People v. Zimmerman, 43

• Decision Date: 27 August 1971
• Docket Number: No. 43,43
• Citation: 189 N.W.2d 259,385 Mich. 417
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy ZIMMERMAN, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 259

189 N.W.2d 259

385 Mich. 417

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy ZIMMERMAN, Defendant-Appellant.

No. 43.

Supreme Court of Michigan.

Aug. 27, 1971.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Department, Luvenia D. Dockett, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Elliott R. Perlman, Detroit, for defendant-appellant.

Before the Entire Bench.

BLACK, Justice (for affirmance).

ON REHEARING (Ordered February 4, 1971)

Defendant-appellant Zimmerman and his non-appealing codefendant, one Mukalla, were convicted together of negligent homicide. The two were informed against on account of the violent collision of an automobile driven by Mukalla with a partially loaded petroleum tank truck operated by the defendant Zimmerman. One Anstett, a passenger in the Mukalla car, was fatally injured.

As the causal events began, the truck was proceeding south on Greenfield in Detroit. The automobile was proceeding north on the same street. Zimmerman turned left toward a private driveway and had nearly completed his turn when Mukalla's car crashed into the right rear side of the truck. The force of the collision was such that the truck was driven sideways with sufficient force to separate the tank from the truck chassis and overturn it.

The issue of speed of the oncoming automobile was tried out as between the codefendants with as much if not more vigor than the prosecutor displayed in pursuing his duties. For specific details, see Division l's recount of the trial record (People v. Zimmerman, 12 Mich.App. 241, 245--251, 162 N.W.2d 849).

Zimmerman's conviction was affirmed on appeal. This Court granted leave to review for the purpose of considering two questions: Whether the proffered expert testimony--of one not an eyewitness--was admissible on the question of speed of the oncoming automobile, and whether the trial judge's refusal to permit such non-eyewitness to give his opinion, of the minimal rate of approach-speed of the oncoming automobile, amounted to an abuse of discretion. We agree that no reversible error was committed and therefore affirm.

In Washburn v. Lucas (1964), 373 Mich. 610, 130 N.W.2d 406 this Court criticized the admission of opinion testimony of a like expert witness, the main issue being that of causal negligence. There Justice Souris wrote, for our majority (p. 625, 130 N.W.2d p. 413):

'Finally the witness was asked whether he had an opinion 'as to a range of speed of the Lucas car in connection with this accident at the time of the impact?'

'The witness had such an opinion, and gave it, again there being no objection. He was not, as the reader will gather, an eyewitness of the collision. The facts upon which his opinions were founded included a measurement examination of the scene of collision, examination of damage done to one of the cars after the collision, photos and other information given admissibly by other witnesses.'

Later we said (p. 626, 130 N.W.2d p. 413) that 'the foregoing is written in effort to eliminate future reception in our trial courts of like opinions.'

It is well, alleged conflict of Washburn with Dudek v. Popp (1964), 373 Mich. 300, 129 N.W.2d 393 considered, that our reasons for elimination of such dispensable testimony should now pass in review. In 1874 Mr. Justice Campbell wrote for the Court (People v. Morrigan, 29 Mich. 4, 7):

'The experience of courts with the testimony of experts has not been such as to impress them with the conviction that the scope of such proofs should be extended. Such testimony is not desirable in any case where the jury can get along without it; and is only admitted from necessity, and then only when it is likely to be of some value.'

Then came to our reports, in steady succession, the citations and quotations which the Court gathered in In re Estate of Astolas (1935), 273 Mich. 189, 193, 194, 262 N.W. 766 (Morrigan, supra, included). Perhaps the soundest of all reasons, for limiting unto necessity what we loosely refer to as expert testimony, appears in McNally v. Colwell (1892), 91 Mich. 527, 52 N.W. 70 (followed expressly in Vial v. Vial (1963), 369 Mich. 534, 537, 120 N.W.2d 249). Quoting McNally 91 Mich. at 536, 537, 52 N.W. at 73:

'It is best to limit expert testimony to its proper uses, since it is not now held in the highest esteem; nor has it been found to be free from the infirmities and temptations that belong to human nature. And since a man's opinion cannot be met and tested, as could his testimony to the existence of a fact, expert evidence, while useful in many cases, is dangerous in all, and should be restricted, for the purpose of accuracy in determining the truth, which is the aim of all judicial investigation, to those cases where its use is well nigh indispensable because of questions of science or skill being involved, in which a special and peculiar knowledge is desired in order to arrive at the truth.'

These observations were not new, when written. The reader desiring to pursue them may read with profit entire sections 390 (392) and 391 (393), headed 'Infirmity of expert testimony,' appearing in 2 Jones Commentaries on Evidence (Blue Book edition, 1913) pages 970--973. The sections conclude:

'We cannot close this section without reproducing from two New York cases Dicta which are convincing expressions of judicial district. 'We may assume, also, that their (the experts') minds were affected by that pride of opinion, and that kind of mental fasination with which men are affected when engaged in the pursuit of what they call scientific inquiries.' 'He (the expert) comes on the stand to swear in favor of the party calling him, and it may be said he always justifies by his works the faith that has been placed in him."

In this case there was eyewitness testimony as well as ample proof of physical facts ¹ from which the jury could reach a permissible judgment of the conduct of each driver, that is, whether such conduct did or did not amount to negligence and, if so, whether it was causal or remote. For instance the eyewitness Bloom testified respecting the lateral and longitudinal positions of the respective vehicles as of the approximate time of impact, and to having observed the Mukalla car as it approached the point of collision. He was sworn as a witness for defendant-appellant and testified, upon examination by the latter's counsel:

'Q. (By Mr. Perlman) What is your opinion as to the speed of that vehicle (that of defendant Mukalla) when you saw it?

'A. The car was traveling fast, I thought fifty miles an hour.'

Regarding the admissibility of Mr. Bloom's estimate of speed, see Harnau v. Haight (1915), 189 Mich. 600, 155 N.W. 563; People v. Schwartz (1921), 215 Mich. 197, 183 N.W. 723; Jones v. Detroit Taxicab & Transfer Co. (1922), 218 Mich. 673, 188 N.W. 394; Zylstra v. Graham (1928), 244 Mich. 319, 221 N.W. 318; Stehouwer v. Lewis (1929), 249 Mich. 76, 227 N.W. 759; Tyler v. Weed (1938), 285 Mich. 460 280 N.W. 827; Hammock v. Sims (1946), 313 Mich. 248, 21 N.W.2d 118, and O'Brien v. Wahl (1953), 335 Mich. 601, 56 N.W.2d 279.

In any view of the case there was no necessity for resort to a non-eyewitness opinion of speed, or for even partial encroachment by expert opinion upon the jury's function of finding facts and drawing inferences.

In view of the above we do not discuss the second stated question at length. It is true that discretion is vested with the trial judge, either to receive or reject the opinions of experts, once the nature of the case and the proffered testimony properly invoke such discretion. To the point see cases cited in People v. Hawthorne (1940), 293 Mich. 15, 23, 291 N.W. 205 and the observation which, in 1879 was written for the Court by Justice Cooley in McEwen v. Bigelow, 40 Mich. 215, 217:

'The court is not obliged to receive the evidence of every person called who may appear to have some little knowledge of the business, but who has no personal knowledge of the matters in controversy. He must decide within the limits of a fair discretion whether the experience of the supposed expert had been such as to make his opinions of any value.'

It is the Need for such testimony that counts--a factor that is absent here--and it is admissible only when the ordinary knowledge and experience of mankind will not enable the trier or triers of fact to determine what inferences should be drawn properly from complex facts previously shown in evidence.

The corresponding likeness of a civil action for ordinary negligence, and a criminal prosecution under the statute pursuant to which Mukalla and Zimmerman were convicted (C.L.1948, § 750.324), is noted expressly lest our decision be misunderstood and extended beyond the Court's effort in Washburn, supra 'to eliminate future reception in our trial courts of like opinions.' In neither instance is proof of criminal intent required. People v. McKee, 15 Mich.App. 382, 385, 166 N.W.2d 688. As the Court observed in People v. McMurchy (1930), 249 Mich. 147, 168, 228 N.W. 723, 730 with respect to the cited statute:

'One may be civilly and criminally responsible for the negligence which causes death, though there may be some factors that would discharge one from liability for civil negligence but would not act as a release from criminal negligence. The method of determining negligence in both instances is the same.';

and further (p. 170, 228 N.W. p. 731):

'Just as we can ascertain civil liability by certain rules, so also can we determine criminal liability by similar rules.'

From this the reader will perceive that we here adopt no broad rule banning expert testimony, or opinion evidence which is based in part or in whole upon facts that are known personally to the witness and verified by him. We simply affirm anew Washburn's bar and apply it to prosecutions brought under the cited statute where, as here, there is no need for an expert opinion or opinions to support or oppose...