Kwaiser v. Peters
| Decision Date | 28 February 1967 |
| Docket Number | No. 1255,No. 3,1255,3 |
| Citation | 148 N.W.2d 547,6 Mich.App. 153 |
| Parties | Gerald F. KWAISER, Jr., Plaintiff-Appellant, v. Charles B. PETERS, d/b/a Peter's Bar, Defendant-Appellee. Cal |
| Court | Court of Appeal of Michigan — District of US |
Joseph J. Trogan, Saginaw, for appellant.
John Davidson, Stanton, Taylor, McGraw & Collison, Saginaw, for appellee.
Before BURNS, P.J., and FITZGERALD and T. G. KAVANAGH, JJ.
Plaintiff appeals from an adverse jury verdict and judgment in an action brought under CLS 1961, § 436.22 (Stat.Ann.1965 Cum.Supp. § 18.993).
On the evening of February 17, 1962, Harvey Krause was at the defendant's bar (Peter's Bar, Saginaw, Michigan) for approximately 2 hours. The number of drinks served to him by the defendant's employees during that time was disputed. Testimony offered by the plaintiff and by the defendant conflicted as to whether Krause was served intoxicating liquor in defendant's establishment while under the influence of alcohol. After leaving Peter's Bar, Krause drove his automobile into the left rear door of a car parked diagonally across the street from the defendant's bar and injured the plaintiff.
Plaintiff alleged that defendant was liable under the provisions of the above cited statute, commonly called the dramshop act. The jury rendered a verdict of no cause of action, and plaintiff's motions for new trial and judgment notwithstanding the verdict were denied.
On appeal the plaintiff has used a 'shotgun approach' in stating the questions involved:
'Was there prejudicial error committed which would support plaintiff's motion for new trial that was denied by the trial court?
'Was there reversible error committed by the trial court upon its denial of plaintiff's motion for a judgment notwithstanding the verdict?'
The plaintiff has filed a 99-page brief and has left it to this Court to sift out the specific grounds of error allegedly committed by the trial court.
We could utilize the same approach in this opinion and say:
In the light of the conflicting testimony presented in this case the trial court was correct in denying plaintiff's motion for judgment notwithstanding the verdict; and
We have carefully reviewed the evidence and must reject plaintiff's plea that the verdict is against the great weight of the evidence.
However, we will attempt to discuss the specific grounds of alleged error.
The plaintiff served 2 'demands' upon the defendant before trial. The 'demands' were identical and read as follows:
'Now comes the plaintiff by the plaintiff's attorney, Joseph J. Trogan, and demands that the defendants, under oath, inform the plaintiff of the names and addresses of any prospective juror and/or any immediate member of the family who is a policyholder or stockholder of any insurance company which issued a policy of insurance concerning, relating and/or covering the matters in the above entitled case; the names and addresses of said persons who are related, business and/or social acquaintances of the defendants' witnesses and/or the defendants' attorneys; the names and addresses of said persons who are, or have been, hired, retained or represented by the said insurance company, the defendants and/or the defendants' attorneys; and the names and addresses of said persons who are, or have been, officers, agents, representatives, investigators and/or employees of the said insurance company, the defendants and/or the defendants' attorneys.'
Defendant failed to respond to these 'demands' and at trial plaintiff moved the court to require defendant to respond to them. The court denied the motion, stating that the juror questionnaires were broad enough and that plaintiff could make investigation of the jurors. Plaintiff claims the denial of this motion was error. The 'demands' were allegedly drafted in conformity with the procedure suggested by Darr v. Buckley (1959), 355 Mich. 392, 94 N.W.2d 837. To be sure, on page 397, 94 N.W.2d on page 840, Justice Black said:
'(T)here is no reason why the questing plaintiff may not secure, on oath prior to trial, such information as will fairly disclose whether any prospective juror is interested, along with an insurer, in the result of the case at hand.'
These words of advice, however, cannot be interpreted as authorizing the use of a new procedural device, entitled a 'demand.' If counsel wanted to discover the insurance companies' relations to the prospective jurors, witnesses, or parties, he should have adopted one of the several established discovery techniques of the General Court Rules.
Prior to trial plaintiff submitted a list of Voir dire questions for the judge to ask the jury. Two of the questions related to the jurors' direct or indirect relationship to the Wolverine Insurance Company. The trial judge informed the parties that in his opinion the jurors' questionnaires afforded either party sufficient information as to insurance affiliations and that the questions were not necessary.
The remainder of the questions with which we are concerned pertained to whether the jury would be for or against certain propositions of the law. The record shows that immediately before the trial, counsel for both sides and the court started to discuss the advisability of asking some of these questions, but never concluded exactly which questions were not going to be asked and which ones were going to be covered in substance but not in the requested form. Since there is no transcript of the Voir dire examination, we are in no position to pass judgment on this matter.
On the second day of trial the defendant moved for segregation of the witnesses. The trial court granted the motion to segregate over plaintiff's objections. "In civil cases the exclusion of witnesses from the courtroom during trial rests in the sound discretion of the trial court." Coburn v. Goldberg (1949), 326 Mich. 280, 284, 40 N.W.2d 150, 152. Plaintiff does not show in what respect his case was prejudiced by the court's action. We find no abuse of discretion or error.
Plaintiff complains that the trial court erred in sustaining defendant's objections to the reception of the testimony and exhibits. At the time the court made its rulings the plaintiff did not make an offer of proof. See GCR 1963, 604. It is apparent that these evidentiary issues were not preserved for appeal. Bujalski v. Metzler Motor Sales Co. (1958), 353 Mich. 493, 92 N.W.2d 60; Herndon v. Woodmen of World (1965), 1 Mich.App. 141, 134 N.W.2d 825.
Plaintiff's claim that defendant interjected a false issue which prejudiced plaintiff's case is unfounded. Upon cross-examination of Gerald Kwaiser, defense counsel was on the verge of asking questions to support defendant's allegation of contributory negligence, when the attorney for the plaintiff objected on the ground that...
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