DeGROFF
v.
CLARK.
Docket No. 3, Calendar No. 47,540.
Supreme Court of Michigan.
Decided January 4, 1960.Albert J. Rapp, for plaintiff.
McKone, Badgley, Domke & Kline (Maxwell F. Badgley, of counsel), for defendants.
DETHMERS, C.J.
Plaintiff sued for damages resulting from personal injuries sustained in an automobile accident. Defendants admitted liability, leaving the amount of damages the sole issue to be tried. The jury returned a $50,000 verdict for plaintiff. Defendants' motion for new trial was denied and they appeal here.
Defendants urge (1) that the verdict was excessive, (2) that it was contrary to the great weight of the evidence, (3) that it was error for the court, at the request and prompting of counsel for plaintiff, to inquire on the voir dire whether any of the jury were officers, employees, or stockholders in any stock company or members of any mutual insurance company, (4) that the court erred in refusing to instruct that plaintiff's failure to call physicians who had treated or examined him and who were not shown *276 to be unavailable as witnesses created a presumption that their testimony would have been adverse to him, and (5) that it was error for the court, after informing counsel that he would instruct that the jury might consider the plaintiff's failure to call such doctors and permitting defendants' counsel to argue that subject to the jury, then to instruct the jury that they should ignore such argument of counsel and to refuse to instruct as stated.
While there is quibbling about it, we are satisfied from the record that counsel for plaintiff had been advised prior to trial as to the name of defendants' insurer and that it was a stock company, and that, therefore, there was no question in counsel's mind at time of trial of a mutual insurance company of which some one of the jurors might be a member. It is evident that plaintiff's counsel requested and induced the court to direct the insurance question to the jurors, not for the purpose of eliciting information from them touching on their qualifications to sit as jurors, but for the purpose of conveying information to them about the existence of insurance in the case and influencing them thereby.[*] The size of the verdict against the background of the record in this case would indicate that it did influence them. There is no need to review the law and previous decisions of this Court on the subject. Enough was said by Mr. Justice BLACK in Darr v. Buckley, 355 Mich. 392. See, also, Holman v. Cole, 242 Mich. 402, and Palazzolo v. Sackett, 245 Mich. 97. Decision therein is conclusive of a holding of reversible error here.
Plaintiff introduced the testimony of 2 doctors concerning his injuries and physical condition. Two other doctors treated or examined him both before and after the accident. Plaintiff did not call them as witnesses. Their testimony would have been pertinent *277 to the question of plaintiff's injuries, his statements concerning the same, and, consequently, his damages. They were not shown to have been unavailable to plaintiff as witnesses. Defendants requested an instruction that plaintiff's failure to call them created a presumption that if they were called their testimony would be adverse to plaintiff. The court refused to give this instruction. Defendants claim error, relying on Cooley v. Foltz, 85 Mich. 47, Vergin v. City of Saginaw, 125 Mich. 499, and Griggs v. Saginaw & Flint R. Co., 196 Mich. 258. These cases lend support to defendants' contention. Note should be taken, however, of the statement in the opinion in Griggs, 265, concerning plaintiff's doctor, that: "His testimony was not available to defendant without plaintiff's consent." In Cooley defendant offered the testimony of 2 of plaintiff's doctors, and this Court held its reception over objection was reversible error because of its privileged character, but said (p 49) that: "The failure of the plaintiff to produce them as witnesses was a legitimate fact for the jury in determining the merits of the case." Vergin relied on Cooley. Since the trials of those cases, the doctor-patient privilege statute (CL 1948, § 617.62 [Stat Ann § 27.911]) has been amended to contain the following proviso:
"Provided, however, That in case such patient shall bring an action against any defendant to recover for any personal injuries, or for any malpractice, if such plaintiff shall produce any physician as a witness in his own behalf, who has treated him for such injury, or for any disease or condition, with reference to which such malpractice is alleged, he shall be deemed to have waived the privilege hereinbefore provided for, as to any or all other physicians, who may have treated him for such injuries, disease or condition."
*278 Plaintiff having introduced some medical testimony, he waived the privilege, under the proviso of the statute, as to the 2 doctors not called by him. Their testimony, in the absence of any factual showing to the contrary, must, therefore, be deemed to have been available to defendants. The reason in the cited cases for allowing defendant the benefit of the presumption instruction, namely, legal unavailability of the testimony to defendant, having disappeared by amendment of the statute, the decisions therein on the presumption question are not controlling on the record before us. Defendants were not entitled to such instruction here. With respect to the availability to defendants of the testimony of plaintiff's doctors, it is also worth noting that Court Rule No 35, § 6(b) (1945)[**] now provides:
"The court may require parties to claim or waive physician-patient and hospital-patient privilege in fixing the scope of the examination and a claim of privilege at the pretrial hearing excludes such testimony if offered later in the trial."
Our conclusion being that defendants are entitled to a new trial for the reason hereinbefore stated, we need not consider the questions of excessiveness of the verdict and whether it is against the great weight of the evidence.
Reversed and remanded for new trial, with costs to defendants.
CARR, KELLY, BLACK, EDWARDS, VOELKER, and KAVANAUGH, JJ., concurred.
SMITH, J., did not sit.
NOTES
[*] See CLS 1956, § 500.3030 (Stat Ann 1957 Rev § 24.13030). REPORTER.
[**] As added June, 1952. See 334 Mich. xl. REPORTER.