Taylor v. Walter

• Decision Date: 27 August 1971
• Docket Number: No. 16,16
• Citation: 385 Mich. 599,189 N.W.2d 309
• Parties: James W. TAYLOR, Plaintiff-Appellant, v. Rudi WALTER, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 309

189 N.W.2d 309

385 Mich. 599

James W. TAYLOR, Plaintiff-Appellant, v. Rudi WALTER, Defendant-Appellee.

No. 16.

Supreme Court of Michigan.

Aug. 27, 1971.

Albert Lopatin, Detroit, for plaintiff-appellant; Norman L. Zemke, Detroit, of counsel

Roy P. Nelson, Detroit, for defendant-appellee.

Before the Entire Bench.

BLACK, Justice (for reversal and remand).

ON REHEARING

Further writing would amount to mere expatiation. I adhere to my original opinion (384 Mich. 114, 117--120, 180 N.W.2d 24) and vote again in accordance therewith.

T. M. KAVANAGH, C.J., and SWAINSON and ADAMS, JJ., concurred with BLACK, J.

WILLIAMS, Justice (for reversal and remand).

ON REHEARING

I concur with Justice Black without passing on 'Professor McCormick's 'undue prejudice' test.' I agree that no discretion was exercised.

T. G. KAVANAGH, Justice.

The Court of Appeals affirmed the Circuit Judge's refusal to permit the cross examination of the defendant on his driving record to test his credibility after he denied he had ever been arrested or convicted of a crime.

On appeal to this Court that decision of the Court of Appeals was affirmed ¹ by an evenly divided court, the writer having disqualified himself on account of his participation in the Court of Appeals decision.

Because of the frequency with which the issue recurs, however, it was the judgment of this Court that the matter should be resubmitted for consideration by the full bench in the hope that authoritative, definitive resolution of the question involved would assist the bench and bar.

In his opinion for reversal, 384 Mich. 114 at 117, 180 N.W.2d 24, Mr. Justice Black set forth that portion of the trial transcript containing the cross examination, colloquy and ruling giving rise to the issue in this suit.

An examination of it shows that no offer of proof or separate record was made. In such circumstance this Court usually makes short shrift of an appellant's assertion of error in the excluding of evidence, GCR 1963, 604.

Nonetheless we granted leave to rule on the question, so rule we shall.

Our late Brother Kelly's opinion for affirmance ² meticulously and cogently treated of the issue and gave in detail the Michigan Experience in dealing with the problem. No purpose is to be served by repeating the points he made.

The trial judge held that making a prohibited left turn is not a 'crime'. As a general statement taken out of context this is clearly wrong, for 'Whenever a person does an act which is prohibited by law, which act is punishable by fine, penalty, forfeiture, or imprisonment, he commits a crime.' People v. Hanrahan (1889), 75 Mich. 611, at 620, 42 N.W. 1124, at 1127. Thus, as a general proposition, any violation of the Michigan Vehicle Code is expressly made a misdemeanor or a felony with punishment by fine or imprisonment, and hence within the foregoing definition, a crime.

This is not to say that the trial judge erred in applying the law, or that in context his remark was wrong, however, for the 'crime' of making a prohibited left turn is not necessarily a 'crime' which touches on his credibility.

Thus, in context, his ruling was tantamount to saying that 'Conviction of petty crimes or misdemeanors may be shown, in the discretion of the trial judge, for the purpose of testing credibility, but in my view it is too prejudicial to the defendant here to permit you to show his conviction of a prohibitad turn.'

In Sting v. Davis (1971), 384 Mich. 608, 185 N.W.2d 360, a majority of this Court subscribed to the dictum that under GCR 1963, 607 'a trial judge has no discretion to exclude cross-examination with regard to the driving history of a plaintiff-driver or 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.'

This clearly would be an extension of the court rule as written, for neither in the language of the rule itself nor the four cases cited therein, viz., Van Goosen v. Barlum, 214 Mich. 595, 183 N.W. 8; Zimmerman v. Goldberg, 277 Mich. 134, 268 N.W. 837; Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, 21 N.W.2d 841; Cebulak v. Lewis, 320 Mich. 710, 32 N.W.2d 21 was the discretion of the trial judge so limited.

In Van Goosen, supra, the court said: (214 Mich. p. 599, 183 N.W. p. 9)

'3. Defendant, while on the witness stand, was interrogated as to the number of times he had been arrested and convicted. This is complained of as error. Defendant was asking the jury to believe his version of the accident. In determining the weight to be given to his testimony, they had a right to know what manner of man he had been in the past. These questions had a tendency to elicit the information, and were proper. Leland v. Kauth, 47 Mich. 508, 11 N.W. 292; Pratt v. Wickham, 133 Mich. 356, 94 N.W. 1059; Lunde v. Detroit United Railway, 177 Mich. 374, 143 N.W. 45; People v. Cutler, 197 Mich. 6, 163 N.W. 493; People v. La Londe, 197 Mich. 76, 163 N.W. 490.'

In Zimmerman, supra, the court said: (277 Mich. pp. 136--137, 268 N.W. p. 837)

'Notwithstanding the contention of plaintiff's attorney that this testimony was material in that it had a bearing on defendant's credibility, the trial court struck it from the record. Appellant asserts this ruling of the trial court constituted prejudicial error. It is a fair inference from the record that the trial judge was of the opinion that, since defendant's conviction was not of a Crime, but rather a misdemeanor, that therefore the testimony concerning such conviction did not bear materially upon his credibility. The statute which the trial judge had in mind provides in part that 'conviction of Crime may be shown for the purpose of drawing in question the credibility of such witness.' 3 Comp. Laws 1929, § 14217. Notwithstanding the statutory provision, it has long been established law in this State that it is within the discretion of a trial judge to permit a witness to be cross-examined as to his having been convicted of a misdemeanor. Van Goosen v. Barlum, 214 Mich. 595, 183 N.W. 8; Niedzinski v. Coryell, 215 Mich. 498, 184 N.W. 476.

In the instant case it must be borne in mind that the cross-examination of defendant was not one pertaining to a collateral matter and bearing only upon his credibility. Instead it was cross-examination concerning defendant's plea of guilty to a charge of reckless driving arising out of the very accident involved in the principle case. Excluding such cross-examination or striking the testimony from the record was error under the circumstances.' (Emphasis added).

In Socony Vacuum Oil Co. v. Marvin, Supra, the Court commented on the Zimmerman case saying: (313 Mich. p. 537, 21 N.W.2d p. 844) 'Following comment on the general rule that a witness may be cross-examined as to prior convictions for the purpose of impeaching his credibility, it was said:

"In the instant case it must be borne in mind that the cross-examination of defendant was not one pertaining to a collateral matter and bearing only upon his credibility. Instead it was cross-examination concerning defendant's plea of guilty to a charge of reckless driving arising out of the very accident involved in the principal case. Excluding such cross-examination or striking the testimony from the record was error under the circumstances. Especially is this true since in this case the defendant had testified in his own behalf and his testimony in effect was a denial of reckless driving. As just above indicated, we think it was not within the discretion of the trial judge to limit defendant's cross-examination by striking this testimony from the record; but instead this ruling constituted error which, except for the reason hereinafter indicated, would have been prejudicial and necessitated reversal."

In Cebulak v. Lewis, Supra, the court said: (320 Mich. p. 728, 32 N.W.2d p. 29)

'4. The trial court permitted cross-examination of Betty Lewis as to whether she had been charged with failing to yield the right of way to a pedestrian, as a result of the accident. She admitted having received two traffic tickets, one for failing to yield the right of way and one for not having a driver's license. She admitted over defendants' objection that her father 'took it (the ticket) down and paid the fine.' Doubtless counsel for the defendants made too much showing of importance of this matter before the jury. However, it was not error to permit the cross-examination. Zimmerman v. Goldberg, 277 Mich. 134, 268 N.W. 837; Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, 21 N.W.2d 841.'

Thus in Van Goosen, Socony and Cebulak it was held no error to Permit cross-examination regarding arrests and conviction of crime, and in Zimmerman while expressly affirming that it has 'long been established law in this state that it is within the discretion of a trial judge to permit a witness to be cross-examined as to his having been convicted of a misdemeanor' the court held it was error to Exclude 'cross examination concerning defendant's plea of guilty to a charge of reckless driving arising out of the very accident involved in the principal case.'

Since GCR 1963, 607 provides that the rules of evidence approved in those cases and 'reenacted by P.A.1961, No. 236' it would appear that the present rule is that a witness may be cross-examined, to test his credibility, regarding prior arrests and convictions, within the trial judge's discretion.

See 3A Wigmore, Evidence § 987 (Chadbourn rev. 1970). In a footnote to this section the author has exhaustively catalogued the authorities of many jurisdictions including Michigan. It is apparent from the cases cited that the rule vesting discretion in the trial judge has almost invariably been followed in Michigan.

The ratiocination behind the rule was set forth in Wilbur v. Flood (1867), 16 Mich. 40, wherein Justice Campbell wrote: (pp. 43--44)

'Defendant was sworn as a witness in his own behalf, and...