*1 486 384 486 safeguards with the procedural compliance shows other crime of any prosecution for the established equal gravity. discharged. Defendant Reversed. T. E. C. and Adams, Brennan, J., T. M. Kavanagh, Kavanagh with concurred JJ., and Williams,
T. Gr. J. Swainson, the reason- agree with (dissenting). (17 Division 2 and result reached by submitted
ing dissent. register and therefore App 525) FLINT CAB CO. OF v. VETERANS HENSON Opinion op the Court Exception Ruling Appeal Rule. and Error — —Court 1. ruling abolished exception to a court has been The need for formal 507.5). Michigan by (GCR 1963, a court rule Appeal and 2. New Trial —Denial New Trial — Error —Burden op Appellant. party denying seeking A order a new reversal of a court’s (1) showing: appellate trial has the court of burden [1] [2] [9] [10] '6] '8, '3] '4] Formal 9] 7] 8] ALR2d 909. ability. 73 4 Am Jur 58 Am Witnesses Am5 Ruling 5 Am Jur 58 Am Witnesses 5 Am Jur Admissibility, for prior Am Am Jur requirements of Jur, Jur, on offer of Jur statements Jur, References 2d, Appeal 2d, Appeal 2d, Appeal 2d, Appeal ALR2d 2d, Witnesses Appeal proof as 250. by him purpose of §§ fob and Error judgment § Error Error 620-622. Error 643. Error error. 89 ALR2d 279. Points consistent § § § §§ supporting 780. 501. 677. § or order in Headnotes 624. 545-647. with impeached regards appeal- testimony. 75 witness, Cab Veterans erroneous, opposed ruling (2) ruling that he ruling, (3) and contended for a errone- prejudicial, request ous so that denial of his *2 justice trial for new would be .inconsistent with substantial (GCR 1963, 507.5, 529.1, 604). Appeal Separate 3. and Error —Offer of Proof — Record —Direct Examination —Cross-Examination. or cross-examination,
On direct proof request an offer of or a separate amake record will serve to show that counsel opposed the court’s and contended ruling. for a Appeal Prejudice—Presumption—Burden Ap- 4. and Error — of pellant. appellant prejudice is
The burden on the to show where the rec- prejudicial, reviewing ord does not show the error was aas presume prejudice. court will not — — — 5. Witnesses Cross-Examination Evidence Written Docu- ment. Generally, may a witness not be the con- cross-examined as to which, produced, tents of a written is document which or identification, although marked for has not offered in been apply the rule greater evidence and would with where force subject of specially the cross-examination is a excluded portion documentary of a exhibit. 6. Witnesses —Cross-Examination—Restriction of Cross-Exami- nation. supposed prevent-
It cannot be that the trial court would have pursuing proper ed counsel defendant’s cross-examina- plaintiff plaintiff’s tion object of where counsel did but claiming moved for a mistrial that de- counsel, asking reading fendant’s while hospital from a portions reeord from which had been excluded jury’s from the consideration and court made clear attorney defendant’s effort further to cross-examine plaintiff upon portions hospital of excluded record would permitted not be denying mistrial; the motion for because, jury reconvened, when the might defendant’s counsel well have laid the record aside ques- and restated his tion.
Concurring Appeal Saving 7. and Error — for Review —Witnesses— Question Separate Objec- Cross-Examination — Record —Offer of Proof — tions. being undmly restricted in his of defense plaintiff cross-examination was not raised and saved of review where the record to disclose that he asked fails make, separate leave to either a whatever cross-ex- mind, he proof amination had i/n disclose offer of any objection judge’s manifestly arbitrary to the trial take- cross-interrogation over whatever plaintiff as was then rightly due, judge say. her told what to after Written Witnesses —Cross-Examination—Prior Statement. It to cross-examine a witness as to the contents unfair writing precise made him until the informed of writing against assuming contents and thus warned con- really tradictions do not exist and which would also be explanations to the witness because which unfair *3 memory would occur to him his until had been refreshed by hearing paper the read. Impeachment Contradictory — — — 9. Witnesses Statements Laying Impeachment. Foundation for impeach by proving contradictory statements, To a witness the impeaching question time, place person, must and fix language given which it claimed witness used must be and he must be asked used and the same so if far language concerned, must then be the im- asked of peaching witness. Separate Attorney 10. Trial — Record — Rule— Client —Court Saving Appeal for Review — and Error. Question duty courteously Counsel has to insist on his absolute Michigan make courts record whatever record he of necessary rights protect and, conceives his client of if denied, by should then to make the desired putting writing and, having it in attested it with effect provided rule, by filing it, tendering court filing, it for part the clerk’s aas the court’s record office and, done, action in trial where was not although, argument saved review on oral in the Mich- for igan Supreme argued Court, counsel that he intimidated judge prevented making the trial and thus a record complaints possible (OCR 1968, 114.2). review for thereof Cab Veterans the Court Appeal Appeals, from Court Division T.2, G. Kavanagh, Quinn P. J., Miller, revers- JJ., ing remanding Papp, Genesee, Elza H. J. Sub- (No. February January mitted Term 52,471.) April 1971, Docket No. Decided 5, 1971. App 219 reversed. Complaint by Gladys Henson and Hubert Henson against Eugene Leavy Veterans Cab Co. of Flint and personal injuries. judg- recover for Verdict and plaintiffs. ap- ment for Veterans Cab Co. of Flint pealed Appeals. Reversed and appeal. remanded for a new trial. Re- Plaintiffs versed. $ Segar
Leitson, Dean, Dean, Hart, C., P. for plaintiffs.
Howard G. Fisher, for defendant Veterans Cab ofCo. Flint. negligence T. E. In this automobile Brennan, plaintiffs
case, recovered a in the amount of verdict sought judg- Company $12,500, defendant Cab notwithstanding ment trial, or new verdict both appeal, Ap- of which were denied. On the Court peals- reversed and remanded a new trial on the ground judge improperly that the trial had restricted per- plaintiff. defendant’s cross-examination of *4 portion transcript tinent of the trial is as follows: you “Q. you hospital, Now, when entered the were questions by personnel asked a number of hospital, you were not? yes. “A. Yes, questions, “Q. you And in answer to the ex- did plain to you attendants had suf- the Couet pains yon ever since fered from chronic hack np pain and radiated down and that this child, your spine? right. Okay, yonr I
“Mr. Abram: All Honor. going jury am sorry. to ask that he excused. I’m gentlemen, I “The Court: think it’s Ladies and anyhow. Remember, about time for a talk about the case don’t recess anyone. amongst yourselves yet. We haven’t heard all the evidence take a So please. short recess, “ quarters, (Whereupon retired to its pres- following proceedings its were held outside hearing.) ence and time, and de- this Honor, Your at “Mr. Abram: spent spite have on time that we the efforts and going I’m for a mistrial. I’m move case, this going Mr. reason: mistrial for this for a to move trying he’s been Fisher has a record there during improperly, get evidence, and into the on the stand trial. Dr. Gfutowwas whole entry he ever if made an Dr. Gfutow he asked —if He have shown He no. could entered that. said explained it. He him he could have it to and then up picks that it. Mr. Fisher didn’t do Now reading it evidence and is like was front jury. improper evidence. I think that part jury thinks of the evidence. it’s they Mr. I can don’t, Abram. No, “The Court: I do. understand, surprised you. really I at Fisher, Mr. am “And, pulling Throughout you been this whole trial every grandstand plays. have been in some You things way attempting put I where have re- peatedly you not to. told day of the trial, the fourth “However, this is your going I’m to take motion under advisement. you. “Mr Abram: Thank terrible, terrible “The Court: think this is lawyer’s jury’s time time, waste of permit go jury. this to of this Court’s to *5 Henson v. Veterans Cab Opinion op the Court “But, Mr. Fisher, this time, last and the last time permit you I that intend you to do what doing. have been please,
“Mr. Fisher: If the I submit that proper. this I I is cross-examination and contend it’s question— have asked “The doesn’t Court: She who know wrote that or put they what down. just you me ask one Mrs. Henson. “Let you paper person ever shown Was that who took it down— No. “The Witness: “The right. you All —so that could make Court:
any corrections or additions'? “The Witness: No. right.
“The Court: All “Mr. please, naturally if the Court Well, Fisher: paper couldn’t be shown to her. This was— you right, get “The Court: All Mr. Fisher, person who took here as witness that down so you they properly Then can be cross-examined. might cross-examining be able to start Mrs. proper way doing on it. Now, that’s it. You get person actually wrote down who there gives your opposition opportunity so that it particular person. And then, cross-examine you only when foundation, laid that then you then can then on Mrs. Henson it. will take a “We short recess. “(Short recess.) “(Whereupon following proceedings re- presence hearing jury.) sumed within the May just inquire.
“The I Court: You have one right, more witness, Henson; Mr. is that or how many? your “Mr. Abram: Two more Honor. witnesses, “The Court: Oh, two more. questions. “Mr. Fisher: No other — proceed, “The Court: You Mr. questions, your “Mr. Fisher: No other Honor. the Court “Mrs. McKenna: question. want to “The Court: may. You McKenna: Thank “Mrs. “The Court: You are you.
through cross-examining, Mr. Fisherf Yes.
“Mr. Fisher: added.) “The Court: right.” (Emphasis All the in this Court urge Plaintiffs-appellants in defendant’s preventing trial judge of the action the man- plaintiff in cross-examining error, prejudicial, if attempted, ner to to the seek obligation defendant had to be matter sought a record of the separate make Defend- the excluded cross-examination. by proven as which 604, provides to GCE points 1963, ant follows: a to
“If an to a objection question propounded examining by court, the witness is sustained the he ex- offer what attorney specific make a may or the witness, by the answer of prove to pects by may in relation the witness leave of examine court, be made the offer to may require thereto. The court of the hearing or the taken out testimony other further such or court add jury. character of the evi- statement as clearly shows offered, objection the form in which it was dence, made and the ruling thereon.” that Eule 604 does Defendant-appellee contends to out apply cross-examination, pointing often the cross-examiner does not know what therefore, to his question be, is, answer will to make expect unreasonable cross-examiner to prove offer of what he to specific expects of the answer witness.
At law, any common party complaining of the on a ruling procedure court matter law or during process excep- must take an v. Veterans Cab Co. Opinion op the Court tion in order thereto to secure the to have the propriety ruling appeal of such on or reviewed writ Appeal pp § Am of error. 3 Jur, Error, Michigan, exception 47, 48. In the need for formal to a court was abolished statute, CL (Stat 27.1040), § 618.60 Ann which read as follows: necessary “Sec. 60. It shall not be trial of any proceeding any action or of record, court to except any ruling to or action of if an court, objection duly exception thereto was made, but shall be course, deemed follow as a matter of any necessary except it shall not be case to the charge jury, of the court to the refusal of charge requested; any party the court to as but aggrieved considering by any ruling, himself such charge charge, may assign action, or refusal exception errors the same if had been made ac- *7 cording practice heretofore in use.” statutory provision repealed This at was the time adoption of the the of Judicature Act in Revised place, adopted In 1963. its GCR providing 507.5, as follows: Exceptions Unnecessary. exceptions “.5 Formal rulings unnecessary. to or orders of the court are It party, [sic] is sufficient a of that at the time the ruling sought, or order of the court is made or makes known to the court the action which he the desires objection court to take or his of action the the grounds party court and his if a therefor; and, has opportunity object ruling no to a or order at the objection time it is the of made, absence the does prejudice thereafter him.” bearing Also on the GCR It 529.1. provides:
“.1 Error. Harmless error in either the No admis- sion or the exclusion of error or evidence and no the Court anything ruling any or in done order or defect any parties by of the or or court omitted setting ground granting or for aside for a new trial vacating, modifying, or a for otherwise or verdict disturbing judgment order, or unless refusal a appears to the court inconsistent such action take stage justice. every at The court with substantial proceeding rules to secure construe these of the shall inexpensive just, speedy, determination consequences any every error avoid the action so as to proceeding not af- which does defect rights parties.” fect substantial together,* Reading we conclude these three rules party seeking a the trial court’s reversal denying burden a trial has the new order ruling (1) appellate showing court ruling (2) opposed con that he erroneous, (3) proper ruling, errone for tended ous a ruling prejudicial, the denial so that request a new would be inconsistent with for justice. substantial discharge responsibility, are
In the of this counsel permissive provisions of Rule aided cross-examination, offer Whether on direct or request separate proof will or a to make opposed serve to show that the court’s ruling. the rec- Where contended prejudicial, error was ord does not show that the presume prejudice. reviewing will not court prejudice. appellant The is on the burden show easily ap- principles are so thus stated *8 plied which de- to the case at hand. The attorney which he claims fendant’s asked and permitted pursue follows: not was as ques- [By Fisher] to the “Q. Mr. And in answer hospital explain you did attendants tions, to the 604, 507.5, 529.1. * OCR v. Veterans Cab Co. the Court
you you pains had from chronic suffered hack ever since pain up awere and that this child, radiated your spine?” down alleged damages Plaintiff had that she suffered injury her back. The nature and extent of her pre-existing problems, any, certainly back if in issue, there could be no counsel’s right inquire prior history pain. her into or back there Moreover, would be no doubt of counsel’s inquire previous plain- a whether on occasion the extrajudicial tiff had made an admission on the subject of her back condition. dealing simple objection
If we were with a to the question propounded, trial court sustaining objection, may argued well be that, question being proper prejudice relevant, apparent in its exclusion is on the record. Appeals pre- treated the matter in cisely way.
But this is not such a case. Plaintiffs’ counsel did object question. to the Rather, he asked that excused, and their absence moved for a mistrial.
Plaintiffs’ counsel claimed that defendant’s coun- asking question reading sel was—while the cited — hospital hospital from record. That record had pre-trial been admitted evidence at a conference, entirety. jury’s but its Excluded from portions hospital consideration, were those being record which were inadmissible as not within purview exception of the business entries hearsay Mayer (1942), rule. Valenti v. 301 Mich Vearrindy (1954), 551, Case 339 Mich Michigan other procedure decisions hold this to be the
when records are admitted in evi- (Stat dence under MCLA § 600.2146 Ann Rev 27A.2146). *9 486 496 by Black, J. plaintiffs’ request for a mistrial substance
The irrespective propriety of the therefore, was which he asked the manner in defendant’s convey jury question to the calculated to hospital impression record contained fact in made Mrs. Henson had evidence that leading question. in counsel’s statement contained general witness be cross- rule, As a a written the contents of document examined although produced, marked which, which for not been offered evidence. identification, has p Witnesses, Am Jur, greater Certainly, apply force rule would with subject is a of the cross-examination where portion documentary specially exhibit. of a excluded plaintiffs’ judge denied motion for mis- The trial doing so, trial. In she made clear defendant’s attorney Mrs. to cross-examine that further effort hospital upon portions Henson excluded permitted. record, would not be defendant’s counsel reconvened, When offending might well laid the exhibit aside and have That Mrs. Henson. restated his last objected and it cannot to, never prevented supposed that the trial court would pursuing proper cross-examination improper display rec- of the the absence ord. Appeals is reversed decision denying defendant’s court,
and the order of the trial plain- for a affirmed. Costs to trial, motion new tiffs-appellants. J.,
T. M. C. Kavanagh, Adams, Swainson E. J. concurred with T. JJ., Williams, Brennan, questions (concurring result). Two J. Black, defending posed all caused cross-examiner Cab Veterans Opinion by appellate these trial and misadventures. The dual questions, response and the direct examiner’s which summary hearing led to the at chambers, follow: *10 you hospital, you “Q. Now, when entered the were questions by personnel a asked number of the of the hospital, you were not? yes. “A. Yes, questions, “Q. you And in answer to the did ex- plain hospital you to the attendants that suf- had pains you fered back chronic ever since were pain up child, and that this radiated and down your spine? right. Okay, your “Mr. Abram: All Honor. Iam going jury sorry.” to ask that the be excused. I’m plaintiffs’ Then came the at-chambers motion counsel for an order of and the mistrial, rather abrupt admonitory proceedings Justice Bren- appellate difficulty nan has recorded. The is that the record fails to that disclose counsel asked leave separate make, to either a record of whatever cross- proof. examination he or had mind an offer of objection any And fails to it disclose judge’s manifestly arbitrary take-over of whatever cross-interrogation witness-plaintiff as was rightly judge say. then due, her told what to after Beturning now to the courtroom, when the present quoted questions put was and the witness-plaintiff: alleged If as the cross-exam- flourishing pro- iner had hand some document he posed employ, quite his second out of order. The does that disclose document in hand been had marked for identifica- It tion. fails to show that the had been document 1 opinion See (16 bolding 2 App 219), Division Mich that unduly defense counsel restricted Ms of cross-examination. I find that no such was raised and for review. saved 486 Opinion by Black, signed the witness.2 otherwise attested It had been shown fails to reveal the document prior beginning questions, two witness, aiming inform that counsel was other and fails to making up for the at foundation intro- than impeaching testimony (by some duction attendants). attendant or forget laid
First:
should not
rule
We
(1933),
People
pliance as far which, with that rule back as 1875,was in De Neasmith, laid down Armond sponte expounded sua in Rice v. later Rice (1895), quote Mich 371. To Rice at 379: proper
“In
of new
we deem
trial,
view a
re-
impeachment by
mark that the
method of
pursued
proving contradictory
statements was
person
place,
in this
Time,
case.
must be fixed
impeaching question.
language
which
given,
it is claimed the
witness used must be
asked if he used it. The
so
same
far as
language
concerned, must then be asked
impeaching witness. De Armond v. Neasmith
“ attempt impeach ‘When made a witness, there should be no reasonable doubt but that the questions impeaching asked the and the witness wit- sought impeached ness to be are one and the same. easy It is so for witnesses to misunderstand each forget really or to other, should what was said, that there dispute respect. no chance in this requires Fairness to both this.’ opposite “The unfairness of the course is well in this illustrated case. It is fair to remark that no objection pursued to the course was made.”3 *12 judgment
I entry would reverse and remand for of judgment affirming court, trial and for plaintiff. of award costs ments.”, pp 528-530. 318, “Laying the Foundation this For rule, former see Potter, Michigan Attorney General and later Evidence Civil for Proof Justice Potter’s detail Inconsistent Criminal (1920), State- by supported Although mere dicta it amount to will by to remark” Justice, too “deem it but one hearing. concerning this at-chambers bit by intimidated It that counsel was be making judge, prevented from and thus record complaints possible thereof. of his for review Such argument, conveyed oral sense of his at least was questions presented response from the in bench. alleged pur- Accepting poses, for discussional the fact duty counsel to it nonetheless the insist courteously on his absolute to make in our whatever record he conceives neces- courts of record protect rights sary if that and, client then denied, should to make desired putting writing having by in it attested with and, it filing provided it 1963, 114.2, the effect G-CR (or tendering filing) officeas a the clerk’s part That action trial. the court’s record to re- here, hence this reluctant vote not done verse remand. case.
T. did not J., Gr. sit Kavanagh,