Moldovan v. Allis Chalmers Mfg. Co.

• Decision Date: 22 May 1978
• Docket Number: Docket No. 25084
• Citation: 83 Mich.App. 373,268 N.W.2d 656
• Parties: Martin MOLDOVAN, Plaintiff-Appellant, v. ALLIS CHALMERS MANUFACTURING CO., a Delaware Corporation and Fraza Equipment, Inc., a Michigan Corporation, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 656

268 N.W.2d 656

83 Mich.App. 373

Martin MOLDOVAN, Plaintiff-Appellant, v. ALLIS CHALMERS MANUFACTURING CO., a Delaware Corporation and Fraza Equipment, Inc., a Michigan Corporation jointly and severally, Defendants-Appellees.

Docket No. 25084.

Court of Appeals of Michigan.

May 22, 1978.

Rehearing Denied June 28, 1978.

Released for Publication Aug. 18, 1978.

Colista, Baum & Domonkos, Detroit, for plaintiff-appellant.

Ivin E. Kerr, Detroit, for Allis Chalmers.

Robert E. Sullivan, Detroit, for defendants-appellees.

Before BEASLEY, P. J., and D. E. HOLBROOK, Jr. and KELLY, JJ.

D. E. HOLBROOK, Jr., Judge.

Plaintiff Martin Moldovan was injured when he was struck by an unoccupied forklift truck which unexpectedly went into reverse. Basing his claim on negligence and several breach of warranty theories, plaintiff sued defendants Allis Chalmers Manufacturing Company and Fraza Equipment Company. Essentially plaintiff's claim was grounded on the failure of a safety valve device which, plaintiff contends, should have prevented the forklift from operating when unoccupied. After a fifteen-day trial the jury returned a verdict of no cause of action as to both defendants. Plaintiff appeals, raising twelve allegations of error.

First, plaintiff contends the trial judge should have disqualified himself since the judge had recently been found liable for $395,000 in a Federal court civil suit. Plaintiff's counsel argue their ignorance of this judgment until the day of final argument precluded a timely motion for disqualification as required by GCR 1963, 405. Plaintiff argued this issue in him motion for a new trial, which was denied. Regardless of when counsel discovered the judgment, the argument is without merit. Plaintiff has established none of the eight possible grounds for disqualification under GCR 1963, 405.1 and has not shown "actual prejudice" of the trial judge. Irish v. Irish, 59 Mich.App. 635, 639, 229 N.W.2d 874 (1975); Armstrong v. Ann Arbor, 58 Mich.App. 359, 369-370, 227 N.W.2d 343 (1975), Lv. den., 394 Mich. 783 (1975). In the new trial hearing, the trial judge's remarks indicate that, if anything, he was favorable to plaintiff's case that he felt plaintiff should recover something for his injury and that perhaps the defendants could have been pressured into a $400,000 settlement (plaintiff rejected a $200,000 settlement offer). The jury, however, found no liability on the part of either defendant. We find no reversible error.

Second, plaintiff complains of several incidents of harsh treatment of plaintiff's counsel in front of the jury. In any hotly contested fifteen-day trial there are bound to be episodes of judicial impatience with aggressive counsel. The standard of review, however, is whether such exchanges resulted in denying plaintiff a fair and impartial trial. St. Louis v. Fisher & Co., Inc., 1 Mich.App. 55, 58, 134 N.W.2d 290 (1965). Taken alone and out of context, certain portions of the record could just as easily be used to show trial court bias against the defendants. We must review the record as a whole and we conclude plaintiff was not denied a fair trial.

Third, plaintiff contends the trial judge violated a pretrial order (issued by a different judge) to exclude any reference to plaintiff's prior sex-related convictions. The violation occurred when the trial judge refused to excise certain references to the sex offenses in a video-tape deposition of plaintiff's psychiatric witness. Initially we note that one aspect of plaintiff's claimed injury was impairment of his sex drive and, indeed, plaintiff's psychiatric witness concluded that plaintiff's sex drive was impaired. However, the psychiatrist also stated that plaintiff's sexual problems stemmed in part from his earlier sex offense incidents. The trial judge gave plaintiff the option of introducing the entire video-tape or excluding it totally. Plaintiff opted to let in the entire tape and now appeals. We uphold the ruling of the trial judge for several reasons: a) GCR 1963, 605 permits trial court discretion to require an expert witness to set forth the "data" upon which the expert's conclusions are based, b) a person's prior criminal record is relevant if a psychiatrist relied upon it in forming an opinion, People v. Hammack, 63 Mich.App. 87, 93, 234 N.W.2d 415 (1975); c) in light of plaintiff's claim of impaired sexual drive, the defense was entitled to have all of plaintiff's psychiatric witness's data placed before the jury, see GCR 1963, 302.4(4), and, d) the pretrial judge did not know plaintiff's psychiatrist was going to testify as to plaintiff's prior history before he (the pretrial judge) made his exclusionary ruling. In light of all these factors the trial judge properly exercised his discretionary power to modify the pretrial order and such a modification will not be overturned absent clear abuse. Hanlon v. Firestone Tire & Rubber Co., 391 Mich. 558, 564, 218 N.W.2d 5 (1974); State Highway Comm. v. Redmon, 42 Mich.App. 642, 645-646, 202 N.W.2d 527 (1972).

Fourth, plaintiff argues the trial judge erred by refusing to allow a representative of plaintiff's employer to read statements written on an accident report form (Form 100). The judge ruled the statements hearsay and refused to allow them to be read. However, he offered to allow the form in to show the accident took place and had been reported but refused to admit any statements as to how the accident happened. Plaintiff decided not to introduce the form at all and now appeals. The trial judge ruled correctly. The statements were written by someone no longer employed by plaintiff's employer and were written before the company representative was employed by plaintiff's employer. Since the employer was a third party intervenor and not an adverse party the statements were not admissible as admissions against interest. Nor were they admissible under the "business entry" exception to the hearsay rule. M.C.L.A. § 600.2146; M.S.A. § 27A.2146. There are some ambiguities in that statute. Wade v. Bay City, 57 Mich.App. 581, 226 N.W.2d 569 (1975), Appeal dismissed, 394 Mich. 755 (1975). The form is admissible to show the accident occurred and that the employer had knowledge of the accident, but the written conclusions or statements detailing how the accident occurred a critical fact issue at trial would be excludable hearsay. In Central Fabricators, Inc. v. Big Dutchman Division of U. S. Industries, Inc., 398 Mich. 352, 247 N.W.2d 804 (1976), the Michigan Supreme Court quoted with approval from the United States Supreme Court case Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), which held statements contained in an accident report were not admissible under the Federal business entry statute. For a number of reasons accident reports are distinguishable from other types of so-called business records. We conclude the trial judge ruled correctly on the limited admissibility of the accident report.

Fifth, plaintiff complains the entire deposition of a former Allis Chalmers employee should have been admitted under either the adverse witness rule, or GCR 1963, 302.4(3), or as an "excited utterance". A review of the judge's ruling indicates that he excluded portions of the deposition on the grounds that they were Speculation and Conjecture. The admissibility of depositions is governed by the rules of evidence, GCR 1963, 302.4 and 302.5, and the trial judge properly exercised his discretion in refusing to admit speculative deposition testimony. Plaintiff further complains the trial judge abused his discretion by refusing to grant a continuance so plaintiff could bring the deposition witness to court to testify. The record indicates the plaintiff wished to bring the witness in near the close of trial and the judge felt taking the witness out of order so late in the trial would unduly confuse the jury. Granting a continuance is within the discretion of the trial judge and we find the judge did not abuse his discretion.

Sixth, plaintiff complains he should have been allowed to read selected portions of depositions of witnesses who had already testified and had been excused. The record indicates the judge denied plaintiff's request since plaintiff should have cross-examined the witnesses about their deposition statements when they were on the stand rather than wait until they were excused to read selected highlights from the deposition. Plaintiff claims GCR 1963, 302.4(2) allows the use of depositions "for any purpose". We do not think this broad language removes the trial judge's control of the proceedings and we conclude the trial judge properly refused to let plaintiff's counsel introduce favorable excerpts of deposition testimony after the witnesses were excused.

Seventh, plaintiff argues the trial judge erred when he refused to permit co-counsel for plaintiff to divide the duties in conducting the lawsuit. The record indicates no specific request by plaintiff's attorneys to engage in a "division of labor" method. A review of the instances cited by plaintiff reveals the trial judge was acting well within his discretion in limiting arguments before the court. Plaintiff's argument is without merit.

Eighth, plaintiff complains the trial judge erred in excluding in-court experiments with a model of the allegedly defective valve and in excluding plaintiff's witness's testimony of out-of-court experiments with a model valve. As to the in-court experiments, the trial judge refused to allow the experimentation because the conditions were not sufficiently similar to the allegedly defective value on the date of the accident. The model valve was mounted on a board, not on a forklift, and plaintiff's expert conceded he had never seen the forklift in question nor had he compared the model valve with the allegedly defective valve. We conclude the trial judge did not abuse his discretion. Nor did he abuse his discretion in excluding testimony of the...