Shields v. Grandstaff
| Decision Date | 19 August 1987 |
| Docket Number | Docket No. 88961 |
| Citation | 161 Mich.App. 175,410 N.W.2d 308 |
| Parties | Debra SHIELDS, Individually and as Guardian of the Children of James Shields, and as Personal Representative of the Estate of James Shields, Deceased, Plaintiffs-Appellants, v. Patrick Everett GRANDSTAFF, Joseph Reddo, Individually and d/b/a Joe's Moravian Lounge, and Ohio Casualty Insurance Company, a foreign corporation, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Bushnell, Gage, Doctoroff & Reizen by Martin M. Doctoroff and Scott D. Moore, Southfield, for plaintiffs-appellants.
J. Michael Malloy III, and Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C., of counsel by John P. Jacobs and Ernest R. Bazzana, Detroit, for defendants-appellees Reddo and Ohio Cas. Ins. Co.
Before HOLBROOK, P.J., and SULLIVAN and WARSHAWSKY *, JJ.
Plaintiff Debra Shields, individually, as guardian of the children of James Shields, and as personal representative of the estate of James Shields, filed this cause of action seeking damages for the wrongful death of her husband, decedent James Shields, under the dramshop act, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993. Following trial, the jury returned a verdict of $325,000 against the alleged intoxicated person, defendant Patrick Grandstaff, but found no liability on the part of Joseph Reddo, individually and doing business as Joe's Moravian Lounge, and Ohio Casualty Insurance Company. Judgment was entered in accordance with the jury's verdict. Plaintiff appeals as of right claiming:
I. The trial court erred in excluding the deposition of Patricia Dudash, a barmaid who was employed at Joe's Moravian Lounge; and
II. The trial court erred by failing to instruct the jury on plaintiff's requested additional instructions.
We affirm.
Although somewhat disputed, the essential facts are as follows. On April 10, 1980, defendant Grandstaff went to Joe's Moravian Lounge at approximately 8:00 p.m. Seated at the bar, he drank approximately six beers from the time he arrived to the time he left at approximately 1:30 a.m. on April 11, 1980. At approximately 2:30 a.m., Grandstaff drove off I-75 onto the shoulder of the highway striking and killing plaintiff's decedent who was on the shoulder repairing a car.
Grandstaff testified that he went straight from the lounge to the accident scene without stopping. However, some evidence indicated that he may have been drinking in his truck between the time he left the lounge and the time of the accident. 1
Plaintiff first contends that the trial court erred in excluding the deposition testimony of Patricia Dudash, a barmaid at the lounge. Dudash's deposition testimony was that defendant Grandstaff was intoxicated while at the lounge and, although not served by her, was served by other lounge employees.
Depositions may be used as long as they are admissible under the rules of evidence. MCR 2.308(A)(1), formerly GCR 1963, 302.4(3). Kueppers v. Chrysler Corp., 108 Mich.App. 192, 205, 310 N.W.2d 327 (1981), lv. den. 414 Mich. 863 (1982); Fassihi v. St. Mary Hospital of Livonia, 121 Mich.App. 11, 13, 328 N.W.2d 132 (1982). The party seeking admission bears the burden of proof under this court rule. Valley Nat'l Bank of Arizona v. Kline, 108 Mich.App. 133, 141, 310 N.W.2d 301 (1981); Fassihi, supra, 121 Mich.App. at p. 13, 328 N.W.2d 132. The admission of such evidence is within the trial court's discretion. Socha v. Passino, 405 Mich. 458, 471, 275 N.W.2d 243 (1979); Fassihi, supra, 121 Mich.App. at pp. 13-14, 328 N.W.2d 132.
The pertinent provisions of MCR 2.308(A)(1) state:
In this case, the trial court refused to admit Dudash's deposition, finding that plaintiff had failed to establish that Dudash was "unavailable" within the meaning of the rules of evidence or MCR 2.308(A)(1)(c)(iii).
On appeal, plaintiff contends that the trial court based its ruling on an incorrect statement of law. Specifically, the court stated that "according to the Rules of Evidence if the party is available and within 50 miles the Court's going to rule that you cannot use it [the deposition]." In making its ruling, the court cited Lenzo v. Maren Engineering Corp., 132 Mich.App. 362, 347 N.W.2d 32 (1984), lv. den. 419 Mich. 937 (1984). Although that case dealt with the rule that admissions, which were contained in the deposition of one defendant, were not admissible as substantive evidence against a codefendant, the Court also stated that the admissibility of depositions of an opposing party is controlled and limited by the rules of evidence. Although the trial court's ruling was somewhat conclusory and confusing, the substance of the holding was correct.
Plaintiff's request to admit Dudash's deposition into evidence was brought pursuant to MCR 2.308(A)(1)(b). Noting the language of the court rule stated above, we reiterate that a deposition may be used against a party who is present or represented so far as admissible under the rules of evidence. Although under subsection (1)(b) Dudash was an employee of defendant at the time of the transaction or occurrence out of which the action arose, her deposition testimony is inadmissible hearsay evidence. MRE 801(c). Plaintiff's argument that the deposition testimony is not hearsay since it constitutes an admission by a party opponent under MRE 801(d)(2)(D) is meritless since that rule provides that such a statement be made by a party's agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship. Here, it is undisputed that Dudash was no longer employed by defendant when her deposition testimony was taken.
Second, Dudash's deposition testimony is not admissible as former testimony under MRE 804(b)(1) since plaintiff failed to establish that Dudash was "unavailable" within the meaning of that rule.
For the same reason Dudash's deposition testimony may not be used under MCR 2.308(A)(1)(c)(iii). Under that rule, deposition testimony may be used by a party only after that party demonstrates that the witness was either "unavailable" within the meaning of MRE 804(a) and (b)(1) or MCR 2.308(A)(1)(c)(iii). See Beachum v. Bay Valley Associates, 120 Mich.App. 412, 419, 328 N.W.2d 54 (1982), lv. den. 418 Mich. 853 (1983). Since plaintiff failed to make such a showing, the trial court properly excluded Dudash's deposition testimony.
Plaintiff also contends that the trial court erred in failing to give the three special jury instructions she requested. 2 The trial court declined to give the requested instructions on the basis that the standard jury instructions already covered the areas covered by the special instructions. We agree.
When the standard jury instructions do not adequately cover a particular area, the trial court is obligated to give additional jury instructions when requested where those instructions properly instruct on the applicable law. Eide v. Kelsey-Hayes Co., 154 Mich.App. 142, 150, 397 N.W.2d 532 (1986). It is within the trial court's discretion whether a proposed instruction is applicable and accurately states the law. Id.
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