Ruhala v. Roby

150 N.W.2d 146, 379 Mich. 102, 1967 Mich. LEXIS 68

• Court: Michigan Supreme Court
• Decided: May 2, 1967
• Docket: Calendar 1, Docket 51,456
• Status: Published

Opinions

Brennan, J.:

Statement oe Pacts.

On December 7, 1963, Esther Kingsley was injured in an auto collision at about 8:25 a. m. on the Dixie Highway in Saginaw County. She died the same morning at 9:30 at St. Mary’s Hospital in Saginaw. On May 25, 1964, the plaintiff, administrator of the estate of Esther Kingsley, filed a wrongful death complaint seeking damage,'? against James Roby and "William Burditt. He claimed that Esther Kingsley was a nonguest passenger in her own Chevrolet, being driven by Roby, who collided with a pick-up truck driven by Burditt, due to the negligence of both drivers. On June 2, 1964, Roby filed an answer in the cause in which he denied that he was driving the Chevrolet automobile in which the plaintiff’s decedent was an occupant. He alleged affirmatively that the plaintiff’s decedent was the driver of the car. And he further alleged that the vehicle was being operated by plaintiff’s decedent in a reckless and negligent manner and at a high rate of speed. On June 19, 1964, the defendant Burditt filed his answer. He denied negligence on his part and affirmatively alleged that the sole cause of the collision was the negligence of the driver of the decedent’s automobile. In paragraph 2 of his answer, Burditt admitted that James Roby was operating the death car.

On December 7th, the day of the accident, at about 2:30 in the afternoon, defendant Burditt had given a statement to one G-erald Hough, a state trooper. In this statement, the following question and answer appears:

“Q. William, you said earlier that the woman was on your side when you hit. So would you say that the man in the car was driving?

“A. He had to been, there was a man driving.”

Two days later, on December 9, 1963, the defendant Burditt gave another statement to a man named Donald Cook. This statement was also reduced to writing in question and answer form, It contains the following;

“Q. I see, do you know who was driving the other car?

“A. Well, I’ll tell yon the same as I told the State police and his wife, the woman was not driving the car.”

On September 15, 1964, before the case came up for trial, the deposition of Burditt was taken for the purpose of discovery. On the deposition, Burditt testified that there was a woman behind the wheel, whereupon the examiner asked Burditt a number of questions concerning the two prior statements he had given to Hough and Cook. Burditt conceded making the prior statements, but was never asked whether his prior statements were true.

The trial of the cause commenced on March 17, 1965. William Burditt was present in the courtroom during the trial. During the presentation of the plaintiff’s case in chief, plaintiff moved to admit into evidence the discovery deposition of the defendant Burditt. Thereupon a conference was had with the court in chambers. The court excluded the portions of the deposition having to do with the examination of Burditt on his two prior extrajudicial statements. It should be noted also that in offering Burditt’s deposition into evidence the plaintiff did not indicate the purpose for which the offer was made, nor the court rule under which the deposition was claimed to be admissible. Burditt at that point had not been called as a witness in the trial.

Since the conference on the admissibility of the specific questions and answers in the deposition was had in chambers, and since no stenographic record was made of the discussion in chambers between the court and counsel, the reason for the exclusions that were made does not immediately appear in the record. Later, however, the trial judge indicated on the record that the reason for the exclusion of those portions of the deposition had to do with his feeling that no foundation had been laid. More on that later. Plaintiff proceeded to read the deposition into evidence, omitting the portions which the court had ruled to be inadmissible.

On the following day of trial, March 18, 1965, plaintiff called the defendant Burditt as an adverse party for cross-examination. Objection was made and the court ruled that the plaintiff could not call defendant Burditt under the statute for cross-examination, after having introduced his deposition. The court ruled that by the use of the deposition, plaintiff had made Burditt his own witness. A separate record out of the presence of the jury was made, in which the plaintiff was permitted to cross-examine Burditt fully as an adverse party. After the separate record was made, the plaintiff, pursuant to the court’s ruling, called defendant Burditt as his own witness. At the conclusion of the plaintiff’s case, defendant Burditt made a motion for directed verdict, which was granted on the ground that there was no evidence of any negligence on the part of Burditt which could go to the jury. A judgment in favor of Burditt was entered upon this directed verdict and no appeal has been taken therefrom. In due course, plaintiff’s case against defendant Roby went to the jury and the jury found no cause of action. An appeal was taken after a motion for a new trial was denied.

The Court of Appeals affirmed the trial judge, saying, among other things, that under the circumstances of this case the deposition of Burditt could be used for impeachment purposes only and that none of the depositions should have been received in evidence. The Court of Appeals further held that in the light of the procedure followed in this case, the plaintiff had made Burditt his own witness and the trial court did not err in denying plaintiff’s request to call defendant Burditt for cross-examination under the statute.

I. The Use oe the Deposition.

The first question which must be answered in this case is: Was the plaintiff entitled to read the deposition of William Burditt into evidence? This question must be answered because the Court of Appeals has stated flatly that in its opinion none of the depositions should have been received in evidence. Although this discussion is actually a blind alley so far as the decision in this case is concerned, the matter is an important one' to the bench and bar, and merits our interpretation of the applicable court rules. It is important to note at the outset that there are two entirely different kinds of depositions contemplated by the rules. On the one hand, there are depositions of mere witnesses who are not parties to the lawsuit. On the other hand, there are depositions of parties, their officers, directors, agents and employees. The practice governing the use and effect of these two distinct and different types of depositions is clearly outlined in the court rules. ³ The difficulty in this case lies in the fact that under our trial practice it is possible for a party to call his adversary in one of two ways: either for cross-examination under the statute, ⁴ or as his. own witness. If the former result is desired, counsel is required to announce the purpose for calling the witness. ⁵

Tbe Court Rules permit parallel options in the use at trial of depositions. If the deposition of a party or his agent is offered under GCR 1963, 302.4(2),⁶ there is a use of the deposition which parallels the calling of an opposite party for cross-examination under the statute.⁷ If the deposition of an adverse party, however, is offered under General Court Rule 1963, 302.4(3),⁸ it parallels the calling’ of an adverse party as a witness without announcing the purpose therefor and makes the deponent the witness of the party calling him. If, as we have seen, the use of depositions parallels the calling of witnesses at trial, it would be good practice for counsel to announce his purpose in offering the deposition, and better practice for counsel to indicate the court rule pursuant to which he offers the deposition. It is possible to conceive of situations in which such a failure would have the effect of making the deponent the witness of the party offering the deposition. Nevertheless, the making of such announcement will not be strictly required when under all of the facts and circumstances the intended use of the deposition is apparent. In the instant case, Burditt was present in the courtroom at the time his deposition was offered and he had not yet testified in the case. Therefore, it was obvious that his deposition was not being offered because of his unavailability under Rule 302.4(3), nor was it being offered to impeach him under Rule 302.4(1). To have permitted the use of the deposition under Rule 302.4(1) or 302.4 (3) would have been error under the circumstances, and error will not be presumed. Thus, it is obvious that the deposition of William Burditt was offered, though no announcement was made, pursuant to Rule 302.4(2), paralleling cross-examination of an adverse party.

By such use of the defendant’s deposition plaintiff did not make Burditt his own witness. GCR 1963, 302.6 clearly indicates this:

“.6 Effect of Taking or Using Depositions. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of impeaching the deponent makes the deponent the Avitness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in subrule 302.4(2).” (Emphasis supplied.)

It is thus concluded that there was no error in permitting the Burditt deposition to be read in evidence. And under the circumstances of this case the introduction in evidence of Burditt’s deposition did not make Burditt plaintiff’s witness.

II. The Excluded Portion oe the Deposition.

This brings us to the second question in the laAvsuit, and that is whether there was error in excluding those portions of the Burditt deposition which the trial court did not permit the plaintiff to read to the jury. As has been noted, this exclusionary ruling was made in chambers with no stenographic record. This is most unfortunate and it is not a desirable trial practice. The specific ground of objection to evidence tendered is often a controlling factor on appeal. The court rule contemplates that depositions will be read question by question, so that objections to specific questions can be made and ruled upon.⁹ And where the arguments of counsel and reasons of the court do not appear on the record, the appellate court- can only speculate on the basis' for the ruling and the correctness thereof. In this case, however, we are assisted in part by the opinion of the trial court as rendered on the record at the time the motion for a new trial was made. The pertinent portion of that .opinion- is as follows:-

'“Now..those portions of the deposition which were excluded were those having to do with an alleged prior statement made by the defendant Burditt wherein he at least indicated in one portion,. as I recall, that a man was driving the car; that, was his first impression, or something of the sort. . That portion was excluded because of the failure of the person who took the deposition to lay a proper foundation. In other words, no question was asked, 'Who do you say, Mr. Burditt, was driving the car when you first saw it?’ No answer was elicited to such a question, so there is nothing in the deposition to shoW that any statement being-made by the witness at the time of the taking of tlie deposition was inconsistent with' the statement which is alleged he had given sometime prior thereto. The court excluded that portion of the deposition having to do with this claimed prior inconsistent statement because of the lack of foundation. As attempted in the deposition, it amounted to no more than offering the prior statement as an exhibit and not for the purpose of impeaching a statement being made in the deposition because no such questions were asked of him.”

This ruling does not jibe with the record in the case. Immediately prior to the excluded portion of the deposition the following questions and answers appear:

“Q. Could you tell me the sex of the passengers in the car?

“A. Pardon?

“Q. The sex of the passengers in the car?

“A. It looked to me like a man and a woman.

“Q. And which side was the woman sitting on?

“A. I have a picture in my mind that when that car first started to come around, like that, that this woman was behind the wheel, that is just the impression I got, and I still have that picture in my mind. It seems when we hit, she was over to my side of the car, what I mean, not my side, I mean the side that I hit on the car.

“Q. Then you saw the woman in the car just before you hit?

“A. I don’t know what I saw then, I can’t tell you.” (Emphasis supplied.)

Surely the substance of Burditt’s testimony at that point was that a woman was behind the wheel, and it certainly represented a proper foundation to permit the plaintiff to present prior inconsistent statements for impeachment purposes. If the right of the plaintiff to impeach Burditt on this point were the controlling issue in the lawsuit, our appellate result would be ' clear at this juncture. But the mere impeachment of Burditt is not the ultimate question to be decided.

Plaintiff has not appealed the judgment entered in Burditt’s favor against him. Plaintiff has appealed only the judgment rendered in Roby’s favor against him. The erroneous ruling excluding Burditt’s prior inconsistent statements is not reversible in this appeal from the verdict and judgment in favor of Roby unless the excluded portions of the deposition constituted substantive evidence which the jury should have been permitted to consider in determining whether Roby was or was not the driver of the car in which Mrs. Kingsley was injured. A complete discussion of the substantive value, if any, of the excluded portions of Burditt’s deposition will be had in a later section of this opinion in connection with the substantive effect, if any, of the testimony of William Burditt on separate record.

III. The Right to Cross-Examine.

The next issue which must be considered is the matter of the court’s ruling on the right of the plaintiff to cross-examine Burditt as an adverse party. As already noted, the use of Burditt’s deposition, under the circumstances as they existed in this case, did not make Burditt the witness of the plaintiff. This being so, we need not decide in this appeal whether use of an adverse party’s deposition under Rule 302.4(3), making the deponent the witness of the party offering the deposition, would or would not affect the right of such party to call his adversary for cross-examination under the statute late in the trial.

In the instant case, the court was in error in ruling that the plaintiff was.precluded from cross-examining Burditt under the statute. Even the existence of this second error, however, does not require reversal. It must again be determined whether the error was reversibly prejudicial. A separate record, not in the presence of the jury; was made, in which the plaintiff was permitted to pursue the cross-examination of Burditt as fully as he wished. We must look to the separate record then, to determine whether the exclusion of anything elicited therein constituted reversible error. If not, then the trial court’s denial of. plaintiff’s right to cross-examine Burditt was of no moment’ A detailed discussion of this follows.

IV. The Substantive Value of Impeachment Testimony.

Was it reversible error for the trial judge to exclude from the jury’s consideration as substantive evidence the two prior inconsistent statements made by defendant Burditt as those statements were'incorporated in the excluded portions of Burditt’s deposition and in the excluded separate record of Burditt’s testimony on the stand?

For the purpose of this discussion the excluded portion of the deposition and the excluded separate record of Burditt’s testimony from the witness stand can be considered together. The questions asked and the answers given in both excluded portions are substantially the same. The net effect of both" excluded materials is the same. On both occasions Burditt was interrogated regarding these prior inconsistent statements. On both occasions Burditt admitted having made the prior inconsistent statements, but on neither occasion did he adopt the prior inconsistent statements as true.

The status of the law regarding the admissibility of prior inconsistent statements is relatively settled. Such statements are generally admissible for impeachment purposes and are also admissible when they constitute an admission by a party opponent. The effect of such prior inconsistent statements when admitted in evidence is not so clear in the law, and in many cases it becomes important to determine whether the prior inconsistent statement is in fact substantive evidence or whether it is admissible merely to impeach. In his handbook on the law of evidence, Professor Charles T. McCormick states the problem as follows:

“When a witness has changed sides and altered his story or forgets or claims to forget some fact, and his previous statement is received for impeachment purposes, what effect shall be given to the statement as evidence? Under the generally accepted doctrine the statement is not usable as substantive evidence of the facts stated. The adversary if he so requests is entitled to an instruction to that effect, and, more important, if the only evidence of some essential fact is such a previous statement, the party’s case fails.

“Only two escapes from the lethal effect of this doctrine, where the sole witness to a vital fact has turned co'at, are revealed by the cases. The first is the rule that when the hostile witness is an adverse party to the present action, his former inconsistent statement has two faces. As an impeaching statement it would not be substantive evidence, but as the admission of a party opponent it comes in under an exception to the rule excluding hearsay and as such is evidence of its truth.” McCormick, Evidence, Ch 5, § 39, pp 73, 74.

The second escape from the doctrine as described by Professor McCormick is the case wherein the witness adopts his prior statement as true, making his prior statement and his present testimony one and the same.

Before we can consider the effect of the two prior inconsistent statements when offered for the purpose of impeaching Bnrditt, we must first grapple with the problem of whether the two prior inconsistent statements represented admissions of a party opponent, within the rule holding such admissions to be substantive evidence which can be considered by the jury. The problem here is that the admissions of one defendant are not admissible in evidence against a codefendant.¹⁰ Thus, even if Burditt’s prior inconsistent statements were admissions, a matter we need not decide, and thus admissible as substantive evidence against Bnrditt, they were totally inadmissible as to Roby, and where the appeal is taken only against Roby, the plaintiff cannot be said to have been harmed because the extrajudicial statements of Burditt were not received in evidence against Roby.

In passing, it should be noted that there has been some confusion in earlier cases in this Court on this question. The following statement appears in the case of Rosenberg v. Mageda, 251 Mich 696, at page 699:

“The court charged the jury they might consider the statements made by plaintiff in her signed statement as bearing upon the claim she made at the trial. The statements made by a witness out of court, in conflict with her testimony, could be considered as bearing upon her credibility, but not as substantive evidence in the case. Eno v. Allen, 113 Mich 399; Hutchins v. Murphy, 146 Mich 621. To instruct the jury they could so consider such testimony was error.” (Emphasis supplied.)

The quoted statement from the Rosenberg Case clearly indicates the confusion which has beset our Court in the past. The Court was talking about a statement made by the plaintiff, and the rule applied by the Court is the general rule only when the witness is not a party to the suit.¹¹

The recent case of Schratt v. Fila, 371 Mich 238, involved a situation very similar to the present ease. There, the Court was dealing with the effect of a prior inconsistent statement by one of the defendants where the appeal was taken by another defendant. In the Schratt Case, this Court concluded that Fila in his interrogation had finally admitted the truth of his prior inconsistent statement. And our Court then said, quoting from Perry v. F. Byrd, Inc. (1937), 280 Mich 580, 582, that,

“Notwithstanding the fact that a written statement is offered solely for impeachment purposes, so much thereof as a witness at the time adopts by admission of the truth thereof becomes substantive evidence.”

In its opinion in the Schratt Case the Court goes to some length to show that Fila adopted the prior inconsistent statements as true, thus bringing the case within the rule of Perry v. F. Byrd, Inc., the second escape route described by McCormick. The Court apparently regarded this fact as controlling. The Court recognized that if Fila adopted the prior inconsistent statements as true, they would constitute substantive evidence against the defendant Ziegler. But if Fila had not adopted the prior inconsistent statements as true, the Court apparently believed that they would not amount to substantive evidence against the defendant Ziegler, the only appellant. The Court either did not consider the question of whether the prior inconsistent statements were admissible as substantive evidence because they were admissions of a party, or else the Court assumed that because these were Fila’s admissions, they were inadmissible as to the eodefendant Ziegler; and in order to determine whether they had substantive evidentiary value as against Ziegler they would have to be tested by the rules governing prior inconsistent statements by persons who are not parties to the record. It is believed that the approach taken in the Schratt Case was the proper one, and that the substantive effect of the prior inconsistent statements of a codefendant who is not a party to the appeal should be governed by the rules having to do with the prior inconsistent statements of a witness who is not a party to the case.

If the extrajudicial statements of Burditt were inadmissible against Roby as admissions of Burditt, what was their evidentiary effect when offered for impeachment purposes'? As has already been indicated, the general rule followed in this State for many years is that evidence of prior inconsistent statements when offered for impeachment purposes does not constitute substantive evidence unless the truth of the prior inconsistent statements is admitted when the witness is confronted with them on the stand.¹² This rule has been called the orthodox view and is founded on the reason that such statements are hearsay, that their value rests on the credibility of the declarant who was not under oath and not subject to cross-examination when the statement was made. The rule is one of general acceptance. Nevertheless, there has been some criticism of the rule.¹³ Judge Learned Hand in his opinion in Di Carlo v. United States (CA 2, 1925), 6 F2d 364, 368, says:

“ ‘The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are nonetheless deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.’ ”

Mr. Justice Otis Smith, writing for the Court in the Schratt Case, states at page 245, as follows:

“We agree with the view stated in McCormick on Evidence, § 39, p 75:

“ ‘If the prior statement of the witness is contradictory of his present story on the stand, the opportunity for testing the veracity of the 2 stories by the 2 parties through cross-examination and reexamination is ideal. Too often the cross-examiner of a dubious witness is faced by a smooth, blank wall. The witness has been able throughout to present a narrative which may be false, yet is consistent with itself and offers no foothold for the climber who would'look beyond. But the witness who has told one story aforetime and another today has opened the gates to all the vistas of truth which the common-law practice of cross-examination and re-examination was invented to explore. It will go hard, but the 2 questioners will lay bare the sources of the change of face, in forgetfulness, carelessness, pity, terror or greed, and thus reveal which is the true story and which the false. It is hard to escape the view that evidence of a previous inconsistent statement, when the declarant is on the stand to explain it if he can, has in high degree the safeguards of examined testimony.’ ”

This quotation from Professor McCormick represents an excerpt from a lengthy and most interesting discussion. The substance of the balance of Professor McCormick’s remarks is that he believes that the rule which prohibits the use of impeachment testimony as substantive evidence is not a reasonable one. He is not talking about prior inconsistent statements which are adopted by the witness as he concedes that these are already generally held to be substantive evidence. He points out that the prior inconsistent statement because made closer in time to the fact is based upon a fresher memory and for that reason may even he more reliable than the testimony of the witness in court. He finds support in the English Evidence Act of 1938, and also in the Uniform Rules of Evidence; “Rule 63, subd 1, admits as an exception to the hearsay rule ‘a statement previously made-by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness.’ ”

In view of such attacks, some re-examination of the settled rule in Michigan is in order. Prior inconsistent statements used for impeachment purposes are not, strictly speaking, exceptions to the hearsay rule. The hearsay rule excludes from evidence extrajudicial statements which are offered for the purpose of proving the truth of the thing said. Prior inconsistent statements offered for impeachment purposes are not offered for the purpose of proving the truth of the thing said. They are offered merely to show that the statement was made. The mere fact of the making of a prior inconsistent statement has value as hearing on the credibility of the witness.

Those who argue for the use of such statements as substantive evidence, that is, as tending to prove the truth of the thing said, reason in this fashion: since the principal reason for the hearsay rule lies in the absence of an opportunity to cross-examine the declarant on his statement, the reason for the rule falls whenever the declarant is available for cross-examination. Under this line of reasoning, prior consistent statements, as well as prior inconsistent statements, would be admissible substantive evidence whenever the declarant was on the witness stand.

The difficulty with this argument is that it does not recognize the real nature of cross-examination. Cross-examination presupposes a witness who affirms a thing being examined by a lawyer who would have him deny it, or a witness who denies a thing being examined by a lawyer who would have him affirm it. Cross-examination is in its essence an adversary proceeding. The extent to which the cross-examiner is able to shake the witness, or induce him to equivocate is the very measure of the cross-examiner’s success.

Bearing in mind that when the witness adopts the prior statement his prior statement becomes his present testimony, and becomes admissible substantive evidence by settled law, it is readily apparent that the present discussion only relates to those cases where the witness does not adopt his prior statement as true. If he refuses to adopt his prior statement as true, there can be no adversary cross-examination upon it. If he refuses to affirm, no question can be put to him which would shake his own confidence in his affirmation.

It is interesting to note that Uniform Rule 63, subd 1, silently concedes its own frailty when it makes reference to the witness being available for cross-examination “with respect to” the prior statement and its subject matter, rather than cross-examination “upon” the prior statement. If a prior inconsistent statement is received as substantive evidence though not adopted as true, it is thereby given a special indestructible status far superior to direct sworn testimony from the witness stand. One who would cross-examine upon such a statement is denied even the basic technique of asking the witness to repeat the statement.

The would-be cross-examiner is not only denied the right to be the declarant’s adversary, he is left with no choice but to become the witness’ friend, protector and savior. Though he may be permitted to ask questions in the form of cross-examination, the substance of his effort will be re-direct examination and rehabilitation. The reason is simple. The witness cannot recant! Every cross-examiner tries to bring the witness to the point where he changes his story — literally eats his words — in the presence of the jury.

A statement made from the witness stand is not beyond total recall by the witness. Stale friendly cross-examination “with respect to” a prior extrajudicial statement is no substitute for timely, adversary cross-examination “upon” a statement. The importance of this distinction is clearly seen when we analyze the ease before us. The statement Burditt gave to the police officer, and which plaintiff would have the jury consider as substantive evidence, was as follows:

“Q. William you said earlier that a woman was on your side when you hit, so would you say tha1 the man in the car was driving?

“A. He had to have been, there was a man driving.”

Trial lawyers are keenly aware of the vulnerability of “hadda” witnesses and “musta” witnesses. When a witness says that the driver had to have teen speeding, or must have swerved this way or that way, his very choice of verbs betrays that he is stating his conclusions rather than his observations. For the purpose of demonstrating the difference between timely and stale cross-examination, let us suppose that a cross-examiner had been present at the time Burditt made his statement to the police officer. And let us suppose, for the sake of discussion, that the following had taken place:

Q. William, you say that the man had to have been driving, is that right?

A. Yes.

Q. Did you see the man behind the wheel before the accident?

A. No.

Q. Did you see the man behind the wheel after the accident?

A. No.

Q. Did you ever see the man in the car?

A. No.

Q. Why then, do you say that the man had to have been driving?

A. Because when I first looked over there after the accident, the woman was lying out of the door on the passenger’s side, and if she was on the passenger’s side, she must have been the passenger and the man had to have been the driver.

Q. Isn’t it possible that the man was thrown out of the car from the passenger’s side and the woman was thrown across the front seat from the driver’s seat?

A. Yes, that’s possible.

Q. Do you still say that the man had to have teen drivingf

A, No, I guess not.

Now let us see whether the stale cross-examination of Burditt “with respect to” his statement, as envisioned by the Uniform Bule and advocated by Professor McCormick, would have the same effect:

Q. William, you say that the man had to have been driving, is that right?

A. No, I’m not saying that.

Q. Well that’s what you told the police officer,, isn’t it?

A. Yes.

Q. Did you see the man behind the wheel before the accident ?

A. No.

Q. Did you see the man behind the wheel after the accident?

A. No.

Q. Did you ever see the man in the car?

A. No.

Q. Why then did you tell the police officer that the man had to have been driving?

A. Because when I first looked over there after the accident, the woman was lying out of the door on the passenger’s side, and if she was on the passenger’s side, she must have been the passenger and the man had to have been the driver.

Q. Isn’t it possible that the man was thrown out of the car from the passenger’s side and the woman was thrown across the front seat from the driver’s side?

A. Yes, that’s possible.

At this point, the cross-examiner is stymied. The crucial question which would give the witness a chance to change his story, “Do you still say that the man had to have been driving?” is meaningless. The witness has already testified that he is not still saying that the man had to have been driving. Instead of a plunge to the jugular, the examiner will have to be satisfied with applying a bandage. It would sound something like this:

Q. And isn’t this the reason why the story you are telling us today is different from the story you told the police officer?

or,

Q. And isn’t it true that if you had thought of that possibility at the time, you never would have told the police officer that the man had to have been driving the car?

By these hypothetical examples we have tried to show the windmill-fighting nature of stale cross-examination with respect to the prior statement. No matter how deadly the. thrust of the cross-examiner, the ghost of the prior statement stands. His questions will always sound like attempts to permit the witness to explain why he changed his story before coming to court, with the jury being left to infer that he might have been induced to change his story in the intervening months or years, for some unrevealed and sinister reason.

When a cross-examiner on timely cross-examination succeeds in getting the witness to change his story, the integrity of the recantation is apparent, and his original, recanted version no longer stands as substantive evidence. If the only evidence of an essential fact in a lawsuit were a statement made from the witness stand which the witness himself completely recanted and repudiated before he left the witness stand, no one would seriously urge that a jury question had been made out.

Scholarly legal writings are useful and necessary. When they challenge the established rules, the courts have an obligation to re-examine those rules and measure the theoretical criticism against the hard facts of a living system of justice. This opinion has been longer than we would have liked, but there seemed to be a need.

To summarize then:

1. The deposition of Burditt was admissible in evidence even though Burditt was present in the courtroom.

2. The use of Burditt’s deposition did not make him the plaintiff’s witness.

3. The exclusion of that portion of the deposition containing the prior inconsistent statements of Burditt offered for impeachment purposes was error, as to Burditt.

4. The refusal to permit plaintiff to cross-examine Burditt upon his prior inconsistent statements was error, as to Burditt.

5. The prior inconsistent statements of Burditt, offered for impeachment purposes, did not constitute admissible substantive evidence as to the co-defendant Boby.

6. Where no appeal has been taken against Burditt, the errors as to him did not constitute reversible, prejudicial error in this appeal taken against Boby only.

The judgments of the trial court and the Court of Appeals are affirmed, with costs to the appellee.

Dethmers, C. J., and Souris, and O’Hara, JJ., concurred with Brennan, J. Kelly, J., concurred in result.

3 GCR 1963, 302.4, 302.6.

4 CLS 1961, § 600.2161 (Stat Ann 1962 Rev § 27A.2161).

5 Mally v. Excelsior Wrapper Co. (1914), 181 Mich 568.

6 “(2) The deposition of a party or anyone who at the time of the transaction or occurrence out of whieh the action arose or at the time of taking the deposition was an officer, director, employee, or agent of any party may be used by an adverse party for any purpose.”

7 Gilmore, 1 Michigan Civil Procedure Before Trial (ICLE), pp 635, 636, 637.

8 “(3) The deposition of a witness, whether or not a party, when properly filed in accordance with subrule 306.6(1) or subrule 307.2, may be used by any party for any purpose if the court finds: [I] that the deponent is an expert witness; or [2] that the witness is dead; or [3] that the witness is at a greater distance than 50 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or [4] that the witness is unable to attend or testify because of age, sickness, insanity, infirmity, or imprisonment; or [5] that the witness is not subject to process or that the party offering the deposition has been unable to procure the attendance of witnesses by subpoena; or [6] upon motion and notice that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.”

9 GCR 1963, 302.5

“.5 Objections to Admissibility. Subject to the provisions of sub-rule 308.3, objection may bo made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if t-he witness were then present and testifying.”

10 Gibbard v. Cursan (1923), 225 Mich 311.

11 See Tisman v. School-District, 90 Mich 510, an 1892 case; McClellan v. Fort Wayne & B. I. R. Co., (1895), 105 Mich 101; and Perry v. F. Byrd, Inc. (1937), 280 Mich 580.

12 Perry v. F. Byrd, Inc., supra.

13 Pulitzer v. Chapman (1935), 337 Mo 298 (85 SW2d 400); State v. Jolly (1941), 112 Mont 352 (116 P2d 686).