Woodrow v. Johns

• Decision Date: 28 May 1975
• Docket Number: No. 3,Docket No. 19553,3
• Citation: 232 N.W.2d 688,61 Mich.App. 255
• Parties: Patricia Ann WOODROW and Steven Lawrence Woodrow, Plaintiffs- Appellees, v. Wayne JOHNS, Defendant-Appellant, and Michael Leroy Baird, Defendant
• Court: Court of Appeal of Michigan — District of US

Page 688

232 N.W.2d 688

61 Mich.App. 255

Patricia Ann WOODROW and Steven Lawrence Woodrow Plaintiffs- Appellees, v. Wayne JOHNS, Defendant-Appellant and Michael Leroy Baird, Defendant.

Docket No. 19553.

Court of Appeals of Michigan, Division No. 3.

May 28, 1975.

Released for Publication Sept. 9, 1975.

Fortino, Plaxton & Moskal by John J. Moskal, Alma, for Johns.

William E. Jungerheld, Saginaw, for Baird.

Loren E. Gray, Mt. Pleasant, for plaintiffs-appellees.

Before BRONSON, P.J., and CAVANAGH and WALSH, JJ.

BRONSON, Presiding Judge.

This case concerns an August 15, 1969 automobile accident. A jury found for plaintiffs-appellees, Patricia and Steven Woodrow, and awarded them damages after determining that the combined negligence of defendant, Michael Baird, and defendant-appellant, Wayne Johns, caused the Woodrows' injuries. Johns appeals by right from the January 31, 1974 judgment entered pursuant to the jury verdict, asserting four errors and demanding a new trial. Baird has not appealed.

I.

On February 20, 1973 Johns filed a formal request for admissions pursuant to GCR 1963, 312. This request, which was directed to codefendant Baird, concerned an accident report which Baird had given to a state police investigator shortly after the accident. It demanded affirmations or denials of the following statements:

'1. Do you admit that the attached document of three pages is a true and exact copy of a statement made by Michael Leroy Baird on 8--19--69 concerning the accident which is the subject matter of the above entitled suit?

'2. Do you admit that the initials appearing at the bottom of pages one and two of the attached document are in the handwriting of defendant Michael Leroy Baird?

'3. Do you admit hat the signature that appears on page three of the document is in the handwriting of defendant Michael Leroy Baird?

'4. Do you admit that the facts recited in the statement were believed to be true, by defendant Michael Leroy Baird, at the time of giving of the statement?'

Baird never responded to the request for admissions.

Johns' request was proper. It was directed only to the 'genuineness of (a) relevant document described in and exhibited with the request' and to 'the truth of (a) relevant matters of fact'. GCR 1963, 312.1. ¹

Confronted with a proper request for admissions, Baird was required to either (1) admit the truth of the statements, (2) deny their truth, (3) explain why he could not admit or deny them, or (4) object to them in writing. GCR 1963, 312.1. His failure to respond constitutes an admission of the truth of the statements contained in the request. GCR 1963, 312.1, Pigorsh v. Fahner, 386 Mich. 508, 518, 194 N.W.2d 343 (1972) (dissenting opinion); Howard v. Melvindale, 27 Mich.App. 227, 237 n. 8, 183 N.W.2d 341 (1970). ²

However, Baird was allowed by the trial judge to contradict in his testimony before the jury one of the statements he was deemed to have admitted by failing to respond to the request for admissions. Over vigorous objection and contrary to his admission that he had 'read the above three pages' of the accident report, Baird was permitted to state: 'I glanced at it (the report). I didn't read it in its entirety because I can't read it.' This was error. Baird was bound by the admission he had made pursuant to GCR 1963, 312.1, and should not have been permitted to contradict that admission at trial.

The error does not warrant reversal of the jury's verdict and new trial, however, for several reasons.

First, the statement contradicted concerned a subordinate, tangential matter. The whole accident report was read to the jury, and the accuracy of those portions which were most likely to call into question the account of the accident Baird offered at trial was never denied by him. He disputed only the fact that he had read the report before signing it. He never denied the truth of the other facts, or even the opinions and conclusions, reported. Johns' purpose in introducing the accident report was not seriously undermined by allowing Baird to explain that he didn't read the report before signing it when Baird at the same time admitted the truth of its contents.

Second, one effect of Baird's contradiction was plainly helpful to Johns. In claiming that he hadn't read the report before adopting it as his own, Baird revealed a lack of concern for the accuracy of statements attributed to him which, for whatever it was worth, served to impeach his testimony. And since Baird's various accounts of the accident, once set side by side and explained, ³ appeared to place all the blame on Johns, any evidence tending to call into question Baird's abilities to perceive, remember and accurately report events would assist Johns in his effort to avoid liability.

Third, Johns himself 'opened the door' to Baird's statement that he did not read the accident report before signing it. Baird was allowed to contradict this last sentence of the accident report only after Johns' attorney had elicited from him the fact that he couldn't read the handwritten report. Johns invited the very error now complained of by pursuing a line of questioning which made it very clear not only that Baird did not read the accident report before signing it, but that he could not do so. 'The door having thus been opened, (Johns) is in no position to complain that (Baird) sought to, and did, elicit from the same witness additional facts relating to' the same issue. Corkins v. Corkins, 358 Mich. 691, 695, 101 N.W.2d 362, 364 (1960), see also, LaForest v. Grunow, 43 Mich.App. 254, 257, 204 N.W.2d 355 (1972). ⁴

Finally, Johns does not suggest that he was unable to call to the witness stand the investigating officer who had prepared the accident report to ask him whether Baird had in fact read the report before signing it. This very officer had appeared under subpoena and testified earlier in the trial. Johns' failure to make any effort to secure the officer's presence supports our conclusion that Johns had not lost the opportunity to prove at trial what had previously been admitted pursuant to the court rule. ⁵

We hold that no reversible error was committed in allowing Baird to contradict at trial an admission which had resulted from his failure to respond to a request for admissions pursuant to GCR 1963, 312.1. ⁶

II.

Baird was permitted, over objection, to testify that the following statement was made by him some six or seven days after the accident: ⁷

'Yes, I passed them and when I was passing him I looked in the rear view mirror and I saw a car, I seen a car coming at me behind me at a pretty good speed, and really to avoid getting hit in the rear I pulled over into the lane which the Toyota was in, and I thought I was passed him, but evidently I wasn't.'

Johns claimed at trial that this statement constituted improper rehabilitation. Baird disputed this, claiming instead that it served to 'explain' the statements Baird had made in the accident report. We need not decide whether the statements in the accident report were prior inconsistent statements. ⁸ If they were, then the introduction of the prior consistent statement constituted improper rehabilitation, since in Michigan prior consistent statements cannot be used to rehabilitate a witness. Stewart v. People, 23 Mich. 63, 74 (1871). ⁹ If the statements contained in the accident report were not prior inconsistent statements, then Baird was obviously not impeached with a prior inconsistent statement. In that event, the admission of the prior consistent statement was error because 'in the absence of an attack upon credibility no sustaining evidence is allowed'. McCormick, Evidence (2d ed.), § 49, p. 102.

It is clear, therefore, that the prior consistent statement was inadmissible. But the error does not require reversal, because, as Justice Cooley indicated in Stewart, supra, at 76:

'We think the circuit judge ought to be allowed a reasonable discretion in such cases, and that though such evidence should not generally be received, yet that his discretion in receiving it ought not to be set aside except in a clear case of abuse such as, we think, did not exist here.'

Justice Cooley's abuse of discretion test was recently reaffirmed and reinforced in Brown v. Pointer, 390 Mich. 346, 352, 212 N.W.2d 201 (1973): 'We are not inclined to reverse a ruling admitting a consistent statement.' We cannot, in view of this binding authority, grant a new trial on the basis of the trial judge's erroneous admission of a consistent statement.

III.

Mr. and Mrs. Harris, who witnessed the accident, were allowed to testify to certain observations they had made concerning the speed of Johns' vehicle prior to the accident. They stated that they were driving south on US--27 on the day of the accident. Just as they went by a rest area, a car which they identified as driven by Johns passed them at a speed of 90--100 miles per hour. They also noticed a police cruiser in the rest area. The cruiser left the rest area and began chasing Johns. Both cars were soon out of sight. About four or five miles down the road, the Harrises saw the police cruiser and Johns' car stopped on the shoulder of the highway. Some seven or eight miles farther, the Johns' vehicle again sped by them at 90--100 miles per hour. A few seconds later and several hundred feet up the road, the accident occurred.

Johns objected at trial to the introduction of the Harrises' testimony regarding the events prior to his passing them the second time, arguing that the evidence was too remote to be relevant. Crane v. Woodbury, 41 Mich.App. 11, 199 N.W.2d 577 (1972), is cited in support of this claim.

In Crane, the defendant sought to introduce evidence that the plaintiff had been speeding and passing in a no-passing zone prior to his making an allegedly improper left-turn in an attempt to show that plaintiff had been negligent in making the left turn. The Court, in finding the evidence inadmissible, adopted...