Trupiano v. Cully, 29

Decision Date04 September 1957
Docket NumberNo. 29,29
Citation84 N.W.2d 747,349 Mich. 568
PartiesLeonard TRUPIANO, d/b/a Trupiano Plumbing & Heating Co., Plaintiff and Appellee, v. George H. CULLY, d/b/a Spartan Engineering & Construction Company, Defendant and Appellant.
CourtMichigan Supreme Court

John G. Cross, Detroit, for appellant.

Henry E. Rice, Detroit, Meyer Weisenfeld, Detroit, of counsel on the brief, for appellee.

Before the Entire Bench.

EDWARDS, Justice.

A building contractor and a plumber had a dispute about whether or not the former owed the latter for fixtures and plumbing work performed under oral contract on a certain house. The plumber sued. In two jury trials he prevailed. (A new trial was granted in the first.) The record of the second jury trial is before us.

The only legal issue presented on appeal pertains to the effect of plaintiff's action in having a set of books made up for him and thereafter discarding his original notes and memoranda. Defendant claims that this action represented spoliation and cites the rule thereon from American Jurisprudence. 'It is a general rule that the intentional spoliation or destruction of evidence raises the presumption against the spoliator where the evidence was relevant to the case or where it was his duty to preserve it, since his conduct may properly be attributed to his supposed knowledge that the truth would operate against him.' 20 Am.Jur., Evidence, § 185, p. 191.

The full section continues, however:

'Such a presumption can be applied only where there was intentional conduct indicating fraud and a desire to destroy and thereby suppress the truth. Moreover, while the spoliation of evidence raises a presumption against the person guilty of such act, yet such presumption does not relieve the other party from introducing evidence tending affirmatively to prove his case, in so far as he has the burden of proof. The spoliation or suppression of evidence is a circumstance open to explanation.'

See, also, Davis v. Teachout's Estate, 126 Mich. 135, 85 N.W. 475, 86 Am.St.Rep. 531; Pitcher v. Rogers' Estate, 199 Mich. 114, 165 N.W. 813.

We cannot hold as a matter of law from the evidence contained in the record that there was 'intentional conduct indicating fraud and a desire to destroy and thereby suppress the truth.' At best, in the event the jury found destruction of records with an intent to suppress the truth, defendant was entitled to an inference that the original records, if available, would not prove favorable to plaintiff. The facts were certainly before the jury. Presumably they were argued.

In the absence of a request to charge on this point (and on another pertaining to a possible verdict in between the stated claims of plaintiff and defendant), we cannot hold the...

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12 cases
  • Anderson v. Litzenberg
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...Louis, I.M. & S.R. Co., 80 F.2d 32 (8th Cir.1935), cert. denied, 297 U.S. 715, 56 S.Ct. 591, 80 L.Ed. 1001 (1936); Trupiano v. Cully, 349 Mich. 568, 84 N.W.2d 747 (1957); Owsley v. Owsley, 34 S.W.2d 558 (Mo.App. (1931). See also Vick v. Texas Employment Comm'n, 514 F.2d 734 (5th Cir.1975); ......
  • Beers v. Bayliner Marine Corp.
    • United States
    • Connecticut Supreme Court
    • May 7, 1996
    ...325 Md. 18, 599 A.2d 90 (1991) (adverse inference appropriate where spoliation is unexplained and intentional); Trupiano v. Cully, 349 Mich. 568, 570, 84 N.W.2d 747 (1957) (intentional spoliation raises inference against party that caused spoliation); Fonda v. St. Paul City R. Co., 71 Minn.......
  • Ward v. Consolidated Rail Corp.
    • United States
    • Michigan Supreme Court
    • March 8, 2005
    ...`intentional conduct indicating fraud and a desire to destroy [evidence] and thereby suppress the truth.'" Trupiano v. Cully, 349 Mich. 568, 570, 84 N.W.2d 747 (1957), quoting 20 Am. Jur., Evidence, § 185, p. 191; see also Lagalo v. Allied Corp. (On Remand), 233 Mich.App. 514, 520, 592 N.W.......
  • Cole v. Keller Industries, Inc.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 6, 1998
    ...not authorized. See Berthold-Jennings Lumber Co. v. St. Louis, I.M. & S. Ry. Co., 80 F.2d 32, 41-42 (8th Cir.1935); Trupiano v. Cully, 349 Mich. 568, 84 N.W.2d 747 (1957); Gentry v. Toyota Motor Corp., 252 Va. 30, 471 S.E.2d 485 We do not find bad faith, or any like action, in the case at b......
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