Opinion
Docket No. 46365.
Decided August 18, 1980.
Kelman, Loria, Downing, Schneider Simpson (by Michael L. Pitt), for plaintiff.
Halsey, Halsey Pommerening, for defendant.
This action arose out of an automobile accident. Defendant admitted liability, contesting only the amount of damages. The central issue in the case was whether plaintiff sustained serious impairment of a body function. MCL 500.3135(1); MSA 24.13135(1). Plaintiff appeals the jury verdict of no cause of action in favor of defendant.
At trial, it was plaintiff's testimony that immediately following the accident, on December 7, 1974, he was hospitalized and his swollen ankle was x-rayed and placed in a walking cast. Plaintiff testified further that his leg felt numb at first and that he experienced pain during his convalescence.
Plaintiff stated that during the latter part of 1975 and in 1976 he felt a "dull, creeping pain" in his ankle, three or four times a month. This was at a time when his job required him to be on his feet 90 percent of the time. It was in 1976, also, that he began to test his ankle in such sports as tennis and bowling and, experiencing pain, was forced to favor his ankle. Finally, it was plaintiff's testimony that he continued to experience pain a couple of times a month right up until time of trial.
The only other witness to testify at trial was the plaintiff's family doctor. The doctor testified that he first saw plaintiff sometime on or about December 19, 1974, approximately 12 days after the accident. At that time, plaintiff was still in his cast and the doctor diagnosed his injury as a chip fracture of the heel bone. The doctor also testified that plaintiff had some traumatic arthritis which he defined as a joint impairment due to an injury to the surface of the bones where they meet at the joint. The doctor stated that he believed this discomfort would continue, perhaps for life. Finally, it was the doctor's view that the torn ligament, a soft tissue injury, was the more important injury.
On cross-examination, plaintiff's doctor acknowledged that when plaintiff was last examined on March 28, 1975, his examination revealed no swelling of the joint or complaint of pain, nor did he note any inflammation of the ankle or impairment of motion. No radiological evidence of traumatic arthritis was noted because no x-rays had been taken.
The principal errors argued by plaintiff relate to the trial court's instructions to the jury. Plaintiff alleges first that the court erred in instructing that "serious impairment means impairment of more than ordinary severity". Smith v Sutherland, 93 Mich. App. 24; 285 N.W.2d 784 (1979). See also Stevens v Hogue, 85 Mich. App. 185, 189; 279 N.W.2d 735 (1978). We agree. While Smith, supra, had not yet been decided (released October 15, 1979) at the time of trial here (April 9, 1979), no new rule of law was formulated, no previous decision of the court overruled. People v Fields, 391 Mich. 206, 217-221; 216 N.W.2d 51 (1974). The Smith Court merely pointed to the clear language of the statute in holding that this particular instruction did not comport with the statutory standard. There is, then, no basis for the defendant's argument concerning retroactive application of the Smith Court's decision.
It was also error for the court to instruct the jury regarding death and permanent serious disfigurement since no such issue was raised by the facts in this case. Submission of irrelevant and immaterial propositions to the jury is confusing and misleading and, therefore, erroneous. Irwin v Carlton, 369 Mich. 92; 119 N.W.2d 617 (1963).
We conclude that these instructional errors require reversal because together they served to increase the plaintiff's threshold burden and were sufficiently misleading to mandate that the plaintiff receive a new trial. It cannot be said with any certainty that but for these instructions the plaintiff might not have met his threshold burden with the jury regarding the gravamen of his complaint.
For purposes of retrial, we note that a refusal to instruct that serious impairment of body function need not be permanent is error. See Smith, supra, 27, fn 1, Cassidy v McGovern, 86 Mich. App. 321, 327; 272 N.W.2d 644 (1978) (BASHARA, J., concurring/dissenting opinion).
Plaintiff's remaining issues are without merit.
Reversed and remanded for proceedings consistent with this opinion. Costs to appellant.