Instructions
M Civ JI 6.01 Failure to Produce Evidence or a Witness
M Civ JI 6.02 Failure of Opposite Party to Testify in Case Involving "Dead Man's Statute" [Recommend No Instruction]
Note on Use
The words “plaintiff” and “defendant” may be replaced by “petitioner” and “respondent” in cases in which the latter terms are used to describe the parties.
If requested, the appropriate one of the above instructions should be given under the following circumstances:
*Instruction a should be given when the Court finds that—
- the evidence was under the control of the (plaintiff) (defendant) and could have been produced by him or her;
- no reasonable excuse for (plaintiff’s) (defendant’s) failure to produce the evidence has been shown; and
- the evidence would have been material, not merely cumulative, and not equally available to the opposite party.
†Instruction b should be given when a question of fact arises in regard to “control” in subparagraph 1 above, and the Court finds in the affirmative in regard to subparagraphs 2 and 3 above.
**Instruction c should be given when a question of fact arises in regard to “reasonable excuse” in subparagraph 2 above, and the Court finds in the affirmative in regard to subparagraphs 1 and 3 above.
††Instruction d should be given when a question of fact arises in regard to both “control” and “reasonable excuse” in subparagraphs 1 and 2 above, and the Court finds in the affirmative in regard to subparagraph 3 above.
Comment
For general authority on the above instructions, see Vergin v Saginaw, 125 Mich 499; 84 NW 1075 (1901); Dowagiac Manufacturing Co v Schneider, 181 Mich 538; 148 NW 173 (1914); Fontana v Ford Motor Co, 278 Mich 199; 270 NW 266 (1936); Ward v Consolidated Rail Corp, 472 Mich 77 (2005).
For authority on the limitation in regard to “control,” see Prudential Insurance Co v Cusick, 369 Mich 269; 120 NW2d 1 (1963); Barringer v Arnold, 358 Mich 594; 101 NW2d 365 (1960); Brandt v C F Smith & Co, 242 Mich 217; 218 NW 803 (1928); in regard to “reasonable excuse,” see Cole v Lake Shore & M S R Co, 81 Mich 156; 45 NW 983 (1890); Leeds v Masha, 328 Mich 137; 43 NW2d 92 (1950); in regard to “material,” see Dowagiac Manufacturing Co; in regard to “merely cumulative,” see Barringer; in regard to “equally available,” see Urben v Public Bank, 365 Mich 279; 112 NW2d 444 (1961); Barringer; DeGroff v Clark, 358 Mich 274; 100 NW2d 214 (1960); Macklem v Warren Construction Co, 343 Mich 334; 72 NW2d 60 (1955); Holmes v Jones, 41 Mich App 63; 199 NW2d 538 (1972); Kaniewski v Emmerson, 44 Mich App 737; 205 NW2d 812 (1973). See also United States v Beekman, 155 F2d 580, 584 (CA 2, 1946); Prudential Insurance Co.
History
M Civ JI 6.01 was SJI 5.01.
Comment
The committee recommends that no instruction be given on the failure of the opposite party to testify in a case involving the “dead man’s statute.”
If heirs, assigns, devisees, legatees, or personal representatives were parties to a suit, the former dead man’s statute, MCL 600.2160, 617.64, prevented testimony by an adverse party as to matters which, if true, must have been equally within the knowledge of the deceased person. The prohibition was absolute if the statutory conditions were met.
The present statute, MCL 600.2166, represents an effort to loosen the strictures of the prior law. It applied originally only to actions against the person “incapable of testifying,” but 1969 PA 63 and GCR 1963, 608 extended it to actions “by” as well as “against.” Under the statute and rule the opposite party’s testimony was admissible if “some material portion of his testimony is supported by some other material evidence tending to corroborate his claim.”
In 1978, GCR 1963, 608 was abolished and MRE 601 was adopted. It provides generally that any person is competent to be a witness. The committee commentary to rule 601 indicates that it changes present law by not requiring exclusion of testimony on grounds covered by the Michigan dead man’s statute. In James v Dixon, 95 Mich App 527; 291 NW2d 106 (1980), the court of appeals held that the dead man’s statute was impliedly abrogated by the adoption of MRE 601.
History