Paratore v. Furst, Docket No. 1977

• Decision Date: 30 January 1969
• Docket Number: Docket No. 1977,No. 1,1
• Citation: 15 Mich.App. 568,167 N.W.2d 126
• Parties: Carl PARATORE and Robert Hawkins, Plaintiffs-Appellants, v. Richard A. FURST, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 126

167 N.W.2d 126

15 Mich.App. 568

Carl PARATORE and Robert Hawkins, Plaintiffs-Appellants, v. Richard A. FURST, Defendant-Appellee.

Docket No. 1977.

Court of Appeals of Michigan, Division No. 1.

Jan. 30, 1969.

Rehearing Denied Feb. 21, 1969.

Released for Publication May 1, 1969.

Leave to Appeal Denied July 11, 1969.

Albert Lopatin, Detroit, Norman L. Zemke, Detroit, of counsel, for appellant.

Albert A. Miller, Garan, Lucow & Miller, Detroit, for appellee.

Before LESINSKI, C.J., and LEVIN and McGREGOR, JJ.

LEVIN, Judge.

Plaintiffs-appellants Carl Paratore and Robert Hawkins appeal a jury verdict of no cause of action against Paratore and awarding Hawkins $350. Although there are several assignments of error, our disposition of this case makes it unnecessary for us to consider more than one.

This action was commenced following a collision between an automobile driven by Paratore, in which Hawkins was a passenger, and an automobile driven by the defendant Richard A. Furst.

Paratore and Hawkins filed their complaint on May 29, 1963. The defendant's answer did not claim that either plaintiff was guilty of contributory negligence. At a pretrial conference held July 2, 1965, the defendant was authorized to amend to allege that the negligence of both plaintiffs contributed to their injuries. The alleged act of contributory negligence on the part of the passenger Hawkins was his entrusting himself to the hazards of Paratore's driving knowing, as it was alleged, that Paratore was an habitually negligent driver. ¹

Plaintiffs thereupon moved for separate trials. In our opinion the trial court erred when it denied that motion.

In the time between the date plaintiffs' complaint was filed and the date of the pertrial conference where the defendant was authorized to amend, the Michigan Supreme Court announced its decision in Perin v. Peuler (On Rehearing, 1964), 373 Mich. 531, 130 N.W.2d 4, and promulgated GCR 1963, 607 (374 Mich. xv). Under that decision and court rule evidence of a driver's past motor vehicle conviction record became admissible for various purposes, including (1) to impeach a witness' credibility and (2) to show that an owner negligently entrusted his automobile to the driver. As appears in this record, Perin v. Peuler and rule 607 introduced a new dimension for the defense as well as the offense.

In authorizing the introduction in evidence of a driver's past motor vehicle conviction record the Michigan Supreme Court did not decide the question here presented, namely, whether the imperative of a fair trial considered in the light to which such evidence can be put might not require separation for trial of some causes which traditionally have been consolidated for trial.

The only use the defendant could have properly made of Paratore's conviction record against Paratore was to impeach Paratore's credibility as a witness by proof of his prior Convictions. This would not include incidents of bad driving which did not result in conviction. In contrast, the only elements of Paratore's driving record which were relevant to the claim of contributory negligence against Hawkins were those events of which Hawkins had knowledge before entrusting himself to Paratore's driving. These might include none of Paratore's convictions but a number of other close calls witnessed by Hawkins.

Paratore was entitled to keep from the jury's purview evidence concerning his driving record other than his conviction record. Hawkins was entitled to the exclusion of all evidence concerning Paratore's driving record other than events of which he had knowledge. Cf. Leebove v. Rovin (1961), 363 Mich. 569, 582, 111 N.W.2d 104. That which might be admissible against Paratore on the issue of his credibility would not necessarily be admissible against Hawkins on the issue of his contributory negligence and vice versa. The danger of confusion of issues and prejudice inherent in this situation is apparent. Either plaintiff could be substantially prejudiced by evidence concerning Paratore's driving record beyond that properly admissible in that plaintiff's separate case against the defendant.

Cautionary instructions that the jury might count:

(1) the evidence of Paratore's convictions, but none of the other evidence of his bad driving, for the purpose of determining his credibility;

(2) the evidence of Paratore's bad driving, including convictions, of which Hawkins had knowledge prior to the entrustment, but none of the driving record evidence of which Hawkins did not have such knowledge, for the purpose of determining whether Hawkins was contributorily negligent;

(3) none of such evidence in deciding whether the collision was caused by Paratore's or Furst's negligence,

would probably have confused the jury more than enlightened it. Furthermore, experience teaches us that juries cannot be depended upon to remove from their conscious and subconscious thinking processes prejudicial facts just because they have been instructed to do so. For a discussion see Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.

GCR 1963, 206 and GCR 1963, 505 provide for liberal joinder of parties in an action and consolidation of actions for trial. But under these rules where joinder or consolidation may be expected to result in prejudice to any party, the trial court should order a separate or sequential trial of issues or claims or enter such other orders as may be necessary to avoid prejudice. Gervais v. Annapolis Homes, Inc. (1966), 377 Mich. 674, 679, 142 N.W.2d 7; Watts v. Smith (1965), 375 Mich. 120, 125, 134 N.W.2d 194. In this case prejudice was probable enough that plaintiffs' motion for separate trials, made after introduction of the affirmative defenses, should have been granted. See Jackson v. Trogan (1961), 364 Mich. 148, 158, 110 N.W.2d 612, and Vernan v. Gordon (1961), 365 Mich. 21, 24, 111 N.W.2d 890; Felice v. Weinman (1964), 372 Mich. 278, 281, 126 N.W.2d 107. We do not preclude joint trial where all the evidence of past driving record is admissible against both parties, albeit for different purposes.

The subsequent course of the trial bears out the plaintiffs' assertion that...