Trupiano v. Cully, 29
| Decision Date | 04 September 1957 |
| Docket Number | No. 29,29 |
| Citation | 84 N.W.2d 747,349 Mich. 568 |
| Parties | Leonard 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. |
| Court | Michigan 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.
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:
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 trial judge's omission of...
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Anderson v. Litzenberg
...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); ......
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Beers v. Bayliner Marine Corp.
...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.......
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Ward v. Consolidated Rail Corp.
...`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.......
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Cole v. Keller Industries, Inc.
...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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7 The Developing Law of Spoliation in State Civil Courts
...Michigan jury instruction SJI2d 6.01(D) allows only for a permissible inference. Lagalo, 592 N.W.2d at 789 (citing Trupiano v. Cully, 84 N.W.2d 747 (Mich. 1957)).[443] . No. 239841, 2003 Mich. App. LEXIS 951 (Mich. Ct. App. Apr. 15, 2003).[444] . Id. at *3.[445] . Mich. Comp. Laws §§ 750.54......
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Table of Cases
...App. 2003), 282 Trump Taj Mahal Assoc. v. Aeronautiche Giovanni Agusta, S.P.A., 761 F. Supp. 1143 (D.N.J. 1991), 248 Trupiano v. Cully, 84 N.W.2d 747 (Mich. 1957), 226 Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68 (S.D.N.Y. 1991), 7, 64, 75, 77, 218 Turner v. Pub. Serv. Co. of Colo., ......