James v. Dixon

• Decision Date: 20 February 1980
• Docket Number: Docket Nos. 44523,44524
• Citation: 95 Mich.App. 527,291 N.W.2d 106
• Parties: Joan JAMES, Individually, and Joan James, as Administratrix of the Estate of Eugene James, Deceased, and Joan James, as Next Friend of Alaine James, a minor, Plaintiff-Appellant, v. Bradley Reid DIXON and Robert Eppinger, Defendants-Appellees. Joan JAMES, Individually, and Joan James, as Administratrix of the Estate of Eugene James, Deceased, and Joan James, as Next Friend of Alaine James, a minor, Plaintiff-Appellant, v. WINDY RIDGE INC., d/b/a Ike's Bar, Defendant-Appellee. 95 Mich.App. 527, 291 N.W.2d 106
• Court: Court of Appeal of Michigan — District of US

Page 106

291 N.W.2d 106

Joan JAMES, Individually, and Joan James, as Administratrix

of the Estate of Eugene James, Deceased, and Joan

James, as Next Friend of Alaine James, a minor, Plaintiff-Appellant, v. Bradley Reid DIXON and Robert Eppinger,

Defendants-Appellees.

Joan JAMES, Individually, and Joan James, as Administratrix

of the Estate of Eugene James, Deceased, and Joan

James, as Next Friend of Alaine James, a minor, Plaintiff-Appellant, v. WINDY RIDGE INC., d/b/a Ike's Bar, Defendant-Appellee.

Docket Nos. 44523, 44524.

95 Mich.App. 527, 291 N.W.2d 106

Court of Appeals of Michigan.

Feb. 20, 1980.

Released for Publication April 30, 1980.

[95 MICHAPP 528] Robert K. Kaufman, Gaylord, for plaintiff-appellant.

Daniel W. White, Alpena, for Dixon.

Michael N. Freel, East Tawas, for Eppinger.

Seth H. Barsky, Southfield, for Windy Ridge.

Before V. J. BRENNAN, P. J., and BEASLEY and BOWLES, ^* JJ.

BOWLES, Judge.

On December 5, 1975, the vehicle operated by plaintiff's decedent collided head-on with an automobile owned by defendant Eppinger and driven by defendant Dixon. On November 6, 1976, plaintiff commenced a wrongful death action against Dixon, alleging that his negligence was the cause of the collision, and against Eppinger as owner of the vehicle. The defendants answered by denying negligence on their part and by affirmatively pleading that plaintiff's decedent's gross or contributory negligence was the sole proximate cause of the accident. After discovering that a blood test had been performed upon plaintiff's decedent to determine the level of alcohol in his blood, defendants Dixon and Eppinger amended their answer alleging that at the time of the accident plaintiff's decedent was driving under the influence of alcohol.

[95 MICHAPP 529] On December 2, 1977, plaintiff filed a motion in limine to exclude any testimony by defendants Dixon and Eppinger concerning the cause of the accident. The basis of the motion was that the cause of the collision was a matter equally within the knowledge of plaintiff's decedent so that the defendants' testimony was barred by Michigan's dead man's statute. ¹ On June 8, 1977, the trial court denied plaintiff's motion, stating that a factual situation might arise during trial in which the direct testimony of the defendants would be admissible despite the dead man's statute.

On June 9, 1978, defendant Dixon moved to consolidate the wrongful death action with a dramshop action filed by plaintiff on November 27, 1977, against defendant Windy Ridge, Inc., d/b/a Ike's Bar, arising out of the same fatal accident. Plaintiff opposed consolidation arguing that it would force her to elect between the wrongful death and dramshop actions, the merits of each of which she had a right to be heard by a jury. Additionally, plaintiff opposed the motion on the basis that consolidation would compel her to waive her right to exclude testimony as to matters equally within the knowledge of plaintiff's decedent under the dead man's statute.

On November 27, 1978, the trial court entered a new order replacing its June 8, 1977, order denying plaintiff's motion to exclude Dixon's and Eppinger's testimony in the wrongful death action. The court found that the dead man's statute had been "implicitly negated" by MRE 601, and by the abolition of GCR 1963, 608.

Thereafter, defendant Dixon renewed his motion for consolidation. Dixon noted that, because of the November 27, 1978, order, plaintiff could no longer [95 MICHAPP 530] claim that consolidation of the wrongful death and dramshop actions would deny her the benefit of exercising a favorable evidentiary rule. On January 18, 1979, the trial court held that the wrongful death and dramshop actions involved substantial, controlling, and common issues of both fact and law and ordered their consolidation for trial. Plaintiff appeals from both the November 27th and January 18th orders by leave granted.

I

Plaintiff first argues that the trial court erred in holding that the dead man's statute had been impliedly repealed by the effectuation of MRE 601 and by abolition of GCR 1963, 608. Since the Legislature has not specifically abrogated the statute, the issue is whether the Michigan Supreme Court has evidenced a clear intent to remove the incompetency imposed by the dead man's act. It is settled that the courts have the power to formulate and alter matters involving judicial practice and procedure. This includes the power to adopt rules of evidence. Thus, if the dead man's statute conflicts with MRE 601, the rule prevails over the statute. Perin v. Peuler, 373 Mich. 531, 541-542, 130 N.W.2d 4 (1964); People v. Joker, 63 Mich.App. 421, 234 N.W.2d 550 (1975), lv. den. 395 Mich. 779 (1975).

We begin our consideration of this issue by noting that the incompetency imposed by the dead man's statute has been met with significant judicial dissatisfaction. Thus the incompetency itself has been narrowly construed while exceptions to the rule have been freely applied. ² Of course, [95 MICHAPP 531] judicial disaffection is not a reason sufficient, in and of itself, to declare an otherwise valid, statutorily imposed rule governing an aspect of court procedure a nullity. However, this general dissatisfaction does establish a climate in which it is entirely plausible that the Supreme Court in adopting MRE 601 intended to eliminate the effects of the dead man's statute.

An examination of the history of the dead man's statute and its interplay with court rule aids in the resolution of this issue. In 1967 the then-existing version of the dead man's statute was repealed and a new version of the statute was enacted. ³ Unlike its predecessor, this new version of the dead man's statute provided that in an action against a person incapable of testifying, a party's own testimony concerning matters equally within the knowledge of the person incapable of testifying could be admitted into evidence if supported by some other material evidence. GCR 1963, 608, was adopted to broaden the applicability of this corroboration exception to include actions brought by a person incapable of testifying. Contemporaneously with the adoption of the Michigan Rules of Evidence, the Michigan Supreme Court explicitly abolished GCR 1963, 608. ⁴ A staff comment following the order abolishing GCR 1963, 608, indicates that the rule was rendered unnecessary by enactment of MRE 601, which generally eliminates incompetencies. While such staff comments are not authoritative constructions sanctioned by the Supreme[95 MICHAPP 532] Court, they are entitled to careful consideration. We are in accord with the committee staff that the most logical conclusion to be drawn from the Supreme Court's abrogation of GCR 1963, 608, is that the Court believed MRE 601 eliminated the incompetency imposed by the dead man's statute.

MRE 601 provides:

"Unless the court finds after questioning a person that he does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules."

No subsequent provision of the Michigan Rules of Evidence disqualifies a party from speaking to matters equally within the knowledge of a person incapable of testifying. It is apparent from the staff comments that the Supreme Court was aware of the dead man's statute when considering adoption of the rules of evidence. It cannot be said, then, that the direct conflict between the language of MRE 601 and the dead man's statute was due to inadvertence on the Court's part. Consequently, we affirm the lower court ruling that the dead man's statute has been impliedly abrogated by MRE 601.

II

Plaintiff also contends that the trial court erred in ordering consolidation of the wrongful death and dramshop actions. Plaintiff argues that if the cases are tried together, there is a substantial danger that the jurors might become confused and believe that her decedent's intoxication is an affirmative defense which can be rightly asserted by all defendants.

The authority of the trial court to order the [95 MICHAPP 533] consolidation of two actions is derived from GCR 1963, 505.1, which provides:

"When actions involving a substantial and controlling common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions...