Moldovan v. Allis Chalmers Manufacturing Co. , 83 Mich. App. 373 ( 1978 )

83 Mich. App. 373 (1978) 268 N.W.2d 656

MOLDOVAN
v.
ALLIS CHALMERS MANUFACTURING COMPANY

Docket No. 25084.

Michigan Court of Appeals.

Decided May 22, 1978.

Colista, Green, Green & Adams (by Michael Domonkos), for plaintiff.

Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., for defendant Allis Chalmers Manufacturing Company.

Sullivan, Ranger, Ward & Bone, for defendant Fraza Equipment, Inc.

Before: BEASLEY, P.J., and D.E. HOLBROOK, JR. and M.J. KELLY, JJ.

D.E. HOLBROOK, JR., J.

Plaintiff Martin Moldovan was injured when he was struck by an unoccupied forklift truck which unexpectedly went into reverse. Basing his claim on negligence and several breach of warranty theories, plaintiff sued defendants Allis Chalmers Manufacturing Company and Fraza Equipment Company. Essentially plaintiff's claim was grounded on the failure of a safety valve device which, plaintiff contends, should have prevented the forklift from operating when unoccupied. After a 15-day trial the jury returned a verdict of no cause of action as to both defendants. Plaintiff appeals, raising 12 allegations of error.

First, plaintiff contends the trial judge should have disqualified himself since the judge had recently been found liable for $395,000 in a Federal court civil suit. Plaintiff's counsel argue their ignorance of this judgment until the day of final argument precluded a timely motion for disqualification as required by GCR 1963, 405. Plaintiff argued this issue in his motion for a new trial, which was denied. Regardless of when counsel discovered the judgment, the argument is without merit. Plaintiff has established none of the eight possible grounds for disqualification under GCR 1963, 405.1 and has not shown "actual prejudice" of the trial judge. Irish v Irish, 59 Mich. App. 635, 639; 229 NW2d 874 (1975), Armstrong v Ann Arbor, 58 Mich. App. 359, 369-370; 227 NW2d 343 (1975), lv den, 394 Mich. 783 (1975). In the new trial hearing, the trial judge's remarks indicate that, if anything, he was favorable to plaintiff's case — that he felt plaintiff should recover something for his injury and that perhaps the defendants could have been pressured into a $400,000 settlement (plaintiff rejected a $200,000 settlement offer). The jury, however, found no liability on the part of either defendant. We find no reversible error.

Second, plaintiff complains of several incidents of harsh treatment of plaintiff's counsel in front of the jury. In any hotly contested 15-day trial there are bound to be episodes of judicial impatience with aggressive counsel. The standard of review, however, is whether such exchanges resulted in denying plaintiff a fair and impartial trial. St. Louis v Fisher & Co, Inc, 1 Mich. App. 55, 58; 134 NW2d 290 (1965). Taken alone and out of context, certain portions of the record could just as easily be used to show trial court bias against the defendants. We must review the record as a whole and we conclude plaintiff was not denied a fair trial.

Third, plaintiff contends the trial judge violated a pretrial order (issued by a different judge) to exclude any reference to plaintiff's prior sex-related convictions. The violation occurred when the trial judge refused to excise certain references to the sex offenses in a video-tape deposition of plaintiff's psychiatric witness. Initially we note that one aspect of plaintiff's claimed injury was impairment of his sex drive and, indeed, plaintiff's psychiatric witness concluded that plaintiff's sex drive was impaired. However, the psychiatrist also stated that plaintiff's sexual problems stemmed in part from his earlier sex offense incidents. The trial judge gave plaintiff the option of introducing the entire video-tape or excluding it totally. Plaintiff opted to let in the entire tape and now appeals. We uphold the ruling of the trial judge for several reasons: a) GCR 1963, 605 permits trial court discretion to require an expert witness to set forth the "data" upon which the expert's conclusions are based, b) a person's prior criminal record is relevant if a psychiatrist relied upon it in forming an opinion, People v Hammack, 63 Mich. App. 87, 93; 234 NW2d 415 (1975), c) in light of plaintiff's claim of impaired sexual drive, the defense was entitled to have all of plaintiff's psychiatric witness's data placed before the jury, see GCR 1963, 302.4(4), and, d) the pretrial judge did not know plaintiff's psychiatrist was going to testify as to plaintiff's prior history before he (the pretrial judge) made his exclusionary ruling. In light of all these factors the trial judge properly exercised his discretionary power to modify the pretrial order and such a modification will not be overturned absent clear abuse. Hanlon v Firestone Tire & Rubber Co, 391 Mich. 558, 564; 218 NW2d 5 (1974), State Highway Comm v Redmon, 42 Mich. App. 642, 645-646; 202 NW2d 527 (1972).

Fourth, plaintiff argues the trial judge erred by refusing to allow a representative of plaintiff's employer to read statements written on an accident report form (Form 100). The judge ruled the statements hearsay and refused to allow them to be read. However, he offered to allow the form in to show the accident took place and had been reported but refused to admit any statements as to how the accident happened. Plaintiff decided not to introduce the form at all and now appeals. The trial judge ruled correctly. The statements were written by someone no longer employed by plaintiff's employer and were written before the company representative was employed by plaintiff's employer. Since the employer was a third party intervenor and not an adverse party the statements were not admissible as admissions against interest. Nor were they admissible under the "business entry" exception to the hearsay rule. MCLA 600.2146; MSA 27A.2146. There are some ambiguities in that statute. Wade v Bay City, 57 Mich. App. 581; 226 NW2d 569 (1975), appeal dismissed, 394 Mich. 755 (1975). The form is admissible to show the accident occurred and that the employer had knowledge of the accident, but the written conclusions or statements detailing how the accident occurred — a critical fact issue at trial — would be excludable hearsay. In Central Fabricators, Inc v Big Dutchman Division of US Industries, Inc, 398 Mich. 352; 247 NW2d 804 (1976), the Michigan Supreme Court quoted with approval from the United States Supreme Court case Palmer v Hoffman, 318 U.S. 109; 63 S. Ct. 477; 87 L. Ed. 645 (1943), which held statements contained in an accident report were not admissible under the Federal business entry statute. For a number of reasons accident reports are distinguishable from other types of so-called business records. We conclude the trial judge ruled correctly on the limited admissibility of the accident report.

Fifth, plaintiff complains the entire deposition of a former Allis Chalmers employee should have been admitted under either the adverse witness rule, or GCR 1963, 302.4(3), or as an "excited utterance". A review of the judge's ruling indicates that he excluded portions of the deposition on the grounds that they were speculation and conjecture. The admissibility of depositions is governed by the rules of evidence, GCR 1963, 302.4 and 302.5, and the trial judge properly exercised his discretion in refusing to admit speculative deposition testimony. Plaintiff further complains the trial judge abused his discretion by refusing to grant a continuance so plaintiff could bring the deposition witness to court to testify. The record indicates the plaintiff wished to bring the witness in near the close of trial and the judge felt taking the witness out of order so late in the trial would unduly confuse the jury. Granting a continuance is within the discretion of the trial judge and we find the judge did not abuse his discretion.

Sixth, plaintiff complains he should have been allowed to read selected portions of depositions of witnesses who had already testified and had been excused. The record indicates the judge denied plaintiff's request since plaintiff should have cross-examined the witnesses about their deposition statements when they were on the stand rather than wait until they were excused to read selected highlights from the deposition. Plaintiff claims GCR 1963, 302.4(2) allows the use of depositions "for any purpose". We do not think this broad language removes the trial judge's control of the proceedings and we conclude the trial judge properly refused to let plaintiff's counsel introduce favorable excerpts of deposition testimony after the witnesses were excused.

Seventh, plaintiff argues the trial judge erred when he refused to permit co-counsel for plaintiff to divide the duties in conducting the lawsuit. The record indicates no specific request by plaintiff's attorneys to engage in a "division of labor" method. A review of the instances cited by plaintiff reveals the trial judge was acting well within his discretion in limiting arguments before the court. Plaintiff's argument is without merit.

Eighth, plaintiff complains the trial judge erred in excluding in-court experiments with a model of the allegedly defective valve and in excluding plaintiff's witness's testimony of out-of-court experiments with a model valve. As to the in-court experiments, the trial judge refused to allow the experimentation because the conditions were not sufficiently similar to the allegedly defective valve on the date of the accident. The model valve was mounted on a board, not on a forklift, and plaintiff's expert conceded he had never seen the forklift in question nor had he compared the model valve with the allegedly defective valve. We conclude the trial judge did not abuse his discretion. Nor did he abuse his discretion in excluding testimony of the out-of-court experiments where plaintiff's expert could not testify that every part of the model valve met specifications. Admission of test results is within the wide discretion of the trial court. Taylor v Hannon-Colvin Post 180 of American Legion, 6 Mich. App. 398, 405; 149 NW2d 210 (1967), Pohlod v General Motors Corp, 40 Mich. App. 583; 199 NW2d 277 (1972).

Ninth, plaintiff argues that a pretrial order which excluded any reference to workers' compensation benefits was violated. A review of the record indicates there was no mention of workers' compensation, therefore the pretrial order was not violated and the trial judge was correct in refusing to give any curative instruction which may have resulted in exposing the fact of worker's compensation benefits.

Tenth, after retiring, the jury returned with a question for the trial judge and the plaintiff claims the judge erred where he responded to the question by having testimony read to the jury. Reading testimony back to the jury is within the wide discretion of the trial judge, Klein v Wagenheim, 379 Mich. 558, 561; 153 NW2d 663 (1967), People v Howe, 392 Mich. 670, 675; 221 NW2d 350 (1974), and the trial judge did not abuse that discretion in having pertinent testimony read to the jury.

Eleventh, plaintiff contends he should have been granted a new trial since after trial plaintiff located an expert witness who supposedly could rebut testimony of defendants' expert. GCR 1963, 527.1(6) governs new trials based on newly discovered evidence. Plaintiff has shown no factual basis to show the evidence is material, not cumulative or that it could not have been discovered before trial. See Parlove v Klein, 37 Mich. App. 537, 542; 195 NW2d 3 (1972), lv den, 387 Mich. 780 (1972). Denials of new trials based on newly discovered evidence will not be reviewed absent gross abuse of discretion, People v Hill, 21 Mich. App. 178, 180; 175 NW2d 305 (1970), and since all plaintiff really shows is that the new evidence might impeach defendants' expert, plaintiff's argument must fail. Pociopa v Olson, 13 Mich. App. 324, 327; 164 NW2d 413 (1968), lv den, 381 Mich. 797 (1969).

Twelfth, plaintiff urges the trial court erred by refusing to admit evidence of a post-accident design change in the safety valve. The record indicates defense counsel gave plaintiff's expert a model for illustration purposes, the expert took the model apart and discovered a different sized spring than used in the allegedly defective valve. Defendants immediately objected, the jury was excused and arguments heard, and the judge ruled the evidence of the design change was inadmissible. Excluding evidence of subsequent repairs or design changes is based on sound policy grounds. Unlike the situation in Denolf v Frank L Jursik Co, 395 Mich. 661; 238 NW2d 1 (1976), admission of evidence of a design change would offend the policy grounds behind the exclusionary rule. Here the evidence would have been prejudicial to a party defendant. The policy grounds for excluding design changes to show negligence are equally applicable in a products liability setting. Phillips v J L Hudson Co, 79 Mich. App. 425; 263 NW2d 3 (1977).

Affirmed. Costs to appellees.

BEASLEY, P.J., concurred.

M.J. KELLY, J. (dissenting).

I agree unequivocally with the majority's treatment of the first issue and I believe the very raising of that issue reflects the atmosphere which characterizes this record.

However too many of the remaining issues contain overtones of antagonism toward plaintiff's counsel. They may have richly deserved a tight reign at times, but it appears to me that an overtried case resulted in a miscarriage of justice. I think the trial judge should have granted a new trial.

Since I am a minority of one there is little to be served by dissecting the record for instances of querulousness. This matter is addressed in the majority opinion as the second issue. The two distinguished former trial judges who sign that opinion perhaps find little sympathy for my view that a too easily aggravated trial judge is as much an impediment to a fair trial as an error of fact or law. I can only say that I come to a different conclusion and disagree that both sides were treated evenly. More than anything else it is the cumulative effect of the atmosphere of impatience which compels my vote for reversal.

On the issue addressed as number 3 by the majority I am tempted to excoriate appellant for failure to supply the video-tape deposition with the exhibits submitted on this appeal. I understand that steps are being taken to require the filing of such tape or a written verbatim certified transcript of the same in future cases. This video-tape deposition issue appeared to me to be extremely troublesome and was recognized to be so by the trial judge. If I read the record correctly the plaintiff was guilty of two criminal sexual episodes, one in 1964 (homosexual) and one in 1973 (defendants refer to it as a "1974 sex episode") with a female minor and defendants further say that the first time they learned of the second sex offense was at the taking of Dr. Danto's deposition.

The deposition was taken after a pretrial rule which unequivocally excluded such evidence from jury consideration. It is unclear to me how defense counsel could have, in the face of the pretrial ruling, taken the opportunity to inquire into the criminal sexual conduct in violation thereof. I was unable to view the video tapes without taking extraordinary measures and it became unnecessary to do so when the majority opinion was forwarded to me by my colleagues. It appears that although the plaintiff's attorneys obtained a stipulation to exclude the prior criminal record at pretrial and subsequently obtained a letter from the pretrial judge amending the pretrial order to expressly exclude such evidence, nevertheless, it came to be included in a deposition taken thereafter. The majority opinion refers to GCR 1963, 302.4(4) which prohibits piecemeal or selective introduction. That is beside the point here. At the very least there should have been an attempt on the part of the defendants to get a modification of the pretrial ruling instead of waiting until the time came to introduce the deposition at trial. The laying back placed plaintiffs' attorneys on the horns of a dilemma. They either had to forego the entire video tape deposition which, besides being expensive, may have been critical to their presentation of damages or be forced to allow the exposure of the criminal sexual misconduct, which may have been devastating to some of the jurors. In any event I find the prejudicial effect of the evidence far outweighed its probative value and I believe further that plaintiff's counsel were justified in relying on the pretrial ruling and expecting that evidence to be excluded.

The only other issues I address have to do with the expert witnesses. The majority in issue 8 condones disallowing the model valve because it was mounted on a board, not on a forklift. I think that's ridiculous on the face of it and consider that the trial judge extracted too stringent a requirement that the model be an exact duplicate of the entire vehicle. This is tantamount to requiring the introduction of a whole automobile to prove a hydraulic valve defective. I think the court abused its discretion in excluding the model valve and in excluding the testimony of the out-of-court experiments.

In issue 12 likewise I believe the majority came to the wrong conclusion. Each party's principal expert came to court with a safety device model to use for demonstration purposes. The plaintiffs' expert's model had a tendency to stick. The defendant's expert's device operated smoothly. During the plaintiffs' expert's testimony he was allowed to disassemble defendant's device and upon doing so he discovered in the presence of the jury that the model brought to court by the defense contained a longer spring that the spring specified in the manufacturer's list of components. How this occurred was suggested to be by design change which took effect about six months after plaintiffs' accident. Defendants had placed the device in evidence as exhibit three. I believe the trial court erred reversibly in foreclosing the plaintiff and his expert from thoroughly explaining the differences between the device prepared pursuant to the specifications in effect at the time of plaintiff's accident and the smoothly operating device brought into court by the defendant and/or its expert. The jury apparently later confused this safety device spring with an inching spring and directed a question to the court shortly after retiring to deliberate. The net effect of the ruling was that the defendant's false model, a telling weapon indeed, was subtracted from the plaintiffs' rebuttal arsenal, which gave a totally false complexion to what should have been a crucial blow to the defense. Whether this single specification of error should result in reversal to both defendants or only to the manufacturer I do not choose to address in dissent as it would only unnecessarily add to the volume of unavailing literature (my dissents).

I would reverse.