text:
    BAJDEK v. TOREN.
    1. Master and Servant — Scope op Employment — Travel To and From Work.
    Travelling to and from work generally does not come within the scope of one’s employment.
    2. Same — Scope op Employment — Travel To and From: Work— Exceptions.
    Travel which is a natural incident of employment so as to make it just and proper for the employee to be considered acting within the scope of his employment gives rise to an exception to the general rule that travelling to and from work is not within the scope of employment.
    3. Same — Scope op Employment.
    The test of liability of a master for his servant’s acts is whether the servant was, at the time, acting within the scope of his employment.
    á. Same — Scope op Employment — Beturn Trip.
    An employee going on a mission or errand for his employer does not cease to act in the course or scope of his employment when starting on the return trip.
    5. Same — Combining Personal and Master’s Business.
    No inquiry will be made as to the business in which the servant was actually engaged when a third person was injured where the servant is combining his own business with that of his master, or attending to both at the same time, but the master will be held responsible unless it clearly appears that the servant could not have been direetly or indirectly serving his master.
    Deferences for Points in Headnotes
    [1 — 5] 35 Am Jur, Master and Servant § 57.7 et seq.

    [6, 7] 35 Am Jur, Master and Servant § 600.
    [8] 35 Am Jur, Master and Servant § 553 et seq.

      6. Same — Scope of Employment — Question of Law for the Court.
    Whether defendant employee of photographic studio driving homeward after taking pictures at a wedding reception was acting within the scope of his employment held, a question of law for the court, where the decisive material, controlling facts necessary to a determination of the question, was not in dispute.
    7. Same — Scope of Employment — Question of Law or Pact.
    Question whether a servant was acting within the scope of his employment at the time of an injury complained of may be a question of fact or of law; where there is no dispute as to the facts and they are susceptible of but one inference, the question is one of law and should not be submitted to the jury.
    8. Same — Personal and Scope-of-Employment Business.
    Defendant employee of photographic studio, who in driving homeward as authorized after taking pictures at a wedding reception may have been carrying out a personal purpose but was also fulfilling certain conditions imposed upon him by reason of his employment, held, to bo within the seope of his employment as a matter of law at the time and place of an automobile accident which he caused. .. -/
    Appeal from Kent; Searl (Fred N.), J.
    Submitted Division 3 October 3, 1967, at Grand Rapids.
    (Docket No. 2,474.)
    Decided March 19,1968.
    Leave to appeal granted May 22,1968.
    See 381 Mich 752.
    Complaint for wrongful death by Jerome A. Bajdek, administrator of the estate of Judith E. Bajdek, against Kenneth L. Toren and Douglas, Herold, and Marie Lathrop. Verdict and judgment against defendant Lathrop. Verdict and judgment of no cause of action for defendant Toren. Plaintiff appeals.
    Reversed and remanded for entry of judgment against defendant Toren.

      Hillman, Baxter & Hammond, for plaintiff.

      Allaben, Massie, Vander Weyden é Timmer, for defendant Toren, :
   Holbrook, J.

Plaintiff, administrator of the estate of decedent Judith E. Bajdek, brought a wrongful death action against defendants. The deceased was a passenger in an automobile, which was negligently struck by another automobile driven by defendant Douglas E. Lathrop, and owned by defendants Herold and Marie Lathrop, his parents. The accident occurred on August 16, 1964, at approximately 12:18 a.m. at the intersection of Yalley avenue and Lake Michigan drive, in the city of Grand Rapids, Michigan.

A jury verdict in the amount of $30,000 was rendered in favor of plaintiff against defendants Douglas, Herold, and Marie Lathrop. A verdict of no cause of action was rendered by the jury as to defendant Kenneth L. Toren, individually and doing business as Kendale Studios. This latter verdict was upheld by the trial court on its denial of plaintiff’s motion for judgment notwithstanding the verdict, or in the alternative, for new trial.

Plaintiff seeks to attach liability under the doctrine of respondeat superior to defendant Toren by reason of his employment of defendant Douglas Lathrop and contends that he was within the scope of his employment at the time and place of the motor vehicle accident as a matter of law. Pertinent to this agency question are the following facts: defendant D. Lathrop, aged 19, was employed as a studio manager trainee by defendant Toren. As a part of his training, D. Lathrop was required to have a thorough knowledge of the entire business, including the taking of photographs. In August of 1964, his job was taking pictures at the studio during the daytime working hours at an hourly wage of $1.25.

D. Lathrop, having previously accompanied another studio photographer on similar missions, arranged to photograph a wedding and reception on the evening of August 15. The events of the evening are as follows: D. Lathrop left the studio at 4 p.m. after putting the studios’ camera and film in his car; he then got something to eat and arrived at the church at about 5:45 p.m. At the church he took approximately 24 pictures and then drove to the reception hall where he took additional pictures between 7 p.m. and 11:50 p.m. During this time, according to his testimony, he had dinner, 2 mixed drinks, pop, coffee and cake; on leaving the reception hall he drove in a direct route homeward, intending to return the camera and film to the studio Sunday, August 16, or the next working day, Monday, August 17.

57 CJS, Master and Servant, § 617, pp 411-413, states as follows:

“The question whether a servant was acting within the scope of his employment at the time of the injury complained of may be a question of fact or of law. Where the evidence is conflicting or more than one inference can be drawn therefrom, it is for the jury to determine, under appropriate instructions from the court, whether the servant was acting within the scope of his employment at the.time of the injury complained of. Whether the presumption raised by the evidence that the servant was acting within the scope of his employment has been successfully rebutted by testimony is usually a jury question. Where it is doubtful whether a servant in injuring a third person was acting within the scope of his authority, the doubt will be resolved against the master, as considered supra section 570, at least to the extent of requiring the question to be submitted to the jury for determination.
“On the other hand, where there is no dispute as to the facts and they are susceptible of but one inference, the question is one of law and should not be submitted to the jury.” (Emphasis supplied)

Plaintiff claims that D. Lathrop was in the scope of his employment on leaving the reception hall and in travelling homeward (and at the time and place of the accident) because it was incidental to his work and he was authorized to take the camera equipment and exposed film home rather than return it to the studio that same evening, also that he was required to safeguard the camera equipment and exposed film, protect the exposed film by refrigerating it or otherwise keeping it cool, and to charge the camera battery pack within an hour after use. On the other hand, defendant Toren contended that D. Lathrop’s employment ended when the latter finished taking pictures and left the reception hall because he was then on his own, without his employer’s control, and was not required to return the camera equipment and exposed film to the studio that same night and was not so doing at the time and place of the accident. Simply put, Toren contends that D. Lathrop was going home and came within the general rule that an employee on leaving his place of work is no longer within the scope of his employment. Defendant Toren testified that he had never refrigerated the film (although it was to be kept in a cool place); and his daughter. testified that the camera battery pack had been charged the following day (apparently without any damage to the unit).

The taking of wedding pictures outside the studio and during other than normal working hours was a part of the services offered by Kendale Studios and the performance of such service was the job of a studio photographer. It is true that simply going to and from work does not come within the scope of one’s employment; the reason for the general rule is that there is usually no control exercised by the employer over the employee as to the latter’s arrival at-and departure from work; and, moreover, there is no benefit to the employer under such circumstances in the normal course of events. See Howard v. City of Detroit (1966), 377 Mich 102 (a workmen’s compensation case).

Exceptions to the general rule arise where travel (including homeward travel) becomes a natural incident of the employment so as to make it just and proper for the employee to be considered acting within the scope of his employment. In the instant case it clearly appears that D. Lathrop was about his employer’s business, and acting for his employer’s benefit (a) on leaving the studio for the church, (b) while taking pictures at the church, driving to the reception hall, and taking additional pictures there, (c) while■ driving homeward as authorised by his employer, and (d) in taking and protecting the camera equipment, because if he failed to do so the employer would have had to hire someone else to complete the task.

The fact that D. Lathrop’s being allowed to take the camera equipment and exposed film home after taking the pictures may have been a convenience to him is not determinative. The act was, in any event,one of dual purpose, for Lathrop was also perform! ing services, for his' employer (see Nevins v. Roach [1930], 249 Mich 311, quoting at pp 313, 314 from. Riley v. Roach [1912], 168 Mich 294, 307, i.e., (a) safeguarding and protecting the camera equipment and exposed film and (b) ‘providing the necessary-return of the camera equipment and exposed film totbe studio, even though at a later time.

In considering the area of service within the scope of employment, 57 CJS, Master and Servant, § 570, p 309 states as follows:

“Where the employment itself is one in which an employee is required to travel from place to place at the employer’s will, the risks of such travel are directly incident to the employment, and the employer may be held liable therefor. An employee going on a mission or errand for his employer does not cease to act in the course or scope of his employment when starting on the return trip.” (Footnotes omitted.) _ .......... -■

Also, at p 310:

“An act may be within the scope of the servant’s employment even though the predominant motive is to benefit himself, as discussed infra section 574.”

And in section 574, p 329, the following appears:

1 “So it has been held that where the servant is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to the business in which the servant was actually engaged when a third person, was injured; but the master will be held responsible unless it clearly appears that the servant could not have been directly or indirectly serving his master.” (Footnotes omitted; emphasis supplied. )

Although there were conflicting statements by the witnesses as to the extent of the care and protection of the camera equipment and film required to be given by D. Lathrop after taking the pictures, there is no dispute as to the decisive, material, controlling facts in determining whether he was acting within the scope of his employment at the time of the accident, i.e., in the performance of an authorized act incidental to his employer’s business. It is possible to draw but one inference — although D. Lathrop in driving homeward as authorized after the reception may have been carrying out a personal purpose, he was also fulfilling certain requirements imposed upon bim by reason of his employment and therefore was within the scope of his employment at the time and place of the accident. The question herein was one of law as is evidenced by the opinion of Mr. Justice McDonald in the case of Holden v. Meehan (1927), 239 Mich 266, wherein it is stated on pp 269, 270, as follows:

“We think it was a natural incident of the work which he was employed to do. The material controlling facts necessary to a determination of this question were not in dispute. It was therefore a question of law for the court.” (Emphasis supplied.)

Reversed and remanded for entry of judgment against defendant Kenneth L. Toren. Costs to appellant.

Fitzgerald, P. J., and Burns, J., concurred.

       CLS 1961, § 600.2922 (Stat Ann 1965 Cum Supp § 27A.2922).

       The trial court found, as a matter of law, that D. Lathrop was an employee of defendant Toren. This ruling has not been raised or challenged on appeal by either party.

       The reception hall was located on the north side of Grand Rapids and the studio on the south side. D. Lathrop lived about i miles southwest of Standale, which is about 12 miles west of Grand Rapids.

         Testimony of D. Lathrop:

        “Q. So, so far as Kendale was concerned, you didn’t have to take the film from the Viking Hall at 12 o’clock at night over to the el'osed studio? You could take it home over night with you, provided you protected the camera and equipment and kept the film cool so as to remain undamaged, is that right ?

        “A. Yes.”
      This testimony was not disputed by defendant Toren.

       Testimony of D. Lathrop:

        “Q. So that your part of the Kendale photography process would be, (1), take the photographs; (2), protect the equipment and keep the film cool; and (3), return the film to the studio for further processing for the customer of Kendale, is that right?

        “A. Yes.”
      This testimony was not disputed by defendant Toren.

       The returning of the camera equipment and exposed film by this “indirect route” does not present a “deviation” situation in that I). Lathrop was authorized to proceed homeward upon finishing his photographic work at the reception hall.


source: Caselaw Access Project

author: Burns, J.

license: Public Domain

text:
    DORNBOS v. ADKINS TRANSFER COMPANY, INC.
    1. Courts — Corporations—Torts—Jurisdiction.
    The doing or causing of any act to be done, or consequences to occur, in the State resulting in an action for tort constitutes sufficient basis of jurisdiction for courts of this State to exercise limited personal jurisdiction over sueh corporation and to render personal judgments against sueh corporation arising out of the aet (CLS 1961, § 600.715).

      2. Same — Limited Jurisdiction.
    Jurisdiction of a court under the “long-arm” statute is limited to aets occurring outside the State whieh have consequences inside the State (CLS 1961, § 600.715).
    3. Constitutional Law — Due Process — Test.
    Whether due process is satisfied by a statute conferring jurisdiction over a corporation outside the State for aets performed outside the State but having consequences in the State is based upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process elause to insure (US Const, Am 14; CLS 1961, § 600.715).
    4. Commerce — Negligence—Tortious Consequences.
    It is foreseeable that negligent aets of one who carries goods in interstate commerce may have tortious consequences in other States.
    References for Points in Headnotes
    [1-4, 6] 36 Am Jur 2d, Foreign Corporations §§ 365-367.
    Power of state to subject foreign corporation to jurisdiction of its courts on sole ground that corporation committed tort within state. 25 ALR2d 1202.
    Validity, construction and application of statute making a foreign corporation subject to action arising out of contract made within the state although sueh corporation was not doing business therein. 49 ALR2d 668.
    [5] 36 Am Jur 2d, Foreign Corporations §§ 357, 361.
    [7] 16 Am Jur 2d, Conflict of Laws §§ 71-75,
    [8] 50 Am Jur, Statutes §§ 170,195,

      5. Carriers — Nature of Business — Minimum Contacts.
    A carrier’s business of carrying goods, solicited by others with whom they have a business relationship and who have direct relationship with forum State, ereates the necessary minimum contacts with those States which produce the products that enter interstate commerce.
    6. Corporations — “Long Arm” Statute — Constitutional Law.
    “Long-arm” statute conferring personal jurisdiction over corporation outside the State for the doing of an act outside the State which causes consequences to occur inside the State, held, not a denial of due process of law required by the United States Constitution (US Const, Am 14; CLS 1961, § 600.715).
    7. Courts — Consequences of Act — Jurisdiction.
    There is nothing offensive to the concept of fair play and justice in holding that a claimant may resort to the forum where the consequences of an act occur.
    8. Statutes — Presumption of Constitutionality.
    Statutes are presumed to be constitutional.
    Appeal from Ottawa; Smith (Raymond L.), J.
    Submitted Division 3 October 3, 1967, at Grand Rapids.
    (Docket No. 2,984.)
    Decided March 19, 1968.
    Rehearing denied May 15,1968.
    Leave to appeal denied August 20,1968.
    See 381 Mich 772.
    Appeal to Supreme Court of the United States dismissed January 13,1969.
    Complaint by Harold Dornbos and Beverly Dornbos against The Kroger Company, an Ohio corporation, Rooks Transfer Lines, Inc., a Michigan corporation, Adkins Transfer Company, Inc., an Indiana corporation, Adkins Cargo Express, Inc., an Indiana corporation, and Tennessee Cartage Company, Inc., a Tennessee corporation, to recover damages resulting from defendants’ negligence in handling fish which became contaminated. Motion by Adkins Transfer Company, Inc., Adkins Cargo Express, Inc., and Tennessee Cartage Company, Inc., to dismiss plaintiffs’ complaint denied. Defendants appeal.
    Affirmed.

      Warner, Norcross S Judd (Harold 8. Sawyer and George L. Whitfield, of counsel), for plaintiffs.

      Hathaway, Latimer, Clink & Robb (John H. Martin, of counsel), for defendants.
   Burns, J.

Defendants-appellants on leave granted by this Court appeal an order of the Ottawa circuit court denying their motion to dismiss plaintiffs’ complaint for lack of jurisdiction.

Plaintiffs are residents of Ottawa county, Michigan, doing business in the city of Grand Haven as' PI. J. Dornbos & Bros., a copartnership. Defendant Kroger Company is a corporation organized under the laws of Ohio and doing business in the State of Michigan. Defendant Books Transfer Lines, Inc., is a corporation organized under the laws of Michigan with its principal office in the city of Holland, county of Ottawa, State of Michigan. Defendant Adkins Transfer Company, Inc., is a corporation organized under the laws of the State of Indiana and is a common carrier in interstate and intrastate commerce with terminals in Chicago, Illinois, and Nashville, Tennessee. Defendant Adkins Cargo Express, . Inc., is a corporation organized under the laws of the State of Indiana and is a successor to the Adkins Transfer Company, Inc. Defendant Tennessee Cartage Company, Inc., is a corporation organized and existing under the laws of the State of Tennessee and is a common carrier in the State of Tennessee.

Plaintiffs alleged in their complaint that in September, 1963, plaintiffs were engaged in the business of processing and selling fish products. They received an order from the Kroger Company from its Nashville,-Tennessee office for smoked, fish, f.o.b. Grand Haven. ■ The fish were sealed in' vacuum packages marked, “Keep under refrigeration.” On September 19, 1963, the fish were picked up by Rooks and transferred to Adkins at Chicago, Illinois, which, in turn, transported the fish to Nashville, Tennessee. In Nashville the fish were turned over to Tennessee Cartage which delivered the fish to the Kroger warehouse on September 25, 1963.

Plaintiffs further alleged that due to negligence in the handling of the product the fish became contaminated and caused death when eaten, with consequential adverse publicity for plaintiffs and the resulting damages for which the action was brought in Ottawa county, Michigan.

Defendants Adkins Transfer Company, Inc., Adkins Cargo Express, Inc., and Tennessee Cartage Company, Inc., moved the circuit court to quash service of process and dismiss the complaint for lack of jurisdiction, as the moving parties were served with process in the State of Tennessee. The motions challenged the application and the constitutionality of Michigan’s “long arm” statute, the revised judicature act, PA 1961, No 236, § 715, CLS 1961, § 600.715 (Stat Ann 1962 Rev § 27A.715). The circuit judge denied the motion to dismiss the complaint.

The defendants claim the circuit court erred in that its decision:

(1) violated the due process law requirement of the 14th amendment of the United States Constitution;

(2) places an undue burden on interstate commerce.

CLS 1961, § 600.715 (Stat Ann 1962 Rev § 27 A-.715) provides as follows:

“The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships: * * *
“(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.”

The trial judge in a written opinion which we adopt stated in part:

“Note must be taken that this section of the judicature act is carefully circumscribed and limited to acts outside the State which have consequences inside the State. Former restricted concepts of jurisdiction over nonresident foreign corporations have been expanded by the case of International Shoe Company v. State of Washington (1945), 326 US 310, 316, 319 (66 S Ct 154, 158, 159, 90 L ed 95, 101, 103, 161 ALR 1057, 1061, 1063) where it was stated:
“ ‘Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. * * * But now that the capias acl respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice. # * *
“ ‘It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, -whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. * * # Whether due process is satisfied must depend rather upon the quality and, nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a State may make binding a judgment in personam against an individual or corporate defendant with which the State has no contacts, ties, or relations.’ (Emphasis supplied by circuit judge.)
“The court directs its attention to the ‘quality and nature’ of the activity of these defendants as it relates to the State of Michigan. These defendants are in the business of carrying goods in interstate commerce. It is reasonable to assume that they solicit and hopefully anticipate such business. They are in the position of being able to protect themselves from the consequences of their own derelictions. They understand that the nature of their business requires them to have the care and custody of the products and possessions of residents of other Statés. It is foreseeable that their negligent handling of these products and possessions may have tortious consequences in other States.
“It is no defense to claim that these defendants did not come into the State of Michigan to solicit this business when the very nature of their business and their franchise is such that they are required to carry goods solicited by others with whom they have a business relationship and who have a direct relationship with the forum State. Without delving into the agency concepts that may be present here, suffice it to state that the very nature of the business of these defendants creates the necessary minimum contacts with those States which produce the products that enter interstate commerce.’ This court is unable to see any difference in this situation from the case of Gray v. American Radiator & Standard Sanitary Corporation (1961), 22 Ill 2d 432 (176 NE2d 761). In Gray we have a negligently manufactured component which reaches the state of Illinois, while in the case before this court we have' the. claim of a negligently performed service with tortious consequences in either event."
“The court’s thinking is guided by McGee v. International Life Insurance Company (1957), 355 US 220, 222 (78 S Ct. 199, 200, 2 L ed 2d 223, 225) wherein it is stated:
“ ‘In a continuing process of evolution this Court accepted and then abandoned “consent”, “doing business”, and “presence” as the standard for measuring the extent' of State judicial power over such corporations.’
“The court rejects any argument that such a result will' be an undue burden on interstate commerce or will offend, ‘traditional notions of fair play and substantial justice’. The realities of modern commercial transactions dictate that modern concepts of jurisdiction be considered for the purpose of - enlightened handling of disputes- arising from modern conditions and transactions. Shall we hold that there can only be fair play and substantial justice where the law provides that all those who do business with these defendants must go to those States wherein they are doing business for adjudication of their grievances rather than to hold that the forum of justice may be that state where tortious consequences occur? To ask the question is to answer it. The court finds nothing offensive to the concept of fair play and justice in holding that the claimant may resort to the forum where the consequences of an act occur.”

This Court is aware of the decision by our Supreme Court in Hershel Radio Co. v. Pennsylvania R. Co. (1952), 334 Mich 148. However, ■ that case was decided prior to the revised judicature act. To follow that holding in the present case this Court would have to declare this section of the act invalid as to interstate carriers. This we decline to do. Statutes are presumed to be constitutional.

Judgment affirmed. Costs to appellees.

Fitzgerald, P. J., and Holbrook, J., concurred.


author: T. Gr. Kavanagh, J.

text:
    GONZALEZ v. HOFFMAN.
    1. Trial — Conduct op Counsel — Credibility op Witnesses.
    Defense counsel’s conduct in disclosing fact plaintiff had not indicated medical disablement on an employment application, and in his argument to the jury suggesting plaintiff was lying to the court, held, not to be of such character as to deprive plaintiff of a fair trial and constitute reversible error, sinee the credibility of the witness is open to scrutiny and his answers to questions on employment application were proper subject matter for cross-examination, and a permissible inference to be drawn from plaintiff’s testimony was that his claim of physical disability was false.
    2. Witnesses — Cross-Examination—Inconsistent Statements.
    A witness may, on cross-examination, be shown to have made previous statements inconsistent with his testimony.
    3. Appeal and Error — Questions Reviewable — Savins Questions por Review — Objection.
    Generally, no error is presented for review where no objection is made in trial court and no ruling made by trial judge.
    References for Points in Headnotes
    [1] 53 Am Jur, Trial § 464.
    [2] 58 Am Jur, Witnesses § 767 et seq.

    [3, 6] 5 Am Jur 2d, Appeal and Error § 553.
    [4] 53 Am Jur, Trial §§ 480, 485.
    [5] 53 Am Jur, Trial § 463.
    '7] 29 Am Jur 2d, Evidence § 449.
    8] 29 Am Jur 2d, Evidence § 866.
    :9] 22 Am Jur 2d, Damages § 89 et seq.

    10] 29 Am Jur 2d, Evidence §§ 250, 269.
    [11] 53 Am Jur, Trial § 123.

      4. Trial — Argument to Jury — Inferences.
    Counsel is limited in subject matter, in arguing to a jury, to those matters before the court as disclosed by the testimony and reasonable inferences from it and may not express opinions or conclusions upon matters not found in the record.
    5. Same — Argument to Jury — Control by Court.
    Counsel is given some leeway in his argument and the control of his argument is within the discretion of the court.
    6. Appeal and Error — Cross-Examination — Argument — Saving Question for Review — Objection.
    Alleged error in cross-examination of medical witness and argument to jury as to plaintiff’s 'claim of disability arising from rear-end collision was not saved for review where no objection was interposed as to the argument and objection as to cross-examination was withdrawn.
    7. Evidence — Payment op Money — Receipts—Best Evidence Rule.
    The best evidence rule has no application to a case where a party seeks to prove a fact which exists independently of any writing, and the payment of money may be proved by parol without accounting for the absence of a receipt evidencing the payment.
    8. Same — Medical Expenditures — Receipts.
    Exclusion of testimony as to medical expenditures for prescriptions and medication by plaintiff where he failed to keep receipts held, to be error.
    9. Damages — Personal Injuries — Earning Capacity.
    Correct measure of damages in a personal injury ease is the loss of plaintiff’s earning capacity, which might decrease even though aetual earnings increase.
    10. Evidence — Rebuttal Evidence.
    Rebuttal evidence is that which explains, contradicts, or otherwise refutes defendant’s evidence; its purpose is to cut down defendant’s case, not merely to confirm that of plaintiff.
    11. Trial — Reopen Plaintiff’s Case — Discretion of Court.
    Refusal of trial court, in an action to recover for personal injuries, to admit as rebuttal evidence or, in the alternative, to reopen plaintiff’s proofs at dose of defendant’s proofs in order to admit testimony by a doetor about a physical exam- ' ination and his conclusion from' the examination although defendant’s witness had conducted no such examination held,
      not an abuse of discretion, -where defendant’s last witness’ testimony raised no new matters which would necessitate the introduction of rebuttal testimony by plaintiff.
    Appeal from Wayne; Burdick (Benjamin D.), J.
    Submitted Division 1 October 4, 1967, at Detroit.
    (Docket No. 2,192.)
    Decided March 19,1968.
    Order on rehearing modifying remand filed December 10, 1968.
    Leave to appeal granted February 21, 1969.
    See 381 Mich 805.
    ' Declaration by Eloy González against Frederick 0. Hoffman to recover for personal injuries and for property loss. Verdict and judgment for plaintiff. Plaintiff appeals alleging inadequate verdict.
    Reversed and remanded.

      Zeff & Zeff, for plaintiff.

      Garan, Lucow é Miller, for defendant.
   T. Gr. Kavanagh, J.

On December 24, 1959, the car which plaintiff was driving was hit from behind by a car driven by defendant and was pushed into the car ahead of him. In July 1961 plaintiff commenced this action claiming damages for property loss and personal injuries. Defendant admitted liability and the trial proceeded solely on the issue of damages. The jury returned a verdict for $2,000 and plaintiff has appealed.

Four issues are raised on appeal; the first is that defense counsel’s conduct and argument were of such inflammatory character as to deprive plaintiff of a fair trial and so constituted reversible error.

During his cross-examination of plaintiff defense counsel elicited the fact that in filling out an application for employment with the Ford Motor Company plaintiff failed to indicate that he was medically disabled. Counsel asked plaintiff if he was not trying to pnt something over on Ford Motor Company. Plaintiff professed not to understand the question and counsel replied: “Either you’re lying to us or to the Ford Motor Company.”' Upon objection to the word “lying” the court said that he would strike it. In his closing argument counsel for defendant said: ;

“I submit to you that if this man would lie to get a job at a place where he has continued working for many years, that he has absolutely no hesitation to get onto that stand and to lie to you.”

The principal issue in this case is whether plaintiff has been physically disabled by defendant’s negligence and on direct examination plaintiff testified at length concerning his alleged disability. Certainly his credibility was open to scrutiny and his answers to the questions on his employment application were proper subject matter for cross-examination. See Bennett v. Wallace (1911), 165 Mich 66. In People v. MacCullough (1937), 281 Mich 15, the Court said at page 26:

“A witness may, on cross-examination, he shown to have made statements inconsistent with his testimony. Gibbs v. Linabury (1871), 22 Mich 479 (7 Am Rep 675); Graham v. Myers (1887), 67 Mich 277; Lepard v. Michigan Central R. Co. (1911), 166 Mich 373 (40 LEA NS 1105). And, if there is anything suspicious in the character of the testimony of a witness, he may he subject to rigid cross-examination.”

Counsel for plaintiff did not make a seasonable objection to the argument of which he now seeks to complain. Having thus failed to present to the trial court an opportunity to correct any harm he may not raise his objection for the first time on appeal. Taylor v. Lowe (1964), 372 Mich 282. Moreover, we are not impressed that the argument complained of was improper or prejudicial.

“In arguing to a jury, counsel is limited in subject matter to those matters before the court as disclosed by the testimony of witnesses. He is entitled to draw reasonable inferences from that testimony, but he cannot express his opinions or conclusions upon matters not found in the record.” Hayes v. Coleman (1953), 338 Mich 371, 382.

Counsel is to be given some leeway in his argument and the control thereof is within the discretion of the court. Elliott v. A. J. Smith Contracting Company, Inc. (1960), 358 Mich 398. Certainly one of the permissible inferences to be drawn from plaintiff’s testimony on cross-examination is that his claim of a physical disability was false. Accordingly, we do not find an abuse of the court’s discretion.

Plaintiff’s contention that defense counsel’s cross-examination of Dr. MacMillan and his argument to the jury amounted to testimony on his part from his own experience. The record is barren of any proper objection, no objection having been made to the argument, and objection to the cross-examination having been withdrawn.

Plaintiff asserts as the second issue that the court erred in excluding his testimony as to medical expenditures for prescriptions and medication. He testified that he did not keep the receipts for his expenditures for medication and the court sustained defendant’s objection to his oral testimony as to the amount of such expenditures, ruling that the best evidence would be the receipts. The court permitted plaintiff to make a separate record of the excluded testimony, pursuant to GrCR 1963, 604, thus saving this question for appellate review,

We hold that the exclusion by the court of plaintiff’s proffered testimony was error.

“The best evidence rule has no application to a case where a party seeks to prove a fact which has an existence independently of any writing; he may do so by oral testimony, even though the fact has been reduced to, or is evidenced by, a writing.” 29 Am Jur 2d, Evidence § 449, p 510.
“The payment of money * * * may be proved by parol without accounting for the absence of a receipt evidencing such fact, where the witness can testify to the fact positively and from his own independent knowledge, not founded on his having seen the receipt. * * * “While bills representing payments by a person have been held admissible, receipts have sometimes been held inadmissible as being inferior to the testimony of living witnesses.” 32A CJS, Evidence, § 802, p 133.

In the case at bar the expenditure of money was a fact independent of any receipt, and while it may be arguable that a receipt would be stronger or more cogent evidence than plaintiff’s testimony, such a circumstance does not preclude such testimony.

At trial plaintiff testified that he was earning more money after the accident than before. Nevertheless the proper measure of damages is not necessarily the difference between plaintiff’s earnings before the injury and those after, but rather the loss of plaintiff’s earning capacity which, under some circumstances, might decrease even though actual earnings increase. Van Driel v. Stevens (1918), 200 Mich 291. Plaintiff contends as his third assertion of error, that the question of his loss of earning capacity was not properly submitted to the jury because of deficiencies in the court’s instructions, the pertinent part of which follows;

' “The injured party should he awarded compensation for all injuries, past and prospective. They are intended to include and embrace indemnity for actual medical expenses, also for loss of power of earning capacity, the capacity to be able to earn money, and reasonable satisfaction for loss of physical powers. The elements which you, the jury, are entitled to take into consideration consist of all personal inconvenience, the sickness which plaintiff endured, the loss of time from other pursuits.”

The court refused to give plaintiff’s requested charge number 3:

“I charge you that a factor in estimating damages should be the injured person’s ability to earn money, rather than what he actually earns before the injury, and the difference in the actual earnings of the plaintiff before and after the injury does not necessarily constitute the measure.”

Evidently the plaintiff’s theory in requesting this charge is that unless so cautioned the jury would conclude that since plaintiff’s earnings had increased he could not have incurred a loss of earning capacity. In support of his contention that the court erred in not giving the requested charge, plaintiff relies upon Miller v. Pillow (1953), 337 Mich 262 and Van Driel v. Stevens, supra. In Miller the plaintiff had submitted evidence that prior to his injury he had been engaged in other kinds of work than that which he was doing at the time of the injury; that wages in these other occupations were higher than his wages in his present occupation; and that had he not been injured he might have been engaged in those other lines of work. The Court held that the proofs as to plaintiff’s loss of earning capacity should not be confined to the character of work he was doing at the time of his injury. These are a different set of circumstances than those obtaining in the case at bar and accordingly Miller does not support plaintiff’s position. In Van Driel the plaintiff had pointed out that wages had gone up between the time of the accident and the time of the subsequent employment; that his injury had made it necessary for him to do lighter work; and that the testimony that the injury had permanently impaired him was undisputed. Consequently, the Court held that the question of decreased earning was properly submitted to the jury even though plaintiff was earning as much after the accident as before. There have been no such showings by plaintiff in the case at bar and we hold that the court did not err in refusing the requested charge. The jury was instructed to consider the question of loss of earning dapacity and plaintiff is entitled to no more. • • ■

Finally, plaintiff contends that the court abused its discretion when it refused to permit plaintiff to offer rebuttal medical testimony. After plaintiff had closed his proofs, which included the testimony of three doctors, defendant called Dr. MacMillan who gave testimony tending to contradict plaintiff’s evidence as to his physical condition. Counsel for plaintiff cross-examined Dr. MacMillan extensively and questioned him about an electromyographic examination, although the doctor had not conducted such an examination on plaintiff. After defendant had rested his case, plaintiff called Dr. Cohen as rebuttal witness. The court refused to admit the testimony as rebuttal, and denied plaintiff’s request, in the alternative, to reopen his proofs, on the grounds that defendant had not been given a copy of the results of the doctor’s examination of plaintiff, and that he had not been offered as a witness at the time of pretrial or at any time thereafter. Plaintiff made a separate record of Dr. Cohen’s testimony, GCR 1963, 604, thus saving this question for review.

On tlie separate record the doctor testified that he had conducted an electromyographic examination on plaintiff and he stated the results of the examination and his conclusions therefrom. This was all testimony which could properly have been submitted as part of plaintiff’s case in chief.

“Rebuttal evidence is that which explains, contradicts, or otherwise refutes defendant’s evidence. Its purpose is to cut down defendant’s case and not merely to confirm that of plaintiff.” Van Tassel v. Patterson (1951), 235 Minn 152, 160 (50 NW2d 113, 117).

The record discloses that Dr. MacMillan’s testimony raised no new matters which would necessitate the introduction of rebuttal testimony by plaintiff. Accordingly, we hold that the court did not abuse his discretion in refusing to admit the proffered testimony as rebuttal evidence, or in refusing to permit plaintiff to reopen his proofs. See Lexchin v. Mathews (1934), 269 Mich 120.

Because of the court’s improper exclusion of plaintiff’s testimony regarding his medical expenditures, judgment is reversed and the cause remanded. Appellant may tax costs.

Lesinski, C. J., and J. H. Diluís, J., concurred.

Order on Rehearing

It is ordered that the trial upon remand shall be limited to the issue of medical expenditures improperly excluded as more fully detailed in the opinion previously filed in this case.

The Court retains no jurisdiction herein.


author: T. G. Kavanagh, J.

text:
    PEOPLE v. STEVENS.
    1. Criminal Law — Trial—Instructions—Included Offenses-
    Failure of trial judge, in prosecution for armed robbery, to instruct sua sponte on the lesser offense of lareeny from the person held, proper, where the evidence shows defendant was present at time of robbery, a fellow robber had a gun,' the victim was threatened, money was taken from a safe and from under a desk belonging to the victim, at trial defendant made no request for a specific charge to jury, and no evidence of a lesser offense was presented (CL 1948, § 750.357, CLS 1961, § 750.529).
    2. Larceny — Stealing from the Person.
    An essential element of the crime of lareeny from the person is that it be accomplished by “stealing from the person of another” (CL 1948, § 750.357).
    3. Criminal Law — Instructions—Lesser Offenses.
    Instruction to jury that verdict must be guilty or not guilty of the crime charged is not error, where no evidence exists on which a verdict of a lesser offense could be returned.
    4. Same — Exclusion of Testimony — Fingerprints on Money.
    Exclusion of testimony by defendant of narration - of his attorney’s request to have money taken in a robbery examined for fingerprints held, proper.
    References for Points in Headnotes
    [1,3] 53 Am Jur, Trial §§ 796-802.
    [2] 32 Am Jur, Larceny § 2.
    [4] 29 Am Jur 2d, Evidence § 375.
    Fingerprints, palm prints, or bare footprints as evidence. 28-ALB 2d 1115.
    Appeal from Wayne; Sullivan (Joseph A.), J.
    Submitted Division 1 October 4, 1967, at Detroit.
    (Docket No. 3,298.)
    Decided March 19, 1968.
    Be-hearing denied April 29, 1968.
    Leave to appeal denied July 31, 1968.
    See 381 Mich 769.

      James Henry Stevens was convicted of armed robbery. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.

      Riseman, Lemke & Piotrowski, for defendant on appeal.
   T. G. Kavanagh, J.

James Stevens was convicted of armed robbery. CLS 1961, § 750.529 (Stat Ann 1968 Cum Supp § 28.797). He brings this appeal claiming error in the trial court’s charge to the jury and in the court’s refusal to admit certain testimony by defendant.

According to the testimony of George Montie, Jr., on March 22, 1966 James Stevens and Emanuel Gomez entered his store and after making a purchase, Gomez, pointing a gun, said “a hold up,” “get in the back of the store.” Both Stevens and Gomez accompanied complainant into the back where Gomez took money from a safe and placed it in a satchel. Further threats by the defendants forced the complainant to tell of additional money under a desk. Stevens said, “Why give your life for this little amount?” and then he took the money from under the desk. Defendant Gomez struck the complainant, stunning him momentarily. The police arrived, having been notified by an alarm on the safe, confronted defendants in their acts and arrested them. Both were charged with robbery armed.

Defendant Stevens’ testimony was that he entered complainant’s store with Gomez to make a purchase, and that he was preparing to leave the store when Gomez pulled a gun. He admits presence at the scene but disclaims any participation in the crime, alleging that he was an innocent bystander, that he took no part in the robbery, had no intention of perpetrating a robbery or of assisting Gomez, and was in fact a victim of circumstances at the time the robbery was committed. He now argues that if, as the jury may have found, he did tell the complainant not to endanger his life and did put money in the valise, he would be guilty only of larceny from the person, maintaining this to be a lesser but included offense in the crime of robbery. At the. trial, he claims, he attempted to testify that he had requested the arresting officers to take fingerprints from the money in the satchel but that his request was ignored. Defendant argues that the trial court erroneously sustained an objection to such testimony.

Defendant was found guilty as charged. On appeal he claims three points of error;

1. That the trial court erred in failing to instruct the jury on the lesser offense of larceny from the person.

2. That the jury should have been advised to consider whether or not he was guilty of aggravated assault.

3. That testimony regarding a request for fingerprints was erroneously excluded.

These first two assertions of error indicate confusion about the duty of the trial judge to instruct. Where a request has been made to charge on a lesser included offense, the duty of the trial judge is determined by the evidence. ..

If evidence has been presented to support a conviction of the lesser offense, the requested instructions must be'given; failure to do so would constitute error. People v. Jones (1935), 273 Mich 430. If, on the other hand, no evidence has been presented to support a conviction of the lesser offense, then the requested instruction should be refused. People v. Utter (1921), 217 Mich 74; People v. Hearn (1958), 354 Mich 468.

Where no request to charge on the lesser offense has been made but evidence exists to support a conviction of the lesser offense, the trial judge may, sua sponte, instruct on the lesser offense. People v. Milhem (1957), 350 Mich 497. If, however, no such evidence exists and no request has been made, failure of the trial court to instruct on a lesser offense is not error. CL 1948, § 768.29 (Stat Ann 1954 Rev §28.1052).

In this case, defendant made no request for a specific charge to the jury, and no evidence of a lesser offense was presented. The evidence is undisputed that the defendant Stevens was present in the store, that Gomez had a gun, that the victim was threatened, and that money was taken. The taking was from the safe and from under the desk; there was no taking from the person of the victim. It is an essential element of larceny from the person that the object stolen be from the person of another. People v. Gadson (1957), 348 Mich 307. Defendant’s position throughout the trial was that he did not participate in the commission of the crime. The only question for the jury to decide was whether he did or did not so participate. Under the circumstances, the court was not required to instruct on the question of aggravated assault nor on a lesser offense, especially when the elements of that offense were not present and when no evidence of such offense existed. Where no evidence exists on which a verdict, of a lesser offense could be returned, it is not error for the trial court to instruct the jury that the verdict must be guilty or not guilty of the crime charged. People v. Netzel (1940), 295 Mich 353; 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 674, pp 863-866.

Defendant’s last contention is that the trial court erred in refusing testimony of his ignored requests to have the money examined for fingerprints. In the course of the trial, the following questions were asked defendant:

“Q. And did you suggest that they take fingerprints ?
“A. Yes, I did.
“Q. To establish who touched it?
“A. Yes, at my examination the lawyer requested that an expert * * *”

An objection was made at that point and sustained by the trial court. It appears that the objection pertained to the defendant’s narration of the lawyer’s request made at the examination rather than to the testimony regarding the failure to examine for fingerprints. From the record before us there is nothing to show that the court refused to admit competent testimony regarding the request to. examine the money for fingerprints. The court’s refusal of defendant’s testimony regarding his lawyer’s request was proper and did not prevent defendant from presenting his evidence in an admissible manner. The trial court did not err in sustaining the objection to defendant’s testimony as presented, nor was there error in the charge to the jury.

Affirmed.

Lesinski, C. J., and J. H. Gillis, J., concurred.

       CL 1948, § 750.357 (Stat Ann 1962 Eev § 28.589).—Beporter:


author: Lesinski, C. J.

text:
    PEOPLE v. THORNTON.
    1. Criminal Law — Driving Automobile While Under Influence of Intoxicating Liquor — Chemical Test.
    No requirement exists that a defendant charged with driving while under the influence of intoxicating liquor, after submitting to a chemical test administered by a police officer, be advised that he has a right to have a person of his own choosing administer another chemieal test (CLS 1961, § 257.625a, as amended by PA 1964, No 104).
    2. Same — Driving Automobile While Under Influence of Intoxicating Liquor — Breathalyzer Test.
    Admissibility of results of breathalyzer test to person charged with driving an automobile while under the influence of intoxicating liquor does not depend upon defendant being advised of his opportunity to have a blood test made at a specific hospital (CLS 1961, § 257.625a, as amended by PA 1964, No 104).
    3. Same — Driving Automobile While Under Influence of Intoxicating Liquor.
    Conviction of defendant, charged with driving an automobile while under the influence of intoxicating liquor, in case where the results of a breathalyzer test were introduced into evidence and where witnesses testified without contradiction that defendant was advised of his right to have a physieian of his own choosing conduct an additional test held, proper, and the fact defendant contends he was never offered an opportunity to take blood test does not affect the admissibility of the breathalyzer test (CLS 1961, § 257.625a, as amended by PA 1964, No 104).

      References for Points in Headnotes
    [1-3] 7 Am Jur 2d, Automobiles and Highway Traffic §§ 259, 260.
    Construction and application of statutes creating presumption or other inference of intoxication from specified percentages of alcohol present in system. 16 ALR3d 748.
    Constitutional right of one charged with intoxication to summon physician at accused’s own expense to make test for alcohol in system. 78 ALR2d 905.
    Degree or nature of intoxication for purposes of statute or ordinance making it a criminal offense to operate an automobile while in that condition. 142 ALR 555.

      Appeal from Recorder’s Court of Detroit; Wood (Andrew C.), J.
    Submitted Division 1 October 5, 1967, at Detroit.
    (Docket No. 2,353.)
    Decided March 19, 1968.
    Charlie Henry Thornton was convicted of operating a motor vehicle while under the influence of intoxicating liquor. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoshi, Solicitor General, William L. Cabalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

      Tauber & Garon, for defendant.
   Lesinski, C. J.

On May 25, 1966, the defendant was tried in the recorder’s court for the city of Detroit, traffic and ordinance division, in a nonjury trial on a charge of having operated a motor vehicle on March 26, 1966, while under the influence of intoxicating liquor. At trial, testimony of a police officer and the defendant disclosed that the defendant was in an automobile accident on the date charged in the complaint. Shortly after the accident the defendant was taken to a police station where an officer advised the defendant that if he wanted to, he could take a breathalyzer test. Additionally, the officer testified that he advised the defendant that he had the right to refuse to take such a test. The officer further testified the defendant was, advised that he could have a doctor of his own choosing- administer an additional test, such as a blood test, if he so desired. The defendant, in testifying along the lines above outlined, stated that he was not specifically advised that he had a right to go to Receiving- Hospital and have a blood test.

The results of the breathalyzer test, adverse to the defendant, were admitted into evidence at trial; and a conviction as charged followed.

We note that two witnesses for the prosecution testified that the defendant was specifically advised that he had a right to have a physician of his own choosing conduct a test in addition to the breathalyzer test. When the defendant testified, he did not .refute this testimony.

There is now no requirement under the amended statute that a defendant, after submitting to a chemical test administered by a police officer, be advised that he has a right to have a person of his own choosing administer another chemical test. People v. Church (1966), 5 Mich App 303. See also the comment by Professor Lionel Frankel on the effect of the amendment of the statute in the 1964 annual survey of Michigan criminal law and evidence (11 Wayne L Rev 92, 107). Here, of course, there is testimony that the defendant was advised that he could have his own physician administer an additional chemical test.

The thrust of defendant’s argument against admissibility of the test results is that defendant was not advised that he could have a blood test administered to him at a specific hospital, and that this constituted error. No law is quoted in support of this proposition, we find none, and onr own consideration of it does not incline us to enunciate any.

On appeal the defendant contends that he was never offered the opportunity to take a blood test and that therefore the results of the breathalyzer test were inadmissible pursuant to CLS 1961, § 257-,625a(3) (Stat Ann 1968 Cum Supp § 9.2325 [1] [3]). Defendant’s contention as to inadmissibility of the test results is erroneous. Our decision in this cause is controlled by People v. Church, supra; People v. Kerrigan (1967), 8 Mich App 216; People v. Collett (1967), 8 Mich App 419; People v. Alford (1967), 8 Mich App 211; and People v. Egner (1967), 9 Mich App 212.

Affirmed.

J. H. G-illis and T. Gr. Kavanagh, JJ., concurred.

       CLS 1961, § 357-635 (Stat Ann 1960 Bev § 9.2325),

       CLS 1961, § 257.625a, as amencte4 by PA 1964, No 404 (Stat Ann 1968 Cum Supp § 9.2325(1]),.


author: T. G-. Kavanagh, P. J.

text:
    KING v. PARTRIDGE.
    1. Intoxicating Liquors — Civil Damage Act.
    Civil damage act is not intended to apply to a wrongful taking of intoxicants hut to unlawful selling, giving ox furnishing (CLS 1961, §436.22). •
    2. Same — Civil Damage Act — Employee—Presumptions.
    An employee should he presumed to have followed orders of her employer, and her taking and consuming intoxicating liquors while working for her employer bar owner should be regarded as a taking with the knowledge and consent of the owner in an action against the owner under civil damage act in the absence of proof that the taking was contrary to her orders (CLS 1961, § 436.22).
    3. Master and Servant — Abuse of Discretion.
    An employer who leaves to his subordinates a discretion which they abuse is responsible as if he had approved their aetion.
    References for Points in Headnotes
    [1] 30 Am Jur, Intoxicating Liquors §§ 520, 526.
    Liability of persons furnishing intoxicating liquor for injury or death of consumer, outside coverage of civil damage acts. 54 • ALR2d 1152.
    Liability of innkeeper, restaurateur, or tavernkeeper for injury occurring on or about premises to guest or patron by person other than proprietor or his servant. 70 ALR2d 628.
    [3] 35 Am Jur, Master and Servant §§ 558, 559.
    Employment of incompetent, inexperienced, or negligent employee as independent ground of negligence toward one other than an employee. 8 ALR 574.
    [4] 5 Am Jur 2d, Appeal and Error § § 839-845.
    [5] 30 Am Jur, Intoxicating Liquors § 537.
    [6] 30 Am Jur, Intoxicating Liquors §§ 526, 543,
    [7] 58 Am Jur, Witnesses § 7,

      4. Appeal and Error — Evidence—Trial Court Fact Finding.
    Findings of fact by the trial court will not be set aside unless clearly erroneous or completely unsupported by the evidence.
    5. Intoxicating Liquors — Finding op Trial Court — Evidence— Proximate Cause.
    Evidence presented in action against retail liquor licensee for damages sustained by plaintiffs held, to sustain trial judge’s finding that defendant’s barmaid had served herself intoxicating beverages and continued to do so after becoming intoxicated, that defendant furnished the intoxicants to the barmaid, and that the intoxication caused plaintiffs’ injuries (CLS 1961, § 436.22).
    6. Same — Damages—Proximate Cause — Evidence.
    The liability of a retail liquor licensee for damage caused by an intoxicated person to whom intoxicating liquor has been furnished and which caused the intoxication is fixed by the civil damage aet and renders it unnecessary to require proof that the intoxication was the proximate cause of the injury (CLS 1961, § 436.22).
    7. Trial — Witnesses—-Pretrial Order.
    Court commits no abuse of discretion in refusing testimony of witness not listed, where both parties have agreed to a pretrial order requiring each party to supply the other with the names of all witnesses to be introduced, and where there has been, no showing to support a disregard of the order or' request to amend the order.
    Appeal from Genesee; Newblatt (Stewart A.), J.
    Submitted Division 2 November 7, 1967, at Lansing.
    (Docket No. 2,475.)
    Decided March 19,1968.
    Leave to appeal denied July 24, 1968.
    See 381 Micb 765.
    Plaintiffs, Marcus King, guardian of the estate of Rbonda King, and Marcus King and Olaudine King, brought action under the civil damage act against Pauline Partridge, formerly Pauline Lockard, and Virginia Payne, owner of Payne’s Bar. Judgment for plaintiffs. Defendant Payne appeals.
    Affirmed.

      Robert A. Collins (Donn D. Parher, of counsel), for plaintiffs.

      Caplan & Bar shy (Edward M. Miller, of counsel), for defendant Payne.
   T. G-. Kavanagh, P. J.

This is an appeal from a finding of the trial court that the defendant retail liquor licensee, Virginia Payne, was liable under the Michigan civil damage act, CLS 1961, § 436.22 (Stat Ann 1968 Cum Supp § 18.993), for the intoxication of and injuries caused by her barmaid, Pauline Partridge.

On February 3, 1962, Marcus King, his wife Claudine and daughter Rhonda were injured when the car in which they were riding was struck head on by a car driven by Pauline Partridge, a barmaid at Payne’s Bar. Action was started by the Kings against Pauline Partridge and Virginia Payne, owner of Payne’s Bar. Judgment was entered for plaintiffs.

Defendant Partridge did not defend the suit and this appeal is prosecuted by defendant Payne only. She asserts that the trial court erred in holding that the Michigan civil damage act, CLS 1961, § 436.22 (Stat Ann 1968 Cum Supp § 18.993), permitted recovery against a bar owner for damages caused by an intoxicated employee of the bar owner who had served herself intoxicating beverages while working at the bar.

The appellant contends that, absent proof that the employee served herself the owner’s liquor with permission, such service must be held to be a wrongful taking which could not render the bar owner liable under the civil damage act.

The pertinent part of the act reads:

CLS 1961, § 436.22 (Stat Ann 1968 Cum Supp § 18.993):

“Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, shall have a right of action in his or her name against the person who shall by such selling or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury.”

Thus the act is concerned with the “unlawful selling, giving or furnishing.” We agree with appellant that it is not intended to apply to a wrongful taking of intoxicants. We cannot, however, agree that under the circumstances of this case the taking by the employee must be held to be wrongful. Rather than presume the employee violated orders, we feel she should be presumed to have followed them; hence her taking, in the absence of proof to the contrary, should be regarded as a taking with the knowledge and consent of the owner. This, then, would be a furnishing or giving and, if the employee be intoxicated, unlawful under the act. The trial court’s holding was completely in accord with the responsibilities attaching to a master-servant relationship where an “employer, who leaves to his subordinates a discretion which they abuse, is responsible as if he had approved their action.” Smith v. Webster (1871), 23 Mich 297, 299.

Appellants next contend that the trial court erred in its findings, asserting on appeal that plaintiffs offered no proof to support their case and showed no causal connection between the barmaid’s alleged intoxication and the injuries suffered.

At the trial, plaintiff presented witnesses who testified as to Mrs. Partridge’s activities throughout the day while preforming her duties apparently as the only employee at defendant’s bar. Neither defendant testified, relying on the cross-examination of plaintiff’s witnesses to show that insufficient evidence existed to support the action.

The trial judge found that Pauline Partridge, while employed at Payne’s Bar, served herself intoxicating beverages, continuing to do so after she became intoxicated, that Virginia Payne furnished the intoxicants to the barmaid, and that the intoxication was the cause of plaintiff’s injuries.

A review of the record reveals that evidence did exist to support such a finding. Findings of fact by the trial court will not be set aside unless clearly erroneous or completely unsupported by the evidence. Hughson v. O’Reilly (1967), 7 Mich App 324. Such is not the ease here.

Having found that the barmaid was intoxicated, the court need not require proof that the intoxication was the proximate cause of the injury. The “act itself by a person intoxicated fixes the liability for the damage upon the person selling or furnishing the liquor which caused the intoxication.” Brockway v. Patterson (1888), 72 Mich 122, 128.

Defendant’s final assertion of error concerns the refusal of the court to hear the testimony of a witness who allegedly was discovered the evening before he was called to testify. The refusal was based on a stipulation between counsel and pretrial order requiring each party to supply the other with the names of all witnesses to be introduced. The name of this witness was not on defendant’s list and no satisfactory explanation was presented to the trial judge to justify the absence of prior discovery and notice of this witness. There was no showing of the importance of the testimony sought to be entered.

Where hoth parties have agreed to such a pretrial order and no request to amend the order was made, the court commits no abuse of discretion in refusing-witness’ testimony where there has been no showing to support a disregard of the order. Globe Cereal Mills v. Scrivener (CA 10, 1956), 240 F2d 330. Accordingly, the witness was properly excluded.

Affirmed. Costs to appellee.

Fitzgerald and McGregor, JJ., concurred.

       15 Callaghan, Michigan Civil Jurisprudence, Intoxicating Liquors, § 229, p 208.


author: T. G. Kavanagh, P. J.

text:
    ADELL v. ADELL.
    Divorce — Attorney Eees.
    Award of $37,250 in attorney fees, in divorce ease lasting 2-1/2 years, where a total of 1,480 hours were spent by the attorneys on the case held, proper, an award of 17 cents per hour above the recommended minimum fee of $25 an hour not being so excessive as to amount to an abuse of discretion.
    References for Points in Headnote
    7 Am Jur 2d, Attorneys at Law § 232 et seq.-, 24 Ana Jut 2d, Divorce and Separation §§ 571-585,
    Appeal from Oakland; Moore (Arthur E.), J.
    Submitted Division 2 November 7, 1967, at Lansing.
    (Docket No. 2,513.)-
    Decided March 19, 1968.
    Rehearing denied July 22,1968.
    Leave to appeal denied October 30, 1968.
    See 381 Mich 785.
    Complaint for divorce by Serene Adell against Robert Adell. Consent judgment for defendant on counterclaim for divorce. Defendant appeals award of attorney fees to plaintiff’s attorney.

      Honigman, Miller, Schwarts <& Gohn (Norman Hyman, of counsel), for plaintiff.

      Goldfarb, Htídnut é Harris, for defendant.
   T. G. Kavanagh, P. J.

After a bitter contest lasting approximately 2-1/2 years, Serene Adell’s suit for divorce against Robert Adell ended with a consent judgment in favor of defendant, Robert Adell. This appeal is from the trial court’s award of attorney fees to the lawyers for the plaintiff wife.

It is the appellant’s claim that the award was excessive and an abuse of discretion by the trial court.

The court found that the several counsel for plaintiff had spent a total of 1,480 hours on this case. There was evidence to support this finding. The court awarded a total of $37,250 in attorney fees. This is an average of $25.1689 per hour or approximately 17 cents more than $25 per hour which in the years 1964-1966, the time of this action, was a commonly recommended minimum fee in this area. See suggested minimum fee schedules of Detroit and Oakland County Bar Associations.

We cannot say that an award of 17 cents per hour above the recommended minimum fee as an evaluation of the services of plaintiff’s counsel is so palpably excessive as to amount to an abuse of discretion.

Affirmed, with costs to appellee.

Fitzgerald and McGregor, JJ., concurred.


author: R. M. Ryan, J.

text:
    MUTUAL BENEFIT LIFE INSURANCE COMPANY v. ABBOTT.
    1. Trial — Nonjury Case — Motion to Dismiss — Evidence—Court Rules.
    The trial court disposes of a nonjury case on the merits when deciding a motion to dismiss after dose of plaintiff’s evidence and is not bound to view the evidence in the light most favorable to the party attacked, but it may weigh and determine the faets as well as consider the sufficiency of evidence (GCR 1963, 504.2).
    2. Insurance — Construction of Questions and Answers in Application.
    Questions and answers in application for insurance ought to be construed liberally in favor of insured.
    3. Same — Evidence—Inferences.
    Testimony by doctor that he treated insured for infeeted cyst of his ear and during the visit diagnosed the possibility of a duodenal uleer and prescribed medieine, but that he was not sure whether he told insured of the diagnosis, might lead to an inference that insured had knowledge that he had a stomach or duodenal ulcer when he applied for the insurance, but this is not the only reasonable inference to be drawn.
    References for Points in Headnotes
    [1] 53 Am Jur, Trial § 1126.
    [2] 29 Am Jur, Insurance § 262.
    [3] 29 Am Jur 2d, Evidence § 221.
    [4] 5 Am Jur 2d, Appeal and Error § 839 et seq.

    [5] 29 Am Jur, Insurance § 368 et seq.

    [6, 7] 29 Am Jur, Insurance § 698 et seq,

    [8] 29 Am Jur, Insurance § 694,

      4. Appeal and Error — Questions of Pact — Nonjury Case — Preponderance of Evidence.
    An appellate court does not substitute its judgment on factual questions in nonjury cases for that of the trial judge unless the facts clearly preponderate in the opposite direction.
    5. Insurance — Misrepresentations Affecting Assumption of Risk.
    An insurance poliey may be cancelled for a false statement in application for reinstatement of disability insurance poliey, if the false statement materially affected either the acceptance of the risk or the hazard assumed by the insurer (CLS ' 1961, § 500.2218).
    6. Same — Misrepresentations-—Knowledge of Applicant.
    Truth of a representation, in insurance law, refers to a truth synonymous with sincerity and lack of fraud, and the truth or falsity of a representation on application for reinstatement of an insurance poliey should be examined in the light of what the applicant-knew or had reason to know at the time of his application.
    7. Same — -Representations—Omissions—Evidence.
    Trial court’s finding that defendant insured’s failure to mention emotional troubles and frequent headaches and nausea, for which he had been treated by 2 doctors, in answering question whether he had had any illness in last 5 years on application for reinstatement of insurance policies, was not a misrepresentation justifying rescission in action by insurance company held, supported by the evidence, where defendant in answering the questions on the form listed data about a hemorrhoidectomy but did not answer “yes” to question whether he had had any illness, and Ms physician testified that he had prescribed medicine for a duodenal ulcer but did not know whether he had told defendant of his diagnosis of duodenal ulcer.
    8. Same — Material Pacts — Acceptance of Risk.
    An applicant for reinstatement of an insurance poliey is not specially equipped to determine what facts are material to acceptance of a risk, and although he may be expected to answer in good faith the questions put to Mm, he is not expected to bring an understanding of medicine beyond that of the medical profession to the problem of materiality.

      Appeal from Saginaw; O’Neill (James E.), J.'
    Submitted Division 3 April 5,1967, at Grand Rapids.
    (Docket No. 2,629.)
    Decided March 20, 1968.
    Complaint by Mutual Benefit Life Insurance Company, a New Jersey corporation, against Prank P. Abbott to rescind 3 disability insurance policies on the basis of alleged misrepresentations by defendant. Defendant’s motion to dismiss granted at close of plaintiff’s proofs. Plaintiff appeals.
    Affirmed.

      Wolf, Walker & Stenglein, for plaintiff.

      Martin é Martin, for defendant.
   R. M. Ryan, J.

Plaintiff brought suit against defendant, its insured, to rescind three separate disability insurance policies on the basis of alleged material misstatements of fact regarding defendant’s prior medical history at the time of filling out application forms for the policies and again on defendant’s application for reinstatement of the policies after he had defaulted on payment of premiums. The case was tried before the court without a jury, and at the conclusion of plaintiff’s proofs, defendant’s motion to dismiss was granted. Plaintiff appeals.

In July, 1956, plaintiff had in effect two life insurance policies on the life of defendant and at that time issued supplementary disability policies. Later in the same month, plaintiff issued another life policy on defendant’s life with a supplemental disability policy. Thereafter defendant defaulted in the payment of premiums due on all of these policies. With reference to the three life insurance policies, plaintiff has taken the position that by reason of their terms these policies are incontestable, and accordingly only the validity of the disability policies is being challenged.

In Part II of the applications for insurance filled out in 1956, defendant answered questions relating to his health as follows:

“29. Have you ever had: * * *
“C. Ulcer of stomach or duodenum, appendicitis, jaundice, indigestion, disorder of gall bladder or rectal disease? No. * * *
“E. Frequent headaches, paralysis, dizziness, loss of consciousness, epilepsy, nervous breakdown, mental disorder? No.”

On June 30, 1958, defendant signed an application for reinstatement of the latest of the life policies issued by plaintiff and its supplementary disability policy. This application for reinstatement under Item 3 is as follows:

“3. A. Have you reason to believe that you are or may be mentally or physically impaired in any way? No.
“B. Have you during the last five years had any illness? No.
“C. Have you during the last five years received the services of a physician or an institution for electrocardiographic or X-ray studies, treatment, observation, diagnosis or a routine examination? Yes.
“(If answer is ‘yes’ to any of the above questions, give reason, date, duration and names of all hospitals and attending physicians.)
“April, 1957. Hemorrhoidectomy. Bobert Holesar, M.D. 10 days in hospital, Saginaw General.”

On March 25, 1960, defendant signed an application for reinstatement of the other two life insurance policies with their accompanying disability policies and he answered the above questions in substantially the same manner.

All the policies mentioned above were reinstated following the filing of these applications.

On March 12, 1963, defendant applied for disability benefits, and in his application he presented the following information:

“4. A. Date of accident or of commencement of sickness.
(Month) (Date) (Year)
March 11 1957
“B. Nature of injury or sickness.
Ulcers and hemorrhoids and subsequent emotional problems.
“C. When, because of accident or sickness, did insured stop work?
(Month) (Date) (Year)
December 31 1958”

In its complaint, plaintiff alleges that in filling out the original applications for insurance in 1956 and in the application for reinstatement of the policies filled out in 1958, defendant made a material misstatement of fact regarding his prior medical history in that he failed to disclose that he had been treated for ulcers by a physician in 1956 and thereafter, and that he suffered from frequent and severe headaches, nausea, and emotional disturbance beginning in March of 1956.

With reference to the applications for insurance filled out by defendant in 1956, plaintiff contends that there was sufficient proof to sustain its claim of material misstatement of fact, that the trial court should have made a reasonable inference from proven facts which were that defendant related to Doctor Kolesar subjective symptoms and complaints in March of 1956 which the doctor interpreted as being possibly caused by an ulcer, and that although the doctor did not inform defendant of his diagnosis, the symptoms should have reasonably put the defendant on notice of his condition. Plaintiff asserts that in deciding defendant’s motion to dismiss the trial court was bound to consider the evidence in the light most favorable to plaintiff. The case of Attwood Brass Works v. Aero-Motive Manufacturing Company (1957), 347 Mich 693, cited in support of plaintiff’s proposition, was decided before the General Court Rules of 1963 had come into effect, and it is not dis-positive of the matter before us. GCR 1963, 504.2 and the committee notes thereto (2 Honigman & .Hawkins, Michigan Court Rules Annotated [2d ed], pp 329-30) indicate that when a case is tried by the court without a jury, the court may weigh and determine the facts as well as consider the sufficiency of the evidence as a matter of law. That is to say, when deciding the motion to dismiss, the court disposes of the case on the merits, and it is not hound to view the evidence in the light most favorable to the party attacked. Justice Dethmers spoke of the reason for this rule in his dissenting opinion in David v. Serges (1964), 373 Mich 442. There is no sensible reason, said he (p 447),

“for splitting the judge into 2 entities, one as determiner of the facts and the other of the law, and then applying • different rules, on review, as to the manner in which the evidence is to be viewed, depending on whether his honor is thought to have made his decision in his former or his latter role.”

It should he borne in mind that questions .and answers in an application for insurance are to he construed liberally in favor of the insured. McKinney v. Liberty Life Insurance Company of Illinois (1933), 263 Mich 490. At the trial, defendant’s family doctor testified that he saw defendant on March 12, 1956, for an infected cyst of his right ear. During that visit, defendant complained of gastrointestinal symptoms which the doctor diagnosed as possibly being produced by a duodenal nicer, and he prescribed medicine. This was the only evidence relating to treatment for an nicer which was introduced at the trial. There was no positive evidence that defendant was informed that the medicine was prescribed for an ulcer. The doctor testified that he could not say with certainty whether he had communicated his diagnosis to defendant. When defendant was hospitalized in 1957 for a hemorrhoidectomy, X rays confirmed the earlier diagnosis of an ulcer, and the doctor communicated the X-ray diagnosis to defendant. But there was no evidence whatever that defendant was treated for an ulcer at any time except as mentioned above.

Although there possibly might be an inference from the proven facts that defendant had knowledge of a stomach or duodenal ulcer when he applied for the insurance in July, 1956, we are not prepared to hold as a matter of law that it is the only reasonable inference. It is not normally the role of this Court to substitute its judgment on fact for that of the trier of fact (see Bradshaw v. Blaine [1965] 1 Mich App 50), and we decline to do in this instance.

Plaintiff further contends on this appeal that at the time defendant made application for reinstatement of the policies, defendant was under duty to disclose that he did have an ulcer and emotional disturbance prior to making out the applications, that defendant’s omission of these facts then known to him makes his statements in the application false, and that plaintiff relied on the information contained in the application mentioned in reinstating the policies which would not have been reinstated if the company had been apprised of defendant’s ulcer and emotional disturbance. Plaintiff contends that, even though the false statements or omissions were made without intent to deceive the insurance company, the latter would nevertheless have the right to refuse reinstatement. Onr attention in this regard is directed to Manufacturers Life Insurance Company v. Beardsley (1961), 365 Mich 308. At the time the policy was issued in Beardsley, the former statute, CL 1948, § 522.17 (Stat Ann 1943 Rev § 24.280), was in effect. Prior to its repeal hy PA 1956, No 218, effective January 1, 1957, that section provided:

“The falsity of any statement in the application for any policy covered hy this chapter shall not bar the right to recovery thereunder unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”

The Court pointed out in Beardsley that the chancellor did not find intentional misrepresentation by the insured, but instead planted his decree upon the material effect the false statement had upon the insurer’s acceptance of the risk. The Court recognized the holding in Prudential Insurance Company of America v. Ashe (1934), 266 Mich 667, that an insurance policy may be cancelled for an untrue statement made in good faith or even in ignorance of its falsity, if such misrepresentation materially affected the assumption of risk by the insurer. However, our Court in Lipsky v. Washington National Insurance Company (1967), 7 Mich App 632, had occasion to consider this argument and pointed out that Michigan precedents can be found both for and against it. See, also, Ranger, Inc. v. Equitable Life Assurance Society of United States (CA 6, 1952), 196 F2d 968.

At the time the policies were reinstated in the instant case, the new insurance code, CLS 1961, § 500.2218 (Stat Ann 1965 Cum Supp § 24.12218), was in effect. Under this section, it is provided that the falsity of any statement in the application for any disability insurance policy covered by the applicable chapter of the insurance code may not bar the right to recovery thereunder unless such false statement materially affected either the acceptance of the risk or the hazard assumed by the insurer. As pointed out in Lipsky, supra, this statute offers little help on the question raised by appellant as its emphasis is upon the materiality of any representation.

The main question, however, in the instant case is whether defendant really made false answers to the questions contained in the application for reinstatement of insurance and whether he was under duty to disclose that he had received treatments for ulcers and emotional problems beginning in March 1956.

In Franklin Life Insurance Company v. William J. Champion & Company (CA 6, 1965), 350 F2d 115, 123 certiorari denied (1966), 384 US 928 (86 S Ct 1445, 16 L ed 2d 531), Judge McAllister observed that, in insurance law, the truth of a representation refers to a truth synonymous with sincerity and lack of fraud, rather than to the literal meaning of truth, which is relating things exactly as they are. The truth or falsity of a representation on an insurance policy should be examined in the light of what the applicant knew or had reason to know at the time of his application.

When we look at the questions and answers set forth in the application for reinstatement, we do not believe the trial court was in error in finding that there was no material misrepresentation of fact entitling plaintiff to rescind the policies. While it is true that in answer to the question: “Have you during the last five years had any illness?” the defendant answered “No”, he could have honestly believed that to be the fact. What is meant by “illness” to one individual may have an entirely different meaning to another individual. We believe the evidence supports the conclusion that Mr. Abbott did not believe be had any “illness” prior to filling out the application for reinstatement. In answer to the question as to whether during the past five years he had received the services of a physician for “treatment, observation, diagnosis or a routine examination”, Mr. Abbott answered “Yes” and gave the reason, date, duration and name of the hospital and attending physician as instructed by stating: “April, 1957. Hemorrhoidectomy. Robert Kolesar, M.D., 10 days in hospital, Saginaw General.”

Plaintiff contends that defendant omitted to state that he had sustained emotional problems, had frequent headaches and nausea and had received treatments from two doctors to relieve him of these difficulties. The record does not show what kind of treatments were given, and it is possible that only some form of medicine was prescribed or psychiatric treatment given. It is also possible that the emotional condition was temporary and not serious in nature. There is no record of any hospitalization because of the complaints mentioned. As these questions and answers ought to be construed liberally in favor of the insured, we cannot say that defendant’s omission to disclose the facts about his emotional problems and his headaches and nausea constitutes a material misstatement of fact in answer to the questions referred to. Certainly there is nothing in the record to indicate that Mr. Abbott believed that the conditions mentioned were symptoms of any serious ailments. That defendant attempted to answer the questions honestly and to the best of his ability is borne out by the fact that in answer to the specific question regarding treatments by a physician, he truthfully answered that he had been hospitalized, named the doctor who treated him and gave the reason for his hospitalization. It would have been a simple matter for the insurer to ask specific questions relating to the insured’s physical condition as it existed prior to the application for reinstatement to elicit the information desired. This it did not do. Neither did the insurance company investigate the medical history of the ailment reported.

As pointed out by the Court in Franklin Life Insurance Company v. William J. Champion & Company, supra, p 129, it must be remembered:

“ ‘The insured is not specially equipped to determine what facts are material to the acceptance of a risk. He may be expected to answer in good faith the questions that are put to him, but not to bring an understanding of medicine beyond that of the medical profession to the problem of materiality.’ ”

The burden of proof was upon plaintiff to prove the material misstatements alleged in its complaint. The facts and the inferences to be drawn from the evidence introduced by plaintiff were for the trial court to determine. It is our conclusion that the trial court’s findings on defendant’s motion to dismiss were supported by the evidence, and in accordance with the foregoing, we hold that the trial court properly dismissed the complaint.

Affirmed. Costs to appellee.

Burns, P. J., and Holbrook, J., concurred.