Opinion
Docket No. 8549.
Decided July 28, 1971.
Appeal from Ontonagon, Donald L. Munro, J. Submitted Division 3 May 13, 1971, at Grand Rapids. (Docket No. 8549.) Decided July 28, 1971.
Complaint by Michael J. Miles and Vivian Miles against Clairmont Transfer Company for damages from injuries sustained in an automobile accident. Judgment for defendants. Plaintiffs appeal. Reversed and remanded for a new trial.
Wisti, Jaaskelainen Bourland, for plaintiffs.
Messner, LaBine Vairo, for defendant.
Before: FITZGERALD, P.J., and HOLBROOK and LEVIN, JJ.
This is an automobile negligence action brought by plaintiffs Michael J. Miles and his wife Vivian Miles. On November 21, 1969, a judgment on the jury verdict of no cause of action for defendant was entered. Plaintiffs have appealed.
On July 8, 1968, at 8 a.m., Mr. Miles was driving his automobile on highway M-64 in a southerly direction approaching the intersection of Plant Site Road. The defendant's employee was driving a truck on Plant Site Road in a westerly direction approaching the intersection with highway M-64. Defendant's vehicle was required to stop before entering highway M-64. Plaintiffs' witness testified that defendant's driver did not stop but proceeded into the intersection when the plaintiff driver was in close proximity thereto. Plaintiff driver observing defendant's vehicle, applied his brakes to avoid a collision, causing his vehicle to go out of control, skidding off the highway and down a hill. The plaintiff driver claimed to suffer injuries as a result.
Defendant's witnesses testified that its driver did stop at the intersection and that plaintiff driver was driving at an excessive rate of speed, and further that defendant's driver was not guilty of any negligence. Plaintiffs raise two issues on this appeal.
(1) Is it reversible error to deny counsel the right to examine a memorandum which a witness reviewed to refresh his memory as to the date and time of the incident before testifying?
The defendant called an eyewitness to the incident. This witness testified on cross-examination that just before coming into the courtroom he had reviewed his own written statement given to defendant's insurance company. Plaintiffs' counsel requested an opportunity to examine this memorandum. The request was denied on the ground that it could have been obtained through discovery proceedings.
In 82 ALR2d, Refreshment of Recollection by Use of Memoranda or Other Writings, § 63, Memorandum used out of courtroom; production not generally required, it is stated on p 562:
"Notwithstanding authority to the contrary, it has been held in many recent decisions that where a witness has refreshed his present recollection prior to the time of giving testimony, by the use of papers or memoranda out of court, he is not, unless the court in its discretion orders otherwise, obliged to produce them to allow the opposing party to make an inspection."
Under this annotation we fail to find any Michigan cases cited.
In 3 Wigmore on Evidence (Chadbourn rev 1970), § 762, writing must be shown to the opponent, on demand, for inspection and cross-examination; memoranda used before trial, it is stated at pp 136, 139, 140:
"On a general principle (§ 1861 infra), that has in view the risk of imposition and false aids, against which the opponent is entitled to the means of protection, the writing must be shown to him on request. Furthermore, as by this opportunity of inspection the opponent is guarded against imposition clearly apparent, so by cross-examination based on the paper he may further detect circumstances not appearing on the surface, and may expose all that detracts from the weight of testimony.
* * *
"Clear as the justice of this would seem to be, there are courts which deny it, and others which seem to. They are led away, in most instances, by perceiving the general distinction between a record of past recollection and a paper reviving present recollection, and by concluding that, because the rule about producing originals applies to the former (§ 749 supra) but not to the latter (§ 760 supra), therefore it is unnecessary to produce and show the paper to the opponent. These decisions, however, are in a small minority, and have no principle to support them. Just how much of the document may be examined by the opponent (for example, when it is a book of accounts) depends much on the circumstances of each case; in general, the parts relative to the subject of testimony, not merely the parts used by the witness, may be seen.
"The rule should apply, moreover, to a memorandum consulted for refreshment before trial and not brought by the witness into court; for, though there is no objection to a memory being thus stimulated, yet the risk of imposition and the need of safeguard is just as great. It is simple and feasible enough for the court to require that the paper be sent for and exhibited before the end of the trial."
Wigmore's treatise cites the Michigan cases of Duncan v. Seeley (1876), 34 Mich. 369 and People v. Lyons (1882), 49 Mich. 78, in its annotations of states which follow this general rule. Also see Cortland Manufacturing Company v. Platt (1890), 83 Mich. 419; People v. Schepps (1922), 217 Mich. 406.
We also find in 82 ALR2d, § 64, on pp 568, 569, that the cases of State v. Hunt (1958), 25 N.J. 514 ( 138 A.2d 1), Alfredsen v. Loomis (1956, Sup Ct) 148 N.Y.S.2d 468, and In Re Hewett's Will (1947), 271 App. Div. 1054 ( 70 N.Y.S.2d 3; aff'd 297 N.Y. 565, 74 N.E.2d 482) are discussed. The rulings in all three of these cases are consistent with the general rule as set forth in Wigmore on Evidence.
We are constrained to rule that it was reversible error for the trial court to refuse the request of plaintiffs' counsel to inspect the statement and use it in his cross-examination of defendant's witness.
(2) This issue pertains to claimed errors resulting in the manner in which the verdict of the jury was received, specifically the confusion attending the polling of the jury. Some members of the jury attempted to be helpful by offering information other than that required or requested. These volunteered statements caused the confusion. We believe that this will not occur again on retrial and, therefore, do not consider this issue.
Reversed and remanded for a new trial.
Costs to plaintiffs.