Taylor v. Walter

• Decision Date: 06 October 1970
• Docket Number: No. 9,9
• Citation: 180 N.W.2d 24,384 Mich. 114
• Parties: James W. TAYLOR, Plaintiff and Appellant, v. Rudi WALTER, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 24

180 N.W.2d 24

384 Mich. 114

James W. TAYLOR, Plaintiff and Appellant, v. Rudi WALTER, Defendant and Appellee.

No. 9.

Supreme Court of Michigan.

Oct. 6, 1970.

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

Roy P. Nelson, Detroit, for defendant-appellee.

Smith & Brooker, P. C. Saginaw (Webster Cook and Mona C. Doyle, Saginaw, of counsel), amicus curiae.

Before the Entire Bench, except T. G. KAVANAGH, J.

KELLY, Justice.

The only issue presented to the jury was whether plaintiff, at the time he was struck by defendant's automobile, was crossing a street in the city of Detroit while walking in the crosswalk, or whether he was crossing in an improper manner at a place where defendant had no reason to anticipate plaintiff's presence.

The only assigned error in this appeal relates to defendant's cross-examination during the last few closing minutes of a two-day jury trial.

ISSUES

In an opinion overruling plaintiff's motion for new trial, Wayne County Circuit Judge Neal Fitzgerald stated:

'The plaintiff is seeking a new trial on the ground that the court failed to permit him to cross-examine the defendant with regard to his driving record in order to test his credibility. * * *

'This objection (defendant's) was made and sustained because the tone of voice of the attorney for the plaintiff plainly indicated that he was endeavoring to establish that the defendant was a criminal in the sense of a felon, rather than just a simple citizen who had received a traffic ticket. Furthermore, the court does not believe that there was any possible relevancy even to this defendant's credibility in questioning him about his driving record. The sole issue in this case was whether or not the plaintiff had walked into the side of the defendant's car, or whether the defendant had struck him as he passed through the crosswalk.

'It is the opinion of this court that fairness requires that no insinuation be made as to defendant's criminal character; and, furthermore, that any cross-examination to determine credibility must at least be relevant. It seems that at best this ruling of the court would constitute immaterial error, and in no way had any effect whatsoever on the verdict of the jury.'

Plaintiff's brief filed in this Court refers to the above quoted opinion denying the motion for new trial, as follows:

'It is interesting to observe that the circuit court changed the basis for its ruling, as may be seen from the above quoted materials, between the trial and the time of his opinion denying motion for new trial. The question of the plaintiff's counsel's tone of voice was not indicated at the trial. Also, the circuit court opinion questions the relevancy even as to defendant's credibility; the circuit court does this, however, in the face of prior determinations of the Supreme Court that such is relevant. It is true that the convictions do not go to the ultimate factual questions, but they do go to the credibility of the testimony being submitted to determine the factual questions.'

In affirming the trial court, the Court of Appeals ¹ after referring to GCR 1963, 607, ² stated (pp. 363-364, 1636 N.W.2d pp. 647-648):

'The Supreme Court, in Zimmerman (Zimmerman v. Goldberg (1936), 277 Mich. 134, 268 N.W. 837), distinguished between cross-examination on a prior plea of guilty to the very conduct relating to the civil action, and cross-examination on unrelated misdemeanors, stating that the admission of the latter is discretionary. This is the position of the majority of jurisdictions. Wigmore, Evidence (3d ed.) §§ 983-987. (See Wilbur v. Flood (1867), 16 Mich. 40.)

'Plaintiff has interpreted the court rule to read that admission of such collateral matters for impeachment purposes is mandatory and argues that the court's exclusion of this evidence amounted to reversible error. In view of the language in Zimmerman, supra, we do not agree with plaintiff's interpretation but hold that the admissibility of such collateral matters as involved here, offered 'Michigan follows the rule suggested in Rule 303, Model Code of Evidence which permits a trial judge in his discretion to exclude admissible evidence if he finds that its probative value is outweighed by the risk that its admission will create substantial danger of undue prejudice. See McCormick, Evidence, § 42, pp. 87-94, and § 152, pp. 319-321.'

solely to test credibility, is within the trial court's discretion.

In conceding that the trial court had discretion, plaintiff claims to this Court that it was a limited discretion, stating:

'The Court of Appeals held in the instant appeal that it is a matter of discretion with the trial judge as to whether or not evidence of former convictions for traffic violations may be admitted for purposes of impeachment. Plaintiff submits, however, that such an interpretation is a too narrow view of the function of Rule 607. Rather, the proper interpretation and application of the rule is that evidence of former convictions for traffic violations is admissible for the sole purpose of impeaching credibility. What is a matter of discretion is whether or not the witness may be further interrogated concerning the facts and circumstances leading up to the arrest and conviction.'

Defendant comments on GCR 1963, 607, as follows:

'Rule 607 refers to four cases as covering circumstances wherein evidence of traffic convictions may be admissible. The case of Van Goosen v. Barlum, 214 Mich. 595 (183 N.W. 8), permitted traffic convictions to be used under M.S.A. 27A.2158 as drawing in question the credibility of the witness. Zimmerman v. Goldberg, 277 Mich. 134 (268 N.W. 837) sustained the discretionary power of the trial judge to exclude evidence of misdemeanors such as traffic convictions under M.S.A. 27A.2158 but reversed him on the ground that a prior judicial admission of a party-opponent is admissible as a matter of right even though it be a misdemeanor if it is a guilty plea to a traffic violation charge arising out of the accident involved in the principal case. The other two cases cited, Socony Vacuum Oil Company v. Marvin, 313 Mich. 528 (21 N.W.2d 841) and Cebulak v. Lewis, 320 Mich. 710 (32 N.W.2d 21), also concerned a similar prior judicial admission by a party-opponent. None of these cases involved the issue on appeal her, viz.: collateral impeachment by cross-examination concerning the prior unrelated conviction of a traffic violation.'

In a brief entitled 'Brief of Amicus Curiae on the Admissibility of a Defendant's Driving Record for Purposes of Impeachment Pursuant to GCR 1963, 607,' filed with permission of this Court, Amicus Curiae, after calling attention that questions of construction have constantly been raised in Michigan courts since the enactment of Rule 607, sets forth its interpretation:

'It was not the intent of the Rule 607 to place traffic offenses on the same level as other crimes or misdemeanors, and give the trial court the discretion, as suggested in Taylor v. Walter, supra, to admit all prior and subsequent traffic convictions to test a witness' credibility. Van Goosen, and the cases cited therein, make it clear, that a witness' credibility is to be tested by offenses that truly test what manner of man he has been in the past, crimes involving intent or moral turpitude, 'antecedents which are really significant,' as described by Judge Campbell, and not by traffic convictions.

'Rule 607 should be limited in scope to cross-examination for convictions of crimes involving moral turpitude. Admission of prior or subsequent traffic convictions and suspensions for the sole purpose of testing a witness' credibility in automobile negligence cases, particularly where a defendant has admitted 'Even if a plaintiff is guilty of contributory negligence, it would be difficult for a jury to permit a defendant driver with a long record of convictions and suspensions to escape responsibility.

traffic violations, is highly prejudicial and even when precautionary instructions are given the jury, they can only conclude that a defendant driver with that record must have been guilty of negligence in the accident in question.

'In this connection, the language quoted by Judge Levin in Paratore v. Furst (15 Mich.App. 568, 167 N.W.2d 126), is appropriate:

"* * * 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. * * *'

'Even stronger language was contained in an opinion of Justice Jackson in Krulewitch v. United States, 336 U.S. 440, 453, 93 L.Ed. 790, 69 S.Ct. 716:

"The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction."

LEGISLATIVE AND JUDICIAL HISTORY

For the 14 years preceding our 1964 Perin v. Peuler decision (373 Mich. 531, 130 N.W.2d 4) and our enactment of GCR 1963, 607, the legislative mandate decided disputes such as are presented in this appeal.

The 1949 legislature by a 26 to 0 vote in the Senate and a 79 to 0 vote in the House, enacted P.A.1949, No. 300, known as the Michigan vehicle code. Section 731 thereof provided:

'No evidence of the conviction of any person for any violation of this chapter shall be admissible in any court in any civil action.'

Four years later the legislature, by a vote of 28 to 1 in the Senate and 69 to 3 in the House, amended this section by P.A.1953, No. 60, to read:

'No evidence of the conviction of any person for any violation of this chapter or of a local ordinance pertaining to the use of motor vehicles shall be admissible in any court in any civil action.' (M.C.L.A. § 257.731; Stat.Ann.1968 Rev. § 9.2431.)

No one challenged in our Court either the legislative right to pass such an enactment or the provisions of the enactment until another seven years had elapsed and ...