Morgan v. Walker

Michigan Court of Appeals

Morgan v. Walker

167 N.W.2d 898, 16 Mich. App. 310, 1969 Mich. App. LEXIS 1375

CourtMichigan Court of Appeals

DecidedFebruary 28, 1969

DocketDocket No. 4,649

StatusPublished

This text of 167 N.W.2d 898 (Morgan v. Walker) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Morgan v. Walker, 167 N.W.2d 898, 16 Mich. App. 310, 1969 Mich. App. LEXIS 1375 (Mich. Ct. App. 1969).

Pincite

Opinion

Per Curiam.

Defendant appeals from a judgment entered against him in a civil action for assault and battery tried without jury.

On appeal defendant asserts that the trial court erred in allowing a psychologist to testify as an expert witness for plaintiff. Examination of the record reveals that this issue was not properly preserved for appeal. Defendant’s attorney raised objection to proceeding with this witness’s testimony without laying proper foundation. Trial court, on this objection, proceeded to take evidence concerning the proposed expert witness’s qualifications. No objection to allowing this witness to testify was made after the matter of the witness’s qualifications had been examined. Failure to object at this juncture constitutes waiver of appellant’s right to raise this issue on appeal.

Secondly, the defendant alleges there is no evidence which would establish an intent on the part of the defendant to injure the plaintiff, consequently precluding a proper finding that an assault and battery had been committed. The record reveals and counsel for the defendant, on oral argument, indicates to the Court that the touching of the plaintiff was the result of an attempted citizen’s arrest following what appeared to he the commission of a misdemeanor.

The matter of the alleged misdemeanor was tried before another court and the plaintiff was acquitted in that cause.

On oral argument it was admitted by the attorney for the defendant that the attempted citizen’s arrest was not a valid arrest. The right to stop and restrain or attempt to restrain the plaintiff stems from the right of the defendant to make an arrest. In view of the fact that the arrest was unlawful or [312]*312improper, the defendant was without authority to stop or restrain the plaintiff; and, consequently, the actions of the defendant constituted an assault and battery.

Affirmed. Costs to appellee.

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Per Curiam.

Defendant appeals from a judgment entered against him in a civil action for assault and battery tried without jury.

On appeal defendant asserts that the trial court erred in allowing a psychologist to testify as an expert witness for plaintiff. Examination of the record reveals that this issue was not properly preserved for appeal. Defendant’s attorney raised objection to proceeding with this witness’s testimony without laying proper foundation. Trial court, on this objection, proceeded to take evidence concerning the proposed expert witness’s qualifications. No objection to allowing this witness to testify was made after the matter of the witness’s qualifications had been examined. Failure to object at this juncture constitutes waiver of appellant’s right to raise this issue on appeal.

Secondly, the defendant alleges there is no evidence which would establish an intent on the part of the defendant to injure the plaintiff, consequently precluding a proper finding that an assault and battery had been committed. The record reveals and counsel for the defendant, on oral argument, indicates to the Court that the touching of the plaintiff was the result of an attempted citizen’s arrest following what appeared to he the commission of a misdemeanor.

The matter of the alleged misdemeanor was tried before another court and the plaintiff was acquitted in that cause.

On oral argument it was admitted by the attorney for the defendant that the attempted citizen’s arrest was not a valid arrest. The right to stop and restrain or attempt to restrain the plaintiff stems from the right of the defendant to make an arrest. In view of the fact that the arrest was unlawful or [312]*312improper, the defendant was without authority to stop or restrain the plaintiff; and, consequently, the actions of the defendant constituted an assault and battery.

Affirmed. Costs to appellee.

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Bluebook (online)

167 N.W.2d 898, 16 Mich. App. 310, 1969 Mich. App. LEXIS 1375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-walker-michctapp-1969.