Opinion
Docket No. 76592.
Decided October 25, 1985.
Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen Bartnick (by Richard E. Shaw), for plaintiff.
Steve S. Michaels, for defendants Cardamone.
Glime, Daoust, Wilds, Rusing LeDuc (by Lawrence J. Schloss and James F. MacArthur), for defendant Chynoweth.
Plaintiff appeals as of right from an order of directed verdict in favor of defendants entered February 2, 1984.
Plaintiff's complaint was filed March 6, 1979. The complaint alleged that plaintiff's decedent was killed, while riding his bicycle, due to the negligence of defendants in operating their respective automobiles. Plaintiff's appeal centers around defendants' failure to be in attendance at trial. During presentation of preliminary motions, on January 18, 1984, plaintiff moved to bar all nonparty witnesses; this motion was granted since none of the parties had submitted witness lists in accord with the court's pretrial order. Plaintiff also requested an order directing that defendants be present during jury selection. The court denied this request, noting that the motion could have been made earlier and that subpoenas could have been used to ensure their presence.
Plaintiff's attempts to serve defendants with subpoenas before trial, which commenced January 19, were unsuccessful. Plaintiff's counsel asked the court to reconsider the motion to compel attendance pursuant to GCR 1963, 506, because "our case * * * is going to come from the testimony of the defendants in this case". The court denied this motion, noting that plaintiff had notice of the necessity of defendants' presence at least as early as the pretrial conference held on January 11, 1984. The court stated that it would not "substitute itself for a subpoena".
Plaintiff then moved for a continuance until January 24, because his process server had been informed that defendant Chynoweth would be out of town until January 23, 1984. The matter was put over to January 24. Plaintiff's repeated attempts at service were unsuccessful and again plaintiff made a motion to compel attendance. The trial judge declined review of his prior decision and refused to permit plaintiff to call defendants' attorneys for questioning on whether there was a deliberate attempt to absent defendants. After plaintiff presented his proofs, the trial court directed a verdict for the defendants.
On appeal, plaintiff first claims that the trial court erred in refusing to compel defendants' attendance. We disagree. There is no rule requiring a party to a suit to attend court during trial. If testimony of a party is desired, attendance may be secured by subpoena or a deposition may be taken. A party to a suit must secure the attendance of his witnesses, whether those witnesses are opposite parties or not. Bauer v Bauer, 177 Mich. 169, 172; 142 N.W. 1074 (1913). See also 2 Honigman Hawkins, Michigan Court Rules Annotated (2d ed), p 385. A trial court may order any party or witness to attend and testify orally in open court. MCR 2.506(A), formerly GCR 1963, 506.1. We find no abuse of discretion in the trial court's failure to compel attendance. This case was on the docket for close to five years. Plaintiff was notified in November, 1983, that trial would commence on January 11, 1984, and trial was rescheduled for January 18, 1984. Plaintiff had substantial time to subpoena defendants. Plaintiff's request for an order to compel attendance did not come until the day of trial. Cf. Roselott v County of Muskegon, 123 Mich. App. 361; 333 N.W.2d 282 (1983). Our holding is buttressed by the fact that, after one continuance, plaintiff's subsequent unsuccessful attempt to subpoena defendants, and defendants' failure to appear voluntarily on January 24, plaintiff failed to move for a second continuance.
We reject plaintiff's assertion that we must remand to determine whether defendants avoided service on the instruction of their counsel. Cooper v Garden City Osteopathic Hospital, 98 Mich. App. 362; 296 N.W.2d 259 (1980), remanded on other grounds 410 Mich. 863 (1980), lv den 411 Mich. 962 (1981), cited by plaintiff is distinguishable. In Cooper, the plaintiff followed all proper pretrial procedures; problems arose the day of trial because defendants had apparently omitted a probative piece of evidence from properly discovered medical records.
We also reject plaintiff's claim that the trial court's denial of his motion denied him due process by effectively denying him the opportunity of a trial. The law did not bar the testimony of defendants; it was plaintiff's failure to ensure their presence which denied plaintiff their testimony.
Finally, plaintiff's claim that defendants were not entitled to a directed verdict is without merit. Plaintiff argues that defendant's failure to testify raised a presumption of negligence because failure to produce evidence within a party's control raises a presumption that if produced it would operate against him. That presumption does not operate; however, in the case of a witness, who is equally available or accessible to both parties by process of the court. See generally Barringer v Arnold, 358 Mich. 594; 101 N.W.2d 365 (1960); Gibbons v Delta Contracting Co, 301 Mich. 638; 4 N.W.2d 39 (1942).
Affirmed.