Durbin v. K-K-M Corp.

• Court: Court of Appeal of Michigan
• Writing for the Court: HOLBROOK
• Citation: Durbin v. K-K-M Corp., 220 N.W.2d 110, 54 Mich.App. 38 (Mich. App. 1974)
• Decision Date: 24 June 1974
• Docket Number: Docket No. 16332,K-K-M,No. 2,2
• Parties: Brian Lee DURBIN et al., Plaintiffs-Appellants, v.CORPORATION, a Michigan corporation, Defendant-Appellee

Page 110

220 N.W.2d 110

54 Mich.App. 38

Brian Lee DURBIN et al., Plaintiffs-Appellants, v. K-K-M CORPORATION, a Michigan corporation, Defendant-Appellee.

Docket No. 16332.

Court of Appeals of Michigan, Division No. 2.

June 24, 1974.

Released for Publication July 24, 1974.

Rehearing Denied July 29, 1974.

Frank R. Langton, by Sidney R. Borders, Warren, for plaintiffs-appellants.

Leonard A. Baun, Baun & Barton, Harper Woods, for defendant-appellee.

Before J. H. GILLIS, P.J., and HOLBROOK and VanVALKENBURG,* JJ.

HOLBROOK, Judge.

In 1970 James Lee Durbin was a man of 34 years of age. At around 7:00 in the evening of March 13th of that year, Mr. Durbin was involved in an automobile accident from injuries which caused his death. A state police officer detected odors of alcohol on his breath. He was taken to a hospital where he was pronounced dead on arrival and a blood sample was taken. Analysis showed that the percentage of alcohol in the decedent's blood was sixteen one-hundredths of one percent.

The decedent had been employed by the Interstate Manufacturing Company and worked from 12:00 midnight until 8:00 a.m. on the morning of the accident. It appears that he and a number of coworkers left work and went to the Town Pump Bar in Romeo to cash their checks. Thereafter, they and other friends traveled on to go bowling. After being unable to bowl at the first bowling alley they sought out, they continued on to the Colonial Lanes. Colonial Lanes is owned and operated by K-K-M Corporation, defendant in this action. It appears that at approximately 2:00 in the afternoon, the decedent left the Colonial Lanes for the Starlite Inn. ¹ At around 7:00 that evening the decedent left the Starlite Inn and after traveling some distance apparently attempted to pass a number of cars on the left hand side of the road and continued through a stop sign into the path of an oncoming car.

Plaintiffs, wife and children of the decedent, brought the present action under the dramshop act, M.C.L.A. § 436.22; M.S.A. § 18.993, to recover damages for the death of Mr. Durbin. After a lengthy and hard-fought trial, a jury returned a verdict of no cause of action. Thereafter, plaintiffs filed a motion for new trial which was denied. Plaintiffs here appeal asserting a number of errors. The assertions of error concern: (1) the use of a prior statement by defendant in cross-examination of plaintiffs' witness Mrs. Lila Skinner; (2) the use of portions of a deposition of a witness not before the court which referred to an extrajudicial statement; (3) exclusion of decedent's wife's testimony as to her husband's drinking habits; (4) the use of hypothetical questions propounded by the defense counsel to expert witnesses; (5) the jury instructions; (6) failure to grant plaintiffs' motion for a new trial; and (7) a claim that the jury verdict was against the great weight of evidence.

Further facts will be found where relevant to discussion of the particular issues.

I

Plaintiffs called Mrs. Lila Skinner, a co-worker of the decedent, who had been with with Mr. Durbin during the course of the day of the accident. She testified that they remained at the Town Pump for approximately 30 minutes and that the decedent there had a bottle of beer. She also testified that she and the decedent went bowling at the Colonial Lanes and that while there the decedent had drunk a number of bottles of beer, although she was unsure as to how many. During the course of direct examination, plaintiffs' counsel refreshed Mrs. Skinner's recollection by reading from her deposition. Defense counsel objected that this was improper unless plaintiffs' counsel was going to impeach the witness and, because surprise or hostile witness status had not been shown, impeachment was improper. This objection was overruled and testimony from the deposition was read.

A review of the record reveals that defense counsel in cross-examining this witness was faced with a reluctant, somewhat unwilling, and forgetful witness. Defense counsel produced a statement signed by Mrs. Skinner taken by an investigator. After Mrs. Skinner identified her signature on the 'piece of paper' defense counsel proceeded to begin to read the statement. Plaintiffs' counsel objected on the basis that there was an insufficient foundation. While Mrs. Skinner admitted that the signature was her own, she denied remembering having read the statement. The trial court ruled that the statement could be read for purposes of refreshing recollection with the condition that the investigator who took the statement be produced at trial. Plaintiffs here assert that there was an improper foundation laid to refresh the witness's recollection or for admission into evidence, that the statement was not admissible for the purpose of refreshing recollection, and that there was not a proper foundation laid for admission into evidence of the statement for impeachment purposes.

It has been said that the purpose of refreshing is to awaken memory and not to impeach or contradict a witness. People v. Thomas, 359 Mich. 251, 262, 102 N.W.2d 475, 482 (1960). An essential requirement in using memoranda to revive present recollection is the necessity to resort to the memoranda to refresh memory. Battle Creek Food Co. v. Kirkland, 298 Mich. 515, 527, 299 N.W. 167, 172 (1941); People v. Bentley, 47 Mich.App. 150, 158, 209 N.W.2d 333, 337 (1973). In Battle Creek Food Co., p. 528, 299 N.W. 172, the Court said that it was not necessary to place the memoranda or notes in evidence as it was the recollection and not the memoranda which was evidence.

The extent to which witnesses may refer to or read from refreshing memoranda and the extent to which such memoranda may be reviewed by counsel or the jury is usually a matter within the discretion of the trial court and, in the absence of abuse of discretion, the trial court will not be reversed. 82 A.L.R.2d 473, § 4, p. 489; 3 Wigmore on Evidence, § 765, p. 145. Hileman v. Indreica, 385 Mich. 1, 8--9, 187 N.W.2d 411, 413 (1971), was an action brought under the dramshop act. The Court there wrote:

'The purpose of all witness-examination is that of getting at the truth, and the rule which denies to the voucher of credibility all right of impeachment should not be stretched into denial of his right to call to the attention of the witness the latter's previous statements, writings, affidavits or depositions which, upon the face or faces thereof, are apparently inconsistent with his trial testimony; the purpose and object being that of memory refreshment as set forth by Jones. (5 Jones, Blue Book of Evidence (Bancroft-Whitney ed. of 1914).) Among our cases wherein this evidentiary practice has been upheld, on direct examination as well as cross-examination, are Beaubien v. Cicotte, 12 Mich. 459 (1864); Stone v. The Standard Life & Accident Insurance Co., 71 Mich. 81, 38 N.W. 710 (1888); Prentis v. Bates, 88 Mich. 567, 50 N.W. 637 (1891); Pickard v. Bryant, 92 Mich. 430, 52 N.W. 788 (1892); People v. Case, 105 Mich. 92, 62 N.W. 1017 (1895); People v. Palmer, 105 Mich. 568, 63 N.W. 656 (1895); People v. O'Neill, 107 Mich. 556, 65 N.W. 540 (1895); Dillon v. Pinch, 110 Mich. 149, 67 N.W. 1113 (1896); People v. Johnson, 186 Mich. 516, 152 N.W. 1096 (1915); Bresch v. Wolf, (243 Mich. 638, 220 N.W. 737 (1928)); Mitchell v. DeVitt, 313 Mich. 428, 21 N.W.2d 111 (1946); Higdon v. Kelley (339 Mich. 209, 63 N.W.2d 592 (1954)).

'Admittedly, as in Bresch, the Rule relating to the refreshment of a witness' memory is largely one of judicial discretion.' (Emphasis supplied.)

The case was reversed '(f)or fair discretion the trial judge was just a little too hasty, and too far ahead of what might have been shown, when he found an effort to impeach rather than refresh.' p. 16, 187 N.W.2d 417. Further, the Court held that the fullest permissible examination into the question of the degree of intoxication was in order from a witness who had much knowledge on that question, p. 12, 187 N.W.2d 414--415.

As to the allowance of defense's use of this statement, we find no abuse of discretion. We do note that the method chosen was incorrect in that the statement should initially have been shown to the witness for her perusal and comments. McCormick on Evidence (2d ed), § 28, p. 56. Further, a review of the record does reveal that the witness manifested much difficulty in recalling details and in fact noted that, to some degree, the statement had revived some memory. Moreover, the statement was properly used for impeachment purposes as a prior inconsistent statement. McCormick (2d ed), § 36, p. 70. Cf. People v. Nankervis, 330 Mich. 17, 20--21, 46 N.W.2d 592, 594--595 (1951). An investigator testified at trial that he had talked to Mrs. Skinner, written the statement, and that she had signed the statement. On this latter ground alone, the action of the trial court was not erroneous in that a right conclusion will not be disturbed on appeal even though based on wrong theory. 2 Michigan Law & Practice, Appeal, § 282, p. 136. See, also, People v. Rodgers, 36 Mich.App. 211, 223, 193 N.W.2d 412, 417 (1971), Levin, J., dissenting, adopted by Supreme Court in 388 Mich. 513, 519, 201 N.W.2d 621, 624 (1972). We can here see no substantial injustice arising from the trial court's decision as credibility must have been a major factor in the outcome of this case. The jury is the sole judge of credibility of witnesses and the weight to be accorded their testimony. Obeginski v. James, 4 Mich.App. 90, 93, 143 N.W.2d 579, 581 (1966).

'(T)he meaning of impeachment, which is not a matter of law for the court, but (is) an evidentiary question of what may properly be laid before a jury to assist it in judging the credibility of witnesses. The trial judge properly left this to the jury.' Winekoff v. Neisner's Automotive Supply, Inc., 12 Mich.App. 51, 54, 162 N.W.2d 341, 343 (1968).

Prior statements, introduced for impeachment purposes, bear solely...