Sakas v. Savoie , 53 Mich. App. 158 ( 1974 )

Bronson, J.

On January 7, 1970, shortly after noon, an automobile collision occurred at the intersection of Telegraph and Joy Road in the City of Dearborn Heights. Plaintiff, Tessie Sakas, was driving one car and defendant, Jon Savoie, the other. Plaintiff was injured as a consequence of the collision.

Trial was had in the Common Pleas Court, City of Detroit, and the jury returned a verdict for plaintiff. Defendant appealed to the circuit court raising one issue, as here, and the circuit court affirmed. We granted leave to appeal on July 20, 1973, from this decision.

The sole issue for our review is whether the former recorded testimony of a witness in a criminal proceeding (traffic court) is admissible in a later civil action where the witness, although subpoenaed, merely refused to appear and testify in the civil proceeding and was within the range of court process.¹

At trial the evidence was conflicting. Plaintiff claimed defendant ran a red light and defendant asserted the contrary. The witness, whose former testimony was admitted, apparently observed the collision from a service station at the intersection. He testified, in the traffic proceeding against plaintiff, that the light was green for the plaintiff and red for the defendant.

A subpoena was issued for the witness to testify in the civil proceeding. He refused to appear. His refusal was evidence to the proponent prior to the time his testimony was to be used.

When the court issues a subpoena the integrity of the court is vested in the subpoena. It is incumbent upon the proponent and the court to take all reasonable steps to enforce the subpoena. A mere request, even if by the court, is insufficient. The court has the power to issue a bench warrant. The court can alternatively exclude the transcript of the former testimony. The failure to enforce the court’s process or exclude the testimony was error. A new trial is required.

Reversed and remanded for a new trial. Costs to appellant.

All concurred.

1 Because this issue is dispositive of the appeal we express no opinion upon the defendant’s further argument that there was neither identity of parties nor adequate opportunity for cross-examination in the prior proceeding.