McMiddleton v. Otis Elevator Co.

• Decision Date: 01 February 1985
• Docket Number: Docket No. 74180
• Citation: 362 N.W.2d 812,139 Mich.App. 418
• Parties: Jane McMIDDLETON, Kimberly McMiddleton, John McMiddleton, Darnell McMiddleton, Darlene McMiddleton and Gaile McMiddleton, Plaintiffs-Appellees, and Great Lakes Steel Corporation, Intervening Plaintiff-Appellee, v. OTIS ELEVATOR COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 812

362 N.W.2d 812

139 Mich.App. 418

Jane McMIDDLETON, Kimberly McMiddleton, John McMiddleton Darnell McMiddleton, Darlene McMiddleton and Gaile McMiddleton, Plaintiffs-Appellees and Great Lakes Steel Corporation, Intervening Plaintiff-Appellee, v. OTIS ELEVATOR COMPANY, Defendant-Appellant.

Docket No. 74180.

Court of Appeals of Michigan.

Submitted Oct. 10, 1984.

Decided Dec. 4, 1984.

Released for Publication Feb. 1, 1985.

Barton W. Morris, Detroit, for plaintiffs-appellees.

Conklin, Benham, McLeod, Ducey & Ottaway, P.C. by Ronald A. Weglarz, Detroit, for intervening plaintiff-appellee.

Fletcher, Cardelli & Tice, P.C. by Thomas G. Cardelli and Michael K. McNally, Southfield, for defendant-appellant.

Before HOOD, P.J., and BEASLEY and MARUTIAK ^*, JJ.

PER CURIAM.

Defendant, Otis Elevator Company, appeals from a jury verdict rendered in favor of plaintiffs, under which plaintiffs were awarded a net sum of $225,000. The jury found defendant, Otis Elevator Company, negligent and awarded damages in the sum of $275,000 to plaintiff Jane McMiddleton, and $5,000 for each of her five children. The jury further found that Jane McMiddleton (hereinafter plaintiff) was 25% negligent, thus reducing the total award to the net sum of $225,000.

On appeal, defendant raises three issues. First, defendant claims that the trial judge abused his discretion in refusing to admit into evidence certain photographic evidence obtained by defendant. During trial, the extent of plaintiff's injuries was in dispute. Plaintiff claimed that she needed a cane to walk and used it all the time. During trial, defendant hired a private detective to take surveillance movies of plaintiff, showing her walking without a cane. The movies were shown on a separate record, after which the trial judge found that the movies were not admissible as impeachment because they involved a collateral matter, and also, that defendant had not established a proper foundation for their admission. He made a similar ruling regarding photographs of the plaintiff walking without a cane. After viewing the movie, the trial judge stated that it did appear that on one occasion the plaintiff was walking normally without limping.

The trial court's ruling that the photographic evidence was inadmissible had three possible bases: (1) its probative value was outweighed by its prejudicial effect; (2) it was inadmissible for impeachment because the defense had failed to lay a proper foundation; and (3) it was inadmissible for impeachment because it concerned a collateral matter.

A threshold question regarding this issue is whether the evidence was properly admissible as part of defendant's case in chief. To be thus admissible, evidence must be relevant under MRE 401. Evidence is relevant if it has a legitimate tendency to establish or disprove a material fact. ¹ To be admissible, photographs must be accurate, have probative value and must be helpful in throwing light upon some material point in issue. ² Photographs may be admitted to show the extent of injuries and the amount of suffering of a party. In the within case, the evidence was offered to show that plaintiff's disability was not as extensive as she claimed. ³ Thus, the movies and photographs were clearly relevant on the issue of damages.

In 12 Blashfield, Automobile Law & Practice (3d ed.), Sec. 435.5, p. 35, the text states:

"Films which show that a plaintiff is capable of physical activity may be displayed where the plaintiff has produced proof of disability."

In McCormick, Evidence (3d ed.), Sec. 214, p. 674, the author states:

"Judicial discretion in the admission or exclusion of motion pictures is constantly emphasized in the decisions, and is perhaps largely attributable to the fact that the presentation of this kind of evidence will involve considerable expenditure of time and inconvenience. At the same time, however, when motion pictures are offered which reproduce the actual facts or original events in controversy, such as films of an allegedly incapacitated plaintiff shoveling snow or playing baseball, * * * the cogency of the evidence is such that the taking of considerable time and trouble to view the evidence would appear amply warranted." (Footnotes omitted.)

In Rogers v. Detroit, ⁴ plaintiff sued to recover damages for injuries received when alighting from a streetcar. Her condition was such that counsel agreed that it would be dangerous to bring her to the courtroom. Instead, the trial judge permitted the jury to view motion pictures taken of plaintiff in her home, which showed her condition, a rapid pulsation of the throat. After investigating the circumstances under which the movies were made and viewing them apart from the jury, the judge admitted the movies into evidence. On appeal, the Supreme Court found no error, stating:

"No claim is made that they were not an accurate portrayal of Mrs. Rogers' condition, or that the proper foundation was not laid for their introduction. See 'Motion Pictures in Evidence,' 27 Ill L Rev 424. Certain circumstances under which motion pictures might convey an erroneous impression to a jury are pointed out in 2 Wigmore Evidence (2d ed), p. 107. The reception of such evidence should be left largely to the judgment and discretion of trial judge. Heiman v Railway Co, 21 Cal App 2d 311; 69 Pac 2d 178 (1937); State, for the use of Chima v United Railways & Electronic Co, 162 Md 404; 159 A 916; 83 ALR 1307 (1932), and Denison v Railway Co, 135 Neb 307; 280 NW 905 (1938)." ⁵

In other jurisdictions, various cases support admissibility of surveillance movies in personal injury actions. ⁶ Relevant evidence may, nevertheless, be excluded if its prejudicial impact outweighs its probative value. In part, the trial court's ruling was on this ground.

In the within case, plaintiff stated that she walks with a limp and uses a cane. Defendant countered by offering proof that her movement is less impaired than she claims. The offering of counter proof is not presenting evidence unfairly prejudicial to the plaintiff. Rather, unfair prejudice relates to collateral matters. In the instant case, the trial judge appeared to base his finding of prejudice on the fact that the movie tended to contradict plaintiff's sworn testimony. This was error. Defendant was entitled to offer evidence regarding plaintiff's claimed injuries. The trial judge also stated that the movie "does only go at best to impeachment". His primary bases for denying admission, improper foundation and collateral issue, were based on this assessment. It is in this judgment that we find error.

In holding that the photographic evidence could only be offered for purposes of impeachment, the trial court may have confused two concepts: contradiction and impeachment. Contradictory evidence is simply evidence which is contrary to a witness's testimony. Impeachment evidence is a direct attack on a witness's credibility. Although there is considerable overlap, contradictory evidence is not subject to the same restrictions as impeachment evidence. ⁷ The photographic evidence in this case was offered primarily for purposes of contradiction, was relevant to the central issue of plaintiffs' damages and was not unfairly prejudicial. Therefore, we believe that it was admissible as part of defendant's case in chief, and that the trial judge's ruling that it was inadmissible in evidence constituted reversible error. ⁸

Even assuming that the photographs and movie were admissible only for impeachment, we would doubt the correctness of the trial judge's ruling. He found that a proper foundation had not been made for the film's admission, in that plaintiff had not been asked whether, at certain specific times and locations, she used her cane. He relied on MRE 613, which applies to prior statements of witnesses. Since the photographic evidence in this case was not a prior statement and not intended to stand as a statement, we do not believe that the trial court's use of MRE 613 was appropriate.

The trial judge also found that the issue (as he stated it) of whether plaintiff always used a cane was a collateral matter and, thus, could not be disputed by way of impeachment. He relied upon Cook v. Rontal, ⁹ in which a plaintiff in a malpractice action sought to introduce the testimony of another patient of the defendant-doctor. The issue was whether the doctor had given the plaintiff the proper warnings, and the former patient would have testified that the doctor did not properly warn her. The Cook Court upheld the trial court's ruling that the other patient's testimony related to a collateral matter and was inadmissible. Facts which would have been independently provable regardless of the contradiction are not collateral. ¹⁰ The fact of whether plaintiff is able to walk without a cane is directly probative on the issue of the extent of plaintiff's disability and is not a collateral matter. Therefore, the trial judge's ruling that the evidence was inadmissible for impeachment was in error.

The trial court appeared to be concerned about the fact that the surveillance revealed plaintiff without her cane on only one occasion, out of six trips in and out of her car. There was, however, no indication that the defense intended to show only that portion of the film that showed plaintiff without her cane. That the film may, in fact, not be strong evidence for the defense is immaterial on the question of its admissibility. This was a jury trial. The extent of plaintiff's injuries and her impaired condition were questions of fact for the jury. ¹¹ In light of the foregoing, we believe that the trial judge clearly erred and abused his discretion in his rulings on the photographic evidence.

In so doing, we do not intend to unduly limit the exercise by the trial judge of his discretion in weighing the admission of photographic evidence. As stated in Rogers, supra, the Supreme Court emphasized that the reception of this type of...