Rumptz v. Leahey
| Decision Date | 28 September 1970 |
| Docket Number | No. 1,Docket No. 5968,1 |
| Citation | 182 N.W.2d 614,26 Mich.App. 438 |
| Parties | Thomas RUMPTZ, Plaintiff-Appellee, v. Frederick P. LEAHEY, Dfendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Gene B. Zamler, Blum & Sternberg, Detroit, for defendant-appellant.
John D. Hayes and Joel S. Morse, Plunkett, Cooney, Rutt & Peacock, Detroit, for plaintiff-appellee.
Before LEVIN, P.J., and GILLIS and BRONSON, JJ.
This action arises out of a collision between automobiles driven by the plaintiff, Thomas Rumptz, and the defendant, Frederick P. Leahey.
The defendant appeals a jury verdict in favor of the plaintiff and asserts.
(1) the trial judge erred when he refused to grant the defendant's motion for a mistrial made after the plaintiff's lawyer mentioned the name of an insurance company;
(2) when the jury requested, after it had retired to consider its verdict, that the testimony of one of the plaintiff's witnesses be read back to it, the cross-examination as well as the direct examination should have been read.
The plaintiff claimed that he suffered both neck and back injuries as a result of the accident. A physician called in behalf of the defendant testified that in his opinion the plaintiff's back complaints were not related to the accident.
On cross-examination it was brought out that the witness frequently testifies in court. The plaintiff's lawyer then attempted to show that the witness claims to be an expert on whatever the exigencies of the case require. When the witness perceived the direction of the cross-examination he said, 'I don't mean to say I testify on everything.' In an apparent effort to impeach that response, the witness was asked whether he had testified in cases involving kidney problems, to which he responded, 'Not unless I had a urologist with me.'
The following then ensued:
'Q. Doctor, do you recall the case over at the workmen's compensation department, the case of Joseph Collins versus Michigan Mutual Liability Company?
'A. Do I recall it?
At this point the defendant's lawyer objected on the ground that plaintiff's lawyer was testifying, not on the ground that the name of an insured company had been mentioned. The objection was overruled. The questioning resumed.
'Q. Doctor, do you now recall that I represented Mr. Collins at the workmen's compensation department and you represented, I beg your pardon, you examined him on the part of his employer and the liability company in that case and regarding a kidney injury? Do you recall that, doctor?
'A. Mr. Blum, I can't remember the details of that case--I am not trying to avoid anything.
'Q. I understand that, doctor. I am only asking if you recall the case of Joseph Collins, that that was involving a kidney.
'The Court. He answered the question.
The defendant's lawyer interrupted and the jury was excused. He moved for a mistrial on the ground that the first reference to the Michigan Mutual Liability Company and the second reference to the 'liability company' violated the statute providing that 'the insurer shall not be made or joined as a party defendant, nor shall any reference whatever be made to such insurer or to the question of carrying of such insurance during the course of trial.' 1
While the cross-examination may, as the judge observed, have bordered on the impermissible, it did not transgress the line. The apparent purpose of the questions--impeachment--was entirely legitimate. The jury had already been made aware that the doctor testified in a large number of cases, sometimes for plaintiffs, more frequently for defendants. It would not follow from the fact that he testified for the liability company in the postulated case of Collins v. Michigan Mutual Liability Company that all defendants for whom he testified were insured.
Jurors know that many, perhaps most, defendants in automobile accident cases are insured. The critical query is whether the defendant in the instant case is insured. The questions put to the witness in this case did not, in our opinion, convey or suggest to the jury that the defendant in this case was insured. 2
In addition to the testimony of the defendant's medical expert witness that the back injury was not related to the accident, similar testimony was elicited from the treating physician who was called by the plaintiff as a witness. 3 This opinion adverse to the plaintiff was expressed during the physician's pretrial deposition and was deliberately brought out during the trial on direct examination; plaintiff's lawyer knew, both from the deposition and his opponent's opening statement, that this would be stressed during cross-examination. The direct examination of the physician was completed late in the afternoon. Because he was unable to return the following day, the parties stipulated that his deposition, containing the statement damaging to the plaintiff, would be read in lieu of cross-examination.
After the jurors retired to consider their verdict, they returned and asked that the testimony of the treating physician and another of plaintiff's medical witnesses be read. This resulted in extensive discussion. It was explained to the jury that, except for the deposition of the treating physician read in lieu of cross-examination, none of the testimony had as yet been transcribed. The distinction between the typed transcript of the deposition and the untranscribed testimony was, we think, impressed clearly upon the jury.
The jury was asked to reconsider what it wanted read. After nearly a full hour of additional deliberation, the jury returned to the courtroom at about 3:00 p.m. to have the 'testimony' of the treating physician read. At about 4:00 p.m. the foreman said, in response to an inquiry from the court, that there had been read what the jury desired to have read.
The defendant's lawyer objected that the deposition should also have been read. The objection was overruled, the judge saying that the record showed that the jury requested only the 'testimony,' that the jury was well aware that the deposition was used in lieu of cross-examination and that he was sure that the jury understood the difference between what was testified to at the trial and what was in the deposition and that what they wanted to rehear had been read to them.
We are persuaded that the judge did not err in so ruling. Firstl...
To continue reading
Request your trial
-
People v. Morrin
...v. Hider (1968), 12 Mich.App. 526, 163 N.W.2d 273.60 People v. Walker (1963), 371 Mich. 599, 610, 124 N.W.2d 761; Rumptz v. Leahey (1970), 26 Mich.App. 438, 443, 182 N.W.2d 614.61 People v. Becker (1942), 300 Mich. 562, 2 N.W.2d 503; People v. Freeman (1965), 1 Mich.App. 63, 134 N.W.2d 389;......
-
Wilson v. Stilwill
...the number of times a witness testifies in court, or is involved in particular types of cases. See Rumptz v. Leahey, 26 Mich.App. 438, 182 N.W.2d 614 (1970). In DeHaan v. Winter, 262 Mich. 192, 247 N.W. 151 (1933), (after remand ) 265 Mich. 101, 251 N.W. 391 (1933), our Court held that perm......
-
Gutowski v. M & R Plastics & Coating, Inc.
...cases. Impeachment of a witness by showing interest or bias is proper. We find no error on the basis of Rumptz v. Leahey, 26 Mich.App. 438, 182 N.W.2d 614 (1970). Plaintiff's claim of error regarding time limitations on final oral argument was not preserved for appeal and further, if error ......
-
People v. Howe
...379 Mich. 558, 561, 153 N.W.2d 663 (1967); People v. Walker, 371 Mich. 599, 610, 124 N.W.2d 761 (1963); Rumptz v. Leahey, 26 Mich.App. 438, 443, 182 N.W.2d 614 (1970). 'In Klein v. Wagenheim, Supra, 379 Mich. p. 561, 153 N.W.2d p. 665, the Michigan Supreme Court considered and rejected the ......