Fulton v. Ewing, 86

• Decision Date: 10 March 1953
• Docket Number: No. 86,86
• Citation: 57 N.W.2d 441,336 Mich. 51
• Parties: FULTON v. EWING.
• Court: Michigan Supreme Court

Page 441

57 N.W.2d 441

336 Mich. 51

FULTON v. EWING.

No. 86.

Supreme Court of Michigan.

March 10, 1953.

Dann & Rosenbaum, Detroit, Frank C. Sibley, Detroit, of counsel, for fulton.

William L. Colden, Detroit, George Stone, Detroit, of counsel, for Ewing.

Before the Entire Bench.

REID, Justice.

This is an action at law in which plaintiff seeks damages for injuries which he claims he received by reason of an unprovoked shooting by defendant, from which plaintiff sustained a would in his right thigh and hip. The jury rendered a verdict for the plaintiff for $14,000. The court required a remittitur of the sum of $2,500, otherwise the verdict would be set aside and a new trial would be granted. The remittitur was timely filed. Defendant appeals from a judgment against him for $11,500. Plaintiff cross-appeals.

Plaintiff claims that on the morning of December 26, 1948, while at the residence of Frank Friday, 6342 West Jefferson, Detroit, he had won a bet of $2 from defendant in a card game known as 'Georgia Skin'; that defendant claimed the bet was for only $1; that plaintiff told defendant to 'stop and think'; that defendant thereupon stated, 'I am going to pay this money off, but you S O B I am going to get it back'; that defendant pulled his gun out, aimed it at plaintiff's heart; that plaintiff knocked the gun down to prevent being shot in the heart; that then defendant fired the gun and hit plaintiff in the leg and knocked him to the floor. Plaintiff says that 'from the looks' of defendant's face, defendant meant to kill plaintiff, and plaintiff says he did nothing to require or provoke defendant to shoot plaintiff. Plaintiff's testimony to the foregoing effect was supported in general by his wife and three other res gestae witnesses, who also testified that plaintiff's wife and other bystanders intervened to prevent defendant from again shooting plaintiff. Defendant claimed and testified that he shot the gun in self-defence and because plaintiff pulled out a knife before defendant shot. Defendant produced a witness who testified that witness took the gun from the floor as witness came into the room immediately following the shooting, that the gun fell from defendant's hand, and that there was also a knife on the floor.

Defendant claims error on the part of the court for not permitting police officer Zillick to answer the question, 'What did the plaintiff, Jesse Fulton, say to you regarding prosecution?' This question does not appear in the printed record of the testimony, the transcript of the testimony in its original full form is not returned, and the only information we have available concerning this question is what is recited by the court in the following excerpt from the judge's opinion on denial of motion for new trial:

'The third reason has for assignment the refusal of the court over what the court deemed was a proper objection to permit Peter Zelek [Zillick], a police officer of the department of police of the city of Detroit, who was called as a witness for the defendant to answer the following question: 'What did the plaintiff, Jesse Fulton, say to you regarding prosecution?' The court felt at that time, and still is of the opinion, that this was a method of getting some evidence before the jury on a collateral matter that did not rightfully belong in the record. The court does not recall that Jesse Fulton was questioned at length on cross-examination as to any conduct in this respect that would authorize the foregoing question to be asked of one of the investigating officers. Not only was the court of the impression that it was a collateral issue but smacked somewhat of entering the area of proposed composition of litigation or settlement or adjustment of claims; and the court is still of the opinion that a proper ruling under all the circumstances was made by the court in sustaining the objection of plaintiff's counsel.'

With no record showing of the context, we find no basis for determination that the court's refusal to permit an answer to this question was reversible error.

Defendant also predicates error on the court's refusal to permit an answer by witness Zillick to the following question, 'What did the plaintiff, Jesse Fulton, say to you regarding the amount of money to be paid by Mr. Ewing?' This question is also not in the printed record. It is not referred to in the judge's opinion. We have no means of knowing that this question was actually asked, what ruling if any the court made, if it was asked, nor the connection in the testimony in which it was asked. There is no basis for a finding of error in this particular.

Defendant also predicates error because the court permitted the jury to consider plaintiff's tuberculosis, which became apparent 9 months after the shooting, as a proximate result of the shooting.

Dr. George Kinsley testified on the trial as follows:

'In my opinion there is a causal relationship between the gun shot wound--there could be a causal relationship between the gun shot would and the accident as described; and the pulmonary tuberculosis which later became evident, because of th[e] shock of the accident, the anaesthesia, the rather prolonged hospitalization and postoperative convalescence, all with subnormal intake food, or subnormal nutrition intake; all of those things could have contributed to the clinical precipitation of the pulmonary tuberculosis, in my opinion.'

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