Anderson v. Harry's Army Surplus, Inc.

• Decision Date: 22 September 1982
• Docket Number: 53744,Docket Nos. 53743
• Citation: 117 Mich.App. 601,324 N.W.2d 96
• Parties: Glen E. ANDERSON, Plaintiff-Appellee, v. HARRY'S ARMY SURPLUS, INC., a Michigan corporation, and The Coleman Company, Inc. a foreign-Kansas corporation, jointly and severally, Defendants-Appellants. 117 Mich.App. 601, 324 N.W.2d 96
• Court: Court of Appeal of Michigan — District of US

Page 96

324 N.W.2d 96

Glen E. ANDERSON, Plaintiff-Appellee, v. HARRY'S ARMY SURPLUS, INC., a Michigan corporation, and The Coleman Company, Inc. a foreign-Kansas corporation, jointly and severally Defendants-Appellants.

Docket Nos. 53743, 53744.

117 Mich.App. 601, 324 N.W.2d 96

Court of Appeals of Michigan.

Submitted Feb. 4, 1982.

Decided July 12, 1982.

Rehearing Denied Aug. 17, 1982.

Released for Publication Sept. 22, 1982.

[117 MICHAPP 603] Goldstein, Meklir, Schreier, Nolish & Friedman, P.C., Southfield, for plaintiff-appellee.

Dickinson, Wright, McKean, Cudlip & Moon, Detroit (by H.G. Sparrow, III, Detroit), for defendant-appellant Harry's Army Surplus, Inc.

Miller, Canfield, Paddock & Stone, Detroit (by Larry J. [117 MICHAPP 604] Saylor and Wolfgang Hoppe, Detroit) and Allen & Allen, Troy, of counsel, for defendant-appellant Coleman Co., Inc.

Before KAUFMAN, P.J., and V.J. BRENNAN and CYNAR, JJ.

CYNAR, Judge.

Following a jury trial in Wayne County Circuit Court, the jury found that defendants Harry's Army Surplus, Inc., (hereinafter Harry's) and The Coleman Company, Inc., (hereinafter Coleman) were negligent and that their negligence was the proximate cause of injuries sustained by plaintiff. Plaintiff's damages were found to be $1,200,000 and plaintiff was found not to be contributorily negligent. Defendants appeal as of right.

On November 13, 1975, plaintiff, then 18 years of age, and his companions, Larry Yerman and Michael Evinauf, visited defendant Harry's to purchase equipment for a camping trip. Plaintiff testified that when the three of them asked for a heater suitable for use in a tent, an employee of Harry's recommended a portable propane gas heater manufactured by Primus Corporation (hereinafter Primus), and a disposable propane gas cylinder manufactured by Coleman. Plaintiff and his companions purchased the heater and cylinder, and then drove from Southfield to a campsite in the Traverse City area.

Upon arriving at the campsite at 7 or 8 p.m., plaintiff and Evinauf pitched their tent by the light of the car headlights. Yerman attached the Primus heater to the Coleman propane cylinder, ignited the heater and placed it in the tent before the three men went to sleep. Plaintiff testified that the heater was sitting on the tent floor, and that he was sleeping closest to it. During the night, the [117 MICHAPP 605] tent was ignited by the heater, and plaintiff was severely burned. Plaintiff recalls nothing of the fire or the events immediately following it. Plaintiff awoke briefly sometime after the fire and saw that he had been burned. He next recalls being in a hospital. Neither Yerman nor Evinauf appeared or testified at trial, in spite of the fact that they had been subpoenaed by the defense.

The fire was investigated on the afternoon of November 14, 1975, by a state patrolman, Sergeant Roger DeVolder, and by a state fire marshal, Sergeant Frederick Willie. The transcript of Sgt. Willie's deposition and that of Sgt. DeVolder were read into the record. Portions of the depositions referring to the presence of beer bottles at the campsite, and statements by Yerman and Evinauf to Sgt. DeVolder regarding the use of alcohol and marijuana prior to the fire, were omitted.

On appeal, defendant Harry's has adopted the brief of defendant Coleman.

I.

Defendants argue that the trial court erred reversibly in excluding evidence of the use of alcohol and marijuana by plaintiff and/or his companions.

In order to evaluate the merits of defendants' legal claim, the scope of the trial court's ruling must be clarified. At the beginning of trial, plaintiff's counsel moved to exclude evidence of "any drinking or use of marijuana by the plaintiff, Glen Anderson, in this particular matter". Following a lengthy trialogue between counsel for the parties and the court, plaintiff's counsel stated that it was their contention that there "is no showing and will be no showing that any drinking or use of marijuana, if any, by the plaintiff, Glen Anderson, was [117 MICHAPP 606] in any way a contributing cause or a proximate cause of the incident involved".

Plaintiff's companions had made statements to Sgt. DeVolder to the effect that prior to the fire they had been drinking alcohol and smoking marijuana and that their memory of the fire and the events preceding it "was very clouded by it". Sgt. Willie had observed that there were "a lot of empty beer bottles" around the campsite. Plaintiff's counsel indicated that the hearsay statements by plaintiff's companions would be inadmissible and indicated that the only person to testify regarding plaintiff's use of intoxicants would be the plaintiff himself, and that the plaintiff would testify that he only had one or two beers, and two puffs on a marijuana cigarette, and that his companions had also only consumed no more than one or two beers and that "nobody was intoxicated".

Following this discussion, the trial court ruled:

"Well, I just see some problems without serious reflection; I see some problems with your position.

"Now, maybe it will be made clear to me as we go along as to my view. But we have still got the initial problem here.

"I'm going to make the ruling that you can't refer to it, but--

* * *

"But I'm going to say this: It is not written in stone. If something during this trial occurs that convinces me otherwise, prior to the time the plaintiff takes the stand, or even after, and I felt that justice would require it, I will reopen the proofs on it.

"But with what I've got here right now, it seems to me its prejudicial effect would outweigh its probative value. And I am accepting the facts as each party has stated they would occur."

[117 MICHAPP 607] It has been held that where a trial court's refusal to admit evidence is "tentative", counsel's failure to again raise the issue precludes assignment of error to the ruling on appeal. Pennsylvania Fire Ins. Co. v. Ann Arbor R. Co., 184 Mich. 375, 151 N.W. 578 (1915), Adair v. Phoenix Mutual Life Ins. Co., 31 Mich.App. 38, 187 N.W.2d 246 (1971). However, at the close of plaintiff's proofs, defense counsel, Mr. Allen, engaged in the following discussion:

"MR. ALLEN: I'll read the deposition that I borrowed and read a--I'll want to make a reference on the record as in DeVolder's deposition in finding the beer and beer bottles, and you entered an order barring me from going into it, and I want to make certain that I protected my record on that.

"If counsel will stipulate that I can make an offer of proof outside the record by those things, it will eliminate the necessity of going ahead without--

"MR. SCHREIER: [plaintiff's counsel] I have no problem. There are certain things that we did not read in DeVolder's deposition pursuant to the Court granting our motion in limine, and I will say it is contained in the deposition and he is offering it.

"THE COURT: Well, what about that information?

"MR. ALLEN: The marijuana, the doctor's reference in questions asked about that. Sergeant Willie, reference was asked in that deposition about that and it was stricken. Testimony like seeing beer bottles at the scene, that kind of stuff was stricken.

"THE COURT: All right. Then the record can reflect that that was stricken. I have no fault with that."

Defendants' offer of proof apparently included evidence indicating use of intoxicants by both plaintiff and his companions. Assuming the trial court's response to such offer indicated that it was not inclined to change its earlier ruling, the issue has been preserved for appeal, and the trial court's decision must be reviewed.

[117 MICHAPP 608] Relevant evidence will generally be admitted if the probative value substantially outweighs any prejudicial effect. MRE 403, People v. Oliphant, 399 Mich. 472, 489-490, 250 N.W.2d 443 (1976). Admissibility rests within the trial judge's discretion, and his determination will not be set aside unless there has been an abuse of discretion. Aetna Life Ins. Co. v. Brooks, 96 Mich.App. 310, 314, 292 N.W.2d 532 (1980), lv. den. 409 Mich. 892 (1980).

In order to predicate error on a ruling excluding evidence, the substance of the evidence must have been made known to the court. MRE 103(a)(2). The last-quoted excerpt from the transcript clearly indicates that an offer of proof was made, and that plaintiff's argument to the contrary is without merit.

In the instant case, no witness was presented who actually saw the fire start. Plaintiff advanced the theory that the fire began as a result of defects in the design of the heater and fuel cannister assembly. Defendants contended that such a cause was unlikely, and sought to introduce the evidence of intoxication on the theory that such intoxication was a contributing cause of the accident in one of several possible ways: (1) that Yerman's intoxicated state was a factor in his possible improper assembly of the heater to the fuel cannister, (2) that one of the campers, perhaps plaintiff himself, knocked the heater over, (3) that plaintiff was so intoxicated that he was unable to protect himself or escape from the tent once the fire started, or (4) plaintiff's companions were so intoxicated that it constituted negligence on the part of plaintiff to trust them to carefully set up the heater in the tent where plaintiff slept.

Regardless of the scope of the trial court's ruling, we think that under the circumstances of this [117 MICHAPP 609] case it was an abuse of discretion for the trial court to exclude evidence of intoxication. While it may be considered prejudicial to admit such evidence, we perceive that the jury was left with a distorted view of the events surrounding the accident. Plaintiff admitted to some consumption of both alcohol and marijuana. Sgt. Willie's testimony by deposition was that there were a lot of empty beer bottles at the campsite. Even though plaintiff denied that he or his companions were intoxicated, there was some admissible evidence to the contrary,...