Jackson v. Sabuco

• Decision Date: 04 February 1970
• Docket Number: No. 3,Docket No. 5863,3
• Parties: Esther JACKSON and John Jackson, Plaintiffs-Appellants, v. Remo SABUCO, Ida Sabuco, Marc Sabuco and Michigan Cosmetologists Association, Inc., a Michigan corporation, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 532

175 N.W.2d 532

21 Mich.App. 430

Esther JACKSON and John Jackson, Plaintiffs-Appellants, v. Remo SABUCO, Ida Sabuco, Marc Sabuco and Michigan

Cosmetologists Association, Inc., a Michigan

corporation, Defendants-Appellees.

Docket No. 5863.

Court of Appeals of Michigan, Division No. 3.

Feb. 4, 1970.

Rehearing Denied March 13, 1970.

Released for Publication April 3, 1970.

Leave to Appeal Denied May 20, 1970.

Aaron Lowenstein, Negaunee, for plaintiffs-appellants.

E. Nickolas Bridges, Negaunee, for Remo and Ida Sabuco.

Nicholas P. Chapekis, Escanaba, for Marc Sabuco.

Howard H. Campbell, Petoskey, for Mich. Cosmetologists Assn.

Before J. H. GILLIS, P.J., and R. B. BURNS and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

The Starlight Room of Marco's Restaurant in Escanaba is tiered, with tables on each tier. On May 19, 1963, plaintiff Esther Jackson was attending a beauticians' clinic in the Starlight Room when she tripped on a step of the tiered floor, fell, and injured herself. She and her husband subsequently brought this action for damages against the owners of the restaurant and the Michigan Cosmetologists Association, the sponsors of the clinic. The jury returned a verdict of no cause of action, and the plaintiffs appeal. Hereinafter, plaintiff, singular, refers to Esther Jackson.

Several of the many issues raised on this appeal merit no discussion. Those issues that do merit some discussion deal both with the evidence adduced and the instructions given below.

On direct examination of defendant Remo Sabuco, the following exchange took place:

'Q I show you what has been now marked Defendants' Exhibit 4 and ask you if you will tell me what it is.

'A This is a piece of metal edging of exactly the same type used on the tiers in the Starlight Room. This is not a piece of the same molding but it is a piece identical in every way that I could tell with one exception that the brown plastic screw covering was black in the case of the Starlight Room.

'Q You're talking about this piece of plastic that comes and goes?

'A Right.

'Q The trim thing that covers the screws?

'A Yes, it was black in the case of the Starlight Room, otherwise it is identical as could be.

'MR. BRIDGES: (defendant's counsel) I show this to Plaintiffs' counsel and Defendant's counsel. I move the introduction of Defendants' proposed Exhibit 4 into evidence.

'MR. FITZHARRIS: (plaintiffs' counsel) I object (to) the admission on the grounds it is not a piece of the identical stripping that was used there at the time of the accident. This in fact has an entirely different formation with an insert which it's entirely different from what my understanding of the large piece of stripping was. The other stripping was entirely metal. This appears to have some kind of a soft substance on the surface of it.

'THE COURT: The objection is overruled and the Exhibit is admitted into evidence. I think your objection goes to the weight rather than to the admissibility, Mr. Fitzharris. The testimony of the witness is that it's identical to the stripping that was there in his place on the Starlight Room steps with the exception of the coloring of the plastic insert, is that correct?

'THE WITNESS: That's exactly correct, Your Honor.

'THE COURT: I'll admit it in evidence.'

Plaintiffs contend that the 'surprise' exhibit was introduced in violation of GCR 1963, 301.1(7) and that its introduction was prejudicial. GCR 1963, 301.1(7), we note, requires the production at the pretrial conference of 'all proposed exhibits in the possession of the attorneys in support of the main case or defense' and admission of 'the authenticity of such exhibits whenever possible.'

The allegation of surprise and prejudice is raised for the first time on appeal. No attempt was made at trial to call the court's attention to the fact that the pretrial summary did not contemplate the introduction of the exhibit. More importantly, there is no showing as to how this omission might result in prejudice to plaintiffs. See Pan-American Casualty Company v. Reed (CA 5, 1957), 240 F.2d 336.

'The admission in evidence of exhibits which were not referred to and included in a pretrial order was a matter within the discretion of the trial court.' Millers' National Insurance Co., Chicago, Ill. v. Wichita Flour Mills Company (CA 10, 1958), 257 F.2d 93, 98, citing Globe Cereal Mills v. Scrivener (CA, 10, 1956), 240 F.2d 330.

See also Bednarsh v. Winshall (1965), 374 Mich. 667, 133 N.W.2d 202. The record reveals no abuse of discretion.

Further error is alleged regarding this exhibit in that the exhibit was not part of the same edging on which plaintiff tripped. Although it is true that the exhibit was not part of the edging in question, the exhibit was clearly identified as a facsimile except for the color.

'We do not think there was any error in the use of the model which was not a facsimile in every detail. A photograph or model is used only as a 'non-verbal mode of expressing a witness' testimony' (3 Wigmore on Evidence (3d Ed.), p. 175, § 790), and as a testimonial aid it may often help the jury to understand the evidence dence 'more clearly than they could from the words of any witness.' (Citation) The proposed aid must be sponsored by a witness who uses it to relate his personal knowledge or scientific skill and understanding. (Citation) The trial court determines within discretionary limits, the preliminary question of whether the model is a fair representation of the ultimate fact. (Citation) When the correctness of the illustrative representation is disputed, if there is room for finding in favor of the offering party, the trial court may admit it and submit the question to the jury for ultimate determination.' Finch v. W. R. Roach Co. (1940), 295 Mich. 589, 595, 596, 295 N.W. 324, 326. (Citations omitted)

We find no error in allowing the use of this exhibit.

Error is also alleged in that defense counsel was permitted to make a blackboard sketch of the Starlight Room while cross-examining plaintiff. In response to plaintiffs' objection, the trial court ruled, 'It is understood it is only a drawing and he is not trying to make it to scale.' The use of visual aids of this type is left to the trial judge's discretion. McCormick, Handbook of the Law of Evidence, p. 386, citing Finch v. W. R. Roach Co., Supra. Any alleged inconsistencies or inaccuracies in the sketch were raised in the presence of the jury. There was no abuse of discretion.

Plaintiffs allege additional error in the introduction of photographs of the Starlight Room which were concededly taken sometime before the accident.

The pretrial summary stated:

'Defendants Remo and Ida will have for introduction in evidence certain photographs which are as follows: Defendant R & I Sabuco Exhibit No. 1, photograph of the Starlight Room, and Exhibit No. 2, a photograph of the same room. These two photographs have certain penciled writings on the back which will be removed prior to trial. The plaintiffs' counsel reserves the right to object to these photographs and desires to exhibit the same to his client.'

The record reveals the following:

'MR. BRIDGES: I move the admission of Defendants' Exhibit 2 which was admitted at pre-trial.

'MR. FITZHARRIS: No objection.'

The failure to object precludes our review.

In cross-examining the plaintiff, defense counsel asked her, over objection, whether she was receiving social security retirement benefits and, if she was, whether the benefits would be curtailed if her income exceeded a certain amount. Plaintiff answered 'yes' to both questions. Plaintiffs now contend that defendants' inquiry into the receipt of social security benefits violated the rule that evidence of money or benefits received from a collateral source may not be introduced by a tort-feasor to effect a reduction of the damages he must pay. This contention is without merit. The benefits in question were specifically labeled Retirement benefits and there was no intimation that the payments were intended to compensate plaintiff for her injuries. Moreover, on direct examination, plaintiff had testified as follows:

'Q Why did you sell your business?

'A Well, because I felt I couldn't keep up the schedule like it should be done, a place of that size, and the income was not sufficient when it was operating and it's so hard to get the kind of help that you need in a place of that kind when you're not able to be there to help.

'Q Would you have sole your place of business if it hadn't been for your physical condition?

'A No, because I enjoyed my work very much.

'Q How much profit were you deriving from your personal skill and professional knowledge prior to the accident?

'A Prior to the accident?

'Q Yes, say by the week.

'A Well, I was averaging around $100 a week.

'Q For the first 6 months after the accident you didn't work at all?

'A No.

'Q So you had no income?

'A No.

'Q In the 6 months following your return to work in November, 1963, how much profit were you deriving from your personal skill and professional knowledge?

'A Not very much.'

It was defense counsel's avowed purpose, in light of the above testimony, to show that the alleged decrease in plaintiff's earnings and the eventual sale of her business were precipitated, not by the accident, but by her reaching the age of retirement. In other words, the defense sought to show that plaintiff scaled down her business to keep her outside income within the limit permitted recipients while they are receiving maximum benefits. Defense counsel restricted his offer of proofs accordingly, and, in light...