Crenshaw v. Goza

• Citation: 43 Mich.App. 437,204 N.W.2d 302
• Decision Date: 25 October 1972
• Docket Number: Docket No. 12673,No. 1,1
• Parties: Bette Lue CRENSHAW, Plaintiff-Appellee, v. Harry GOZA, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 302

204 N.W.2d 302

43 Mich.App. 437

Bette Lue CRENSHAW, Plaintiff-Appellee, v. Harry GOZA, Defendant-Appellant.

Docket No. 12673.

Court of Appeals of Michigan, Division No. 1.

Oct. 25, 1972.

Rehearing Denied Dec. 20, 1972.

Released for Publication Feb. 22, 1973.

Leave to Appeal Denied March 30, 1973.

William J. Heaphy, Vandeveer, Doelle, Garzia, Tonkin & Kerr, Detroit, for defendant-appellant.

Irving R. Blum, Detroit, John L. Wooster, Southfield (for Hardware Mutual Casualty Co., subrogee of Crenshaw), for plaintiff-appellee.

Before J. H. GILLIS, P.J., and McGREGOR and BORRADAILE, ^* JJ.

BORRADAILE, Judge.

This is an automobile negligence case arising out of an accident occurring on June 21, 1967. The plaintiff sued the defendant alleging that the driver of a taxicab owned by the defendant negligently drove through a red light and injured her. The trial was held in July, 1971. At the close of the defendant's case, the court granted the plaintiff's motion to increase the Ad damnum clause from $25,000 to $50,000. The court also granted the plaintiff's motion for a directed verdict as to the defendant's liability. Thus, the only issue for the jury was the amount of the plaintiff's damages. The jury awarded the plaintiff $32,000. The defendant's motion for judgment notwithstanding the verdict or a new trial was denied, and he took this appeal of right.

Initially, the defendant argues that it was error to deny his motion for a new trial based on the plaintiff's failure to disclose certain details of her medical history before the trial. The defendant maintains that he was unable to adequately prepare for the trial because the plaintiff intentionally or negligently failed to give complete answers to the interrogatories with regard to her health history. Specifically, the defendant complains of the answers to interrogatories numbered 11, 12, and 15. Those interrogatories and the answers thereto read as follows:

Q. '11. From your own knowledge, describe any and all infirmities and disabilities from which you suffered before the accident involved in this claim or lawsuit.

A. '11. None.

Q. '12. State the names and addresses of all doctors whom you have seen or with whom you have consulted during the five years preceding the date of this accident, and the nature of the ailment, illness or other reason for which such doctor was consulted.

'(a) Give the approximate dates designating each.

A. '12. Dr. Melvin Fowler--E. Warren, Detroit--family doctor and for pregnancies.

Q. '15. Give the names and addresses of all hospitals where you have been either an in-patient or an out-patient during your entire life, and as to each such hospital give:

'(a) Dates of admission and discharge.

'(b) Nature of the ailment or illness for which you were hospitalized.

'(c) Nature of the operations performed.

'(d) Name and address of your attending physician and operating surgeon, if any.

A. '15. Receiving Hospital--May 2, 1963 through June 3, 1963--hit by car physicians at Receiving Hospital.'

However, during examination of Dr. Fowler, the plaintiff's family doctor, defense counsel learned that the plaintiff had been hospitalized at Grace Hospital for six days in April 1960 for pre-cardial pains and low back pain. There was a diagnosis of unstable lumbosacral joint and urinary problems. She had consulted Dr. Fowler twice in 1962 for pains in the neck and cervical spine. On June 11, 1962, Dr. Fowler diagnosed that the plaintiff had a large ventral hernia that could be a source of pain, and on July 9, 1962, he diagnosed rheumatoid arthritis. In October 1964 the plaintiff was hospitalized at Burton Mercy Hospital for ten days. She had stitches removed from her left leg and the doctor diagnosed essential hyperextension. On February 24, 1966, the plaintiff consulted Dr. Fowler about abdominal pain and in March 1967 she complained to him of chest pain.

The fact that the plaintiff did not list the various diagnoses that Dr. Fowler had made of her health between 1960 and 1967 does not necessarily mean that she intentionally or negligently failed to do so. See Krim v. Osborne, 20 Mich.App. 237, 241, 173 N.W.2d 737 (1969), leave den. 383 Mich. 765 (1970). Human experience tells the Court that it is not uncommon for doctors to refrain from telling their patients the medical diagnosis of their ailments.

While Dr. Fowler, with the aid of his office records relative to the plaintiff, was able to testify at length and in detail regarding the plaintiff's past health, the transcript of that testimony does not show that he told the plaintiff what his various diagnoses were. Even if he did, it would not be unusual with the passing of time for the patient to forget the medical terms, and perhaps the illnesses as well. The plaintiff testified that she did not remember the illnesses in 1960 and 1962, that she wasn't keeping a record, and the symptoms must not have bothered long enough for her to remember them.

Interrogatory 11 was stated in general terms and directed the plaintiff to describe any and all 'infirmities and disabilities' from which she suffered before the accident. It would not have been unreasonable for the plaintiff to think that the phrase 'infirmities and disabilities' did not include office consultations such as the plaintiff had with Dr. Fowler in 1966 and 1967 pertaining to abdominal and chest pains, even if she remembered the office consultations.

However, even allowing for lapses of memory, lack of knowledge of Dr. Fowler's diagnoses, and reasonable variance in the interpretation of the interrogatories, it would appear that the plaintiff should have mentioned the ten-day hospitalization at Burton Mercy Hospital in October 1964, just over four years before the answers to the interrogatories were given in November 1968.

While a new trial may be granted for misconduct, misrepresentation, or fraud by the prevailing party, GCR 1963, 527.1(2), (9), this is not a compelling case for doing so. Nearly a year before the trial, the defendant had medical authorizations from the plaintiff permitting him to examine her hospital and doctor records. The defendant did not move for more certain answers or further answers to the interrogatories on the basis that the answers were insufficient, nor does the record show that he took the deposition of the plaintiff. See Krim v. Osborne, Supra, p. 240, 173 N.W.2d 737; GCR 1963, 309; 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), Authors' Comments, pp. 158--160. Additionally, the defendant did not move for a continuance pursuant to GCR 1963, 503.1, alleging that he had been prejudiced or unfairly surprised at trial. Further, the trial record shows that defense counsel had Dr. Fowler's medical records the night before he conducted most of his cross-examination of Dr. Fowler, at which time he brought out in detail plaintiff's previous medical history. Also, defense counsel spent a substantial part of his final argument in specifically directing the jury's attention to the plaintiff's failure to tell the 'complete truth' about her past health. This Court strongly condemns the intentional giving of incomplete or inaccurate answers to interrogatories, but we do not find that the trial court erred in denying a new trial under the circumstances of this case.

The defendant also argues that it was reversible error to deny his motion for a mistrial based on the plaintiff's reference to insurance during cross-examination. The testimony resulting in alleged error concerned a different accident in which the plaintiff was injured in May, 1963. The colloquy was as follows:

'Q. Mrs. Crenshaw, was a lawsuit instituted with respect to the injury that you suffered?

'A. Pardon?

'Q. Your broken leg, was there a lawsuit instituted at that time, do you know?

'A. Was there a lawsuit?

'Q. Yes. Did you sue anyone when your leg was broke?

'A. The man didn't have any insurance.

'Q. Did you sue anyone?

'A. I couldn't sue him.'

The defendant relies on M.C.L.A. § 500.3030; M.S.A. § 24.13030, which states:

'In the original action brought by the injured person, or his or her personal representative in case death results from the accident, as mentioned in section 3006, the insurer shall not be made or joined as a party defendant, nor shall any reference whatever be made to such insurer or to the question of carrying of such insurance during the course of trial.'

The prohibition in M.C.L.A. § 500.3030 on any reference to the insurer or the carrying of insurance by the defendant does not precisely cover the facts of this case where the reference to insurance applied to an earlier accident not involving the defendant. Additionally, the reference to insurance was only incidentally brought into the trial on cross-examination and the matter of insurance was not referred to again. There was clearly no flagrant violation of the spirit of the statute in this case.

Felice v. Weinman, 372 Mich. 278, 126 N.W.2d 107 (1964), relied on by the defendant, is distinguishable factually because in that case defense counsel openly injected insurance questions into the trial and also stated that he represented 'the Auto Club.' See also Benmark v. Steffen, 374 Mich. 155, 132 N.W.2d 48 (1965).

This Court has held that a single reference to insurance by counsel without a design to inject the question of insurance into the case does not require the granting of a mistrial. Bishop v. Wolinski, 16 Mich.App. 753, 168 N.W.2d 651 (1969). Recently in Cacavas v. Bennett, 37 Mich.App. 599, 604, 194 N.W.2d 924, 927 (1972), leave den., 387 Mich. 767 (1972), the law was summarized as follows:

'By statute, reference to available insurance coverage is not to be made by any party. M.C.L.A. § 500.3030; M.S.A. § 24.13030. It has been repeatedly held that it is reversible error to intentionally interject the subject of insurance if the sole purpose is to inflame the passions of the jury so as to increase the size of the verdict. See Felice v....