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STATE OF MICHIGAN
COURT OF APPEALS


DOLORES C. FOX, Plaintiff-Appellant, v GAROLD L. FOX, Defendant/Cross Defendant-Appellee, and ERIC ESCHELMAN, Defendant/Cross Plaintiff-Appellee.

UNPUBLISHED September 3, 1996

No. 181337 LC No. 92-430183

Before: Holbrook, Jr., P.J., and Taylor and W.J. Nykamp,* JJ. PER CURIAM. In this negligence action, plaintiff appeals as of right from the judgment of the Oakland Circuit Court which reflected the jury's verdict of no cause of action. The trial court denied plaintiff's post-trial motion for a new trial or judgment notwithstanding the verdict. We affirm. Plaintiff first argues that the trial court erred in allowing defense counsel to present arguments to the jury regarding defendant Fox's general character as a careful and prudent person. We agree with plaintiff that this was improper argument. Michigan Rule of Evidence 404(a) provides, in pertinent part: Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.

* Circuit judge, sitting on the Court of Appeals by assignment.
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In this case, defense counsel argued repeatedly during his closing argument to the jury that they should judge defendant on his general character of being a careful and prudent pilot for over thirty years. Although defense counsel's closing argument regarding defendant's character was not evidence, it was given the imprimatur of evidence when the court's final instructions to the jury included defendant's theory of the case: It is Defendant Garold Fox's theory of the case that Garold Fox at all times was reasonable, careful, and exercised his best judgment. He is by nature a reasonably careful person. He exhibited that carefulness by going through his entire check list before take-off. He was not drunk, stupid, or foolish. He was not negligent. [Emphasis added.] Given the clear language of MRE 404(a) excluding such character evidence, and the inapplicability of any exception to the general rule of exclusion, we conclude that the trial court erred in permitting the jury to take into consideration defendant's general character as a careful person. See McNabb v Green Real Estate Co, 62 Mich App 500; 233 NW2d 811 (1975). Notwithstanding this error, we cannot say that any substantial right of plaintiff's was implicated and, therefore, reversal of the jury's verdict is not warranted. MRE 103(a); McNabb, supra at 510. Plaintiff also argues that the trial court abused its discretion in allowing defendant Fox to present evidence that he had no prior accidents while piloting a plane. We find no abuse of discretion. Defendant's lack of prior accidents was a consistent theme throughout the trial. In his opening statement, defense counsel stated: "Mr. Fox has been piloting for a number of years. He's never had an air crash before this one." Plaintiff did not object to this statement. On direct examination, defendant testified as follows: Q [BY DEFENSE COUNSEL]: Can you--is there a way for you to estimate for me today, the best of your calculation, the number of takeoffs and landings that you have made from grass fields in the seventeen years you have been flying? A [BY DEFENDANT FOX]: I guess probably it would be in, you know, like in the hundreds. I don't know whether it would be one hundred or three hundred, but it was--it would be well over a hundred. Q: Okay. And that's in the seventeen years that you owned this particular aircraft? A: No, no. That's total time. Q: Total time that you've been flying? A: Yes.

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Q: Somewhere between a hundred and three hundred takeoffs and landings on grass fields? A: Yes, uh-huh. Q: On any other occasions did you crash? A: No. Plaintiff immediately objected to the admission of this evidence, arguing that it was irrelevant to the issue of defendant's negligence on the day of the crash. The court overruled the objection, ruling that counsel could "ask questions about [defendant's] experience in grass fields to show what may have been on his mind when he was taking off." During closing argument, defense counsel reiterated defendant's "hundreds and hundreds of hours without a crash," and asked the jury to recall defendant's own testimony that "he flew for 33 years; 17 years in this particular aircraft. Never had an accident. Let me say that again. 33 years." Plaintiff's objection was overruled by the trial court.1 As a general rule, an issue as to the existence or occurrence of a particular fact, condition, or event, may be proved by evidence of the existence or occurrence of similar facts, conditions, or events, under the same or substantially similar circumstances. Freed v Simon, 370 Mich 473, 475; 122 NW2d 813 (1963). Similarly, evidence of a lack of accidents for exculpatory purposes may be admitted if offered for a proper purpose other than to establish a person's character or propensity for careful behavior. McCormick, Evidence (3d ed),

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