Link v. McCoy

39 Mich. App. 120 (1972) 197 N.W.2d 278

LINK
v.
McCOY

Docket No. 9102.

Michigan Court of Appeals.

Decided March 21, 1972.

Bayliff, Harrigan, Cord & Maugans and Herbert Phillipson, Jr., for plaintiff.

James, Dark & Craig, for defendant.

Before: FITZGERALD, P.J., and R.B. BURNS and HOLBROOK, JJ.

HOLBROOK, J.

This case arises as the result of a head-on collision on M-152 in Cass County. The accident occurred near the center line of the two-lane highway.

Plaintiff is the administratrix of the estate of her deceased husband. Defendant and plaintiff's decedent were alone and other than the defendant there were no eyewitnesses. Each party claims that the other driver was over the center line and therefore guilty of negligence in causing the accident. Contributory negligence on the part of plaintiff's husband was pleaded as an affirmative defense. Jury verdict was for defendant. Plaintiff appeals alleging the trial court committed reversible error.

One of the critical issues in the trial was the point of impact. The two investigating officers, Paul Parrish and James E. Snow, both testified concerning their background and experience. They gave testimony of the location of debris, skid marks, gouges, anti-freeze, distances, and other matters which were observed. Defense counsel objected to any reference by these officers to the point of impact. The court sustained the objections and refused to allow the officers to testify concerning the point of impact.

The court, over plaintiff's objection, allowed defendant to testify that he was not arrested, convicted, or ticketed in connection with the accident.

On appeal, the following issues are raised:

1. Did the trial court err when it sustained defendant's objection to the testimony of police officers concerning the point of impact?

2. Was it error to allow the defendant to testify that he was not arrested or convicted in connection with the accident?

3. Was it error to instruct the jury to disregard the prior traffic convictions of the defendant?

I.

It is clearly established in Michigan that an expert may render an opinion concerning the point of impact based upon debris and skid marks. Dudek v Popp, 373 Mich. 300 (1964); LaFave v Kroger Co, 5 Mich. App. 446 (1966); Motorists Mutual Insurance Co v Howard, 21 Mich. App. 146, 148 (1970).

The determination of the qualifications of an expert is entrusted to the discretion of the trial judge and we interfere only to correct abuse. Accetola v Hood, 7 Mich. App. 83 (1967); Anderson v Lippes, 18 Mich. App. 281, 285 (1969); Cusumano v The Stroh Brewery Co, 26 Mich. App. 549 (1970).

The trial court ruled that officers Snow and Parrish were not qualified as experts and their testimony concerning the point of impact would be conclusions of witnesses and was properly excluded.

Generally, reviewing courts do not question the propriety of the trial court's discretionary ruling as to whether the proferred witness qualifies as an expert if the finding is reasonable.

Unless it can be established that the testifying officers are so schooled and experienced that their measure of skill and special knowledge decidedly transcends the capabilities of an average juror, who has been made fully aware of the physical facts, their point of impact opinions should not be received.

In our opinion, the record does not clearly establish that these officers were so qualified. We cannot say that the exercise of the trial court's discretion was clearly erroneous.

II.

To allow the defendant to testify regarding the nonissuance of a traffic ticket was error. Ilins v Burns, 35 Mich. App. 353 (1971).

Of special significance to this issue is the court's following instruction:

"There has been evidence received in this case as to the driving record of the defendant, and of the fact that no summons was issued to the defendant arising out of this accident. I instruct you that you are to disregard all of this testimony. None of this evidence is to be considered by you in determining whether or not the defendant was negligent or free from negligence in this case.

"You must determine this question solely on the basis of what the evidence shows occurred at the time and immediately prior to the collision of the two cars."

As in the Ilins decision, we are of the opinion that any prejudice which may have resulted from defense counsel's questions was properly taken care of by this instruction. Moffatt v Helmer, 345 Mich. 153, 158 (1956).

III.

The trial judge permitted the cross-examination by plaintiff's counsel of defendant as to his past driving record, which disclosed several traffic convictions. The trial judge gave the foregoing instruction mentioned in issue II, which was proper as far as it went; however, plaintiff's counsel made objections to the instructions and the trial judge answered the objections as follows:

"Mr. Bayliff: Your Honor, the plaintiff objects to that instruction of the court which informed the jury that they should disregard the conviction of the defendant on the basis that this is an erroneous statement of the law, in that the jury is entitled to consider those convictions with respect to the credibility of the defendant.

"The Court: The testimony of prior convictions — a felony is admissible clearly as bearing upon the credibility of the witnesses. The testimony of traffic violations is admissible only in the discretion of the court as bearing upon the credibility, and in the opinion of the court, that record testified to here would have and should have no significant bearing on the weight or credit to be given to the testimony.

"Consequently the instruction was given."

In the recent case of Sting v Davis, 384 Mich. 608, 614 (1971), it is stated:

"We conclude that under GCR 1963, 607, as presently adopted by this Court, a trial judge has no discretion to exclude cross-examination with regard to the driving history of a plaintiff-driver or of a defendant-driver, such cross-examination being proper to test the credibility of the witness' testimony with regard to the central fact issue in the case."

Also see, Taylor v Walter, 385 Mich. 599 (1971).

It was reversible error for the trial judge not to modify his instructions and permit the jury to consider the defendant's driving record in testing his credibility.

In fairness to the trial judge, we point out that at the time of trial, it was considered within the discretion of the trial judge whether on cross-examination of a plaintiff or defendant, his or her driving record was admissible. Zimmerman v Goldberg, 277 Mich. 134 (1936).

Reversed and remanded for new trial. Costs to plaintiff.

All concurred.