Zimmerman v. Goldberg

• Decision Date: 02 September 1936
• Docket Number: No. 34.,34.
• Parties: ZIMMERMAN v. GOLDBERG.
• Court: Michigan Supreme Court

277 Mich. 134

268 N.W. 837

ZIMMERMAN

v.GOLDBERG.

No. 34.

Supreme Court of Michigan.

Sept. 2, 1936.

Action by Oswald A. Zimmerman against Louis Goldberg. Judgment for defendant, and plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Allan Campbell, judge.

Argued before the Entire Bench, except POTTER, J.

Sol Blumrosen, of Detroit, for appellant.

Mason, Davidson & Mansfield, of Detroit, for appellee.

NORTH, Chief Justice.

Plaintiff was a guest passenger in an automobile owned and operated by the defendant, and while so riding in the automobile it collided with a center support under the railroad viaduct crossing Warren avenue just west of Grand River avenue in the city of Detroit. Plaintiff suffered severe injuries in the accident, and brought this suit to recover. The jury rendered a verdict for the defendant. From a judgment entered thereon plaintiff has appealed.

The first assignment of error discussed in appellant's brief is as follows: ‘That the court erred in striking from the record and excluding from the evidence, all reference to the arrest and conviction in the traffic court of the City of Detroit of the defendant, arising out of the accident involved in this suit.’

Defendant was a witness in his own behalf. We quote from his cross-examination:

‘Q. Have you ever been arrested and convicted of crime? A. I have been arrested and convicted. * * * For this accident. * * *

‘Q. He (the judge before whom defendant was convicted) gave you a $25 fine for reckless driving? A. $25 and costs.

‘Q. For reckless driving? A. That's right.’

Notwithstanding the contention of plaintiff's attorney that this testimony was material in that it had a bearing on defendant's credibility, the trial court struck it from the record. Appellant asserts this ruling of the trial court constituted prejudicial error. It is a fair inference from the record that the trial, judge was of the opinion that, since defendant's conviction was not of a crime, but rather a misdemeanor,therefore the testimony concerning such conviction did not bear materially upon his credibility. The statute which the trial judge had in mind provides in part that ‘conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness.’ 3 Comp.Laws 1929, § 14217. Notwithstanding the statutory provision, it has long been established law in this state that it is within the discretion of a trial judge to permit a witness to be cross-examined as to his having been convicted of a misdemeanor. Van Goosen v. Barlum, 214 Mich. 595, 183 N.W. 8;Niedzinski v. Coryell, 215 Mich. 498, 184 N.W. 476.

In the instant case it must be borne in mind that the cross-examination of defendant was not one pertaining to a collateral matter and bearing only upon his credibility. Instead it was cross-examination concerning defendant's plea of guilty to a charge of reckless driving arising out of the very accident involved in the principal case. Excluding such cross-examination or striking the testimony from the record was error under the circumstances. Especially is this true since in this case the defendant had testified in his own behalf and his testimony in effect was a denial of reckless driving. As just above indicated, we think it was not within the discretion of the trial judge to limit defendant's cross-examination by striking this testimony from the record; but instead this ruling constituted error which, except for the reason hereinafter indicated, would have been prejudicial and necessitated reversal.

Notwithstanding the error complained of, and others which need not be reviewed, the question of first importance is this: Should plaintiff be denied a new trial, notwithstanding the error committed in the trial court? As noted in the outset of this opinion, plaintiff was a guest passenger in defendant's automobile. He cannot recover unless there is testimony tending to sustain plaintiff's allegation of gross negligence or wanton and willful misconduct on the part of defendant. 1 Comp.Laws 1929, § 4648. A careful reading of the record fails to disclose testimony of anything other than ordinary negligence on the part of defendant. It follows that plaintiff, under his own showing, is not entitled to recover....