Taylor v. Klahm

8 Mich. App. 516 (1967) 154 N.W.2d 529

TAYLOR
v.
KLAHM.

Docket No. 2,535.

Michigan Court of Appeals.

Decided November 30, 1967.

Taylor & Taylor, for plaintiff.

Davidow & Davidow, for defendants.

BURNS, J.

Plaintiff's amended complaint in this case alleged that defendants conspired to defraud and cheat plaintiff's decedent by preying upon her elderly and senile condition and by exerting illegal and undue influence. The case went to trial and judgment on a jury verdict was entered in favor of plaintiff.

One of defendants' many assignments of error on appeal is that plaintiff's allegation of undue influence was insufficient to raise an issue regarding the existence of a "confidential or fiduciary relation" between the decedent and the defendants. Finding such a relation and a resulting benefit to the fiduciary therefrom rebuttably establishes a presumption of undue influence. In re Wood Estate (1965), 374 Mich 278. Although undue influence is a species of fraud^[1] and as such the facts should be alleged with particularity^[2] defendants did not make a motion for a more definite statement^[3] nor did they express any other dissent on the record as to this matter prior to the introduction of proofs by plaintiff. The defendants should have expected virtually any method of proving the allegation of undue influence. Furthermore, the substance of the alleged improper transactions is apparent from the pleadings,^[4] and therefore an attempt to prove undue influence by use of the presumption was permissible.

Plaintiff's opening statement to the jury referred to the fact that defendants had been charged with the crimes of conspiracy and perjury; the transcript of the proceedings records the following:

"Mr. Davidow [attorney for defendants]. If the court please, I am going to object as being improper in this case and prejudicial, and I ask for a mistrial.

"The Court. The motion for mistrial will be denied. I will instruct the jury now that any evidence of criminal liability on the part of the defendants, or either of them, if admitted, when it's offered will be received solely as bearing upon the credibility, and is no proof one way or the other of the liability of the defendants to the plaintiff, and is admitted solely, if it is admitted when the time comes, as bearing upon their credibility, if you wish to use it for that purpose. Proceed.

"Mr. Taylor [attorney for plaintiff]. The two defendants were charged and pleaded guilty to perjury in connection with this offense.

"Mr. Davidow. May I have a running objection, your Honor?

"The Court. I think you have gone far enough, Mr. Taylor.

"Mr. Taylor. All right. I will proceed.

"Mr. Davidow. I renew my request for mistrial because of repetition of counsel after —

"The Court. I will deny that. The jury will disregard the statements of counsel as to what took place in that regard."

Although the jury was instructed to disregard counsel's comments, the prejudicial effect of plaintiff's indiscriminate statement to the jury could not be totally eliminated. Other references to the criminal matters arose during plaintiff's case in chief, and the trial judge maintained the position (and so instructed the jury) that such evidence was admissible for purposes of questioning the credibility of defendants. The incriminating statement to the jury and evidence were received before either defendant had uttered a word from the witness stand. This type of trial tactic is intolerable. "The proper time for impeaching the credit of a witness is after he has been examined, and evidence is not admissible to impeach a person who has not yet been introduced, sworn, or examined as a witness." 98 CJS, Witnesses, § 481, p 364; People v. Whitson (1880), 43 Mich 419.

This error was not cured when defendants finally testified, thereby making their credibility an issue. At this point of the trial the error was compounded because the trial judge refused to admit testimony which purportedly would have explained the circumstances surrounding defendants' pleas of guilty. "It has always been the law that, when a witness or party under cross-examination admits to conviction of a crime or crimes, he of right is permitted ``to offer to the jury his explanation'." Perin v. Peuler (On rehearing, 1964), 373 Mich 531, 545; also see cases cited therein.

While this rule appears to be limited to those cases where a witness or party admits to a conviction under cross-examination, it is equally applicable under the facts of this case where impeachment of the defendants was erroneously permitted prior to direct examination.

The prejudicial impact of plaintiff's injection of the criminal proceedings is suggested in the foreman's report of the verdict: "The verdict is, we find for the plaintiff in the sum of $20,891.33, which includes the 5% interest, both defendants of equal guilt." (Emphasis supplied.) Defendants were not afforded a fair trial because of the aforementioned errors. The remaining assignments of error do not merit discussion or have been obviated by disposition of this matter.

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

FITZGERALD, P.J., and HOLBROOK, J., concurred.

NOTES

[1] In re Jennings' Estate (1952), 335 Mich 241, 247.

[2] GCR 1963, 112.2.

[3] GCR 1963, 115.1.

[4] La Forest v. Black (1964), 373 Mich 86.