Sting v. Davis
Sting v. Davis
Opinion of the Court
The facts and proceedings in this case, as stated in a per curiam opinion of the Court of Appeals (22 Mich App 373), affirming the trial court, are as follows :
“This case arises from an automobile accident which occurred in the pre-dawn hours of August 5, 1962, in Saginaw County, Michigan. Plaintiff was driving north on Davis Road at about 35 miles
“Plaintiff, in his action, alleged negligence against defendant Davis and negligent entrustment against defendants Harrington in light of Davis’ poor driving record. Defendants answered that Davis was free from negligence in that the dog allegedly created a sudden emergency and further alleged contributory negligence on the part of plaintiff in failing to make an effort to avoid the collision.”
These further facts and proceedings are pertinent to this appeal: Sting testified that he noticed Davis’ car, when several hundred feet down the road, “was quite far over on his side of the road” but that he thought little of it. The next thing he knew, Davis’ car “had me pinned down head-on.” Davis was cross-examined without objection as to the traffic conviction arising out of the accident. It was admitted on the trial that Davis’ prior driving record could be shown because plaintiff had included a count in negligent entrustment by co-defendants. The trial judge overruled defendants’ objection to questions regarding Davis’ post-accident traffic convictions. The trial judge relied mainly on standard jury instructions in charging the jury. He told them to consider the testimony regarding Davis’ driving record for the purpose of testing credibility. Defendants objected to the judge’s refusal to give the instructions offered as to contributory negli
I. Standard Jury Instructions
Defendants claim the trial court’s standard jury instructions failed meaningfully to relate the definition of contributory negligence to the pertinent testimony in this case, quoting from Hill v. Harbor Steel & Supply Corporation (1965), 374 Mich 194, 207. The charge in the case at bar was given on January 23, 1969, prior to our order of April 14, 1970, with regard to standard jury instructions. (383 Mich xv.) The trial judge might have better related the law and the evidence in accordance with Hill. However, the trial judge did charge as to contributory negligence in accordance with the standard jury instructions. Upon a reading of the court’s entire charge in which the judge carefully explained the duty of plaintiff to use ordinary care for his own safety, that plaintiff could not recover if he was negligent and such negligence was a proximate contributing cause and plaintiff’s burden of proof, we find no error.
II. GrCR 607 and Cross-Examination ok Dependant
Defendants here principally complain of the questions to defendant Davis relating to post-accident traffic convictions. However, they now also object to the questions relating to ante-accident convictions on the ground that plaintiff’s negligent entrustment count was a mere “evidentiary subterfuge” to gain admission of otherwise improper evidence. As to all the questions relating to Davis’ driving record,
The right to impeach a witness’ credibility by cross-examination and the possibility of prejudice as a result of such interrogation were examined at length in the opposing opinions in Taylor v. Walter (1970), 384 Mich 114. A further extended discussion is unwarranted.
GCR 1963, 607 was adopted by this Court in accordance with its rulemaking powers as to evidentiary matters. The central issue in practically every contested motor vehicle accident case is whether defendant-driver was guilty of negligence and, if the plaintiff was the driver of the other motor vehicle, whether he was free from contributory negligence. As to the defendant, the question which confronts the jury is whether to believe the claim of the plaintiff that the defendant was negligent or the claim of the defendant that he was not negligent and, as to a plaintiff-driver, the issue is just the reverse. Almost invariably, as in this case, the defendant asserts, “I did not drive in a negligent fashion.” If the plaintiff was also a motor vehicle driver, as in this case, he makes the same assertion as to his driving upon finding himself accused of
We conclude that under GCR 1963, 607, as presently adopted by this Court, a trial judge has no discretion to exclude cross-examination with regard to the driving history of a plaintiff-driver or of a defendant-driver, such cross-examination being proper to test the credibility of the witness’ testimony with regard to the central fact issue in the case.
The issue as to negligent entrustment was not properly saved. Furthermore, our decision as to the scope of GCR 1963, 607 is controlling.
The Court of Appeals and the trial court are affirmed. Costs to plaintiff.
GCR 1963, 607 (374 Mich xv). “During the trial of civil actions the rules of evidence approved in Van Goosen v. Barlum, 214 Mich 595; Zimmerman v. Goldberg, 277 Mich 134; Socony Vacuum Oil Co. v. Marvin, 313 Mich 528; Cebulak v. Lewis, 320 Mich 710, and reenacted by PA. 1961, No 236, § 600.2158, shall prevail, anything in section 731 of the Michigan vehicle code (CLS 1961, § 257.731) to the contrary notwithstanding.”
Concurring Opinion
(concurring). I concur with Justice Adams’ conclusion that under Michigan law as it now stands, the questioning of a witness to test his credibility may include questions about prior convictions. For the reasons set forth in the per curiam opinion in Taylor v. Walter (1968), 15 Mich App 361, I think GCR 1963, 607 permits such questioning in the discretion of the trial judge.
Since the trial judge here saw fit to permit it, I cannot conclude he abused his discretion despite
Judge Charles L. Levin,
Recognizing this, and believing it to be no less important to our civil jurisprudence, I am of the opinion that the Michigan rule should be improved.
People v. Hall (1969), 19 Mich App 95, 111-115.
Impeachment of a Defendant-Witness by Prior Conviction, 6 Criminal Law Bulletin 26 (1970).
The Treatment of Witnesses in the Proposed Pules of Evidence of the United States District Courts: article IV, 25 Record of NYCBA 632 (1970). This article discusses Rule 6-09, as set forth in the preliminary draft of proposed Rules of Evidence for the United States District Courts and Magistrates prepared by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, March, 1969.
Dissenting Opinion
(dissenting). I stand for reversal.
At common law, a person convicted of infamous crime was incompetent to testify as a witness.
By statute in Michigan,
There was never any common law rule that non-infamous crimes or petty offenses could be shown to affect the credibility of a witness. Nor is there any logic in the proposition that a traffic violator is a liar. The relationship between conviction of crime and credibility is not based in logic; it is founded upon legislative fiat. The right to show prior convictions as affecting credibility is only as
MCLA §§ 600.2158, 600.2159 (Stat Ann 1962 Rev §§ 27A.2158, 27A. 2159).
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