Layton v. Cregan & Mallory Co.

• Decision Date: 10 December 1934
• Docket Number: No. 54.,54.
• Citation: 257 N.W. 888,269 Mich. 574
• Court: Michigan Supreme Court
• Parties: LAYTON v. CREGAN & MALLORY CO., Inc.

269 Mich. 574

257 N.W. 888

LAYTON

v.CREGAN & MALLORY CO., Inc.

No. 54.

Supreme Court of Michigan.

Dec. 10, 1934.

Suit by Josephine Layton against the Cregan & Mallory Company, Inc. From a judgment for the plaintiff, the defendant appeals, and the plaintiff cross-appeals.

Reversed, and new trial granted.

Appeal from Circuit Court, Kalamazoo County; George V. weimer, judge.

Argued before the Entire Bench.

Howard & Howard, of Kalamazoo, for appellant.

Adams, Van Horn & Bloem, of Kalamazoo, for appellee.

POTTER, Justice.

Plaintiff sued defendant to recover damages alleged to have been suffered by her by reason of defendant's negligence. From a judgment for plaintiff, defendant appeals, and plaintiff takes a cross-appeal.

The case was here in Layton v. Cregan & Mallory Co., 263 Mich. 30, 248 N. W. 539, where the facts sufficiently appear; and in Layton v. Cregan & Mallory Co., 265 Mich. 574, 252 N. W. 337, where additional facts appear. Sixty errors are assigned by appellant, some of which will be considered, and all disposed of.

1. Many lay witnesses were permitted to testify, over objection on the part of defendant, to the acts, conduct, statements, and complaints of plaintiff made after the accident. This testimony was objected to. Error is assigned on its reception.

These witnesses testified as to what plaintiff said and did. Such testimony was hearsay and inadmissible under ordinary circumstances. One may not be permitted to make statements and complaints after an injury and perform acts indicative of injury, pain, and suffering in the presence of others, and then call them as witnesses to testify thereto. Such claimed testimony is subject to the charge it was manufactured for the occasion and is hearsay, because it is, or may be, self-manufactured and self-serving. Exclamations of pain and suffering are sometimes admissible, but they are properly so only when, as a part of the res gestae, they are usual, natural, and ordinary acts resulting from the injury received-when they are the spontaneous exclamations of pain accompanying the injury or injuries themselves. Statements and declarations of pain and suffering made after an injury has occurred and when suit to recover damages therefor is contemplated, or has been commenced; when the party considers, or may have considered, what statements and complaints she ought to make to augment her damages; where she is under temptation to feign the seriousness of her condition, and to make exaggerated statements in relation thereto, are inadmissible.

This question was before the court upon a former appeal. It was said: ‘Testimony of statements of pain and suffering made by plaintiff, under circumstances negativing spontaneity, and therefore open to the charge of being a mere relation of past suffering, or furnishing hearsay evidence thereof at the trial, should have been excluded.’ Layton v. Cregan & Mallory Co., 265 Mich. 574, 252 N. W. 337. This is the rule established by the great weight of authority.

In Grand Rapids & Ind. R. Co. v. Huntley, 38 Mich. 537, 31 Am. Rep. 321, the rule stated was:

‘These statements are admitted only upon the ground that they are the natural and ordinary accompaniments and expressions of suffering. It would be impossible in most cases to know of the existence or extent or character of pain without them. They are received therefore as acts rather than declarations, and admitted from necessity. The rule which admits declarations of present suffering has never been extended so as to include declarations either of past suffering or of the causes in the past of such suffering, so as to make such statements proof of the facts. Declarations concerning the past are narratives and not acts. Exclamations of suffering may be, and if honest are, parts of the occurrence itself. * * *

‘We cannot think it safe to receive such statements which are made for the very purpose of getting up testimony, and not under ordinary circumstances.’

The rule laid down in Layton v. Cregan & Mallory Co., 265 Mich. 574, 252 N. W. 337, established the law of the case, and we see no reason for departing therefrom. The admission of this testimony was contrary to the law of the case and constituted error.

2. Dr. Sherman Gregg was sworn as a witness for plaintiff. He was a practicing physician in the city of Kalamazoo, having been engaged in medical practice for 24 years, a specialist in nervous diseases during the time he was employed at the Kalamazoo State Hospital. He was not plaintiff's regular attending physician, but, he says, his examination was for the purpose of coming into court and testifying, and not for the purpose of treatment. During his examination by plaintiff's counsel, he was asked a long hypothetical question which was objected to because it did not contain all the facts, was not a correct statement of all the circumstances, and called for an opinion which foreclosed the jury on the question of fact. The court permitted the answer. The witness said: ‘Well, my conclusion was, after examining her and ruling out everything we could think of that might act as a factor, that was the conclusion we came to, that it was the result of the accident.’

Counsel for defendant moved to strike out the answer, and for a mistrial. The court said there was no reason to suppose the witness knew the legal effect of the answer and directed that the jury disregard the same, and struck out the answer. The form of the question was then changed, and the witness testified that, in his opinion, the physical condition of the plaintiff might have been caused by the accident. In order to permit this witness to testify, he obtained a history of the case from plaintiff.

On cross-examination, the following occurred:

‘Q. Now, if the patient, either consciously or unconsciously, exaggerates, your findings are modified, aren't they? A. They are.

‘Q. You always have the human equation to deal with, that element of error? A. Yes, sir.

‘Q. If there is an erroneous response, then your findings are in error to that extent, aren't they? A. They would be.’

The doctor realized the history of the case upon which he based his opinion or conclusion was hearsay. He testified: ‘That is true, that is all hearsay, but it is the only way you can get a history, checking up for the different tests. She tried-seemed to make an honest effort to cooperate.’

This testimony was objected to and a motion made to strike it out. A very similar question was before the court in Grand Rapids & Ind. R. Co. v. Huntley, supra, where it is said:

‘The physicians here were not called in to aid or give medical treatment: * * *

‘They were sent for merely to enable the plaintiff below to prove her case. The whole course of the plaintiff was taken to no other end. She had in her mind just what expressions her cause required. They were therefore made under a strong temptation to feign suffering if dishonest, and a hardly less strong tendency if honest to imagine or exaggerate it. The purpose of the examination removed the ordinary safeguards which furnish the only reason for receiving declarations which bear in a party's own favor. * * *

‘The physicians were called in, not to give medical aid but to make up medical testimony; and the declarations were made to them while engaged in that work. It would be difficult to find a case more plainly within the mischief of the excluding rule.’

When this case was here before, in Layton v. Cregan & Mallory Co., 265 Mich. 574, 252 N. W. 337, it was said:

‘The court permitted a medical witness to answer the following question:

“Is the condition you found during all this time, in your opinion, caused by the injury she sustained in the accident, or by working on the farm?'

‘This testimony invaded the province of the jury, and its admission, over objection, constitutederror. De Groot v. Winter, 261 Mich. 660, 247 N. W. 69.’

3. Upon the trial of the case, during the closing argument of plaintiff's counsel to the jury, it was said: ‘She had been a valuable asset to the community. She belonged to the class of people who form the very backbone of the community, and she had earned an age of serenity and enjoyment, and Baum comes along. I don't charge him with anticipating. Of course, he didn't anticipate anything, but he comes along on the highway, and when he operates a car on the highway he is supposed to have some regard for the rights of others, and he indifferently, recklessly drives upon this highway. His eyes might just as well shut. I spoke about gross negligence awhile ago. When I said ‘gross', I didn't mean it in a technical sense. I meant it in a term of degree, a high degree of negligence; almost inconceivable that a man would do that. He was not drunk. If he was drunk, you might have some conception about it; but his negligence was such that he should have been put in prison.’

Whereupon, defendant's counsel objected to this as an appeal to the passion of the jury...