Taylor v. Walter

189 N.W.2d 309, 385 Mich. 599

• Court: Michigan Supreme Court
• Decided: August 27, 1971
• Docket: 9, April Term 1970, Docket No. 52,327. No. 16 June Term 1971, Docket No. 52,327
• Status: Published

Opinions

T. E. Brennan, J.

(dissenting): If the young people of today, who think that they are the only ones who criticize public officials with candor, would like an example of an old pro, speaking his mind, albeit with utmost courtesy, the oral argument for appellee in this case, by Mr. Roy Nelson of the Detroit Bar could be read with profit.

Mr. Nelson spoke without a prepared text, which accounts for the occasional false starts and grammatical miscues. The substance, however, is faultless. I adopt it as my dissent.

“Mr. Nelson: Members of the Court, my name is Roy Nelson, and I represent the defendant, and I might ask the same question, ‘Why am I here?’ I feel like the fellow who says I got two chances, slim and none, and slim is out of town. But notwithstanding, I read the Sting¹ case, and I will be frank to say I cannot understand it. It isn’t very often that you come before a tribunal like this, and know you are going to get beat before you come, so what have I got to lose. I feel this way. I read the decision of Justice Black, who dissented in the previous case. I read the Sting case. I think there are several things that are different in this case, as distinguished from the Sting case. One, the Court, I am sure, has still fresh memories of the Sting case. The Sting case involved cross-examination which was permitted concerning the driving record, and the defendant took exception to it, and he objected to it, and the court permitted cross-examination. The question then was, ‘Was this an abuse of discretion on the part of the trial court in permitting cross-examination of the driving record ?’ That was the Sting case. The Taylor case, which is now before this Court, was a case where the cross-examination was objected to by me, and the trial court sustained it. Now the question is, ‘Was this an abuse of discretion, in refusing to permit examination of driving record?’ Entirely different. The third issue, which distinguishes this case materially from the 8ting case, is there is no evidence in this record; there was no evidence in the trial court that the defendant had any driving record at all. The only way the driving record appears in this Appendix is by Mr. Lopatin waving a sheet of paper in front of the trial judge when, he made a motion for a new trial and said, ‘this is the driving record.’ That’s where it got in. So I think there is a lot of difference between the Sting case and this case.

“I like to refer first of all to Justice Black’s opinion when this case was here before.² It isn’t often that I get a chance to come back and say, ‘Why did you say this ?’ Maybe it takes a lot of audacity, but I think I have known Justice Black for a long enough time, that I think that he doesn’t mind another fellow differing with him.

“Justice Black : Not at all. Not at all.

“Mr. Nelson: He spent most of his life differing.

“I raised in my brief the question of making a separate record. If you want to preserve your right to appeal, show there is prejudice. Mr. Lopatin made no separate record. He made no offer of any driving record in the lower court. I raised this question under Rule 604. I said, ‘What about it?’ Justice Black never mentioned anything about it in his opinion. But since that time, the case was just mentioned here today, by Mr., I think it was in the first case argued, a malpractice case, the Henson³ case. This Court was pretty strong and unanimous in how to preserve a record for appeal. If you claim that you are prejudiced by denial of right of cross-examnation or a denial of right to introduce evidence then make a separate record so we can show to this Court that it has been prejudicial. That was not done in this case. And if it wasn’t done in this case, how can you, on the strength of the Henson case, say that there is anything before this Court today for this Court to pass on? I can’t see it.

“I would like to point out the second thing that Justice Black raised in this opinion. The reason I point to Justice Black’s opinion is because the fellows who were on the other side are on my team, they are the guys with the white hats. Justice Black, in his opinion, stated, and I raised this in my brief, that the cases of Niedzinski⁴ and Van Goosen;⁵ now the Van Goosen case was one of them that was cited in Rule 607, as being the basis for the change to make the driving record admissible. He says then in his opinion that the Niedsinski case and the Van Goosen case hold that the trial judge erred reversibly in refusing to uphold the plaintiff’s right to cross-examination sought by him. Those cases didn’t say — those two cases went up on appeal because the defendant objected to the introduction of evidence of prior convictions, and the trial court permitted it. And the appeal went up on the basis that the trial court erred in permitting cross-examination. It didn’t say that the trial court erred. It said that the trial court was right, that it was discretionary in that court to permit that. So maybe that might explain why Justice Black made the mistake in his opinion. I don’t know if that would change his mind or not. But I would like to point that out to him.

“Now, another thing that Justice Black said in his opinion in the previous case was, that there was no discretion exercised by Judge Fitzgerald in the trial court when he refused to permit examination on the driving record, because, he said in his several remarks, making an improper left turn is not a crime. I don’t know if Justice Black was referring to the fact that if he said that it is not a crime, all misdemeanors and felonies are all crimes. I really don’t understand his reasoning. But Justice Black says there was no discretion exercised. Well, if he says it, I guess it must be true, but I don’t understand what he means, and maybe there is some explanation which I cannot see.

“Now, I don’t think it is any secret, certainly it isn’t any secret to the trial attorneys and the people who are down the line a little ways, that the Supreme Court has been chipping away at getting this driving-record into evidence. It is gone over in some great extent, and Justice Kelly, God rest His Soul, did a tremendous job on reviewing- the whole thing when his opinion was written on this case the time before.⁶ It started with the Smith case, remember the A. J. Smith case and the Elliott, it was Elliott v. A. J. Smith Construction Co.,7 when the driving record was permitted under, to show the negligent entrustment theory. And it is really notable in that decision because the Honorable Talbot Smith, who is now — I don’t know whether he has been promoted or noted — is now on the Federal Bench. He stated in that opinion, and is commenting on rule, the reasons for Rule 723 [sic],⁸ which prohibits the introduction of evidence of criminal convictions driving record. He says, ‘The principal evil sought to be cured by that statute arise this way: A driver has been convicted of a criminal offense in connection with a traffic accident. In addition, he is sued civilly with respect to the same accident. There is a danger that the civil jury might, if permitted, consider the criminal conviction as evidence of neglig-ence in the civil action, or in civil cases, that negligence in a prior case will be regarded as negligence, evidence of negligence in the later case.’

“Now, Justice Black signed that opinion, and whole heartily supported that. Justice Black now signs the opinion in the Sting case, which is just the opposite. Now, I am not saying people can’t change their mind, but it is pretty hard for the guy down the street to figure out what is going to happen if you keep changing your mind, and that is the reason we have been up here twice, and maybe this is the reason this case is going to be ten years old when it gets to be tried.

“Now, Rule 607, as we certainly are aware, arose out of, I think it had its inception in the second hearing on Perin v. Peuler.⁹ And, I don’t question the theory probably behind Perin v. Peuler, somewhat of negligent entrustment, if you want to, I don’t quite agree with it, but, I say, you are entitled to your opinion, and maybe it is all right. I don’t disagree legally with it, particularly. But, anyhow, that is where Rule 607 had its inception, and this Court informally, I am sure, gave considerable thought before they wrote the rule. They said, the rules of evidence as set forth in these cases shall be applicable, regarding driving records, notwithstanding what rule, what statute 723 [sic] says, where the legislature make the statute, says, you can’t have any evidence of driving records in any civil proceedings. So the trial court down the line very closely followed this. I think they did. What did those cases say? Well, your four cases — one, Van Goosen case; second, Zimmerman;¹⁰ third, the Socony Vacuum¹¹ case; and the fourth, the Cebulak¹² case. I reviewed all these cases in the first time we were up here, but since we have got a change of personalities, so I will, just for the benefit of these, might review these.

“The Van Goosen case involved, as I stated before, there was evidence introduced of convictions of a traffic record, over the objection of defense counsel, and that went up on the basis of an abuse of discretion. Again, this was something that was admitted, and it shouldn’t have been, at least, they claimed. The Zimmerman case was one where a plea was entered, Zimmerman v. Goldberg. A. plea was entered by the defendant to a, going through a light, I think it was, or making an improper left turn, and as a result, the accident ensued. He made an improper turn, the accident ensued. He was charged in traffic court with a criminal violation, or a traffic violation. And he pled guilty, and so then along comes the trial for the personal injuries. And he said, ‘Well, I didn’t do this.’ Then they wanted to introduce the evidence of this plea. And the question was. quite analogous to this, because they said the question was ‘Were you ever arrested or convicted of a crime?’ And the judge, at first, just sustained the objection to said crime. ‘Improper left turn is not a crime.’ So he was confused somewhat and they referred to this, and in that case, they said very clearly that the law in Michigan is that the admission of evidence of convictions of misdemeanors is still discretionary with the court. However, in this case, the trial court was in error in refusing to permit this, because it related to the same incident and can be construed as an admission or a prior condition taken at trial. I don’t disagree with that at all. I think that a person should be put to task if he comes to court and he makes a plea and later he is faced with a civil action arising out of that same accident. I don’t disagree with that, but I think that case, and this is the case, that you people picked out for us to follow. It is discretionary with the trial court whether or not evidence of convictions of unrelated traffic violations is admissible. And we followed it. The case was tried four years ago, and we are still fighting about the same thing.

“Now, we come right down to this, it seems to me. What are we talking about? We are talking about credibility. Credibility is the whole nub of this thing. This is what you are talking about when you enact the rule. You said, credibility, whether or not a witness, can be tested on his credibility, we will determine whether he can, and for that purpose we think that evidence of convictions of traffic violations goes to credibility. This, we think it. But we are talking about credibility. Now, is evidence of conviction, or a plea in a traffic violation, something that is unrelated to the accident at hand — are we going to — first of all, does it go to a man’s credibility? I don’t know, but I would wager anyone of you have been stopped many times, I don’t suppose you have gotten many tickets when they found out who you were, but just reflect on the number of times you could have, if you hadn’t been who you were, and so then you come to court and they say, ‘Look at that crook, he got convicted of going 75 miles an hour in a 70 zone.’ Now does this go to your credibility? I point out in my brief. I will just read it, I said, I wouldn’t hesitate one second trusting the family assets with some guy who made an improper left turn or was going 35 miles an hour in a 30 zone. I wouldn’t hesitate. But I sure wouldn’t trust him with five cents if he had been convicted of being a pickpocket, a shoplifter, or the shill who runs the shell game at the circus. But you know the strange thing about it now, the point at we now find ourselves, the trial court has no discretion at all in whether or not someone’s driving record is being introduced, but he still can have discretion whether or not he will let in any evidence of whether he has ever been convicted of being a pickpocket, or a shoplifter, or caught in a house of prostitution. He can keep that out, because that hasn’t anything to do with credibility; but they can’t keep out the fact that he made an improper left turn or that he ran into someone in the rear end on the expressway in a traffic jam. Now, does this make sense? It doesn’t make sense to me, and so Mr. Lopatin says, ‘Why are you coming here?’ Well, I said, ‘Because you know I have a certain faith, a certain amount of faith in our jurisprudence, and I don’t think you really meant what you said in the Sting case.’

“Pardon me, Justice Adams, but I’ve got to comment on this. And I just would like to read a little bit of this, where Justice Adams said, General Court Rule ‘607 was adopted by this Court in accordance with its rule-making powers,’ etc. The central issue was the question of negligence, contributory negligence, etc. And he goes on to say, and this is important, On the issue of whom to believe, I believe the driving record of a plaintiff or defendant can become a crucial evidentiary factor. Now, may I ask, how in the world can the driving record of a man become an evidentiary factor, in the trial of a negligence case? How can the fact that he ran into somebody on the expressway three years ago in the rear end have anything to do whether or not he went through a red light today? Now, if you are talking about credibility, that is one thing, but it certainly has nothing to do with evidence. The driving history, both before and after the accident, whether it be for serious or minor infractions of the vehicle code, can have a vital bearing of enabling a jury to determine the truth of a plaintiff or defendant’s testimony as to the exercise of due care. How in the world can that have anything to do with a man’s ability to tell the truth? And that is what we are talking about. Now whether or not he drove negligently, or whether he’s a careless driver, or whether he has been convicted ten times, that has nothing to do, we’re talking about the credibility statute, and so I ask this Court, how in the world can a man’s driving-record have anything to do with, what you say, with the defendant’s testimony as to the exercise of due care. I can’t figure it out. We wind up, and we say, we conclude under Rule 607, as presently adopted by this Court, the trial judge has no discretion. Maybe I didn’t read the same rule. Rule 607, as adopted by this Court, never said that there was no discretion. Quite the contrary, Rule 607, as adopted by this Court, says the court does have discretion, but it has discretion to permit it or to keep it out. And all Rule 607 did, it said, forget about statute 723, they say you can’t get it in. We’re saying that if the trial judge wants to let evidence of prior convictions in, we’re saying he can do it because it goes to the procedures in trial, and we’re going to set the rules, and I don’t blame you, that is O.K. with me, but that is all it said, it didn’t say there was no longer discretion and it was a matter of right.

“I might comment. Justice Kavanagh in that same opinion, T. G. Kavanagh, Justice T. G. Kavanagh, kind of somewhat agreed with me. He still thinks under that, if I read his opinion correctly, he still thinks there is some discretion in the trial court, whether or not they’re going to permit introduction of evidence of driving records; he thinks it is discretionary, and he winds up by saying, I think we better look at this Rule, because I think it needs some changing. He doesn’t interpret, he says, I think it needs to be changed. It is all right with me if you want to change it. Because when you enacted the rule, one thing that is very important to me, and I read the last line of Justice Black’s opinion in Peuler case, he says, I think the Rule should be improved. And he goes on to say, that it shall operate to the future and prospective. And I say, all right, gentlemen, if you are going to change Rule 607 in the middle of the ball game, that is O. K. with me, but let’s make it work for the future, because that is what you did when you enacted it, and if you are going to change the rule, let’s make it work to the future. Don’t send it back for something in this case that was tried for four or five years ago. We followed the rule. Now, to say to the defendant, ‘We’ve decided to change the rule, and so, Mr. Defendant, you pay for the expense of this.’ I don’t think that’s cricket. Well, gentlemen, that’s the reason I’m up here. Didn’t have much to say. Well, it won’t take long to write the answer to what is said. I just had to get it off my chest, and I thank you much for staying awake to listen to me. Thank you, Your Honors.”

1 Sting v. Davis (1971), 384 Mich 608.

2 Taylor v. Walter (1970), 384 Mich 114.

3 Henson v. Veterans Cab Co. of Flint (1971), 384 Mich 486.

4 Niedzinski v. Coryell (1921), 215 Mich 498.

5 Van Goosen v. Barlum (1921), 214 Mich 595.

6 Taylor v. Walter (1970), 384 Mich 114, at p 121.

7 Elliott v. A. J. Smith Contracting Company, Inc. (1960), 358 Mich 398.

8 CLS 1956, § 257.731 (Stat Ann 1957 Cum Supp § 9.2431).

9 Perin v. Peuler (1964), 373 Mich 531.

10 Zimmerman v. Goldberg (1936), 277 Mich 134.

11 Socony Vacuum Oil Co. v. Marvin (1946), 313 Mich 528.

12 Cebulak v. Lewis (1948), 320 Mich 710.