Obermiller v. Patow
| Decision Date | 27 March 1973 |
| Docket Number | Docket No. 13280,No. 3,3 |
| Citation | 207 N.W.2d 152,45 Mich.App. 606 |
| Parties | Joyce A. OBERMILLER, Individually, and as guardian of the Estate of Kim Ann Obermiller and Richard Scott Obermiller, minors, Plaintiffs- Appellants, v. Lamerne C. PATOW, Individually, and d/b/a 'Bruce's Bar,' and Allen Urich, Individually and d/b/a 'Embra Bar,' jointly and severally, Defendants- Appellees |
| Court | Court of Appeal of Michigan — District of US |
Peter F. Cicinelli, Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw, for plaintiffs-appellants.
Leopold P. Borrello, Cook, Nash, Deibel & Borrello, Saginaw, for Patow.
J. Michael Fordney, Collison & Fordney, Saginaw, for Urich.
Before DANHOF, P.J., and R. B. BURNS and J. H. GILLIS, JJ.
Richard Obermiller was killed at approximately 2:30 a.m. on Saturday, June 10, 1967, when the car he was driving failed to negotiate a curve and struck a utility pole. At the time of his death Obermiller was drunk. His wife and children brought this action against two of the taverns visited by Obermiller in the hours immediately before his death, alleging liability under the dramshop act. M.C.L.A. § 436.22; M.S.A. § 18.993. Verdicts of no cause of action were returned in favor of both defendants. Plaintiffs appeal. Defendant Urich cross-appeals. It is our opinion that plaintiffs are entitled to a new trial--against both defendants.
The very first question asked of Mrs. Obermiller on cross-examination was whether her husband was a licensed driver at the time of his death. Her counsel objected immediately and strenuously. His objection was overruled, and Mrs. Obermiller answered that her husband's license had been suspended. Defense counsel pursued the subject at length.
We agree with plaintiffs that informing the jury of the suspension of Obermiller's license was the equivalent of placing before the jury Obermiller's record of traffic convictions. Admittedly, the jury was not told why Obermiller's license had been suspended. However, it is common knowledge that licenses are usually suspended because the driver has been convicted of several minor traffic offenses or of some grievous traffic offense. We also agree that it was error for the trial court to permit the jury to be told of Obermiller's driving record.
An individual's record of prior traffic convictions is not admissible as proof of that individual's subsequent negligence. Lucas v. Carson, 38 Mich.App. 552, 559--560, 196 N.W.2d 819 (1972). Cf. Grand Rapids & I.R. Co. v. Huntley, 38 Mich. 537, 540 (1878); People v. Thompson, 122 Mich. 411, 425--429, 81 N.W. 344 (1899), and cases cited therein; Crane v. Woodbury, 41 Mich.App. 11, 15--16, 199 N.W.2d 577 (1972). However, an individual's record of traffic convictions may be made known to a jury:
(A) To test that individual's credibility, Taylor v. Walter, 385 Mich. 599, 189 N.W.2d 309 (1971), adopting on rehearing Justice Black's opinion for reversal, Taylor v. Walter, 384 Mich. 114, 117--120, 180 N.W.2d 24 (1970); Williams v. Fiedlar, 22 Mich.App. 179, 177 N.W.2d 461 (1970), aff'd, 386 Mich. 221, 191 N.W.2d 52 (1971);
(B) To rebut allegations that the individual is or was habitually a careful driver, Olweean v. Wayne County Road Commission, 385 Mich. 698, 702--703, 190 N.W.2d 108 (1971); or
(C) To prove negligent entrustment to that individual, Elliott v. A. J. Smith Contracting Co., Inc., 358 Mich. 398, 100 N.W.2d 257 (1960); Perin v. Peuler (On Rehearing), 373 Mich. 531, 130 N.W.2d 4 (1964); Tortora v. General Motors Corp., 373 Mich. 563, 130 N.W.2d 21 (1964); Paratore v. Furst, 15 Mich.App. 568, 167 N.W.2d 126 (1969).
Defendants claim that Obermiller's record of traffic convictions was admissible to rebut plaintiffs' allegations that, even when drunk, Obermiller was a relatively careful driver. Defendants put the cart before the horse. At the time Mrs. Obermiller was asked about the suspension of her husband's license, plaintiffs had made no claim whatsoever that Obermiller was a generally careful driver. Such allegations were made only in response to questions on cross-examination and only after the jury had been informed of the suspension of Obermiller's license. It appears to us that plaintiffs testified as to Obermiller's good driving habits to rebut defendants' introduction of his poor driving record, no that defendants introduced the driving record to rebut plaintiffs' testimony. Thus we do not see how the Olweean case is applicable to the instant case.
Defendants concede that, because Obermiller did not testify, his driving record was not admissible to impeach his credibility. Olweean v. Wayne County Road Commission, Supra, 385 Mich. 701, 190 N.W.2d 52; Cf. Kuhnee v. Miller, 37 Mich.App. 649, 653, 195 N.W.2d 299 (1972). However, defendants claim that Obermiller's driving record was admissible to impeach the testimony of Mrs. Obermiller. The trial court agreed. We do not.
Mrs. Obermiller testified that between 10 and 10:30 p.m. on Friday, June 9, 1967, she telephoned Bruce's Bar to inquire as to the whereabouts of her husband; that a woman, presumably a waitress, answered the telephone; that Mrs. Obermiller heard a voice, which she recognized as that of her husband, tell the waitress to inform his wife that he was not in the bar; and that Obermiller sounded drunk. The waitress on duty in Bruce's Bar the evening of June 9--10, 1967, testified that she never answered a call from Mrs. Obermiller and that she, the waitress, did not see the deceased in the tavern before 1:30 a.m. on June 10th. Defendants claim that a wife who believes her husband to be drunk and who knows that he does not have a valid driver's license will arrange to have him driven home and that Mrs. Obermiller's failure to make such arrangements is evidence that she was lying about her 10 p.m. call to Bruce's Bar.
Even if Mrs. Obermiller's failure to arrange for her husband's transportation home is probative of her veracity in this case, the source of any concern would have been her husband's intoxicated condition, not the status of his right to operate a motor vehicle. A drunk, whether licensed or not, is incapable of properly operating a motor vehicle. Therefore, Obermiller's record of traffic convictions is irrelevant to Mrs. Obermiller's credibility. It is the most fundamental of the many rules of evidence that evidence is admissible only if relevant to some material issue. White v. Bailey, 10 Mich. 155 (1862). Since Obermiller's driving record is not relevant to his wife's credibility, Taylor v. Walter, Supra, is not even arguably applicable.
Defendant Patow's case was argued to the jury on the lone theory that Patow had not contributed to Obermiller's intoxication because Obermiller never consumed the one beer admittedly served him at Bruce's Bar. We cannot agree with Patow that the jury verdict in his favor must be considered a finding that Obermiller did not consume that one beer and that, therefore, admission of Obermiller's driving record, even if erroneous, did not prejudice plaint...
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