Hileman v. Indreica

Decision Date01 June 1971
Docket NumberNo. 32,32
Citation187 N.W.2d 411,385 Mich. 1
PartiesDorothy H. HILEMAN, Individually and as guardian of George Gordon Hileman, Jr. and Richard C. Hileman, Minors, Plaintiff and Appellant, v. Romulus INDREICA and Augustin Vincent, Jointly and severally, and as co-partners doing business as New Hudson Inn, and Buckeye Union Casualty Company, a foreign corp., Defendants and Appellees.
CourtMichigan Supreme Court

Welday, Goldstone, Boila & Ott, Southfield, for plaintiff-appellant; Mitchell L. Bacow, Pontiac, of counsel.

Metry, Metry, Sanom, Ashare & Goldman, Detroit, for defendants-appellees; Richard Ashare, Dennis M. Matulewicz, Detroit, of counsel.

Before the Entire Bench.

PER CURIAM.

This is an action under the dramshop act (C.L.S.1961, § 436.22), brought by the surviving widow of one Hileman on behalf of herself and his minor children. The jury's verdict was no cause. Division 2 affirmed (15 Mich.App. 662, 167 N.W.2d 316). We granted leave (383 Mich. 751) to examine anew what once was well settled evidentiary trial practice (Bresch v. Wolf (1928), 243 Mich. 638, 220 N.W. 737; Higdon v. Kelley (1954), 339 Mich. 209, 63 N.W.2d 592) but now seems to be GCR-muddled (Ruhala v. Roby (1967), 379 Mich. 102, 150 N.W.2d 146). 1

Today's specific question arises during the direct or redirect examination of a witness whenever the examining counsel seeks to refresh or revive the witness' memory by resort to some statement or document, the authenticity of which has been traced to the witness.

We examine first a venerably authoritative text and some of our own earlier cases in such regard. Jones tells us (5 Jones Blue Book of Evidence, Bancroft and Whitney edition of 1914, headed 's 883 (886). Other modes of refreshing memory--Use of memoranda as evidence.' pp. 330, 331):

'The expression 'refreshing the memory' is generally taken to refer to the stimulation of a witness' memory by some written document such as we have hereinbefore particularly discussed. But it may be refreshed by other modes than the use of memoranda in writing. While a party cannot, as a rule, cross-examine his own witness, if a witness has given an ambiguous or indefinite answer, or if his memory is at fault, the court, in the exercise of a proper discretion, may allow verbal inquiry as to statements or circumstances which may tend to enable the witness to recollect more clearly the fact sought to be proved. It not infrequently happens that a witness, under the embarrassment of an examination, forgets, or omits to state, facts within his knowledge, or is disinclined to disclose fully and definitely what he knows. Ample opportunity should be afforded for the correction of such mistakes and omissions, and for eliciting fully the facts that are material to the issue. The recollection of the witness may be so refreshed by directing his attention to a former conversation or declaration as to cause him promptly to correct his testimony or explain the apparent inconsistency. 'A party who calls a witness, and is taken by surprise by his unexpected adverse testimony, may be permitted to interrogate him in respect to declarations and statements previously made by him which are inconsistent with his testimony, for the purpose of refreshing his recollection, and inducing him to correct his testimony, or explain his apparent inconsistency, and for such purpose his previous declarations may be repeated to him, and he may be called upon to say whether they were made by him.' The purpose for which the questions are put--to refresh the witness' memory--should clearly appear.'

This rule should startle no one. 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. Among our cases wherein this evidence practice has been upheld, on direct examination as well as cross-examination, are Beaubien v. Cicotte (1864), 12 Mich. 459; Stone v. Standard Life and Accident Ins. Co. (1888), 71 Mich. 81, 38 N.W. 710; Prentis v. Bates (1891), 88 Mich. 567, 50 N.W. 637; Pickard v. Bryant (1892), 92 Mich. 430, 52 N.W. 788; People v. Case (1895), 105 Mich. 92, 62 N.W. 1017; People v. Palmer (1895), 105 Mich. 568, 63 N.W. 656; People v. O'Neill (1895), 107 Mich. 556, 65 N.W. 540; Dillon v. Pinch (1896), 110 Mich. 149, 67 N.W. 1113; People v. Johnson (1915), 186 Mich. 516, 152 N.W. 1096; Bresch v. Wolf, Supra; Mitchell v. DeVitt (1946), 313 Mich. 428, 21 N.W.2d 111, and Higdon v. Kelley, Supra.

Admittedly, as in Bresch, the rule relating to the refreshment of a witness' memory is largely one of judicial discretion. Yet as developed some 26 years later in Higdon, that discretion should be inclined toward properly controlled confrontation of the witness with his seemingly inconsistent recollection which upon oath has been recorded for depositional purposes. Consider the adoption, in Higdon, of quotations taken from Hickory v. United States (1894), 151 U.S. 303, 309, 14 S.Ct. 334, 38 L.Ed. 170 and Bullard v. Pearsall (1873), 53 N.Y. 230. Our conclusion was (Higdon 339 Mich. at 219, 63 N.W.2d at 597):

'This court has held that prior statements may not be used when the sole purpose in their use is to impeach the credibility of a party's own witness. See Farthing v. Hepinstall, 243 Mich. 380, 220 N.W. 708. But when the purpose of referring to the prior statement is to refresh the memory of a witness or to induce the witness to explain an apparent inconsistency, the prior statement may be referred to during direct examination.' 2

The factual setting of present review is unique. The witness on the stand, called there by plaintiff, was a Mrs. Hazel Burns. A year prior to the trial she had deposed in detail with respect to the pleaded issue of unlawful furnishing of intoxicating liquor to an allegedly intoxicated person, that is, to this plaintiff's since deceased husband. No witness possibly could be in a better position than she to relate All of the facts upon which plaintiff's charge of actionable violation of the dramship act might turn. Furthermore, she herself had commenced a separate action against the Same defendants, under the Same statute, for personal injuries arising out of the Same events. That action was pending at the time of her pretrial deposition. Of it, more later.

The summary disposition in circuit of plaintiff's attempt at trial to employ Mrs. Burns' deposition, and then of plaintiff's effort to make a separate record by examining Mrs. Burns according to the deposition (see GCR 1963, 604), suggests that the trial judge did not read the deposition to determine the posed question of inconsistency. Instead, and erroneously in our view, the judge looked upon the effort of counsel solely as an attempt to Impeach Mrs. Burns, or as an effort to have her judged 'hostile.' His final ruling:

'The Court: This matter has been ruled upon by the Court once, but I will rule again. This motion is a motion to utilize the deposition previously taken of the witness Hazel Burns. Now it's an accepted rule of evidence in this State that a witness cannot--that a party cannot impeach his own witness, and that is exactly what you are attempting to do by this use of the deposition.

'The rule which you quoted, Mr. Goldstone, is not saying what you said it said. It simply says if the witness' answers indicate hostility, the court should be liberal in permitting counsel to examine into the relationship between the witness and the part to show that she had become unfriendly, but this does not mean that you can impeach your own witness by the use of the deposition in this cause.

'Now this rule that you quote as to the right to use the deposition is a rule which is applicable within the accepted rules of evidence. I repeat, one of the accepted and longstanding rules of evidence is that you cannot impeach your own witnesses. Now one final observation. Much has been made in open court about the inconsistencies between what Mrs. Burns may have said on the witness stand, and that which she said in the deposition. This court has observed no great inconsistencies. She has admitted on the record in open court this man was under the influence of intoxicating liquors. There is nothing to indicate hostility as a matter of fact, and even if hostile, the most the court could do would be to permit you to show the relationship between her and the parties.

'The motion to utilize the deposition is denied. We will not permit a separate record and we will now proceed before the jury.

'I should add, Mr. Bacow, continued reference to this transcript may result in a mistrial.

'Mr. Bacow: The courts has ruled and we will obey the ruling of the court, your Honor.'

We have read the deposition. It consists of 48 pages of thoroughgoing inquiry into the events of the fatal evening, from the time the divorce-seeking Mr. Hileman called on divorced Mrs. Burns at her home to the end of Mr. Hileman's final ride as driver of an automobile (the result for him being that last horizontal ride each of us is due to take).

Mr. Hileman and Mrs. Burns had been 'keeping company' for some three months. From Mrs. Burns' home they proceeded to the defendants' bar, known as New Hudson Inn. There without doubt Mr. Hileman became intoxicated, certainly in some degree, as two to three hours of drinking went on. He started things by ordering a round 'for the house,' utilizing a 'twenty' from his hundred dollar bankroll. The Degree of his intoxication while in the bar was of course the triable issue under the statute; the gist thereof being the selling or furnishing of intoxicants to a person 'who is at the time...

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  • People v. Anderson, 4
    • United States
    • Supreme Court of Michigan
    • March 27, 1973
    ...parties to the case are bound by the judgment but the case is not authority beyond the immediate parties. See Hileman v. Indreica, 385 Mich. 1, 7, fn 1, 187 N.W.2d 411 (1971); In re Curzenski Estate, 384 Mich. 334, 335, fn 1, 183 N.W.2d 220 (1971); Breckon v. Franklin Fuel Co., 383 Mich. 25......
  • People v. Petros, Docket No. 140430
    • United States
    • Court of Appeal of Michigan (US)
    • March 1, 1993
    ...other grounds, 409 Mich. 67, 293 N.W.2d 315 (1980) (opinion supported by only four justices is not precedent); Hileman v. Indreica, 385 Mich. 1, 7, n. 1, 187 N.W.2d 411 (1971) 5 We distinguish the preceding line of cases from Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d ......
  • People v. Moss
    • United States
    • Court of Appeal of Michigan (US)
    • July 19, 1976
    ...the examination transcript as a prior inconsistent statement or to refresh the memory of the witness. See generally Hileman v. Indreica, 385 Mich. 1, 187 N.W.2d 411 (1971). We do not believe that defendants were prejudiced by the use of the term of law and exclusively within the province of......
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    • Supreme Court of Michigan
    • November 28, 1977
    ...supra, p. 52; United States v. Tinney, 473 F.2d 1085 (C.A. 3 1973); Note, supra, 49 N.Y.U.L.Rev. p. 952.20 See Hileman v. Indreica, 385 Mich. 1, 8, 187 N.W.2d 411 (1971). It does not appear that the prosecutor knew that McBride would testify in a manner inconsistent with his prior statement......
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