Royal Mink Ranch v. Ralston Purina Co.

T. M. Burns, J.

(dissenting in part and concurring in part).

Although I agree with my brothers’ disposition of the first issue on appeal, I cannot agree with their handling of issues numbered two and three or the resulting reversal. I would affirm.

With regard to the admissibility of exhibit 93, I am much persuaded by the defendant’s brief on appeal.

“A comparison of plaintiff’s exhibit 20 (five mink carcasses submitted to Dr. Newman from plaintiff’s ranch) with exhibit 93 (both of which are attached to this brief) will show identical dates of submission of the mink as well as of the feed samples to Dr. Newman, as well as consecutive serial numbering of the bacteriological examination reports, indicating they were all part of the same submission and for the same purposes.

*707“Before interrogating Dr. Newman at trial about exhibit 93, Dr. Chaddock’s memory was refreshed as to the specific dates of submission embraced by plaintiff’s exhibits 20, 21, 22, 23 and 24, these being all of Dr. Newman’s bacteriological examination reports on mink carcasses and various samples of mink feed submitted by plaintiff to Dr. Newman on May 31,1961, November 16, 1961; and December 15, 1961. Dr. Chaddock was then asked the following questions and gave answers as follows:

“ ‘Q. Now, those are the three dates on which you submitted either mink carcasses or cereal feed samples?

‘A. Or mink feed.

“ ‘Q. Or the raw — some of the raw ingredients that went into your mink food, is this right?

‘A. True.

‘Q. Now, Doctor, on those dates that we mentioned did all of those various samples of either feed or animal carcasses come from your ranch?

‘“A. They did.

‘Q. In other words, everything that you submitted to Dr. Newman on those dates came from your ranch?

‘A. That’s true.

‘Q. The Boyal Mink Banch?

‘A. Yes.’

“It was only after that foundation was laid with Dr. Chaddock that Dr. Newman was interrogated as to the existence of exhibit 93 and that the same was admitted. It should be pointed out that Dr. Newman himself testified that the original reports comprising exhibit 93 would have been sent to Dr. Chaddock, that being the practice of his office, and all he had retained were his duplicate copies.

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‘The Court: Of course, this is the problem that we are always faced with when we start taking witnesses out of order because the proofs don’t go in just exactly as counsel would desire them to, but what I am going to do with this exhibit, I am going *708to accept exhibit 93 with the reports from the Michigan Department of Health removed from the exhibit because of certain findings that may be from the Michigan Department of Health; not findings of Doctor Newman here specifically, so with that, whatever Doctor Newman’s reports are those will be received. The other part will be taken from the exhibit.

“The plaintiff through Dr. Chaddock was given full opportunity to explain that exhibit 93 did not relate to the plaintiff ranch and he took full advantage of this. He testified the feed samples in fact came from the ranch of one of his clients, one Jesse Christiansen near Midland,, Michigan, which were submitted to Dr. Newman to'be cultured for salmonella. Dr. Chaddock’s testimony of firm denial is found in two different places.

“If the plaintiff was at all harmed by this evidence it was to the extent his credibility was challenged, and should have been challenged, in light of the foundation laid by his own deposition and answers to questions at trial. , Neither defendants nor their counsel sought to take improper advantage of plaintiff or its veterinarian, Dr. Chaddock, as is charged in plaintiff’s brief. Defendants respectfully submit that this minor incident out of an extended trial spanning five weeks is entirely out of proportion to the actual importance of the incident. Defendants say that the denial Dr. Chaddock gave to the relevancy of exhibit 93 was a plausible explanation of the situation of mistaken identity. It was up to the jury to decide whether this was an acceptable explanation; however, it is impossible do conceive that on the true facts of this evidentiary debate prejudicial error resulted where the issue of credibility on the part of the key witness for the plaintiff was present throughout the trial. The trial court agreed with defendants’ counsel that a proper foundation had been laid for reception of exhibit 93, it was admitted for what probative value it might have, and *709plaintiff was in no way foreclosed from denying its relevancy, and in fact did so. This was truly an isolated and harmless incident, such as occurs in every strenuously tried case.

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“Plaintiff complains that there was a failure to properly authenticate this exhibit 93, and at the end of that section of its brief the claim is made that the exhibit was only a copy of the original reports and not admissible absent a notice to produce the original. With all that is apparent from the foregoing factual summary it is impossible to understand where there was a failure properly to identify the materials being tested, as Dr. Chaddoek himself in response to a cross-examination question admitted that everything sent to Dr. Newman on the given date, May 31, 1961, had come from his own ranch, and where every other indication was that the owner of the ranch was Dr. Chaddoek himself. See MCLA § 600.2146 (Stat Ann 1962 Rev § 27A.2146).

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“Dr. Newman testified that he was the head of a bacteriological laboratory in which technicians and, stenographers were employed under his supervision with respect to various testing procedures. He testified that the original report would have gone to Dr. Chaddoek, that the copy would have been retained in his office and that the samples received from Dr. Chaddoek were put routinely through his office in the same manner. There can be no doubt that the retained copies of reports sent out to the veterinarian, in this case Dr. Chaddoek, were routine business records within the meaning of the cited statute and admissible in evidence in all trials within the meaning of that statute.

“Defendants not being obligated to give plaintiff information as to the description or contents of its exhibits and this exhibit bearing on the issues and ■being fully identified and authenticated, the ruling of its admissibility ditto evidence by the trial court *710was well within the judicial discretion given by the law to the trial court in this area.”

With regard to issue number 3, i.e., whether the expert testimony concerning the adverse effects of lack of vitamin A on poultry should have been admitted, I must agree with the trial judge that as presented it was not admissible.

The plaintiff’s expert was no doubt an expert on the adverse effects of the lack of vitamin A on chickens. However, absent some proof of some expert knowledge as to the effect on mink and some direct connection between the “chicken experiments” and minks, I must agree with the trial court.

The trial court clearly faced this issue and I believe correctly decided not to allow the testimony concerning chickens to go to the jury when he said:

“But I think we are going into a collateral matter here and if he wants to testify as to his knowledge of vitamin A, why vitamin A is needed, and so forth, I think that would be perfectly proper, but to get into testimony as to the fact that certain chickens died, and effects of having it on the chicken, I think it would be collateral. I would sustain the objection in that respect.”

The plaintiff’s expert was allowed to testify on all aspects of his experiments with vitamin A, including his opinion that prolonged storage caused the vitamin to become inactive. The decision as to whether the “expert” had sufficient basis for his professed opinion that the effects of the lack of vitamin A on minks was the same as on chickens was within the trial court’s discretion under GrCR 1963, 605. I do not find that he abused that discretion. The testimony which was offered would have been highly prejudicial to defendant, and without a clearer showing of relevancy to mink, it was properly excluded.

Finding no reversible error, I would affirm.