Schwartz v. Davis Mfg. Co.

• Decision Date: 20 April 1971
• Docket Number: Docket No. 8016,No. 2,2
• Citation: 32 Mich.App. 451,189 N.W.2d 1
• Parties: Francis J. SCHWARTZ and Mary Schwartz, his wife, Plaintiffs- Appellants, v. DAVIS MANUFACTURING COMPANY, a Michigan corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 1

189 N.W.2d 1

32 Mich.App. 451

Francis J. SCHWARTZ and Mary Schwartz, his wife, Plaintiffs- Appellants, v. DAVIS MANUFACTURING COMPANY, a Michigan corporation Defendant-Appellee.

Docket No. 8016.

Court of Appeals of Michigan, Division No. 2.

April 20, 1971.

Rehearing Denied June 8, 1971.

Leave to Appeal Denied Aug. 17, 1971.

Released for Publication Aug. 17, 1971.

Jack Hanna, Clawson, for plaintiffs-appellants; Charles J. Porter, Bloomfield Hills, of counsel.

Reibel, Oliver & Dinan, Troy, for defendant-appellee.

Before LEVIN, P.J., and T. M. BURNS and HUGHES, ^* JJ.

T. M. BURNS, Judge.

Plaintiffs appeal from the judgment of the trial court, sitting without a jury, that plaintiffs had failed to establish a cause of action against the defendant corporation.

Francis J. Schwartz originally owned lots 6, 7, and 8 in the Northford Park subdivision in the township of Troy, Michigan. ¹ Defendant corporation owned lots 9 through 23 and lots 60 through 67. Lots 1 through 5 and lots 68 and 69 were owned by Mr. Reginald Stevens.

Plaintiffs claimed that in 1951 Mr. E. R. Davis, who was then president of defendant corporation, proposed to Stevens and Schwartz that the subdivision be replatted so that the alley running behind lots 1 through 13 could be moved eighty feet to the eastward, thus giving defendant company more space upon which to conduct its business. Schwartz claimed that the consideration he was to receive for his participation in the replatting was to have his lots 6, 7, and 8 extended the eighty feet to the new public alley. The extensions in plaintiffs' lots were to be conveyed to plaintiffs from both Stevens and defendant company, who owned the property immediately east of the alley as it was originally situated.

The replatting was accomplished, ¹ but plaintiffs never received the deed from defendant company for the extended portions of their lots. Plaintiffs did, however, in 1967, receive a deed from Stevens for the extended portion of lot 6 and the north half of lot 7. Plaintiffs now seek the extended portion of the other half of lot 7 and the extended portion of lot 8, title to which still remains in the defendant company.

To demonstrate the existence of the contract, Schwartz showed that in 1952 he received a bill from defendant for three-thirteenths of the cost of replatting and that he paid the charge; that from 1952 through 1957 he planted a garden over the extended portions of lots 6, 7, and 8; that in 1954 the replatting was approved and recorded; that plaintiffs have paid the taxes on the lots as extended since 1955, although they did not know if the taxes had increased after the lot extensions; that defendant built a wall in 1965 the length of the lot line between lots 8 and 9; and that Stevens deeded to plaintiffs in 1967 the rear 80 feet of lot 6 and the rear 80 feet of the north half of lot 7, a 30 feet by 80 feet portion of Stevens' lots 68 and 69 prior to replatting.

At the time of trial, Davis was deceased. The trial court ruled, therefore, that Schwartz could not testify as to the making of the oral agreement between himself and the deceased president of defendant corporation. The court ruled that such testimony was prevented by the Dead Man's Statute, M.C.L.A. § 600.2166 (Stat.Ann.1971 Cum.Supp. § 27A2166) which provides:

'(1) In any action by or against a person incapable of testifying, a party's own testimony shall not be admissible as to any matter which, if true, must have been equally within the knowledge of the person incapable of testifying, unless some material portion of his testimony is supported by some other material evidence tending to corroborate his claim.' ²

Plaintiffs here contend that the evidence, detailed above, presented to demonstrate the existence of the contract (Supra) tended to corroborate their claim and, therefore, the dead man's statute should not have been a bar to the testimony.

The quantity of corroborating proof necessary to satisfy the statute has never been determined by Michigan courts. We will, therefore, examine the decisions in several other jurisdictions where similar statutes have been interpreted.

At least four jurisdictions, New Mexico, District of Columbia, Oregon, and Virginia, have statutes similar to the one we have in Michigan. Closest is New Mexico's statute which provides:

'In a suit by or against the heirs, executors, administrators or assigns of a deceased person, a claimant * * * shall not obtain a judgment or decision on his own evidence, in respect of any matter occurring before the death of the deceased person, unless such evidence is supported by some other material evidence tending to corroborate the claimant or interested person.' ³

The New Mexico court, interpreting what quantity of evidence is necessary to satisfy the requirements of the above statute, held that it is no longer necessary that corroborating evidence be such as would, standing alone, tend to prove the essential allegations raised by the pleadings. The court stated that it was only necessary that the corroborating evidence support the claimant's evidence. ⁴

The Virginia statute provides that '* * * no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony * * *'. ⁵ Although this statute seemingly requires more evidence than a statute such as Michigan's, which only requires 'evidence Tending to corroborate' the interested party's claim, the Virginia Supreme Court has held:

'Corroborating evidence is such evidence as tends to confirm and strengthen the testimony of the witness sought to be corroborated; that is, such as tends to show its truth, or the probability of its truth.

It usually consists of separate and independent items, no one of which of itself would probably be sufficient, but when joined together lead satisfactorily to the conclusion of the truth of the testimony of the witness sought to be corroborated.' ⁶

The District of Columbia's statute, ⁷ which is very similar to the Virginia statute, has been interpreted in much the same way. In approving the above statement by the Virginia court, the United States Court of Appeals for the District of Columbia stated:

'We agree with the Virginia court. We think the statute permits a judgment based essentially on the survivor's testimony if there is other evidence from which reasonable men might conclude that his testimony is probably true.' Rosinski v. Whiteford (1950), 87 U.S.App.D.C. 313, 314, 184 F.2d 700, 701.

In Oregon, their applicable statute ⁸ has been interpreted more rigidly. The effect of the Oregon decisions is that a claimant must establish, through evidence other than the claimant's own testimony, a Prima facie case before the claimant's own testimony may be admitted. ⁹ The court in Rosinski, supra, commenting upon this type of reasoning, stated:

'This amounts to saying that a survivor's testimony may be considered only when it is not essential to the result. Such a view nearly nullifies the statute.' ¹⁰

We are in accord with the approach of the New Mexico, Virginia, and the District of Columbia Courts. We adopt the statement by the United States Court of Appeals, quoted above, that 'the (Michigan) statute permits a judgment based essentially on the survivor's testimony if there is other evidence from which reasonable men might conclude that his testimony is probably true.'

When this rule is applied to the facts in the case at bar, it is our conclusion that the evidence presented at the trial court does tend to corroborate the plaintiffs' claim of an oral contract. Therefore, the trial court should have allowed Francis Schwartz to testify concerning the making of the oral contract.

Defendant contends, however, that even if we find sufficient corroboration to have admitted plaintiffs' testimony, the issue has not been properly preserved for appeal because plaintiffs failed to request and make a separate record pursuant to GCR 1963, 604, which provides:

'If any objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness, or by leave of court, may examine the witness in relation thereto. The court may require the offer to be made or the testimony taken out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon.

Despite the permissive wording of the court rule and its corresponding statute, M.C.L.A. § 600.2101 (Stat.Ann.1962 Rev. § 27A.2101), our Supreme Court has consistently construed the language in mandatory terms. ¹¹ However, this court has recently held in Hes v. Haviland Products Company (1967), 6 Mich.App. 163, 170, 148 N.W.2d 509, 513, that a separate record does not necessarily have to consist of actual testimony:

'A 'separate record' does not have to embody actual testimony unless the trial judge so requests. An attorney's summarization of what a witness would have said had he been permitted to testify will sufficiently preserve the issue for appeal under GCR 1963, 604. Shortly after the trial judge sustained defendant's first objection the plaintiff's attorney said:

'I would like to show on this matter had Mr. Hes been allowed to answer that question he would have claimed the compensation, he believes is reasonably in line with what he received throughout the industry, in line at least of what he is paid...