Bates v. City of Detroit

• Decision Date: 26 January 1976
• Docket Number: Docket No. 20762
• Citation: 66 Mich.App. 701,239 N.W.2d 716
• Parties: Laydell BATES, Plaintiff-Appellee, v. CITY OF DETROIT, a Municipal Corporation, Defendant-Appellant. 66 Mich.App. 701, 239 N.W.2d 716
• Court: Court of Appeal of Michigan — District of US

Page 716

239 N.W.2d 716

Laydell BATES, Plaintiff-Appellee, v. CITY OF DETROIT, a Municipal Corporation Defendant-Appellant.

Docket No. 20762.

66 Mich.App. 701, 239 N.W.2d 716

Court of Appeals of Michigan.

Jan. 26, 1976.

Rehearing Denied March 19, 1976.

Released for Publication March 24, 1976.

[66 MICHAPP 703] Lewis, White, Lee, Clay & Graves by Ray Reynolds Graves, Detroit, for defendant-appellant.

Peter R. Barbara, Detroit, for plaintiff-appellee.

Before J. H. GILLIS, P.J., and BRONSON and T. M. BURNS, JJ.

BRONSON, Judge.

Defendant, City of Detroit, appeals a jury verdict of $350,000 issued March 13, 1974 in the Wayne County Circuit Court in favor of plaintiff. Defendant claims ten prejudicial and reversible errors were committed by the trial court during the eight days of proceedings. We have reviewed the entire record and conclude that the trial was fair. We affirm.

In this negligence action, plaintiff claimed that while working as an inmate at the Detroit House of Corrections farm his right hand was mutilated when a tractor lurched backward as he was manually connecting a plow. Plaintiff claimed that the [66 MICHAPP 704] lurching of the tractor was attributable to its faulty brake and/or its faulty clutch; the disrepair of the tractor was, in turn, attributable to the City of Detroit's failure to maintain the equipment.

Most of defendant's claims allege abuses of discretion by the trial judge. An appellate court will not reverse a verdict if the trial judge properly exercised his discretion; we give the trial judge broad latitude in conducting the trial. E.g., Van Oordt v. Metzler, 375 Mich. 526, 134 N.W.2d 609 (1965).

In particular, we feel that the judge in this case did not abuse his discretion in allowing plaintiff to amend the Ad damnum clause, Jones v. Morgan, 58 Mich.App. 455, 464, 228 N.W.2d 419 (1975); did not abuse his discretion in allowing one of plaintiff's witnesses to testify as an expert, Auto-Ion Chemicals, Inc. v. Gates Rubber Co., 33 Mich.App. 574, 577, 190 N.W.2d 357 (1971); and did not abuse his discretion by issuing a curative instruction, rather than declare a mistrial, after plaintiff's attorney misstated a fact. Koepel v. St. Joseph Hospital, 381 Mich. 440, 163 N.W.2d 222 (1968).

The trial judge exercised sound discretion in allowing rebuttal testimony to be taken in plaintiff's hospital room following unforeseen kidney surgery during the trial. We have previously held that a trial judge may allow the jury to leave the courtroom to view a thing or place involved in an accident. Torongo v. Miriani, 14 Mich.App. 701, 166 N.W.2d 30 (1968). We feel that a judge may similarly allow the jury to leave the courtroom, when necessary, to hear testimony. A judge, sitting without a jury, may leave court to visit a witness. Mettetal v. Hall, 288 Mich. 200, 284 N.W. 698 (1939) (visit to incompetent in suit brought by guardian). There should be little difference in the trial judge's [66 MICHAPP 705] discretion in making the decision to leave the courthouse when there is a jury. Jamens v. Shelby Township, 41 Mich.App. 461, 466, 200 N.W.2d 479 (1972).

The judge acted properly in refusing to grant a mistrial following the display of plaintiff's injured hand during the voir dire. Our reading of the transcript does not, and probably could not, indicate any aura of sensationalism. If the trial judge did not find the display overly prejudicial, we are reluctant to do so on appeal. The latitude of voir dire examination is largely within the discretion of the trial judge. E.g., Corbin v. Hittle, 34 Mich.App. 631, 634, 192 N.W.2d 38 (1971). We note, by analogy, that during the course of the trial, a trial judge has considerable discretion in permitting the plaintiff to display physical injuries. Barfoot v. White Star Line, 170 Mich. 349, 136 N.W. 437 (1912), Gleason v. Hanafin, 308 Mich. 31, 13 N.W.2d 196 (1944). While the purpose of voir dire is not evidentiary, the analogy to the Barfoot doctrine can be made nonetheless, because the conduct of voir dire, like the conduct of the trial, involves the judge's assessment of prejudice. If a trial judge can properly conclude that the evidentiary display of physical injuries is not overly prejudicial, the trial judge can similarly conclude that the display of physical injuries during voir dire for determining possible juror biases is not overly prejudicial.

The defendant argues that it should have been granted a one-day continuance near the end of the trial. Defendant alleged that it needed additional time to secure a handwriting expert in order to verify the signature on an accident report of an important witness. The witness had denied the signature. We have no doubt that expert testimony would have been very helpful to the triers of fact. [66 MICHAPP 706] However, defendant, the sponsor of the document, should have been continually prepared to vouch for the authenticity of the report. The judge's refusal to halt the trial when it was near completion was not an abuse of discretion, given defendant's inexcusable lack of foreseeability and inadequate preparation. See Johnkoski v. Johnkoski, 50 Mich.App. 542, 545--547, 213 N.W.2d 856 (1973).

The trial judge properly denied defendant's request for a directed verdict on the grounds of plaintiff's contributory negligence. Viewing the evidence in a light most favorable to plaintiff, there is no doubt that reasonable men could differ in resolving the question of plaintiff's contributory negligence. The question was properly for the jury. See, E.g., Wilhelm v. Detroit Edison Co., 56 Mich.App. 116, 126, 224 N.W.2d 289 (1974).

Defendant claims that the trial judge erred by refusing to issue a jury instruction offered by defendant concerning the negligence of a third person involved in the accident. We find this claim to be disingenuous, for the trial judge in fact issued the very instruction sought by defendant. Defendant cannot, on appeal, object to an instruction actively sought below.

Defendant argues that the trial court should not have allowed plaintiff's attorney to use visual aids during closing argument, setting forth the jury instructions to be given. We find that the use of visual aids in oral argument is, again, a matter of trial court discretion. Campbell v. Menze Construction Co., 15 Mich.App. 407, 409, 166 N.W.2d 624 (1968). The Court's discretion should be more guarded when counsel seeks to argue what he believes to be the controlling law. Cf., Wallace v. Pere Marquette Fiberglass Boat Co., Inc., 2 Mich.App. 605, 141 N.W.2d 383 (1966). Here, where the [66 MICHAPP 707] attorneys and the judge had previously negotiated acceptable jury instructions before closing argument, counsel could safety discuss and illustrate the instructions without usurping the court's function of determining the law. The trial judge exercised sound discretion by allowing counsel to use visual aids to illustrate the jury instructions; plaintiff's counsel did not abuse the permission granted, for he correctly stated the instructions and reminded the jury that the court was responsible for all matters of law.

Defendant's final and most substantial claim of error is the contention that the defendant was prejudiced by the trial court's refusal to allow defendant...