*1 1973] v Hatcher

FISHER v HATCHER Opinion of the Court Jury. 1. Constitutional Law—Statutes—Trial—Six-Man provides The statute which that in civil cases trial shall be jury of six and a verdict shall be received when five agree any way impede justice does not in completely and is constitutional, including permits the clause which a verdict (MCLA600.1352). agreed when five members have Evidence—Hospital Records—Admissibility. 2. providing admissibility statute for the of business records into portions evidence does not authorize the admission of those hospital prior records which relate to statements made to hospital personnel acts, transactions, and which do not refer to (MCLA600.2146). occurrences or events incident to treatment by Levin, Jury.

3. Constitutional Law—Statute—Civil Trial—Verdict actually against a case where the verdict rendered the defend- ant was unanimous there cannot be a reasonable claim of prejudice by judge’s charge that a verdict could be received jurors agreed, though when &ve of the six even there are concerning constitutionality reservations portion of that providing the statute that a verdict shall be received when &ve jurors agree. Appeal from O’Hair, Wayne, John D. J. Submit- ^[2] [1, Admissibility Admissibility Sufficiency 40 Am Jur whether 1032. 47 Am Jur patient, of waiver of full patient 2d, Hospitals 38 ALR2d 778. References 2d, Jury hospital malingering §§ record for Points 124-135. jury, Asylums relating relating 93 ALR2d 410. in Headnotes 43.§ feigning injury, to intoxication or physician’s opinion 55 ALR2d sobriety as to App 541 op Opinion (Docket 5, 1972, at Detroit. April ted Division 10973.) 20, 1973. February No. Decided *2 against Samuel Complaint by Betty R. Furniture Company Hatcher Gorman for dam- and received in an injuries for automo- ages personal judgment and for bile accident. Verdict defend- granted. for a Plaintiffs motion new trial ants. plaintiff. Defendants judgment and Verdict Affirmed. appeal. Miller, Bindes, Freedman, Tanielian &

Lopatin, (Michael Feiler, counsel), H. for plaintiff. Silver, Schwartz, Schwartz &

Sugar, Tyler, defendants. J.,P.

Before: Bronson Van Valkenburg,* JJ. Valkenburg, litigation J. This arises out of

Van The first trial resulted in an automobile accident. action; subsequent a verdict of no cause but thereto, plaintiff filed a motion for a new trial ground jurors that four had failed to dis- on the at close that or members of their families had they in a collision one time been involved motor-vehicle damages. property resulted in a claim for not granted, The motion was but defendant did Later, held, trial and the appeal. jury new in the returned a verdict in favor of the $20,000. that It is from this decision amount appeal. defendants issues which will

The defendants raised several First, separately. they considered contend be Fur- of 12 members. they jury were entitled to a * by assign sitting Appeals judge, circuit on the Court of Former pursuant amended in 1968. ment to Const as § Fisher v Hatcher Opinion of the Court

ther, if not they argue they are entitled to a jury, they 12-man were entitled to an instruction of the entire 6 panel decision on the must questions unanimous. Both these were raised success, with the jury being below no a six-man being given and the instruction usual that a returned could be when five members thereof had

A understanding clear of this issue requires acquaintance with certain constitutional and stat- utory provisions. Const 14 provides: remain, by jury "The of trial shall but shall be waived in all civil cases unless demanded one of the prescribed parties in the manner law. In all civil cases tried verdict shall be received when jurors agree.” *3 At the this was time written the use of 12 jurors in civil cases almost universal. Obviously the provision intention of this make it possible was to agree for ten to thereby minimize the number hung juries. so-called 4, 1963, provides: Const 44§ legislature may "The by trial jury authorize a a less than 12 in civil cases.” unambiguous. This section clear and The lan- guage the Legislature may indicates that authorize 12, trial of than designate a less but doesn’t number. 1963, 4, provisions

Pursuant to the of Const 44, Legislature enacted MCLA originally 27A.1239, which provided: any court, "In civil in circuit trial shall case a jury upon request any of 6 party the written and the op Opinion parties written other consent of all not later than the time of pre-trial conference.”

This useless, statute was practically be- largely requirement cause of the for consent on both sides. Accordingly, the Legislature took the next step, which was the enactment of MCLA 600.1352; MSA 27A.1352, provides: which cases, "In civil trial shall be of 6. A verdict agree.” shall be 5 jurors received when regard With question size, to the of jury Supreme Court of the United States has spoken on Florida, subject Williams v 101; US 90 S Ct 26 L Ed 2d 460-461 following manner: experiments "What few have occurred—usually in the civil area—indicate that there is no discernible difference between the ent sized results reached the two differ- juries.”

It presumptuous would be indeed for this Court to hold statute which permits a verdict of five unconstitutional, to be since Supreme our Court recognized rule, has it by GCR 512.1 as amended, and has authorized standard Jury In- struction No. 1.05 provides in part: "When at least you agree upon verdict, five of will your be received as verdict.”

Accordingly, we hold that MCLA 600.1352; MSA *4 27A.1352 does not in any way impede justice and is completely constitutional, including the clause permits which a verdict when five members have second, The and perhaps important most issue raised by the defendants deals with denial of v Hatcher Opinion of the Court portions certain of the read to had been admitted into records which MCLA authority of on the

evidence part pro- statute pertinent 27A.2146. vides: in whether the form of an writing record "Any or otherwise, made as a memorandum or

entry in a book transaction, or event shall be act, occurrence any trials, hearings pro- in all in evidence admissible court, any any or before or suit ceedings any cause act, referees, arbitrators, proof in if it was made of said officer, or transaction, or event occurrence regular it and was any business regular course such memorandum or to make of such business course act, transaction, occurrence time of such record at the thereafter. All a reasonable time or within or event making writing of such or of the other circumstances personal knowledge by the including lack weight maker, affect its but may be shown to or entrant admissibility. The term 'business’ shall include not its calling every business, occupation profession, act, regarding any transac- entry kind. The lack of an tion, writing or record so any occurrence or event act, no such as evidence that proved may be received fact, did, place. transaction, take or event occurrence any reproduction of photostatic photographic or Any in evidence writing or record shall be admissible such in court, trial, proceeding by hearing or order any such discretion, upon motion with its made within All circumstances of the days. than 4 notice of not less reproduc- photographic making photostatic or of such trial, hearing proceed- upon may shown such tion be admissibility of such weight not the ing to affect the but added.) (Emphasis evidence.” cases, some replete are with The records reconciled, to in- attempt which cannot be pro- speaking, Generally terpret statute. with "transac- deal those entries which vides admitted. occurrences, tions, may or events” *5 App 541 Mich op Opinion wanted the Naturally, the defendants to have impressions the evidence of statements prior accident, to plaintiff were made while plaintiff outpatient. was an This situation Harrison v Lor appear would to be controlled enz, (1942):

"However, portions of such records which do not refer acts, transactions, occurrences or events incident to treatment are inadmissible.” also, Mayer, Valenti v See (1942), Mich 551 Sadjak v Parker-Wolverine and (1937). 281 Mich 84 Watters, v see, Osberry But such records where were used for im- peachment purposes plaintiff after had denied a prior accident.

Another is clearly Snyder point case which on v Oldsmobile Division of General Motors Corp, (1969): Mich App alleged "Until fact that Mrs. Snyder made the statement attributed to her and set forth in history proved brought exception was with such dispensing within an proof, entry such as the business statute (MCLA 600.2146; 27A.2146), testimony seeking prove alleged the contents of her statement was inad- missible. The defendant concedes that the introduction Snyder’s history evidence of Mrs. medical cannot be justified entry under the business statute.”

In light authorities, of the foregoing we find proof no presented which would indicate the truth or falsity impressions the statements which were set forth in the record. All of these prepared were while the plaintiff outpa- was an acts, occurrences, tient nothing and had to do with transactions, or events incident to her treatment stand, after the accident. was on the Hatcher v J. P. defendants, attorney but perhaps reasons, neglected justifiable cross-examine her concerning statements. Accordingly, these the trial court denied admission of properly those portions relating prior *6 statements hospital personnel. made by Thirdly, complain defendants the reversible plaintiffs error the by was committed attorney in opening closing his statements to the jury. A review of the record discloses that there was more than usual amount of bickering between the. the attorneys during this trial. This not conducive to dignity of a and should lawsuit not be toler- ated. The clearly shows that the attorney opened for the defendants the door and thereby justified the of the plaintiffs comments attorney. light of the fact that comments plain- made by tiffs counsel by were "invited” defendants’ counsel light and in fact the trial court ulti- mately disregard instructed the attor- neys’ interjection personalities issues, into the we hold that may argue ques- defendants not appeal. tion on

Other alleged errors raised the defendants have been lacking examined and found to be merit.

Affirmed. plaintiff. Costs to the Bronson, J., concurred.

Levin, P. J. (concurring).

I hospital Some of the statements contained sought records which defendants unsuccessfully to have admitted into evidence in this simi- case are lar to the statements declared to admissible Mich Hudnutt, (1937).1 Gile v 279 Mich Other statements contained these records—in contrast self-serving with the plaintiff’s statements decedent to be Kelly v Ford held not admissible Co, Motor and Sadjak v (1937)—con- Parker-Wolverine by a party opponent.2 stitute admissions Nevertheless, Michigan Supreme Court and our Court so many have on occasions declared or intimated that a record reflecting "his- tory” "diagnosis” is not admissible under exception to business-entry hearsay rule3 that I persuaded am the trial judge probably did not in refusing err admit these records into evi- dence.

So that trustworthy probative evidence of value admission, is not denied appropriate would be existing precedent. re-examine See McCormick on (2d ed), §313, *7 731-732; see, Evidence pp also, hospital 1 In Gile the records held admissible included the "re patient hospital, marks” that Bleeding was the "admitted to the carried in. mouth, pulse very cyanotic.” from weak. Color the instant hospital the case records made over a number occasions included following plaintiff concerning tears”, the quite anxious”, Fisher: "broke down in "is nervous”, put pounds”, tense and "has on 20 "tearful and agitated”, "depressed and "tearful as usual”. 2 Kelly Sadjak compensation Both were workmen’s cases in plaintiff containing which the the deceased workman Similarly, offered records statements attributing injuries on-the-job his to accidents. (1954). Vearrindy, 579, see Case v 339 Mich 581-582 Here containing the defendant offered records statements to as, difficulty talking her doctor such people, including physicians”. "She comments on her in begun worry "She has about the possibility of cancer.” has "She withdrawn herself from social con headaches, burning tact.” "She is worried about intermittant sensa extremities, by aspirin. today tion is the lower relieved Examination essentially negative.” Osberry Watters, 258, App Cf. v Mich 7 262- (1967). 263 3 Estate, 519, (1948); Osberry See In re 321 v Nickel’s Mich 523 Watters, 262-263; supra, pp Stone, 512, Bryson App v 33 Mich 525 (1971); Greenwood, 41, (1971); App Bond v 34 43 Mich Boudrie v Detroit, 686, Seven-Up Bottling (1972); App Co of 40 Mich 688 Cf. Gile Hudnutt, 358, (1937); Lorenz, 279 367 v Mich v Harrison (1942). 382, 390 549 v Hatcher this the first edition of trea- discussion earlier (6th 611-612; ed), tise, 290, Jones on Evidence pp § Osberry Watters, v 362-364; 7 12.12, pp § (1967). 258, 263 II the concerning constitu- I have also reservations PA sentence of 1970 118: second tionality the by jury a of 6. A cases, shall be trials "In civil 600.1352; jurors agree.” MCLA when shall be received MSA 27A.1352. per present in our Constitution provision trial by "authorize a a

mitting Legislature the in civil cases”4 continues jurors of less than jury found in the provision a like the substance adop 1850 and 1908.5 Before Constitutions Constitution, Legislature exer tion of the 1963 for by providing juries six-man authority cised justice municipal courts to be tried cases act unanim jury requirement courts.6 The however, not, affected. was ously7 adoption Consti- It not until "the trial long-standing tution by providing was modified jury shall remain”8 cases, 1963, recently 4, 44. As to criminal see art § Const 1, 1963, permitting adopted 20§ to Const art amendment prosecutions for misdemeanors "consist of less than year”. punishable by imprisonment than 1 not more 4, 46; 27.§ Const § See Const 299, §23; 730.23; 27.3773; See, MCLA e.g, 1911 PA MSA MCLA 600.7029; 27.3935(12); MSA MCLA PA *8 1846, 28.1204; 774.13; 173, §107; R 27A.7029; S MSA 1855 PA MCLA Practice, Pleading Callaghan’s Michigan 94, 9; 76; & 1861 PA 14 ch § 124.44, 590. § p 7 399, 401, Rapids 405 93 Mich v The L & D R McRae Grand (1892). 8 1, 6, 1835, 1850, 1908, 2, 13; art art Const § Const § Const 9, providing remain inviolate”. that the "shall latter § App 44 less verdict than a unanimous to the following tried extent: "in civil cases jurors all jurors verdict shall be received when 10 agree”. 1963, (Emphasis 1, Const supplied.) 14. The § people address to the states that change this would when ”at least 10 permit actions verdicts civil agree”. jurors (Emphasis supplied.)9 This constitutional modification of the unanim- ity requirement is self-executing and does not appear legislative to authorize action.

If this constitutional provision—providing for receipt a verdict when 10 of 12 jurors agree— also means verdict shall be received when 5 then, 6 jurors agree,10 instanter, upon the effec 1964) 1, tive date (January of the 1963 Constitu tion verdicts should have been received in munici pal justice and courts when five of six

Whatever meaning of this constitutional provision, Legislature change, could not en- large, or modify meaning.

The Michigan Supreme Court implemented has the second legislation sentence court rule providing that a verdict shall be received in a civil case when five six jurors agree.12 Whether Supreme Court’s pro- non-decisional action in MCLA, 623; p MSA, p See 1 359. provide receipt Some state constitutions of a verdict when "5/ agree. discussion, Jur, Trial, 1006, 697-699, pp 6ths” See 53 Am pocket part. See, generally, Chicago Sanford, 418, & M L S RCo v 3, 423-434 E 500. and Annos 43 LRA LRA 1917 A Ann Cas 1916 appears providing It receipt the first act for of a jurors agree establishing when 5 of was the act the district court. 600.8353; Similarly, 1968 PA 158, MCLA MSA 27A.8353. see 1971 PA 27A.7058, providing municipal MCLA so courts. (instruc (rendering verdict); 12GCR 512.1 GCR 516.6 SJI, jury) tions to No 1.05. *9 Hatcher v by Levin, Concurrence P. J. precludes

mulgating a court rule lower courts considering from on the merits an attack on the constitutionality legislation implemented by of the need rule not now be decided.13In this case the Banking Co, County 434; Cf. Meek v 268 US Centre 45 S Ct 560; (1925); 69 L v Ed 1028 Guastello Citizens Mutual Insurance (1968). 120, 134 Maris, Judge Judge Circuit Albert B. Senior of the United States Circuit, Appeals recently Court of question for the Third alluded the testimony prepared delivery Judiciary in the House proposed in Committee connection with its of consideration the Fed- eral Rules of Evidence: suggested by go "It has been that beyond some the of rules evidence rule-making power Supreme they the substantive USCS of impinge the Court on rights litigants act, of enabling in violation of the therefore, pass beyond procedure. and the area As to only say I can that the ad hoc committee which recommended project, advisory prepared the standing the committee which the rules and our fully committee which them reviewed all are satisfied that are, by operation basically proce rules dural, and, therefore, Moreover, standing evidence their nature and rule-making power within the of the Court. advisory drafting the committee the rules and our considering great them committee took care to make sure provisions might fairly that no were which be characterized as substantive included. The distinction between what is substantive and what procedural rule-making standpoint is, course, is as the Court from the Federal pointed Plumer, out in v Hanna 380 US 460 S Ct [85 1136; (1965)], quite may 14 L Ed 2d 8 different from applicable in other contexts. we And would be the last claim infallibility application any our of this distinction. But if do, fact, rights rules evidence in Supreme alter substantive in violation of enabling may upon, the question act the Court be relied when the brought judicially, before it so to hold to strike down offending provision. opinion the For as Chief said Justice Stone in the Mississippi Publishing Corp Murphree, of the Court in v US 242, 246; (1946)], 444 Court S Ct 90 L Ed [66 'The fact that this promulgated by the rules as formulated and recommended advisory meaning validity, does committee not foreclose consideration their consistency’. County or Co, Indeed in the case of Meek v Centre Banking (1925)], 268 US S 69 L Ct Ed 1028 [45 actually general did down strike as invalid one of the orders bankruptcy promulgated rule-making which it had under the author ity granted opinion by Bankruptcy my to it Section 30 of the Act in 1898. proper wholly such action the Court was and I think that not, making by matter, practical rule any Court could as a function on required if other basis. For Court were determine in vacuo advisory opinion kind of without aid of in the counsel litigation setting every procedural adopts is valid rule which every making standpoint, hardly from proceed.” rule as we know it could App against rendered actually defendants unanimous, and, therefore, they cannot rea- sonably they prejudiced by claim that were a verdict charge that would be judge’s received when five of six