Gonzalez v. Hoffman, Docket No. 2192

• Decision Date: 19 March 1968
• Docket Number: No. 1,Docket No. 2192,1
• Citation: 9 Mich.App. 522,157 N.W.2d 475
• Parties: Eloy GONZALEZ, Plaintiff-Appellant, v. Frederick C. HOFFMAN, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 475

157 N.W.2d 475

9 Mich.App. 522

Eloy GONZALEZ, Plaintiff-Appellant, v. Frederick C. HOFFMAN, Defendant-Appellee.

Docket No. 2192.

Court of Appeals of Michigan, Division No. 1.

March 19, 1968.

Released for Publication April 10, 1968.

Rehearing Granted May 6, 1968.

Zeff & Zeff, Detroit, for appellant.

Garan, Lucow & Miller, Detroit, for appellee.

Before LESINSKI, C.J., and GILLIS and T. G. KAVANAGH, JJ.

T. G. KAVANAGH, Judge.

On December 24, 1959 the car which plaintiff was driving was hit from behind by a car driven by defendant and was pushed into the car ahead of him. In July, 1961 plaintiff commenced this action claiming damages for property loss and personal injuries. Defendant admitted liability and the trial proceeded solely on the issue of damages. The jury returned a verdict for $2000 and plaintiff has appealed.

Four issues are raised on appeal; the first is that defense counsel's conduct and argument were of such inflammatory character as to deprive plaintiff of a fair trial and so constituted reversible error.

During his cross-examination of plaintiff defense counsel elicited the fact that in filling out an application for employment with the Ford Motor Company plaintiff failed to indicate that he was medically disabled. Counsel asked plaintiff if he was not trying to put something over on Ford Motor Company. Plaintiff professed not to understand the question and counsel replied: 'Either you're lying to us or to the Ford Motor Company.' Upon objection to the word 'lying' the court said that he would strike it. In his closing argument counsel for defendant said:

'I submit to you that if this man would lie to get a job at a place where he has continued working for many years, that he has absolutely no hesitation to get onto that stand and to lie to you.'

The principal issue in this case is whether plaintiff has been physically disabled by defendant's negligence and on direct examination plaintiff testified at length concerning his alleged disability. Certainly his credibility was open to scrutiny and his answers to the questions on his employment application was proper subject matter for cross-examination. See Bennett v. Wallace (1911), 165 Mich. 66, 130 N.W. 188. In People v. MacCullough (1937), 281 Mich. 15 at page 26, 274 N.W. 693 at page 697 the Court said,

'A witness may, on cross-examination, be shown to have made statements inconsistent with his testimony. Gibbs v. Linabury, 22 Mich. 479, 7 Am.Rep. 675; Graham v. Myers, 67 Mich. 277, 34 N.W. 710; Lepard v. Michigan Central R. Co., 166 Mich. 373, 130 N.W. 668, 40 L.R.A. (N.S.) 1105. And, if there is anything suspicious in the character of the testimony of a witness, he may be subject to rigid cross-examination.'

Counsel for plaintiff did not make a seasonable objection to the argument of which he now seeks to complain. Having thus failed to present to the trial court an opportunity to correct any harm he may not raise his objection for the first time on appeal. Taylor v. Lowe (1964), 372 Mich. 282, 126 N.W.2d 104. Moreover, we are not impressed that the argument complained of was improper or prejudicial.

'In arguing to a jury, counsel is limited in subject matter to those matters before the court as disclosed by the testimony of witnesses. He is entitled to draw reasonable inferences from that testimony, but he cannot express his opinions or conclusions upon matters not found in the record.' Hayes v. Coleman (1953), 338 Mich. 371, 382, 61 N.W.2d 634, 640.

Counsel is to be given some leeway in his argument and the control thereof is within the discretion of the court. Elliott v. A. J. Smith Contracting Company, Inc. (1960), 358 Mich. 398, 100 N.W.2d 257. Certainly one of the permissible inferences to be drawn from plaintiff's testimony on cross-examination is that his claim of a physical disability was false. Accordingly, we do not find an abuse of the court's discretion.

Plaintiff's contention that defense counsel's cross-examination of Dr. MacMillan, and his argument to the jury, amounted to testimony on his part, from his own experience, is without merit. The record is barren of any proper objection, no objection having been made to the argument and objection to the cross-examination having been withdrawn.

Plaintiff asserts as the second issue that the court erred in excluding his testimony as to medical expenditures for prescriptions and medication. He testified that he did not keep the receipts for his expenditures for medication and the court sustained defendant's objection to his oral testimony as to the amount of such expenditures, ruling that the best evidence would be the receipts. The court permitted plaintiff to make a separate record of the excluded testimony, pursuant to GCR 1963, 604, thus saving this question for appellate review.

We hold that the exclusion by the court of plaintiff's proffered testimony was error.

'The best evidence rule has no application to a case where a party seeks to prove a fact which has an existence independently of any writing; he may do so by oral testimony, even though the fact has been reduced to, or is evidenced by, a writing.' 29 Am.Jur.2d, Evidence § 449, p. 510.

'The payment of money * * * may be proved by parol without accounting for the absence of a receipt evidencing such fact, where the witness can testify to the fact positively and from his own independent knowledge, not founded on his having seen the receipt * * *. While bills representing payments by a person have been held admissible, receipts have sometimes been held inadmissible as being inferior to the testimony of living witnesses.' 32A C.J.S. Evidence § 802, p. 133.

In the case at bar the expenditure of money was a fact independent of any receipt, and while it may be arguable that a receipt would be stronger or more cogent evidence than plaintiff's testimony, such a circumstance does not preclude such testimony.

At trial plaintiff testified that he was earning more money after the accident than before. Nevertheless the proper measure of damages is not necessarily the difference between plaintiff's earnings before the injury and those after, but rather the loss of plaintiff's earning capacity which, under some circumstances, might decrease even though actual earnings increase. Van Driel v. Stevens (1918), 200 Mich. 291, 166 N.W. 974. Plaintiff contends as his third assertion of error, that the question of his loss of earning capacity was not properly submitted to the jury because of deficiencies in the court's instructions, the pertinent part of which follows:

'The injured party should be awarded compensation for all injuries, past and prospective. They are intended to include and embrace indemnity for actual...