BOYD
v.
CITY OF WYANDOTTE
Docket No. 56105, (Calendar No. 7).
Supreme Court of Michigan.
Argued May 7, 1975. Decided December 19, 1977.Lopatin, Miller, Bindes & Freedman (Michael H. Feiler, of counsel) for plaintiff.
Schureman, Frakes, Glass & Wulfmeier for defendants.
LEVIN, J.
Judson Boyd fractured a leg in 1967.[1] He was treated in a hospital operated by defendant City of Wyandotte. He filed this medical malpractice action alleging that his leg had been permanently damaged because of defendants' failure to render proper medical treatment and care.
The jury returned a verdict of no cause of action. The Court of Appeals affirmed.
Boyd raises two issues on appeal. The first concerns *101 the use by defense counsel of his prior conviction record to impeach his credibility. The second concerns the trial judge's refusal to allow him to amend his complaint after trial had begun. We reverse and remand for a new trial on the first issue.
Boyd contends that he was denied a fair trial on the merits when defense counsel was allowed over objection to question him "under the guise of testing credibility" concerning seven criminal convictions dated from 1952 to 1961.[2] He maintains that the judge failed to exercise "sound discretion" when he allowed cross-examination based on "immaterial" and highly prejudicial convictions 10 to 19 years before the trial: "The line of inquiry was unquestionably injected by defense counsel to improperly prejudice the jury". He asserts that the jury was thereby diverted from the real issue whether he was given proper treatment and care and focused instead on the question whether, with his long list of convictions, he "deserved" to recover even if he had been negligently treated.
Defendants respond that the judge gave a cautionary instruction to the jury. Additionally, they contend that the real issue was Boyd's credibility (did he complain that the cast was too tight? did he put weight on his left leg? did he fall?), which was impeached not only by the evidence of prior convictions, but also by prior inconsistent statements[3] and evidence that he had filed a false *102 claim, arising from the fracture of his leg, against an insurance company (see fn 1, supra).
I
In People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974), this Court considered sections of the Revised Judicature Act providing that no person shall be disqualified as a witness by reason of his interest or his having been convicted of a crime but his "interest or conviction may be shown for the purpose of affecting his credibility" (emphasis supplied).[4]
We found persuasive the reasoning of the United States Court of Appeals for the District of Columbia Circuit in Luck v United States, 121 US App DC 151, 156; 348 F2d 763, 768 (1965), and that of the highest courts of several states, and concluded "that a trial judge may in the exercise of discretion exclude reference to a prior conviction record". Jackson, supra, p 336.
The statutory provision considered and construed in Jackson applies in civil as well as criminal cases. There is therefore no basis for limiting the Jackson construction of the statute to criminal cases.[5] We conclude that the Jackson rule, recognizing a discretion in trial judges to bar the use of prior convictions to impeach credibility, applies in civil cases.
Jackson further held that it is error for a trial judge "to fail to recognize that he has such discretion *103 and, therefore, to fail or to refuse to exercise it". Jackson, supra, p 336.
Subsequent to Jackson, this Court reversed a conviction and ordered a new trial "on the ground that defendant sought to have the court exercise its discretion to exclude prior conviction evidence, and it is apparent that the court failed to recognize that it had such discretion and failed to exercise it. See People v Jackson, 391 Mich. 323 (1974). In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion." People v Cherry, 393 Mich. 261; 224 NW2d 286 (1974). Similarly see People v Hooper, 395 Mich. 807; 235 NW2d 745 (1975).
When the defendants questioned Boyd regarding his prior criminal record, his counsel objected. It appears that the matter was discussed at a side-bar conference, not part of the record, and that the judge said he would permit the defendant to cross-examine Boyd regarding his prior convictions. The record does not contain any indication that in so ruling the judge recognized that he had and was exercising his discretion.
Jackson was decided in April, 1974. The defendants ask that the "Jackson rule" be applied prospectively, contending that in October, 1971 "when this case was tried, it is safe to say that all Michigan trial lawyers thought that prior criminal convictions could be shown to impeach credibility. So did the trial judges."
The argument for prospectivity ignores the opinion of the Court of Appeals in People v Farrar, 36 Mich. App. 294, 306; 193 NW2d 363 (1971), where a panel of that Court adopted the Luck construction, and held it was error for a trial judge to fail to recognize that he may, in the exercise of discretion, refuse to allow reference to a defendant's *104 prior conviction record. The argument also tends to confirm that the trial judge in this case did not recognize that he could in the exercise of discretion exclude prior conviction evidence and, therefore, did not exercise that discretion.
While the jury, by reason of other evidence reflecting adversely on Boyd's credibility, may have disbelieved his testimony, there is no way of knowing what impact the evidence of the prior convictions may have had on the verdict.
Boyd duly objected. It does not appear that the judge recognized that he had a discretion to exclude the prior convictions. Consequently, seven convictions, one 10 years old and the others over 15 years old, were admitted. Even if the judge had duly exercised his discretion, it may well have been an abuse of discretion to have admitted evidence of these stale convictions.
For the reasons stated, we reverse and remand for a new trial.
II
Boyd also claims error in the trial court's failure to allow amendment of his complaint near the end of the trial.[6]
We agree with the defendants that the theory proffered the failure of defendants to keep adequate records and notations of Boyd's treatment and care was "an additional departure from the standard of practice" is not a ground for recovery under the circumstances of this case.
The meritorious question is whether the treatment and care rendered was negligent. The presence or absence of written memoranda might have *105 a bearing on Boyd's burden of proof or of persuasion but would have no bearing on whether defendants were negligent. Boyd's physical condition cannot be attributed to the alleged failure of the treating physicians to keep adequate records.
Reversed and remanded for a new trial.
KAVANAGH, C.J., and WILLIAMS and FITZGERALD, JJ., concurred with LEVIN, J.
COLEMAN, J. (concurring).
I agree that plaintiff is entitled to a new trial, but for a reason different from the majority. The record does not support a finding that the judge failed to realize he had discretion to exclude the plaintiff's prior convictions. I also do not agree that the judge must announce on the record that he is exercising that discretion. Thousands of rulings are dependent upon the discretion of the judge. Should we require the judge in each instance to announce in advance whether he is using his discretion? Although I cannot foresee where the precedent will lead, I do see it as an ill-advised requirement by this Court and as demeaning to the trial judge.
In this civil case the convictions introduced to impeach the plaintiff's credibility were so stale that their prejudicial effect greatly outweighed their probative value. One conviction was 10 years old and six of them were more than 15 years old. A proper exercise of discretion would have barred the use of these ancient convictions.
Reversal in this case does not require a retroactive application of People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974), or the application of People v Farrar, 36 Mich. App. 294; 193 NW2d 363 (1971). It is a long-standing rule that "there must be a limit beyond which such inquiry should not go, and the trial judge must, in the exercise of a sound discretion, *106 determine when that limit is reached". Helwig v Lascowski, 82 Mich. 619, 621; 46 N.W. 1033 (1890). The limit was reached and breached in the case at bar.
The majority opinion says "[i]t does not appear that the judge recognized that he had a discretion to exclude the prior convictions". This conclusion is made even though plaintiff's counsel objected and "[i]t appears that the matter was discussed at a side-bar conference, * * * and that the judge said he would permit the defendant to" continue the cross-examination.
In People v Cherry, 393 Mich. 261-262; 224 NW2d 286 (1974), I said that not "many judges would say in effect, `I have exercised my discretion and so overrule the objection'". We should not demand the rote recitation of magic words. The judge should not have to say that he will, he is, he has exercised his discretion. That is mere form which provides neither a substitute for justice nor a guarantee of justice.
RYAN and BLAIR MOODY, JR., JJ., concurred with COLEMAN, J.
NOTES
[1] Boyd claims that on June 4, 1967 he fell down a flight of stairs at the home of his wife's parents. He apparently filed a claim, and received a $1,000 settlement from the parents' insurance company.
The defendants claim Boyd broke his leg playing baseball in Papp Park, Taylor, Michigan. They introduced evidence that the police answered a call on June 4, 1967 regarding the Papp Park incident and the records of an ambulance service indicating that it transported Boyd from Papp Park to Wyandotte General Hospital on that date.
Defendants contend that Boyd lied about the place of his injury so that he could collect from the insurance company. They contend that the jury, when faced with evidence that Boyd lied on one occasion to obtain money, concluded that he was lying again and, for that reason, returned a verdict of no cause of action.
[2] (1) 1952 interstate transportation of a stolen automobile; (2) 1953 breaking and entering an automobile; (3) 1956 arson; (4) 1956 larceny from an automobile; (5) 1956 contributing to the delinquency of a minor; (6) 1956 larceny by conversion; (7) 1961 unlawfully driving away an automobile.
[3] On deposition, Boyd denied having fallen after a cast was put on his leg. Defense counsel confronted Boyd with a hospital emergency record which indicated otherwise, and Boyd was forced to admit he had been mistaken.
[4] MCLA 600.2159; MSA 27A.2159. Similarly see MCLA 600.2158; MSA 27A.2158.
[5] See Asato v Furtado, 52 Haw. 284; 474 P2d 288 (1970), holding, in an automobile negligence action, that a trial judge may in the exercise of discretion bar the use of prior convictions to impeach credibility.
[6] He relies on Ben P Fyke & Sons v Gunter Co, 390 Mich. 649; 213 NW2d 134 (1973).