error in the giving of the instructions.

In any event, the jury was given a special verdict form and found in favor of defendant on the first two questions. Therefore, the jury never had to consider the issue of whether plaintiff was negligent. Thus, it is apparent that no harm resulted from the giving of the instruction.

Affirmed.

SHEPHERD, J., concurs for the reason that the error, if any, was harmless.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.