Henson v. Veteran's Cab Co. of Flint, 7
Decision Date | 05 April 1971 |
Docket Number | No. 7,7 |
Citation | 384 Mich. 486,185 N.W.2d 383 |
Parties | Gladys HENSON and Hubert Henson, Plaintiffs and Appellants, v. VETERAN'S CAB COMPANY OF FLINT, Defendant and Appellee. |
Court | Michigan Supreme Court |
Leitson, Dean, Dean, Segar & Hart, P.C., Flint by Clifford H. Hart, Flint, of counsel for plaintiffs-appellants.
Howard C. Fisher, Flint, for defendant-appellee.
Before the Entire Bench, except T. G. KAVANAGH, J.
In this automobile negligence case, plaintiffs recovered a verdict in the amount of $12,500, and defendant Cab Company sought judgment notwithstanding the verdict or a new trial, both of which were denied. On appeal, the Court of Appeals reversed and remanded for a new trial on the ground that the trial judge had improperly restricted defendant's cross-examination of plaintiff. The pertinent portion of the trial transcript is as follows:
'Q. Now, when you entered the hospital, you were asked a number of questions by the personnel of the hospital, were you not?
'A. Yes, yes.
'Q. And in answer to the questions, did you explain to the hospital attendants that you had suffered from chronic back pains ever since you were a child, and that this pain radiated up and down your spine?
'(Whereupon the jury retired to its quarters, and the following proceedings were held outside its presence and hearing.)
'And, Mr. Fisher, I am really surprised at you. Throughout this whole trial you have been pulling some grandstand plays. You have been in every way Attempting to put in things where I have repeatedly told you not to.
'However, this is the fourth day of the trial, and I'm going to take your motion under advisement.
'But, Mr. Fisher, this is the last time, and the last time that I intend to permit you to do what you have been doing.
'We will take a short recess.
'(Short recess)
'Whereupon the following proceedings were resumed within the presence and hearing of the jury.)
'MRS. McKENNA: I want to question.
'THE COURT: You may.
MRS. McKENNA: Thank you.
Plaintiffs-appellant urge in this Court that the action of the trial judge in preventing defendant's counsel from cross-examining plaintiff in the manner attempted, if error, was not prejudicial, and that defendant had the obligation to seek and to make a separate record of the matter sought to be proven by the excluded cross-examination. Defendant points to Rule 604, GCR 1963, which provides as follows:
Defendant-appellee contends that Rule 604 does not apply to cross-examination, pointing out that the cross-examiner often does not know what the answer to his question will be, and it is, therefore, unreasonable to expect a cross-examiner to make a specific offer of what he expects to prove by the answer of the witness.
At common law, the party complaining of any ruling of the court on a matter of law or procedure during the process of the trial must take an exception thereto in order to secure the right to have the propriety of such ruling reviewed on appeal or writ of error. 3 Am.Jur., Appeal and Error, § 272, pp. 47, 48. In Michigan, the need for formal exception to a court ruling was abolished by statute, C.L.1948, 618.60, which read as follows:
This statutory provision was repealed at the time of the adoption of the Revised Judicature Act in 1963. In its place, this Court adopted GCR 1963, 507.3, providing as follows:
Also bearing on the question is GCR 1963, 529.1. It provides:
Reading these three rules together*, we conclude that a party seeking reversal of the trial court's order denying a new trial has the burden in the appellate court of showing (1) that the ruling was erroneous, (2) that he opposed the ruling and contended for a proper ruling, and (3) that the erroneous ruling was prejudicial, so that the denial of his request for a new trial would be inconsistent with substantial justice.
In the discharge of this responsibility, counsel are aided by the permissive provisions of Rule 604. Whether on direct or cross-examination, an offer of proof or a request to make a separate record will serve to show that counsel opposed the court's ruling and contended for a proper ruling. Where the record does not show that the error was prejudicial, the reviewing court will not presume prejudice. The burden is on the appellant to show prejudice.
The principles thus stated are not so easily applied to the case at hand. The question which defendant's attorney asked and which he claims he was not permitted to pursue was as follows:
Plaintiff had alleged as damages that she suffered an injury to her back. The nature and extent of her pre-existing back problems, if any, were certainly in issue, and there could be no question of counsel's right to inquire into her prior history or...
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People v. Grant
...appellate standard. 3 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed.), p. 571. See, e.g., Henson v. Veterans Cab Co. of Flint, 384 Mich. 486, 494, 185 N.W.2d 383 (1971).20 The Michigan rule is borrowed word for word from F.R.E. 103.The federal courts also have at least two ot......
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