M Civ JI 7.01 Theories of the Parties

These are the theories of the parties. I express no preference as to which, if any, you will accept.

[ State the parties’ theories of the case ].

Comment

The present provision concerning the Court’s charge to the jury on issues in the case and theories of the parties is found in MCR 2.512(A)(2), (B)(2):

Rule 2.512 Instructions to Jury

(A) Request for Instructions.

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(2) In addition to requests for instructions submitted under subrule (A)(1), after the close of the evidence, each party shall submit in writing to the court a statement of the issues and may submit the party’s theory of the case regarding each issue. The statement must be concise, be narrative in form, and set forth as issues only those disputed propositions of fact that are supported by the evidence. The theory may include those claims supported by the evidence or admitted.

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(B) Instructing the Jury.

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(2) Before or after arguments or at both times, as the court elects, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in subrule (A)(2), that party’s theory of the case.

It is the duty of the trial Court to present to the jury the material issues of the case, whether requested to or not. Barton v Gray, 57 Mich 662; 24 NW 638 (1885); Daigle v Berkowitz, 273 Mich 140; 262 NW 652 (1935); De Forest v Soules, 278 Mich 557; 270 NW 785 (1936); Tinkler v Richter, 295 Mich 396; 295 NW 201 (1940); Jorgenson v Howland, 325 Mich 440; 38 NW2d 906 (1949); Brown v Nichols, 337 Mich 684; 60 NW2d 907 (1953); Martiniano v Booth, 359 Mich 680; 103 NW2d 502 (1960); Sakorraphos v Eastman Kodak Stores, Inc, 367 Mich 96; 116 NW2d 227 (1962).

The jury should not be instructed on issues that are not found in the pleadings, Pettibone v Smith, 37 Mich 579 (1877); Denman v Johnston, 85 Mich 387; 48 NW 565 (1891); Curth v New York Life Insurance Co, 274 Mich 513; 265 NW 749 (1936), unless supported by the evidence in accordance with MCR 2.118(C). There should not be submitted as issues those propositions of fact that are admitted or have not been disputed. Richardson v Coddington, 45 Mich 338; 7 NW 903 (1881); Lange v Perley, 47 Mich 352; 11 NW 193 (1882); Vitaioli v Berklund, 296 Mich 56; 295 NW 557 (1941); Houck v Snyder, 375 Mich 392; 134 NW2d 689 (1965). The same is true with issues raised but not supported by the evidence. Litvin v Joyce, 329 Mich 56; 44 NW2d 867 (1950); White v Grismore, 333 Mich 568; 53 NW2d 499 (1952).

The trial judge need not give the charge in the form submitted by counsel, so long as the substance of such requested charge, if proper, is covered. Ferries v Copco Steel & Engineering Co, 344 Mich 345; 73 NW2d 850 (1955); Schattilly v Yonker, 347 Mich 660; 81 NW2d 343 (1957); Horst v Tikkanen, 370 Mich 65; 120 NW2d 808 (1963).

History

M Civ JI 7.01 was added April 1981 and replaced SJI 20.01, 25.12, 25.22 and 27.03. Amended January 1988, February 1989.