This litigation arises out of an automobile accident. The first trial resulted in a verdict of no cause of action; but subsequent thereto, the plaintiff filed a motion for a new trial on the ground that four jurors had failed to disclose that they or members of their families had at one time been involved in a motor-vehicle collision which resulted in a claim for property damages. The motion was granted, but the defendant did not appeal. Later, a new trial was held, and the jury returned a verdict in favor of the plaintiff in the amount of $20,000. It is from this decision that the defendants appeal.
The defendants raised several issues which will be considered separately. First, they contend that they were entitled to a jury of 12 members. Fur*543ther, they argue that if they are not entitled to a 12-man jury, they were entitled to an instruction that the decision of the entire 6 on the panel must be unanimous. Both of these questions were raised below with no success, the jury being a six-man jury and the usual instruction being given that a verdict could be returned when five members thereof had agreed.
A clear understanding of this issue requires acquaintance with certain constitutional and statutory provisions. Const 1963, art 1, § 14 provides:
"The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law. In all civil cases tried by 12 jurors a verdict shall be received when 10 jurors agree.”
At the time this was written the use of 12 jurors in civil cases was almost universal. Obviously the intention of this provision was to make it possible for ten to agree and thereby minimize the number of so-called hung juries.
Const 1963, art 4, § 44 provides:
"The legislature may authorize a trial by a jury of less than 12 jurors in civil cases.”
This section is clear and unambiguous. The language indicates that the Legislature may authorize a trial of less than 12, but doesn’t designate the number.
Pursuant to the provisions of Const 1963, art 4, § 44, the Legislature originally enacted MCLA 600.1239; MSA 27A.1239, which provided:
"In any civil case in circuit court, trial shall be by a jury of 6 upon the written request of any party and the *544written consent of all other parties not later than the time of the pre-trial conference.”
This statute was practically useless, largely because of the requirement for consent on both sides. Accordingly, the Legislature took the next step, which was the enactment of MCLA 600.1352; MSA 27A.1352, which provides:
"In civil cases, trial shall be by a jury of 6. A verdict shall be received when 5 jurors agree.”
With regard to the question of jury size, the Supreme Court of the United States has spoken on this subject in Williams v Florida, 399 US 78, 101; 90 S Ct 1893, 1906; 26 L Ed 2d 446, 460-461 (1970), in the following manner:
"What few experiments have occurred—usually in the civil area—indicate that there is no discernible difference between the results reached by the two different sized juries.”
It would be presumptuous indeed for this Court to hold the statute which permits a verdict of five to be unconstitutional, since our Supreme Court has recognized it by rule, GCR 1963, 512.1 as amended, and has authorized standard Jury Instruction No. 1.05 which provides in part:
"When at least five of you agree upon a verdict, it will be received as your verdict.”
Accordingly, we hold that MCLA 600.1352; MSA 27A.1352 does not in any way impede justice and is completely constitutional, including the clause which permits a verdict when five members have agreed.
The second, and perhaps most important issue raised by the defendants deals with the denial of *545the right to read to the jury certain portions of the hospital records which had been admitted into evidence on the authority of MCLA 600.2146; MSA 27A.2146. The pertinent part of that statute provides:
"Any writing or record whether in the form of an entry in a book or otherwise, made as a memorandum of any act, transaction, occurrence or event shall be admissible in evidence in all trials, hearings and proceedings in any cause or suit in any court, or before any officer, arbitrators, or referees, in proof of said act, transaction, occurrence or event if it was made in the regular course of any business and it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record including lack of personal knowledge by the entrant or maker, may be shown to affect its weight but not its admissibility. The term 'business’ shall include business, profession, occupation and calling of every kind. The lack of an entry regarding any act, transaction, occurrence or event in any writing or record so proved may be received as evidence that no such act, transaction, occurrence or event did, in fact, take place. Any photostatic or photographic reproduction of any such writing or record shall be admissible in evidence in any such trial, hearing or proceeding by order of the court, made within its discretion, upon motion with notice of not less than 4 days. All circumstances of the making of such photostatic or photographic reproduction may be shown upon such trial, hearing or proceeding to affect the weight but not the admissibility of such evidence.” (Emphasis added.)
The records are replete with cases, some of which cannot be reconciled, which attempt to interpret this statute. Generally speaking, it provides that those entries which deal with "transactions, occurrences, or events” may be admitted. *546Naturally, the defendants wanted the jury to have the evidence of statements and impressions which were made by plaintiff prior to the accident, while the plaintiff was an outpatient. This situation would appear to be controlled by Harrison v Lorenz, 303 Mich 382, 390 (1942):
"However, portions of such records which do not refer to acts, transactions, occurrences or events incident to treatment are inadmissible.”
See also, Valenti v Mayer, 301 Mich 551 (1942), and Sadjak v Parker-Wolverine Co, 281 Mich 84 (1937). But see, Osberry v Watters, 7 Mich App 258 (1967), where such records were used for impeachment purposes after plaintiff had denied a prior accident.
Another case which is clearly on point is Snyder v Oldsmobile Division of General Motors Corp, 18 Mich App 578, 580 (1969):
"Until the alleged fact that Mrs. Snyder made the statement attributed to her and set forth in the history was proved or brought within an exception dispensing with such proof, such as the business entry statute (MCLA 600.2146; MSA 27A.2146), testimony seeking to prove the contents of her alleged statement was inadmissible. The defendant concedes that the introduction of evidence of Mrs. Snyder’s medical history cannot be justified under the business entry statute.”
In light of the foregoing authorities, we find that no proof was presented which would indicate the truth or falsity of the statements and impressions which were set forth in the record. All of these were prepared while the plaintiff was an outpatient and had nothing to do with acts, occurrences, transactions, or events incident to her treatment after the accident. The plaintiff was on the stand, *547but the attorney for the defendants, perhaps for justifiable reasons, neglected to cross-examine her concerning these statements. Accordingly, the trial court properly denied admission of those portions of the hospital record relating to prior statements made by plaintiff to hospital personnel.
Thirdly, the defendants complain that reversible error was committed by the plaintiffs attorney in his opening and closing statements to the jury. A review of the record discloses that there was more than the. usual amount of bickering between the attorneys during this trial. This is not conducive to the dignity of a lawsuit and should not be tolerated. The record clearly shows that the attorney for the defendants opened the door and thereby justified the comments of the plaintiffs attorney. In light of the fact that comments made by plaintiffs counsel were "invited” by defendants’ counsel and in light of the fact that the trial court ultimately instructed the jury to disregard the attorneys’ interjection of personalities into the issues, we hold that defendants may not argue this question on appeal.
Other alleged errors raised by the defendants have been examined and found to be lacking in merit.
Affirmed. Costs to the plaintiff.
Bronson, J., concurred.