People v. Hamacher

438 N.W.2d 43, 432 Mich. 157

• Court: Michigan Supreme Court
• Decided: March 30, 1989
• Docket: 81202, (Calendar No. 2)
• Status: Published

Opinions

Levin, J.

We granted leave to appeal in this case, consolidated on appeal with People v Vermeulen, 432 Mich 32; 438 NW2d 36 (1989), to consider the application of the spousal communication privilege set forth in § 2162 of the Revised Judicature Act.¹ We conclude that the Court of Appeals correctly held that the privilege bars the testimony of the defendant’s wife in this case and affirm the decision of the Court of Appeals.

i

Section 2162 of the rja provides two distinct privileges. The first, the spousal privilege, is only applicable when the witness and the spouse are married at the time of trial. This privilege bars one spouse from testifying for or against the other without the other’s consent except in (1) actions for divorce, (2) prosecutions for bigamy or for a crime committed against the children of either or both, (3) actions growing out of a personal wrong or injury done by one to the other or the refusal or neglect to furnish the spouse or children with suitable support, (4) cases of desertion or abandonment, and (5) certain cases relating to marriage and title to property._

The second privilege, the communication privilege, bars one spouse from testifying "as to any communications made by one to the other during the marriage” without the consent of the other. The communication privilege applies whether the testimony is sought "during the marriage or after-wards,” as long as the communication occurred during the marriage. Section 2162 of the rja states no exceptions with respect to the communication privilege.

ii

Hamacher was convicted of second-degree criminal sexual conduct with his stepdaughter who was eight years old at the time of the alleged acts. At trial, the court denied his motion to suppress testimony by his wife concerning statements Hamacher allegedly made regarding his conduct with his stepdaughter.² The Court of Appeals initially affirmed Hamacher’s conviction. It ruled that the wife’s testimony was properly admitted because the Legislature intended that the exception to the general spousal privilege for prosecutions concerning crimes committed against either spouse’s children be applicable to the communication privilege and because the defendant and his wife were "in the process of divorce at the time of trial” and therefore "strict adherence to the rule would not further its purpose of fostering the marital relationship.”³

This Court vacated the judgment of the Court of Appeals and remanded the cause to it for reconsideration, stating that § 2162 of the rja "contains no exception to the privilege regarding communications between a husband and wife where the husband and wife are separated or are in the process of obtaining a divorce. The defendant and his wife remained husband and wife at the time the communication in question was allegedly made.”⁴

On remand, the Court of Appeals held that "the admission of defendant’s wife’s statements in the instant case is in contravention of the confidential communication privilege,” stating that "the statute makes no exception for divorced or separated couples.”⁵

On appeal in this Court, the prosecutor contends that (a) the statutory exceptions applicable to the spousal privilege apply, or should be made applicable by this Court to the communication privilege, and (b) Hamacher waived his right to object to the admission of his wife’s testimony at trial because he failed to object to her testimony at the preliminary examination.

hi

When the statutory privileges that are now codified in § 2162 of the rja were originally enacted in 1861, there were no exceptions.⁶ The general spousal privilege, the communication privilege, and an adultery "preclusion” were clearly separated by semicolons:

A husband shall not be examined as a witness for or against his wife, without her consent, nor a wife for or against her husband, without his consent; nor shall either, during the marriage or afterwards, be, without the consent of both, examined as to any communication made by one to the other during the marriage; but in any action or proceedings instituted by the husband or wife in consequence of adultery, the husband and wife shall not be competent to testify. [1861 PA 125.]

When the exceptions were added,⁷ they were set forth immediately following the general spousal privilege. When the exception for bigamy prosecutions was added as a separate section, the Legislature expressly provided that this exception did not apply to the communication privilege:

That a husband may testify for or against hi's wife without her consent, and a wife may testify for or against her husband without his consent, in all criminal prosecutions, for bigamy: Provided, however, That nothing herein contained shall be so construed as to permit a husband or wife to testify against the other without the consent of both concerning any communications made by one to the other during the marriage.[⁸]

The Judicature Act of 1915⁹ added an exception for divorce cases following the general spousal privilege and included the bigamy exception in that portion of the statute. At the same time, the punctuation was revised and the language of the marital privilege took its present form. An exception to the general spousal privilege for the prosecution of crimes against the children of one or both spouses was added in 1939.¹⁰

The evolution of § 2162 of the rja and its clear and unambiguous language indicate that the enumerated exceptions apply only to the general spousal privilege and not to the communication privilege. The Legislature has frequently amended the statute when it was deemed necessary. "Privileges are governed by common law, except as modified by statute or court rule. MRE 501. Since there is no court rule governing marital privileges, the statute controls.” People v Love, 425 Mich 691, 699; 391 NW2d 738 (1986) (opinion of Cavanagh, J.).

We have considered Hunt v Eaton, 55 Mich 362, 366; 21 NW 429 (1884), discussed in the dissenting opinion,¹¹ where this Court mentioned a number of considerations in concluding that the communication privilege "includes every communication between [husband and wife] other them such as involves the title to the separate property of either when it becomes necessary to resort to litigation to obtain, secure or protect the rights of either to such separate property.”

In Vermeulen, supra, p 39, this Court said that "only confidential communications are protected by the communication privilege,” and that "the nature and circumstances of the communication may be considered in determining whether the communication was confidential.”

It has been said that among the factors that "may serve to rebut a claim that confidentiality was intended”¹² is "that the communication relates to business transactions,” such as "business agreements between the spouses, or about business matters transacted by one spouse as agent for the other, or about property or conveyances.”¹³ Professor McCormick explained that "[u]sually such statements relate to facts which are intended later to become publicly known.”¹⁴

In Hagerman v Wigent, 108 Mich 192, 194; 65 NW 756 (1896), this Court anticipated McCormick’s rationale when it based its holding, that a husband could testify that his wife had delivered a mortgage to him with instructions to deliver it after her death to her nephews, who were the mortgagors, on its assessment that the circumstances "involved an expectation on her part that the communication would be disclosed,” and therefore it "cannot be said to have been confidential.”¹⁵

Implicit in the assumption of a legal obligation to repay is the intent that either party to the transaction may testify concerning communications relating to the transaction should the lending spouse commence an action to enforce the legal obligation that arose when money was borrowed.

The statement Hamacher allegedly made to his wife did not concern a transaction "intended later to become publicly known.”

IV

The prosecutor contends that Hamacher’s failure to object to his wife’s testimony at the preliminary examination precluded objection at the trial. The prosecutor contends alternatively that Hamacher’s wife was rendered "unavailable” when he invoked the communication privilege,¹⁶ and, therefore, her prior recorded testimony at the preliminary examination could have been read to the jury pursuant to MRE 804(b)(1).¹⁷

The prosecutor did not raise the waiver issue or his alternative claim until he filed his brief in this Court. He thus failed to preserve either the waiver issue or his alternative claim for appeal.¹⁸

V

We conclude that the Court of Appeals correctly held that the wife’s testimony was inadmissible. We affirm the judgment of the Court of Appeals and remand the cause to the trial court for a new trial.

Brickley, Cavanagh, and Archer, JJ., concurred with Levin, J.

Levin, J. (separate opinion). The Court’s conclusion that the prosecutor failed to preserve either the waiver issue or his alternative claim for appeal makes it unnecessary for the Court to consider whether the failure of Hamacher’s lawyer to object to his wife’s testimony at the preliminary examination precluded objection at the trial.

The dissenting opinion discusses case law concerning waiver of testimonial privileges, and "conclude^] that the defendant’s failure to assert the spousal privilege at that examination operated as a general waiver of the privilege.”¹

The dissenting opinion states that the confidential communication privilege can be waived, and I agree.² A failure to object does not, however, necessarily constitute a waiver³ precluding assertion of a right or privilege at a "new trial.” If it were otherwise, the general rule would not be that a failure to object does not ordinarily bar objection at a new trial.⁴

The general rule is that upon a new trial⁵ the case is to be retried de novo "as if it had not been tried before and without prejudice to either party”; when a "new trial was ordered, the parties started again from their pleadings.”⁶ Evidentiary objections that were not voiced at an earlier trial, may be asserted at a new trial unless the other side would be prejudiced thereby.⁷

The dissenting opinion asserts that the general rule is inapplicable to a failure to object to privileged testimony because the "confidential communication privilege acts to hold inviolate the privacy of the marital relationship. When facts which might otherwise be privileged are disclosed for all to inspect, the purpose of the privilege is destroyed. Just as one cannot unring a bell, a secret once disclosed in open court is never again a wholly private matter.”⁸

The dissenting opinion dismisses in a footnote this Court’s decision in Briesenmeister v Knights of Pythias, 81 Mich 525; 45 NW 977 (1890), stating that Briesenmeister relied on a decision of the New York Court of Appeals that had already been overruled by a later decision of the New York Court of Appeals.⁹

In Briesenmeister, supra, p 534, the trial court had granted the plaintiff’s motion to strike a physician’s testimony on the basis of the physician-patient privilege. Some of the stricken testimony was not privileged, and this Court ordered a new trial. Although the plaintiff’s motion to strike came after the completion of the physician’s testimony and this Court acknowledged that the privilege must be claimed "before the testimony is admitted, or it ceases to be a privilege, and is waived, where no objection is made to the introduction of the testimony” (emphasis supplied), it nevertheless ruled that, at the new trial it had ordered, the plaintiff could again assert the privilege.

The Court disagreed with the rationale of the later decision of the New York Court of Appeals, McKinney v Grand Street, PP & F R Co, 104 NY 352; 10 NE 544 (1887). In McKinney, the court said that where there is a failure to object at a trial and the confidential communication is published in court, " 'no further injury can be inflicted upon the rights and interests which the statute was intended to protect, and there is no further reason for its enforcement.’ ” Briesenmeister, supra, p 535, quoting from McKinney.10

The Court responded that the "argument loses sight of one of the rights conferred by the statute. Privilege includes both the security against publication, and the right to control the introduction in evidence, of such information or knowledge communicated to or possessed by the physician.”¹¹ (Emphasis added.) The Court continued:

The latter right exists although the former has ceased to be of any beneñt. The public may know; but shall the jury be permitted to receive and weigh testimony derived from a source which the law has put the seal of silence upon, unless released by the party who alone has the right to say whether that particular witness shall be the medium of conveying such knowledge to the jury? For instance, the party may have disclosed to a third person all that he has to his physician. Now, while his admissions may be proved in a proper manner by such third person, they cannot be proved by the physician against the objection of the party.[12] [Emphasis added.]

The court concluded that an earlier New York case, Grattan v Metropolitan Life Ins Co, 92 NY 274; 44 AR 372 (1883), "lays down the better rule.”¹³

The Supreme Court Of Iowa reached the same conclusion in Burgess v Sims Drug Co, 114 Iowa ; 86 NW 307 (1901), citing Briesenmeister and Grattan approvingly. The court said that it did not agree with the reasoning in McKinney.

The Supreme Court of Arkansas similarly concluded, citing the "well considered opinions” in Briesenmeister and Burgess, that the failure at one trial to object to the introduction of testimony on the ground of privilege did not waive the right to make such objection at a subsequent trial of the same case where the adversary had- not been misled by the failure to object. Maryland Casualty Co v Maloney, 119 Ark 434, 441; 178 SW 387 (1915).

The Court of Appeals has similarly read Briesenmeister as recognizing "the dual nature of the [physician-patient] privilege conferred,” securing both " 'against publication, and the right to control the introduction in evidence . . . .’ ”¹⁴

iii

In State v Clark, 296 NW2d 372 (Minn, 1980), relied on in the dissenting opinion, the Minnesota Supreme Court stated its conclusion without any discussion of McKinney, Grattan, Briesenmeister, Burgess, Maryland Casualty, or any other case discussing the issue there decided,¹⁵ with a "cf.” citation of Fraser v United States, 145 F2d 139, 145 (CA 6, 1944), where the court similarly announced its conclusion without any consideration of the prior case law and indeed without any citation of authority whatsoever.¹⁶ The current authors of McCormick on Evidence write that the conclusion stated in Fraser "seems questionable.”¹⁷

McKinney and Grattan are readily reconciled: In McKinney, the person claiming the privilege had called the physician as a witness at an earlier trial and thus had affirmatively waived the privilege, while in Grattan there was no evidence that the person asserting the privilege had called the physician at an earlier trial.¹⁸

In People v Toner, 217 Mich 640, 644; 187 NW 386 (1922), also cited in the dissenting opinion, post, p 193, this Court similarly declared that "[w]hen defendant called his wife as a witness he thereby waived his privilege.”¹⁹

In the physician-patient privilege context, the patient generally needs medical testimony to support his claims in an action that he generally has commenced. The physician-patient privilege has been limited by case law and statute in New York and by statute and court rule in this state.²⁰

IV

Section 2162 of the Revised Judicature Act does not purport to bar a spouse from disclosing a confidential communication. Hamacher’s wife, without violating § 2162, related the statement she attributed to her husband to social service workers, police officers, the prosecutor, and could have done so to newspaper and other reporters. She could indeed have gone on the nightly news and made a full statement of the confidential communication without violating § 2162. The "secret” would then no longer have been secret and "never again a wholly private matter.” Nevertheless, there can be no doubt that despite the wide communication to the world at large of the "secret,” Hamacher’s wife could not, consistent with § 2162, "be examined” in court with regard to the communication.

V

Professor Wigmore propounded the so-called utilitarian justification for the testimonial privileges: "public policy requires the encouragement of the communications without which these relationships cannot be effective.”²¹ Professor McCormick disagreed.²²

In the current revision of Professor McCormick’s work, the privacy rationale set forth in the dissenting opinion is advanced, and at the same time it is acknowledged that it is unlikely this rationale was in the legislative mind when the privilege was enacted.²³ The authors also acknowledge they hope that adoption of the privacy rationale will result in the ultimate abolition of the communication privilege.²⁴

The "privacy of the marital relationship” rationale might appropriately be assessed by the Legislature, were it to consider revising RJA § 2162, or by this Court, were it to take upon itself the task of reshaping the testimonial privileges in the exercise of its rule-making power concerning practice and procedure.²⁵ Upon such consideration, the Legislature or this Court might conclude that the "logical implications”²⁶ of adoption of the privacy rationale are incompatible with the societal goals sought to be fostered by the communication privilege, especially if the ultimate logical implication is the abolition altogether of the communication privilege.

The Legislature or this Court might, upon such a reassessment, also conclude that to adopt maintenance of secrecy as a rationale for the marital communication or other testimonial privileges could unnecessarily enlarge the scope of the privileges and encourage litigation—unnecessarily enlarge because a literal reading of the communication privilege, as barring a spouse from "be[ing] examined” in court regarding the communication, is quite adequate and therefore the language expressing the privilege does not need tinkering.

In all events, the courts should not, as long as they purport to be expounding a statutory privilege, adopt rationales that cannot be found upon reference to the legislative history of the privilege, propounded by acknowledged revisionists— whether they be respected scholars like Professors Wigmore and McCormick, their current successors, or other advocates—that might provide a juridical basis for accomplishing by judicial decision, “pouring] new wine into old bottles,”²⁷ that which neither the Legislature nor this Court has been willing to undertake, the unraveling of the communication privilege ad hoc and ad hominem.

The courts have no basis for declaring that the statutory purpose in 1861 was to protect the secrecy of the communication when the statute itself clearly does not purport to do so. There is no basis for concluding in 1989—over one hundred twenty-five years after enactment—that the legislative purpose in 1861 was other than the literally stated purpose of precluding the spouse from "be[ing] examined” in court.

There being no legislative intention, expressed or implied, that the spouse may be examined once the secret is disclosed and it is no longer a private matter, the only expression in the statute being that the witness may not "be examined,” this Court’s well-considered and well-regarded decision in Briesenmeister should not be overruled. Briesenmeister was decided by justices who served on this Court relatively soon after the enactment of the testimonial privileges and who thus were more likely than presently sitting judges or justices to have been aware of any "secrecy” or "privacy” rationale unstated but nevertheless intended by the Legislature.

1 A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce and in cases of prosecution of bigamy, in cases of prosecution for a crime committed against the children of either or both, and where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the refusal or neglect to furnish the wife or children with suitable support, and except in cases of desertion or abandonment, and cases arising under section 6 of chapter 83 of the Revised Statutes of 1846, as amended, relating to marriage, and cases where the husband or wife shall be a party to the record in a suit, action, or proceeding, where the title to the separate property of the husband or wife so called or offered as a witness, or where the title to property derived from, through or under the husband or wife so called or offered as a witness, shall be the subject matter in controversy or litigation in such suit, action or proceeding, in opposition to the claim or interest of the other of said married persons, who is a party to the record in such suit, action or proceeding; and in all such cases, such husband or wife who makes such claim of title, or under or from whom such title is derived, shall be as competent to testify in relation to said separate property and the title thereto without the consent of said husband or wife, who is a party to the record in such suit, action or proceeding, as though such marriage relation did not exist; nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage, but in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify. [MCL 600.2162; MSA 27A.2162.]

2 The following testimony of Hamacher’s wife is challenged:

(1) "And he said the reason that he had done it was because I didn’t lay on the couch with him any more and watch tv and cuddle up to him, and Jeannie, Jeannie would do that.”

(2) An affirmation of the same testimony.

(3) "I told her (defendant’s sister) that he had admitted it.”

3 People v Hamacher, 150 Mich App 671, 675; 389 NW2d 477 (1986).

4 People v Hamacher, 428 Mich 884; 402 NW2d 484 (1987).

5 People v Hamacher (On Remand), 160 Mich App 759, 763; 408 NW2d 549 (1987).

6 There had been an earlier version of the spousal privilege, phrased quite differently. 1846 RS, ch 102, § 99; 1857 CL 4339.

7 1869 PA 84 added the exception for certain actions regarding title to property:

A husband shall not be examined as a witness, for or against his wife, without her consent; nor a wife, for or against her husband, without his consent, except in cases where the husband or wife shall be a party to the record, in a suit, action, or proceeding where the title to the separate property of the husband or wife, so called or offered as a witness, or where the title to property derived from, through, or under the husband or wife so called or offered as a witness, shall be the subject matter in controversy or litigation, in such suit, action, or proceeding, in opposition to the claim or interest of the other of said married persons, who is a party to the record in such suit, action or proceeding; and in all such cases, such husband or wife who makes such claim of title, or under or from whom such title is derived, shall be as competent to testify in relation to said separate property and the title thereto, without the consent of said husband or wife, who is a party to the record in such suit, action or proceeding, as though such marriage relation did not exist; nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other, during the marriage; but in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.

1885 PA 211 added the exceptions for personal wrongs or injuries or refusal to provide support:

A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in cases where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the refusal or neglect to furnish the wife or children with suitable support within the meaning of act number one hundred and thirty-six of the session laws of eighteen hundred and eighty-three, and except in cases where the husband or wife shall be a party to the record in a suit, action, or proceeding, where the title to the separate property of the husband or wife ....

8 1897 PA 212.

9 1915 PA 314, ch XVII, § 67.

10 A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce and in cases of prosecution for bigamy, in cases of prosecution for a crime committed against the children of either or both, and where the cause of action grows out of a personal wrong or injury done by one to the other .... [1939 PA 82.]

11 People v Sebring, 66 Mich 705; 33 NW 808 (1887), also discussed in the dissenting opinion, concerned the spousal privilege and not the communication privilege.

12 McCormick, Evidence (3d ed), § 80, p 193.

13 Id., pp 194-195.

14 Id., p 195; McCormick, Evidence (1st ed), § 84, p 173.

15 In In re Doty Estate, 212 Mich 346, 352; 180 NW 608 (1920), the Court adverted to 'Hunt v Eaton, supra, in its discussion of the development of the case law identifying those communications that are and are not confidential.

16 MRE 804(a)(1) provides:

"Unavailability as witness” includes situations in which the declarant—

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement....

17 This argument finds support in a passage in People v Love, supra, p 708 (opinion of Cavan agh, J.), but we observe that MRE 804(b)(1) by it terms applies to a hearsay objection:

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

18 The prosecutor did not raise the waiver issue in the trial court when Hamacher’s lawyer, assigned on a finding of indigency to replace the lawyer who represented him at the preliminary examination, objected at the trial to the wife’s testimony concerning the communication. The prosecutor persuaded the judge to allow the wife to testify on grounds other than waiver.

Nor did the prosecutor alternatively raise the waiver issue in response to Hamacher’s arguments in his brief filed with the Court of Appeals on appeal from his conviction.

The prosecutor had a further opportunity to raise the issue when Hamacher, after the Court of Appeals initially affirmed his conviction, filed an application for leave to appeal with this Court and still a further opportunity when Hamacher filed a petition for reconsideration after this Court denied leave to appeal, 426 Mich 867 (1986). He did not do so.

We granted reconsideration, and, as previously noted, vacated the judgment of the Court of Appeals, and remanded to the Court of Appeals for further consideration. Although we said in so doing that §2162 of the rja contained no exception to the communication privilege where a husband and wife were separated or in the process of obtaining a divorce—one of the predicates of the trial judge’s ruling overruling Hamacher’s objection at trial to his wife’s testimony—the prosecutor did not raise the waiver issue in his brief filed on remand to the Court of Appeals.

After the Court of Appeals on remand reversed Hamacher’s conviction, the prosecutor filed an application for leave to appeal with this Court which, again, did not raise the waiver issue. This Court’s order granting leave to appeal did not limit the issues, and the prosecutor raised the waiver issue for the first time in his brief in this Court.

Hamacher’s lawyer did not respond in his brief in this Court to the waiver issue. During oral argument, one of the justices asked Hamacher’s lawyer whether he had a response. Hamacher’s lawyer said that the prosecutor had raised the issue for the first time on appeal.

1 Post, p 193.

2 The Court of Appeals has held that a defendant’s lawyer’s failure to raise the spousal and communication privileges issues constitutes ineffective assistance of counsel. People v Stubli, 163 Mich App 376, 379; 413 NW2d 804 (1987), where defendant’s lawyer failed to assert the privileges at the trial. Similarly, see People v Armentero, 148 Mich App 120, 124; 384 NW2d 98 (1986), where on remand from the Court of Appeals for an evidentiary hearing the trial court found that the failure to assert the "marital privilege” at the preliminary examination constituted ineffective assistance of counsel requiring a new trial.

The same standards regarding ineffective assistance of counsel apply to retained counsel. See Cuyler v Sullivan, 446 US 335, 344-345; 100 S Ct 1708; 64 L Ed 2d 333 (1980).

3 While the term "waiver” is sometimes used by courts as shorthand to describe a failure to object, a true waiver, binding a party at a "new trial,” is an intentional and voluntary relinquishment of a known right or privilege.

See in general 92 CJS, Waiver, pp 104 ff.; Kelly v Allegan Circuit Judge, 382 Mich 425, 427; 169 NW2d 916 (1969); Maxey v Proctor, 343 Mich 453, 457; 72 NW2d 198 (1955); Krakowsky v Margolis, 255 Mich 3, 6; 237 NW 28 (1931); Dow Chemical Co v Detroit Chemical Works, 208 Mich 157, 172; 175 NW 269 (1919); Couper v Metropolitan Life Ins Co, 250 Mich 540; 230 NW 929 (1930); Book Furniture Co v Chance, 352 Mich 521, 526-527; 90 NW2d 651 (1958).

4 See ns 6-7 and accompanying text.

5 Since whatever rule might be stated in the instant case regarding the waiver of testimonial privileges would surely be applicable at a new trial following reversal on appeal, the precedents developed in the new trial context are relevant although in the instant case the question arises on appeal from the first trial and the failure to object occurred at the preliminary examination.

The record at the preliminary examination does not become any part of the trial record except to the extent it is introduced in evidence as where a witness is unavailable at the trial and the witness’ testimony is not subject to evidentiary objection other than the hearsay objection obviated by MRE 804(b)(1).

6 Kruk v Minnesota, St P & S S M R Co, 249 Mich 685, 688; 229 NW 479 (1930) (the plaintiff was not estopped by the position taken at a former trial from pleading a cause of action under a preemptive federal statute held in the first appeal to have barred his claim based on a state statute); Bathke v Traverse City, 308 Mich 1, 5; 13 NW2d 184 (1944); Vukich v Detroit, 325 Mich 644, 648; 39 NW2d 212 (1949). See, generally, 6 Michigan Pleading & Practice, §§ 41.40, 41.41, pp 582-584; 18 Michigan Law & Practice, § 6, pp 142-143.

See also Bowerman v Detroit Free Press, 287 Mich 443, 449; 283 NW 642 (1939) (the plaintiff had not been permitted "to take a position inconsistent with that assumed by her on the first trial”); but see Hassberger v General Bldrs’ Supply Co, 213 Mich 489, 496; 182 NW 27 (1921) (the position taken in the first trial was a judicial admission estopping the party from taking an inconsistent position at the second trial).

7 Prejudice may be found where the witness is unavailable for the second trial and the basis of objection could have been obviated had it been voiced at the earlier trial.

See, generally, 29 Am Jur 2d, Evidence, § 742, p 812; McCormick, Evidence (3d ed), § 259, p 770. See Petrie v Columbia & G R Co, 29 SC 303, 317; 7 SE 515 (1888) (because a new tried is "a trial de novo, and is conducted just as if there had been no previous trial,” the testimony and other evidence offered anew, "when it is so offered it necessarily becomes subject to any legal exception which may be taken to it”); Clark v Ross, 328 SE2d 91, 99 (SC App, 1985); Morrison v Lowe, 274 Ark 358, 361-362; 625 SW2d 452 (1981); Calley v Boston & M R Co, 93 NH 359, 362-363; 42 A2d 329 (1945); Aetna Ins Co v Koonce, 233 Ala 265, 268-269; 171 So 269 (1936); State v Fredette, 462 A2d 17, 25-26 (Me, 1983). See also State v Jaques, 256 NW2d 559, 563 (SD, 1977).

8 Post, p 194.

The dissenting opinion relies on statements in State v Clark, 296 NW2d 372, 373 (Minn, 1980).

9 The decisions referred to are Grattan v Metropolitan Life Ins Co, 92 NY 274; 44 AR 372 (1883), and McKinney v Grand Street, PP & F R Co, 104 NY 352; 10 NE 544 (1887), discussed below.

10 104 NY 355.

11 Briesenmeister, supra, p 535.

12 Id.

13 Briesenmeister, supra, p 536. The Court decided the question on the basis that McKinney had indeed overruled Grattan sub silentio. The Court, in Briesenmeister, was thus fully aware of McKinney.

14 Beasley v Grand Trunk W R Co, 90 Mich App 576, 597; 282 NW2d 401 (1979). Similarly, see Seaton v State Farm Life Ins Co, 99 Mich App 587, 590; 299 NW2d 6 (1980).

15 The court cited a section of Wigmore on Evidence that does not advert to the issue decided, a Minnesota law review article, and a decision of the United States Supreme Court concerning the spousal, not the communication, privilege.

Cerro Gordo Charity v Fireman’s Fund American Life Ins, 819 F2d 1471 (CA 8, 1987), construed Minnesota law and quite understandably followed Clark. In State v Bishop, 187 NJ Super 187; 453 A2d 1365 (1982), the defendant took the stand thereby waiving his Fifth Amendment privilege. State v Mincey, 141 Ariz 425, 439; 687 P2d 1180 (1984), relied on Bishop without recognizing the difference between a mere failure to object and affirmative use of testimony at an earlier trial.

16 This was but one of several alternative bases of decision stated by the court in concluding that the defendants should prevail in an equitable action concerning the right to money that had been deposited in court.

17 McCormick, Evidence (3d ed), § 83, p 198, n 5.

18 The Supreme Court of Iowa, in Kelley v Andrews, 102 Iowa 119, 122; 71 NW 251 (1897), distinguished McKinney on this basis noting that "[i]n that case, the party having the right to object introduced the privileged evidence. In this case it was by the other party.”

The dissenting opinion cites four other New York decisions.

In General American Life Ins Co v Ettinger, 266 AD 876; 42 NYS2d 836 (1943), the court, in a half-page, four-paragraph opinion, stated that the person asserting the privilege had in a separate action instituted by her against another insurance company waived the privilege, and declared that such waiver operated also as a waiver in the instant action by an insurance company seeking to rescind another policy of insurance.

In In re Postley, 125 Misc 2d 416; 479 NYS2d 464 (1984), it was held that where the person asserting the privilege had submitted a statement signed by the physician in a proceeding to have a conservator appointed, the physician-patient privilege was waived and could not be asserted in a later-contested probate proceeding that included claims seeking to set aside inter vivos transactions.

In People v Lowe, 96 Misc 2d 33; 408 NYS2d 873 (1978), the judge ordered discovery of the complainant’s medical records and a psychiatric examination of the complainant stating that the complainant had voluntarily stated and thereby waived further inquiry into his mental condition when he testified that he suffered some brain damage which impaired his thinking and communication abilities. The court relied on a decision of the New York Court of Appeals that where a patient in a personal injury action tenders the issue of his physical condition to the jury, he waives the physician-patient privilege which otherwise would exist. Hethier v Johns, 233 NY 370; 135 NE 603 (1922). Similarly, see People v Al-Kanani, 33 NY2d 260; 307 NE2d 43 (1973); People v Wilkins, 101 AD2d 957; 477 NYS2d 706 (1984).

In People v Bloom, 193 NY 1, 10; 85 NE 824 (1908), the plaintiff had brought an action against the Metropolitan Street Railway Company to recover damages and permitted four physicians who had examined him and who had been called by the defendant to testify without objection. The later trial was for the offense of perjury allegedly committed by the plaintiff in the personal injury action. The court said that Bloom "intentionally” permitted the physicians to testify: "After intentionally permitting its publication”; "but he intentionally surrendered it.” An intentional relinquishment of a known right is a waiver.

19 The dissenting opinion cites two other decisions of this Court. Benson v Morgan, 50 Mich 77; 14 NW 705 (1883), held only that the holder of the privilege could not complain on direct appeal because he had not preserved the issue by timely objection. Briesenmeister could be cited for the same proposition of law. (See text following n 9.)

In O’Toole v Ohio German Fire Ins Co, 159 Mich 187, 192; 123 NW 795 (1909), the Court concluded that letters from the communicating spouse were admissible on the basis of a finding that the husband to whom the letters had been entrusted had not affirmatively delivered them to the third party. The Court said that the letters had "escaped” from the husband’s clothing and were found on the floor and that there was no collusion between the husband and the person who found them. It has been suggested that the communicating spouse assumes the risk of loss or misdelivery of a writing as distinguished from disclosure due to the betrayal or connivance of the spouse to whom delivered. McCormick, Evidence (2d ed), § 82, p 168; (3d ed), § 82, p 197.

In neither Toner, Benson, nor O’Toole was there any issue whether an objection could be asserted in a later case, trial or proceeding.

20 The rule recommended by the commissioners on Uniform State Laws would provide that there is no physician-patient privilege as to a communication relevant to an issue concerning the condition of the patient in any proceeding in which he relies on the condition as an element of his claim or defense. Uniform Rules of Evidence, Rule 503, 13A ULA 277-278.

The Michigan statute now provides a more limited waiver than the statute considered in Briesemneister. The statute now provides that where the patient brings an action to recover for personal injuries or for malpractice, he shall be deemed to have waived the privilege for all physicians who have treated him if he produces any physician as a witness in his own behalf who has treated him. MCL 600.2157; MSA 27A.2157. See, generally, 5 Michigan Pleading & Practice (2d ed), § 37.117, p 440. See also 9 Michigan Pleading & Practice (2d ed), § 65.108, p 457, concerning a provision of the automobile no-fault act.

See also Martin, Dean & Webster, Michigan Court Rule Practice, p 384, discussing MCR 2.314(B)(2), providing that a party generally may not present or introduce evidence relating to his medical history or mental or physical condition if he asserts that that medical information is subject to a privilege and the assertion has the effect of preventing discovery of discoverable medical information.

The New York Court of Appeals, in construing its statute, had held after Hethier v Johns, n 18 supra, was decided, that the insured, by calling a treating physician, had waived the privilege as to other treating physicians. Steinberg v New York Life Ins Co, 263 NY 45; 188 NE 152 (1933).

21 McCormick, Evidence (3d ed), § 72, p 171.

22 Probably the policy of encouraging confidences is not the prime influence in creating and maintaining the privilege. It is really a much more natural and less devious matter. It is a matter of emotion and sentiment. All of us have a feeling of indelicacy and want of decorum in prying into the secrets of husband and wife. [McCormick, Evidence (1st ed), § 90, p 179.]

23 Given its comparatively recent origin, this latter rationale probably has not operated as a conscious basis for either the judicial or legislative creation of existing privileges. Today’s judicial tendency to pour new wine into old bottles, however, may serve to make the nonutilitarian theory a factor in the subsequent development of thinking about privilege. [McCormick, Evidence (3d ed), § 72, p 172. Emphasis added.]

24 McCormick, Evidence (3d ed), § 86, pp 202-203.

25 Const 1963, art 6, § 5.

26 McCormick, Evidence (3d ed), § 86, p 202.

27 See n 23.