Rumptz v. Leahey

26 Mich. App. 438 (1970) 182 N.W.2d 614

RUMPTZ
v.
LEAHEY

Docket No. 5,968.

Michigan Court of Appeals.

Decided September 28, 1970.

Blum & Sternberg, Chartered (Norman L. Zemke, P.C., of counsel), for plaintiff.

Plunkett, Cooney, Rutt & Peacock (John D. Hayes, of counsel), for defendant.

Before: LEVIN, P.J., and J.H. GILLIS and BRONSON, JJ.

LEVIN, P.J.

This action arises out of a collision between automobiles driven by the plaintiff, Thomas Rumptz, and the defendant, Frederick P. Leahey.

The defendant appeals a jury verdict in favor of the plaintiff and asserts:

(1) the trial judge erred when he refused to grant the defendant's motion for a mistrial made after the plaintiff's lawyer mentioned the name of an insurance company;

(2) when the jury requested, after it had retired to consider its verdict, that the testimony of one of the plaintiff's witnesses be read back to it, the cross-examination as well as the direct examination should have been read.

The plaintiff claimed that he suffered both neck and back injuries as a result of the accident. A physician called in behalf of the defendant testified that in his opinion the plaintiff's back complaints were not related to the accident.

On cross-examination it was brought out that the witness frequently testifies in court. The plaintiff's lawyer then attempted to show that the witness claims to be an expert on whatever the exigencies of the case require. When the witness perceived the direction of the cross-examination he said, "I don't mean to say I testify on everything". In an apparent effort to impeach that response, the witness was asked whether he had testified in cases involving kidney problems, to which he responded, "Not unless I had a urologist with me".

The following then ensued:

"Q. Doctor, do you recall the case over at the Workmen's Compensation Department, the case of Joseph Collins versus Michigan Mutual Liability Company?

"A. Do I recall it?

"Q. Yes. I was the counsel for plaintiff, Doctor, and you were doing an examination — ."

At this point the defendant's lawyer objected on the ground that plaintiff's lawyer was testifying, not on the ground that the name of an insurance company had been mentioned. The objection was overruled. The questioning resumed.

"Q. Doctor, do you now recall that I represented Mr. Collins at the Workmen's Compensation Department and you represented, I beg your pardon, you examined him on the part of his employer and the liability company in that case and regarding a kidney injury? Do you recall that, Doctor?

"A. Mr. Blum, I can't remember the details of that case — I am not trying to avoid anything.

"Q. I understand that, Doctor. I am only asking if you recall the case of Joseph Collins, that that was involving a kidney.

"The Court: He answered the question.

"A. In what way did it involve the kidney?"

The defendant's lawyer interrupted and the jury was excused. He moved for a mistrial on the ground that the first reference to the Michigan Mutual Liability Company and the second reference to the "liability company" violated the statute providing that "the insurer shall not be made or joined as a party defendant, nor shall any reference whatever be made to such insurer or to the question of carrying of such insurance during the course of trial".^[1]

While the cross-examination may, as the judge observed, have bordered on the impermissible, it did not transgress the line. The apparent purpose of the questions — impeachment — was entirely legitimate. The jury had already been made aware that the doctor testified in a large number of cases, sometimes for plaintiffs, more frequently for defendants. It would not follow from the fact that he testified for the liability company in the postulated case of Collins v. Michigan Mutual Liability Company that all defendants for whom he testified were insured.

Jurors know that many, perhaps most, defendants in automobile accident cases are insured. The critical query is whether the defendant in the instant case is insured. The questions put to the witness in this case did not, in our opinion, convey or suggest to the jury that the defendant in this case was insured.^[2]

In addition to the testimony of the defendant's medical expert witness that the back injury was not related to the accident, similar testimony was elicited from the treating physician who was called by the plaintiff as a witness.^[3] This opinion adverse to the plaintiff was expressed during the physician's pretrial deposition and was deliberately brought out during the trial on direct examination; plaintiff's lawyer knew, both from the deposition and his opponent's opening statement, that this would be stressed during cross-examination. The direct examination of the physician was completed late in the afternoon. Because he was unable to return the following day, the parties stipulated that his deposition, containing the statement damaging to the plaintiff, would be read in lieu of cross-examination.

After the jurors retired to consider their verdict, they returned and asked that the testimony of the treating physician and another of plaintiff's medical witnesses be read. This resulted in extensive discussion. It was explained to the jury that, except for the deposition of the treating physician read in lieu of cross-examination, none of the testimony had as yet been transcribed. The distinction between the typed transcript of the deposition and the untranscribed testimony was, we think, impressed clearly upon the jury.

The jury was asked to reconsider what it wanted read. After nearly a full hour of additional deliberation, the jury returned to the courtroom at about 3 p.m. to have the "testimony" of the treating physician read. At about 4 p.m. the foreman said, in response to an inquiry from the court, that there had been read what the jury desired to have read.

The defendant's lawyer objected that the deposition should also have been read. The objection was overruled, the judge saying that the record showed that the jury requested only the "testimony", that the jury was well aware that the deposition was used in lieu of cross-examination and that he was sure that the jury understood the difference between what was testified to at the trial and what was in the deposition and that what they wanted to rehear had been read to them.

We are persuaded that the judge did not err in so ruling. Firstly, we think the jury understood that for purposes of determining what it desired to have read the court was making a distinction between untranscribed "testimony" and the typed deposition. Secondly, and perhaps more importantly, the significant deposition testimony of the treating physician was his opinion that the plaintiff's back complaints were not accident related. This was, as previously mentioned, covered during the doctor's direct examination, which testimony was read.^[4]

In Klein v. Wagenheim (1967), 379 Mich. 558, 561, the Michigan Supreme Court declared that when a jury requests that testimony be read back to it the reading and the extent of reading is primarily addressed to the sound discretion of the trial judge.^[5] The Court considered the argument that it is not proper to read any testimony, unless all the testimony is read, because otherwise there would be a tendency to emphasize what is read, and rejected it, saying (p 561): "This is not now and never has been the law in Michigan".

The defendant has not claimed that anything of importance was covered in the cross-examination that was not related during the direct examination.^[6] We are satisfied that the jury's inquiry was responded to fully and with fairness to both sides and, accordingly, find no error.

Affirmed. Costs to plaintiff.

All concurred.

NOTES

[1] MCLA § 500.3030 (Stat Ann 1957 Rev § 24.13030). See Felice v. Weinman (1964), 372 Mich. 278, 280; Benmark v. Steffen (1965), 374 Mich. 155, 163, 164.

[2] See Savage v. Parts Warehouse Company (1969), 19 Mich. App. 416; Bishop v. Wolinski (1969), 16 Mich. App. 753; cf. Herman v. Ploszczanski (1963), 369 Mich. 252; Lee v. Misfeldt (1965), 1 Mich. App. 675; Watroba v. City of Detroit (1952), 334 Mich. 182, 191, 192; Ehlers v. Barbeau (1939), 291 Mich. 528, 534.

[3] There was other testimony connecting the back complaint to the accident.

[4] The transcript of the trial proceedings does not show whether the entire testimony of the treating physician was read, only that the reading began at about 3 o'clock and concluded at about 4 o'clock. However, during the argument in our Court the defendant's lawyer said that the entire testimony of the treating physician was read and we proceed on that assumption.

[5] See Gold v. Detroit United Railway (1923), 223 Mich. 209, 212; People v. Kasem (1925), 230 Mich. 278, 288; People v. Shuler (1904), 136 Mich. 161, 167; cf. Loose v. Deerfield Twp. (1915), 187 Mich. 206; People v. Walker (1963), 371 Mich. 599, 610 (opinion of O'HARA, J.)

[6] The defendant also complains of the failure to read back to the jury certain records of the doctor which had also been read to the jury in lieu of cross-examination. But, again, those exhibits related to facts clearly brought out during the treating physician's direct testimony.