Opinion
Calendar No. 94, Docket No. 49,536.
Decided February 7, 1963. Rehearing denied April 5, 1963.
Appeal from Genesee; Parker (Donn D.), J. Submitted December 5, 1962. (Calendar No. 94, Docket No. 49,536.) Decided February 7, 1963. Rehearing denied April 5, 1963.
Case by Robert L. Gorman against Robert McCleaf, and John G. LeSage, doing business as O.K. Television, for personal injuries sustained when struck by automobile. Judgment for plaintiff. Defendant LeSage appeals. Reversed as to defendant LeSage.
Schwesinger, Wright Salim ( Chester R. Schwesinger and Richard C. Evans, of counsel), for plaintiff.
Jerome F. O'Rourke, for defendant LeSage.
This is an appeal from a court-entered $26,000 judgment. Defendant LeSage operates a television sales and service business. Defendant McCleaf worked for him as a part-time service man. Calls were received at the store which McCleaf would pick up and make daily. He was paid for each call. He used his own car.
On June 20, 1957, at about 4 p.m., in downtown Flint, McCleaf drove past 3 cars which were stopped for a red light, crossed the center line of the street and proceeded through the red light at between 35 and 50 miles per hour, striking plaintiff, a pedestrian, who was lawfully on the crosswalk. Plaintiff suffered severe and permanent injuries.
At the trial McCleaf testified he had completed a call at 224 West Fourth avenue near Chevrolet avenue and was driving west on Third avenue near Chevrolet avenue. He was not going home. He could not remember where he was going when he hit plaintiff. After the proofs were in and the parties had rested, the court, over objections, permitted plaintiff to reopen the case for the purpose of introducing testimony of Police Officer Barron that McCleaf had said he was on his way to make a service call when the accident happened.
The court entered a joint and several judgment against the defendants and for the plaintiff, finding that McCleaf was an employee of LeSage and that he was in the course of his employment at the time of the accident. The court also found McCleaf's actions to be "wanton and wilful."
Defendant LeSage filed a motion to set aside the judgment as contrary to law. LeSage contended that he, as employer, should not be liable under the doctrine of respondeat superior for the conduct of his employee, since the court had found the employee guilty of wilful and wanton misconduct.
The court denied the motion stating he had not intended to characterize McCleaf's conduct as a deliberate and intentional act but had meant instead "gross negligence."
Several questions are presented on this appeal. The first one is whether or not the trial court erred in allowing the case to be reopened for the purpose of introducing the testimony of Police Officer Barron. The affidavit by plaintiff's attorney in support of the motion to reopen states he was unaware that the police officer could testify to the conversation with defendant McCleaf until about 3:30 p.m., on July 21, 1961. The trial began July 19, 1961. The accident occurred on June 20, 1957. The record does not disclose when plaintiff retained his attorney. However, suit was begun on August 20, 1959. From that date, at least, plaintiff's attorney was in charge of the case. The statement of McCleaf, taken on June 22, 1957, discloses it was taken in the presence of Barron. An information filed against McCleaf on July 15, 1957, for felonious driving lists George Barron as a witness. The affidavit filed in support of the motion to reopen does not satisfactorily explain why under these facts plaintiff's attorney failed and neglected to interview Officer Barron until this matter came on for trial.
A client should not have to suffer for the neglect of his attorney unless other's rights intervene which make such a ruling necessary in the interest of justice. This case was tried by the court without a jury. The trial had concluded but the judge had not rendered his decision. There is no showing of undue hardship or surprise to defendants or that they were unable to meet the testimony which was introduced. The course and handling of a trial is generally a matter for the discretion of the trial judge. We find no abuse of discretion.
The second question is whether or not the testimony of Barron was admissible, either for the purpose of impeaching the testimony of defendant McCleaf or for establishing the relationship of employee-employer between McCleaf and LeSage. McCleaf's testimony was that he could not remember if he was working at the time of the accident. The testimony was admissible as to him for purposes of impeachment. Gilchrist v. Gilchrist, 333 Mich. 275; Kalamazoo Yellow Cab Co. v. Kalamazoo Circuit Judge, 363 Mich. 384. However, as to defendant LeSage, we have a different situation. He was not present at the time of the alleged conversation, and Officer Barron was unable to fix the exact time when the statement was made by defendant McCleaf. On cross-examination, Officer Barron could only specify that the statement was made either the day of the accident or the day after. A fellow employee by the name of Teachout testified that several days after the accident he had a conversation with McCleaf which led him to believe McCleaf was going on a call at the time of the accident. Both statements were admissible for the purpose of impeaching the testimony of McCleaf, but the time was not sufficiently fixed by the police officer to make his statement a part of the res gestae. Clearly, Teachout's testimony of a conversation some days after the accident was not a part of the res gestae. A statement in the nature of an admission by an employee is not admissible as to the employer so as to bind the employer, unless it is a part of the res gestae or unless authorized by the employer or made within the scope of the employment. Kalamazoo Yellow Cab Co. v. Kalamazoo Circuit Judge, supra; Holtz v. L.J. Beal Son, Inc., 339 Mich. 235. The statements of Teachout and the police officer should not have been considered in determining employer LeSage's liability.
A careful examination of the record in this case discloses no evidence whatsoever to establish liability on the part of the employer LeSage. The employer-employee relationship at the time of the accident was not established. The trial court erred in finding that such relationship existed.
In view of the foregoing, it is not necessary to discuss the final question dealing with wilful and wanton misconduct or gross negligence.
The judgment of the trial court as to defendant LeSage is reversed, and the matter is referred to the trial court for the entry of a judgment of no cause for action as to defendant LeSage. The judgment in the amount of $26,000 against defendant McCleaf is affirmed. Defendant LeSage only shall have costs.
CARR, C.J., and DETHMERS, KELLY, BLACK, SOURIS, and OTIS M. SMITH, JJ., concurred.
O'HARA, J., took no part in the decision of this case.