text:
    PEOPLE v. BROCKETT.
    1. Criminal Law — Evidence—Confessions—Coercion—Duress.
    The confession of a young man under arrest on a criminal charge, signed by him after he had spent two nights on the cement floor of a cell without any bed, and after being persistently importuned by the officers to confess, was in- • admissible in evidence, having been obtained by coercion.
    2. Same — Voluntary Confession — Coercion—“Sweating.”
    4. confession, to be admissible, must be voluntary; that is, of the free will and accord of the defendant, without coercion whether from fear of any threat of harm, promise or inducement by hope of reward, or method known as “sweating.”

      3. Same — Involuntary Confession — Harmless Error.
    It cannot be said that tbe admission of an involuntary confession was harmless error because there was sufficient evidence without the confession to warrant a conviction.
    4. Trial — Requests to Charge — Criminal Law — Confessions.
    A requested instruction to the jury that a so-called confession must be carefully scrutinized and weighed, and the burden is upon the people to show that it was made voluntarily, should have been given; and the charge as given, which did not challenge the attention of the jury to their duty to scrutinize and examine the alleged confession with great caution, was erroneous. People v. Borgelto, 99 Mich. 336.
    5. Criminal Law — Robbery—Assault—Instructions as to Lesser Offense.
    Under an information charging assault with intent to rob, an instruction that the offense included simple assault, followed by requiring a conviction as charged if respondent should be found guilty under the evidence and the law, was erroneous in that the jury were not distinctly instructed that they might find a verdict of simple assault only.
    Exceptions before sentence from superior court of Grand Rapids; Dunham, J.
    Submitted January 11, 1917.
    (Docket No. 154.)
    -Decided March 29, 1917.
    William Brockett was convicted of assault with intent to rob, being armed with a dangerous weapon.
    Reversed.

      Alex. J. Groesbeck, Attorney General, Cornelius Hoffius, Prosecuting Attorney, and Fred P. Geib, Assistant Prosecuting Attorney, for the people.

      Victor Hilding (Louis T. Herman, of counsel), for respondent.

       The note referred to in the opinion herein, 18 L. R. A. (N. S.) 796, on voluntariness of confession made under arrest has been supplemented in 50 L. R. A. (N. S.), at page 1084.

   Stone, J.

This case is before this court upon exceptions before sentence. The defendant, 19 years old, was arrested jointly with one Felix Bala, for assault with intent to rob one Frank Kozak, they being armed with a dangerous weapon, to wit, a gun.

In the superior court of Grand Rapids the defendant was informed against alone, and was convicted of the offense as charged in the information. The offense is alleged to have been committed on the 8th day of February, 1916, at about 8:15 p. m., at the rear of Kozak’s store on the east side of Diamond street in the city of Grand Rapids. The only eyewitness to the transaction was the said Frank Kozak. He claimed to have recognized the boys in the dark by “their voice and walk,” and his previous acquaintance with them; and he also added that he recognized them by their clothes. It was the claim of Kozak that the assault occurred at the rear of his store as he was passing out of the door. His testimony tended to show: That the faces of the boys were covered by a sort of mask, that they approached him and made a demonstration commanding him to hold up his hands, and that defendant said: “We want to see your pockets, otherwise we will blow your guts out.” That he then shut the door, waited a few moments, and went out, but the boys had in the meantime run away. There was some indefiniteness in the testimony of Kozak as to the recognition of the defendant. Both the boys were arrested that night about 11 o’clock, having been found at their respective homes. They were taken to police headquarters, separated, and the defendant, who had never been arrested before, was put in a cell the floor of which was cement, and the only furniture in it -was a stool. He testified, and his testimony was undisputed, as follows:

“They put me in a cell; there was just a big place of cement inside. There were no beds. There was just a toilet and a place to get a drink; that is all that was in there. * * * There was no bed in that cell; just a cement floor.”

Defendant was arrested on Tuesday night. The next morning he was taken to the chief of police’s office, where he was interviewed by the chief of police. He denied any knowledge of the attempted holdup. He was then taken back to his cell, and seems to have been taken into the office of the chief of police on a number of occasions. The chief of police himself testified:

“I asked this boy questions a number of times. I would keep asking him questions. I don’t remember just how I asked certain questions. In our method we have to ask questions if we' want to get the truth out of them.”

He remained in this cell until Thursday about noon, having spent two nights there upon the cement floor. The defendant was on Thursday taken to the office of the chief of police, and in the presence of the assistant prosecuting attorney, Glocheski, the chief of police, Albert A. Carroll, Frank Kozak, and detectives John O’Leary and Warren Sturgis, a statement was taken from him in answer to questions in the main put by the assistant prosecuting attorney, which covers about ■eight pages of the printed record, which statement was signed by defendant, and purports to have been sworn to by him before a notary public. After detailing at great length the commission of the offense charged, the statement closes in the following language :

“Q. Now all of these statements you have made here, Mr. Brockett, are made of your own free will, are they not? ■ ,
“A. Yes.
“Q. You have not had any promises from the chief of police, Mr. Carroll, nor from the prosecutor or any one else?
“A. No.
“Q. You make them of your own free will.
“A. Yes.
“William Brockett, being first duly sworn, deposes and says that the foregoing statements are true, and he made them of his own free will without any promises from the prosecutor’s office nor the chief of police, nor the detectives in this case.”

Upon the trial of the case there was evidence offered tending to show that the defendant was informed of his constitutional rights before making his statement. This was testified to by the assistant prosecuting attorney and the chief of police. William Sturgis had testified in police court that defendant was not informed of his constitutional rights until after the so-called confession was made, and it was excluded by the police court. Neither the witness John O’Leary nor the stenographer testified upon the subject.

It was the claim of the defendant, and he testified’ thereto, that he was not guilty of the offense charged,, that he was not cautioned before making his statement, that he was kept in the cell two nights without any bed and slept on the cement floor, and was in what he termed a “nervous condition”; he testifying:

“They went after me pretty rough; they kept digging at me wanting me to tell, telling me all kinds of stuff; that I would get out of it, and such as like that. They got me so upset that I thought it would be all right if I would tell, then I would get out of it all right, so then I told.
“Q. What did you tell them?
“A. I told them just the way they told me. * * * They told it to me several times over so I understood it, and I up and told it to them the same way they told it to me. * * * I just followed the statements as they made it to me. * * * Mr. Carroll said I would get out of it if I told the truth about it, and he wouldn’t listen to me tell what was really true, so I had to tell what he wanted me to. * * * I offered to tell the truth when I first started, but they wouldn’t listen to the truth, so I thought the easiest way to get out of it, I was willing to do it. * * * They told me I would get clear if I told the truth, and I tried to tell the truth when I first started, but they wouldn’t listen to it; they said it was no such thing as that at all. They tried to tell me that I was telling a lie when I was trying to tell the truth. * * * I was rattled up; I don’t hardly know which one was talking; they were both talking all the time together. * * * They drilled me for a day and a half before they ever had me say what I did. They had been drilling at me telling me all about this and asked me questions if I did it, telling me how it was done and all about it. Then of course I knew how it was done; I could get up and tell it. * * *
“Q. Didn’t he tell you he wanted you to tell the truth?
“A. Yes, but he wanted me to tell it so that I did it, and I thought the best way, if I could get out of it, I would tell it that way. * * * The next morning after' my arrest Carroll and Sturgis talked to me. They asked me if I knew about it. I says, ‘No, I don’t know anything about it.’ Then they tried to say I did it, and I said, T didn’t do it,’ then they took me downstairs. Then they brought me up again.
“Q. What did they say to you that time?
“A. The same as they did before. They kept saying the same thing right over. They were telling me all about it, and asked me if I didn’t do that, and asked me if I didn’t stick a gun at him, and asked me if I didn’t hold him up, and asked me if I wasn’t there, and everything like that. * * * The first that they ever said to me to get me much scared was: ‘If you can’t tell the truth, we will have to hang you.’ * * * Then Carroll got mad and said, ‘If it lies in my power I will send you to Jackson prison.’ When he said that, then afterwards I told him about it. * * *
“Q. What was it they said to you?
“A. They said, ‘You will get out of it all right if you tell the truth;’ but he says, ‘If you don’t tell the truth you can’t get out of it then.’
“Q. Did you think you could get out of it if you made the statement?
“A. Yes, sir. * * * I believed if I made the statement that they would, not do anything to me. I had no attorney up to that time. After-1 signed it he told me what it was, but I never knew until — not until this morning that it was ever to be used against me.”

The foregoing testimony of defendant was denied by Carroll and others. The defendant testified that the statement was never read over to him, and that he never swore to it, but in this he was. contradicted by the people’s witnesses. The statement had been typewritten by the stenographer who took it, and defendant signed it some time after the statement was made. The court admitted the so-called confession in evidence over the objection and exception of defendant’s counsel.

The court was requested to charge the jury as follows:

“I charge you, gentlemen of the jury, that the so-called confession and statement of the respondent, William Brockett, before the police officer must be most carefully scrutinized and weighed, and the burden of proof is upon the people to show that the statement was made voluntarily, without any influence being exerted by the officer, either by threats or promises of any kind.”

This request was not given, but in its charge to the jury the court did use the following language:

“If you find that this alleged written confession was made by the respondent here voluntarily, that it was ■not made because of any promise of leniency being extended to him if he made it, and if you find that it was made by him not because of any promise, or any threat, coercion or intimidation, but that it was voluntarily and freely made by him, then you are to consider it as and with the other evidence in the case. If you find that this alleged confession was made simply because of promises held out to him, and which he believed, and if you find that those promises were the inducement causing the respondent to make such written confession, and that he would not have made it if it had not been for such promises, threats or intimidation, then you will discard and disregard it entirely ; otherwise, if you find beyond a reasonable doubt that it was freely and voluntarily made, then you will consider it as part of the evidence in this case. A confession freely and voluntarily made may be among the most effectual proof and is so regarded in law. But, as I have said, to make it admissible as evidence, it must be freely and voluntarily made, and you must so find beyond a reasonable doubt before you can consider it as evidence.”

The court also charged the jury in the following language:

“I might say to you also that included in this offense is that of simple assault. If you find that this respondent was there on the night in question and pointed a revolver at this complaining witness, within three or four feet, or within two or three feet as he testifies, but that he did it without intending to frighten him, or without intending to shoot him, or without intending to rob him, then he would be guilty of simple assault. * * * If you should find the respondent guilty under the evidence and the law as I have given it to you, you will return a verdict of guilty as charged. If you do not so find, .under the instructions I have given you, your verdict will be not guilty.”

The jury having found the defendant guilty as charged, there was a motion for a new trial based upon many reasons, among them being:

Because the verdict was contrary to the weight of the evidence.
Because the court erred in admitting the so-called confession for the reason that it was not a voluntary confession.
That the court erred in not instructing the jury as requested by defendant’s, counsel.
That the court erred in directing the jury that if they found the defendant guilty, they must return a verdict of guilty as. charged in the information.

The motion for a new trial was overruled and exceptions duly taken, and the same questions are here presented by numerous assignments of error.

A careful reading of the record in this, case has satisfied us that the so-called confession of the defendant should not have been received in evidence; or if received in evidence in the first instance, after it had appeared by the uneontradicted testimony of the defendant that he had been confined in the manner testified to by him for the length of time there stated, and had been persistently importuned by the officers to make. a confession, the same should have been withdrawn from the consideration of the jury. We need only to cite our own eases upon this point. Flagg v. People, 40 Mich. 706; People v. Wolcott, 51 Mich. 612 (17 N. W. 78); People v. Stewart, 75 Mich. 21 (42 N. W. 662); People v. Clarke, 105 Mich. 169 (62 N. W. 1117); People v. Prestidge, 182 Mich. 80 (148 N. W. 347); People v. McClintic, 193 Mich. 589 (160 N. W. 461).

An instructive case is that of Ammons v. State, 80 Miss. 592 (32 South. 9, 92 Am. St. Rep. 607), reported with very ample notes in 18 L. R. A. (N. S.) at page 768. It was there held distinctly that the confession by a prisoner after being confined for several days in a “sweat box” is not admissible in evidence against him, although no threats or offers of reward were made to coerce, and he was. merely told that it would be better for him to tell the truth. After describing the sweat box the court said:

“The prisoner was allowed no communication whatever with human beings. Occasionally the officer, who had put him there, would appear, and interrogate him about the crime charged against him. To the credit of our advanced civilization and humanity it must be said that neither the thumbscrew nor the wooden boot was used to extort a confession. The efficacy of the sweat box was the sole reliance. * * * The officer, to his credit, says he did not threaten his prisoner, that he held out no reward to him, and did not coerce him. Everything was 'free and voluntary/ He was perfectly honest and frank in his testimony, this officer was. He was intelligent, and well up in the law as applied to such cases, and nothing would have tempted Mm, we assume, to violate any technical requirement of a valid confession — no threats, no hope of reward, no assurance that it would be better for the prisoner to confess. He did tell Mm, however, ‘that it would be best for him to do what was right/ and that ‘it would be better for him to tell the truth/ In fact, this was the general custom in the moral treatment of these sweat box patients, since this officer says, T always tell them it would be better for them to tell the truth, but never hold out any inducement to them.’ He says, in regard to the patient, Ammons, T went to see this boy every day, and talked to him about the case, and told him it would be better for him to tell the truth; tell everything he knew about the case.’ This sweat box seems to be a permanent institution, invented and used to gently persuade all accused persons to voluntarily tell the truth. Whenever they do tell the truth — that is, confess guilt of the crime — ■ they are let out of the sweat box. Speaking of this apartment, .and the habit as to prisoners generally, this officer says: ‘We put them in there [the sweat box] when they don’t tell me what I think they ought to/ This is refreshing. The confession was not competent to be received as evidence. 6 Am. & Eng. Enc. of Law, p. 531, note 3; Id., p. 550, note 7; Hamilton v. State, 77 Miss. 675 (27 South. 606); Simon v. State, 37 Miss. 288. Defendant, unless demented, understood that the statement wanted was confession, and this only meant release from this, ‘black hole of Calcutta.’ Such proceedings as this record discloses cannot be too strongly denounced. They violate every principle of law, reason, humanity and personal right. They restore the barbarity of ancient, and medieval methods. They obstruct, instead of advance, the proper ascertainment of truth. It is far from the duty of an officer to extort confession by punishment.”

The case was reversed upon that sole ground. That such confessions are obtained by duress, see State v. Miller, 61 Wash. 125 (111 Pac. 1053), reported with notes in 1912B, Am. & Eng. Ann. Cas. 1053; People v. Loper, 159 Cal. 6 (112 Pac. 720), reported in 1912B, Am. & Eng. Ann. Cas. 1193; Commonwealth v. Mc Clanahan, 153 Ky. 412 (155 S. W. 1131), reported in 1915C, Am. & Eng. Ann. Cas. 132.

Proof of a confession is never admissible unless it is voluntarily made, and by the word “voluntary” is meant that the confession must be of the free will and accord of the defendant, without coercion whether ■from fear of any threat of harm, promise or inducement by hope of reward, or method known as “sweating.”

In our opinion the means used by the uncontradicted evidence in the instant case must have so agitated the mind of the defendant as to arouse his fear, and to have a coercive effect. Therefore the confession was not voluntary. We do not mean to hold that a voluntary confession may not be made by one charged with crime and under arrest, for such confessions often ;have been admitted, and will be admitted by the courts ns competent, but they should come from the defendant under such circumstances as show them to be made of his free will, and with full and perfect knowledge of their nature and consequences, free from the dictation and coercion of others.

It is said on behalf of the people that there was sufficient evidence to warrant a conviction of . the defendant without the confession. Without conceding that this is true (for it appears to us that the 'case was a close one upon the facts), yet it should be said that the fact that evidence other than the alleged confession was sufficient to justify a conviction did not make the admission of the confession, improperly extorted, harmless, as it cannot be said what weight the jury gave to the confession in reaching their verdict.

We are of the opinion that the request to charge, proffered by defendant, or its substance, should have been given by the trial court. The charge, as given, did not clearly challenge the attention of the jury to their duty to scrutinize and examine the alleged confession with great caution. For language appropriate in such a charge, as approved by this court, see People v. Borgetto, 99 Mich. 336, 338 (58 N. W. 328).

Although the trial court, in its charge, stated that a simple assault was involved, the jury were not distinctly instructed that they might find a verdict of simple assault only. At least the closing words of the charge are inconsistent with that idea, and such we understand to be the view of the learned trial judge, for he says, in denying the motion for a new trial:

“The fourteenth assignment, I think, is not error, as the court remembers correctly no request was made for such a charge, and a vérdict of that kind would not have been supported by the evidence.”

This relates to the specific point that the court erred in not charging the jury that they could bring in a verdict of simple assault. The rule as to conflicting charges is stated in Madill v. Currie, 168 Mich. 546, 560 (134 N. W. 1004). We find no other reversible error in the record.

For the errors pointed out the conviction of the defendant is set aside and reversed, and a new trial ordered.

Kuhn, C. J., and Ostrander, Bird, and Brooke, JJ., concurred with Stone, J.

Moore and Steere, JJ., concurred in the result.

Fellows, J., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    KEZELI v. RIVER ROUGE LODGE, NO. 410, INDEPENDENT ORDER OF ODD FELLOWS.
    1. Frauds, Statute of — Landlord and Tenant — Oral Lease.
    A verbal agreement to rent premises “for a long term of years, at a rental to be afterwards agreed upon,” is not only void within the statute of frauds, but is too vague and indefinite to be valid.
    2. Appeal and Error — Evidence—harmless Error — Curing Error — Instructions.,
    In an action by a tenant against his landlord, error in admitting testimony as to a void lease was rendered harmless by the court’s charge instructing the jury that the lease was void, and to find no damages on that branch of the case.
    3. Landlord and Tenant — Loss of Profits — Evidence—Directed Verdict.
    In an action by a tenant against his landlord for loss of profits because the building was not put in proper repair, as agreed, after being moved to a new location, evidence examined, and held, too indefinite to be submitted to the jury as the basis of recovery.
    4. Same — Holding Over — Presumptions.
    Where, after the expiration of a lease, a new bargain was made, whereby the building was to be moved and the tenant was to remain under a different rental, coupled with the agreement of the landlord to promptly repair, the presumptions as to the tenant holding over do not apply.
    5. Same — New Lease — Agreement to Repair — Question for Jury.
    Where the question of the landlord’s agreement to make repairs was in dispute, it was properly submitted to the jury.
    Error to Wayne; Van Zile, J.
    Submitted January 19, 1917.
    (Docket No. 120.)
    Decided March 29, 1917.
    Case by Kalman Kezeli against River Rouge Lodge, No. 410, Independent Order of Odd Fellows, for damage to plaintiff’s business through defendant’s failure, as landlord, to repair premises as agreed. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Seneca C. Traver and Ignatius J. Salliotte, for appellant.

      Daniel P. Cassidy, for appellee.
   Stone, J.

Action to recover damages, by tenant against landlord for rendering premises, untenantable, and damage to his business.

The theory of the plaintiffs claim is that in the month of May, 1913, he was in possession of a building known as 2214 West Jefferson avenue, Detroit, where he carried on a grocery and meat market business. Said building belonged to the defendant, and there was an outstanding lease to Gunsberg Bros., which expired July 1, 1913; that, while plaintiff took no> formal assignment of such lease, he went into possession by consent of former tenant, was recognized by the defendant as its tenant, and was paying a monthly rental of $30 to defendant; that in April, 1913, the board of building trustees of the defendant, in charge of such building, notified the plaintiff that defendant intended to move the building from said location to West End avenue, around the corner, and build a new building on the West Jefferson site; that they agreed to put the moved building in good condition, suitable for plaintiffs business, as soon as it was moved, if plaintiff would continue to occupy it, and further promised “said plaintiff that, after the erection of said new building on West Jefferson avenue, said defendant would lease said new building on West Jefferson avenue to the said plaintiff for a long term of years at a rental to be afterwards agreed upon.”

• The plaintiff avers that he accepted said proposition. He further claims that about the middle of May, 1913 (the plaintiff still occupying the building and carrying on his said business), defendant raised the building four feet above the sidewalk and rested the same on blocks preparatory to moving, but seemingly forgot about it and left it in that condition for seven weeks; that the entrance to the shop was . bad, and plaintiff was obliged to place boxes in front, to enable customers to get in and out thereof; that finally, about the last day of June, defendant’s employee started the actual moving of the building, and on-the next afternoon the moving of the building to the new site was completed; that while it was being moved it was necessary for plaintiff to station a man at the door to help customers in and out of the store; that, as a result ■of moving the building, it was badly damaged both inside and out; that the roof was left in bad shape, and leaked in many places, the plaster and walls fell down, and the entrance and steps were out of repair; that there was no toilet, no water or gas connected with the building, as formerly.

Plaintiff claims that, because of the damaged condition of the building, he had great trouble in conducting business; that the side fell down, and the rain came in through the leaky walls and roof, and customers had difficulty in getting into and out of the store; that the store could not be kept clean because there was no water in the building, and he had to use kerosene lamps to light the store, and two women fell and were injured because of the defective steps; and that his business fell off to the extent that, instead of making a profit, he suffered a loss. The plaintiff claims that defendant did not put the building in repair as promised, and after many and constant complaints he was obliged to and did move out about the middle of November, 1913,

The plaintiff offered testimony to support his claim. The defendant denied that it ever made the agreement to repair claimed by the plaintiff, that the rent was reduced because of interruption of business in moving, and that plaintiff never complained of want of repair until after he moved out, and defendant made issue upon the entire claim of the plaintiff. The case was tried by a jury, and resulted in a verdict and judgment for the plaintiff in the sum of $1,000 damages.

Upon the trial the following was testified to by the plaintiff:

“Exhibit 1 is the book that shows what I took in, money, and pay out. I kept that book and made the figures on it. This shows the money that I took in and paid out ever since I bought the store from the 1st of September up to date. It started from the 1st of September, 1912, and covers all the time that I was in the store.
“Mr. Cassidy: I offer it in evidence.
“Mr. Salliotte: I object to that as being incompetent and immaterial; not having any bearing on the issue in this case.
“The Court: He may use it as a basis to testify what his disbursements and receipts were. He can testify whether that book is correct, whether the entries are correct. (Exception.)
“This book shows the correct disbursements and receipts of my business during the period complained of. In December, 1912, I paid out $1,796.47, and took in $1,860.26. In January, 1913, I took in $2,099.13 and paid out $1,675.34. In February, I paid out $1,-509.02 and took in $2,059.26. In March, I paid out $1,654.21 and took in $1,949.59. In April, I paid out $1,312.46 and I took in $1,923.81. In May, I paid out $2,038.54 and I took in $2,519.20. The first part of May they started to lift up the store and put the blocks under it. In June, I paid out $1,881.98 and took in $1,864.69. In July, I paid out $1,299.07 and I took in $669.88. In August, I paid out $1,334.29 and I took in $1,207.13. In September, I paid out $1,589.41 and I took in $884.83. In October, I paid out $1,636.67 and I took in $1,142.78. In other words, I took in during the first five months. $10,936 and paid out. $8,188, which made a difference of $2,348 in my favor. During the next five months beginning June, while I was being moved and while on West End, I took in $6,166 and paid out $7,719, and I lost it because my customers left me.”

George W. Pittinger, treasurer of the building trustees of the defendant, was called under the statute, and among others things he was asked the following question, and was permitted to answer over the objection of defendant as follows:

“Q. Did you give Mr. Kezeli an opportunity to lease or to rent the Jefferson avenue store, the new one?
“Defendcmtfs Counsel: I object to that as incompetent, irrelevant, and immaterial.
“The Court: You may answer the question. (Exception.)
“A. No, sir.”

At the close of plaintiff’s testimony, and again at the close of all the evidence, the defendant moved for a directed verdict in its favor, upon the ground, among others, that there had been no proper basis in the evidence for loss of profits, and also it moved that the testimony of the plaintiff in regard to the receipts and disbursements be stricken out; which motions were denied and exceptions taken.

The defendant requested the court to charge the jury as follows:

“(10) There is no evidence in this case as to any loss of profits on the part of the plaintiff, and you therefore cannot take that into consideration in determining your verdict.
“(11) Loss of profits which a tenant might have made, except for the interference with his business, are too remote and speculative to be recovered, for breach of his landlord’s contract to repair.”

Neither of the above requests was given. The court charged the jury upon the subject of damages as follows:

“Now, how are we to arrive at the damages? The only way suggested by the plaintiff is that we are to take into account the profits, the conditions of trade of the plaintiff when he was located on Jefferson avenue, where-the new store is now, from which the old store was moved, and they put in evidence here showing the trade of this man from day to day, and month to month, for some considerable time, and the basis on which you are to determine or to take into consideration, rather, in order to arrive at what the profit would have been. Now, of course, that cannot be absolutely the amount, because the store is moved on a different street in a different locality. Then, there are different surroundings there, and all those things have to be taken into consideration if you are to arrive at the profits. In other words, it seems to me, gentlemen, that you would have to find in determining this amount of profit, or this amount of damage, if you come to that question, you would have to determine now what would that store put in the condition that they agreed to put it in, if you find that they did agree to put it in any condition of repair or fix it up, what he would be able to do on the place, on the spot where they put this store with the store repaired and put in condition that it was agreed to be put in; that is to say, you are to take that store, if you find the proof sustains it — you are to take that store, just as it would have been had it been repaired and put in condition for business, place upon the spot where it was placed, and that, in conjunction with the trade which the party had. All these things, and all these circumstances, would have to be taken into consideration by you in order to determine what the damage to this man was by reason of the defendant failing to put the building in the condition that would conform with the agreement that was made at the time it was moved, and with the agreement that was made for the purpose of keeping him in the store, as is plaintiff’s theory. Now, that is what you will have to do with reference to determining the damage.”

The defendant has brought the case here for review, and among the errors assigned are the following:

(1) That the court erred in permitting the witness Pittinger to answer the question relating to lease of new store, above set forth.
(6) That the court erred in refusing to strike out the testimony of plaintiff in regard to the receipts and disbursements, above set forth.
(14) Error in refusing to give defendant’s tenth request to charge.
(15) Error in refusing to give the eleventh request to charge. .
(16) That.the court erred in charging the jury as above set forth.

The verbal agreement to rent premises to “plaintiff for a long term of years, at a rental to be after-wards agreed upon,” is not only within the statute of frauds, and void, but is too vague and indefinite to be valid. But the error in admitting the testimony was rendered harmless by the charge of the court wherein the jury were instructed that such agreement was void, and to find no damages on that branch of the case.

The other assignments of error above referred to may be considered together. The testimony of plaintiff relating to receipts and disbursements in his Business did not furnish a basis sufficient to warrant the submission of the question of loss of profits to the jury. There was no evidence as to whether the new location was as good as the old. When asked that question, the plaintiff replied: “Maybe it is, maybe not.” There was no evidence that the stock or assortment of stock was the same in the new location as in the old. There was no evidence that the conditions were the same, or that the attention to business on the part of the plaintiff and his help was the same. The only testimony that was introduced by the plaintiff in this regard was a mere summary of his receipts and disbursements during the year. There was no testimony as to what the expenses of conducting his business were, as to the percentage of profits that he derived from his sales, nor whether it continued the same during the period covered, nor the amount of stock that he had on hand in December, 1912, or' in November, 1918. When, at the close of the testimony, it appearing that the plaintiff had not produced any evidence upon these subjects, we think that the court should have granted the motion to strike, and that defendant, upon the condition of the record, was entitled to have the tenth request to charge given, and that the refusal to give it was reversible error. The jury should not have been allowed to speculate or guess upon this question of the amount of loss of profits. Without holding that loss of profits may not upon proper showing be the basis of recovery, we must hold that no sufficient foundation was here laid for such recovery. The recovery was a substantial one, and a reading of the record, demonstrates that other evidence of damages was negligible, and the recovery must have been mainly for loss of profits. In fact> we are of the opinion that the amount of recovery, upon the evidence in the record, resulted in a miscarriage of justice. It is true that the charge of the court somewhat modified the claim, but in our opinion the whole subject of loss of profits should have been taken from the jury.

We have examined the other questions urged by defendant for reversal, but do not think them meritorious. Counsel overlook the claim of the plaintiff that his old lease expired July 1, 1913, and that a new bargain was made wherein and whereby the building was to be moved and he was to remain under a different rental, coupled with the agreement of defendant to promptly repair. Under such circumstances, the presumptions as to a tenant holding over, do not apply. Mason v. Howes, 122 Mich. 329 (81 N. W. 111). Whether such an agreement was made or not was properly submitted to the jury.

For the errors pointed out, the judgment below is reversed, and a new trial granted, with costs to appellant.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    AMLEY v. SAGINAW MILLING CO.
    1. Negligence— Automobiles — Contributory Negligence — Personal Injuries.
    In an action for personal injuries resulting in the death of plaintiff’s decedent, caused by defendant’s automobile, while decedent was crossing a public street, the questions of defendant’s negligence and decedent’s contributory negligence could not be disposed of as questions of law where the facts were in dispute.

    2. Same — Proximate Cause — Instructions.
    The court properly instructed the jury that the plaintiff must establish by a preponderance of the evidence, that defendant was guilty of negligence that was the proximate cause of the injuries to deceased.
    S. Same — Contributory Negligence — Burden of Proof.
    The court also properly instructed the jury that the burden of proof was upon plaintiff to establish that deceased was free from any carelessness or negligence that caused, or contributed to cause, the injuries that he received.
    Error to Bay; Tappan, J., presiding.
    Submitted January 16, 1917.
    (Docket No. 166.)
    Decided March 29, 1917.
    Case by Joseph Amley, special administrator of the estate of Joseph Amley, deceased, against the Saginaw Milling Company undér the survival act for damages for injuries resulting in the death of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      E. L. Beach, for appellant.

      Cowmans & Gaffney, for appellee.

      On reciprocal duty of operator of automobile and pedestrian to use care, see note in 38 L. R. A. (N. S.) 487; 42 L. R. A. (N. S.) 1178; 51 L. R. A. (N. S.) 990.
      On the duty of pedestrian to look out for automobile, see notes in 3 L. R. A. (N. S.) 345; 20 L. R. A. (N. S.) 232; 38 L. R. A. (N. S.) 488; 42 L. R. A. (N. S.) 1179.
      On burden of proof as to contributory negligence, see note in 33 L. R. A. (N. S.) 1085.

   Stone, J.

This suit was brought under the survival act (3 Comp. Laws, § 10117 [3 Comp. Laws 1915, §• 12383]) to recover damages for injuries received by Joseph Amley, on August 20, 1915, at Linwood, Mich., and resulting in his death two weeks afterwards. Plaintiff is administrator of decedent’s estate. The deceased would have been 71 years old had he lived until April 7, 1916. He had lived in Linwood a number of years, was a blacksmith by trade, owned a blacks smith shop, and worked up to the time of his injury. His hearing, eyesight, and health were good for a man of his age, and he was possessed of all his mental faculties.

On the day upon which plaintiff’s decedent was injured, one William Miller, an employee of defendant, was at the village of Linwood, engaged in behalf of his employer in the purchase of hay. Between eleven and twelve o’clock in the forenoon Miller drove to the village in a Ford automobile furnished by defendant, There was but one street in the village. It was a county stone road running east and west. The road was about 66 feet wide, and there were sidewalks on the north and south sides of the road, but there were no crosswalks. The distance between the sidewalks was from 47 to 48 feet. On the day in question, upon arriving at Linwood, Miller drove the automobile to the Harris store on the south side of the road, and left the machine standing facing east, and he and his companion, another employee of defendant, walked across the road to the Rosebush Hotel on the north side of the road. The door of the store in front of which the machine was standing was 30 to 40 feet east of the door of the hotel. To go from the store to the hotel, one would go in a northwesterly direction. After being at the hotel 10 or 15 minutes, Miller and his .companion crossed the road to the machine, and after cranking the machine, Miller, the driver, proceeded a short distance east and turned the machine north in a circle in the road and ran it in a westerly direction.

At the trial there was some conflict in the testimony of the witnesses, as to the position of the parties from the time Miller and his companion approached the car from the hotel. David Cummings, who was with deceased when he was injured, testified on behalf of plaintiff that he saw the automobile on the south side of the road facing east, as he and deceased started to cross the road, and that at this time the driver was about to get into the machine, and that the machine was standing still when deceased and Cummings started across the road, deceased going ahead, and that deceased was in the middle of the road when Miller got into the car. On his direct examination Mr. Cummings, among other things, testified:

“Mr. Amley came out of the store door. When he came out of the store door he spoke to me. * * * When I came out of the store there was a car standing in front of the store. * * * The day of the accident the weather was dry and fine.
“Q. Was the entire road space open to the driver on that day?
“A. Entire street was clear.
“Q. You say you saw a machine in front of the store?
“A. Yes, sir.
“Q. Did you notice the machine particularly?
“A. Yes, sir. Mr. Amley attracted my attention to it. I noticed the lettering on the car, ‘Saginaw Milling Company.’ It was printed on the door of the car; the side of the car. The car was on the south side of the street. The car was facing east. After I met Mr. Amley we crossed the street. We crossed in a kind of angle over toward the hotel. The hotel is not directly across the street from the store that we were coming from. * * *
“Q. To go from the door of the store to the door of the hotel you would go in a northwesterly direction?
“A. Yes, sir. If you made a straight line across the street from the door of the hotel to a point at right angles across the street, that point would be west from the store on the right about 30 or 40 feet. There is a scale across the street from the store. It is pretty directly north opposite the entrance of the store, pretty near direct straight across. After I met Mr. Amley and noticed this machine, I started to walk across the street on a little angle in a northwesterly direction.
“Q. Just describe to the jury, stand up and show where Mr. Amley stood with reference to where you were.
“A. Well, Mr. Amley was in this shape, and I was right opposite him here on the right, alongside of him, on the east side of him.
“Q. What did you do then?
“A. Well, the car approached right onto us, and I said to the old gentleman, ‘Watch out, he’ll run into us.’
“Q. Did you see this car when it started?
“A. I didn’t pay any attention to it; no.
“Q. Was there any one in the car when you noticed it?
“A. There were two men in it.
“Q. When you first noticed it?
“A. When they came towards us, yes.
“Q. Were they facing east at that time?
“A. They were facing east, the car was; yes.
“Q.'Was the car in motion?
“A. Not when I first noticed it.
“Q. When you were crossing the street was your back to this car, or was your face to it?
“A. Back. The car hit Mr. Amley. We had not got across the street yet when the machine hit Mr. Amley. We were about eight feet from the walk on the north side. Eight feet south of the north walk. ' The machine did not give us any warning.
“Q. Did you know it was coming west?
“A. Not until I turned my head; I heard the noise about '30 feet from me. The car was facing east. The driver took a circle and came back west. I called Mr. Amley’s attention to watch out. The machine was then 30 feet east of us. It was just about on the scale. The scale was 30 feet east of where we were. * * * I stepped to one side, and just cleared myself, and it struck him. The machine was moving when it hit Mr. Amley. It was coming around there with a good fast speed. * * *
“Q. How close was the machine to Mr. Amley after you got done calling his attention to it?
“A. I don’t know how close it was. I just had' my face to him; told him to watch out; and I jumped myself and cleared myself; that is all the time I had.
“Q. After you got done telling him, where was the machine?
“A. It had run into- Mr. Amley.
“Q. Was it on him at that time you got done?
“A. It was just as quick as I could reverse around, the machine was onto him. I did not hear any warning by the driver of this machine nor any noise to warn me that a machine was approaching. I did not see the machine at any time before it hit Mr. Amley, except the once that I have described when it was 30 feet away, and the time when it was facing the other direction. When it hit Mr. Amley it was facing west. After the machine hit Mr. Amley, I reversed right around and had him taken from under the machine. The machine was on him. It carried him about 8 or 10 feet.
“Q. Did you notice if the wheels were rolling, or were the back wheels skidding along?
“A. They skidded; they dug a trench right in the ground.”

On cross-examination this witness testified:

“We didn’t both start across the street together. He (Amley) started across first. I was behind him and overtook him. When we stood between the sidewalk this automobile was standing right a little bit west — about the length of the machine west of the door of the store. * * *
“Q. Did you see the car start up?
“A. No, sir.
“Q. When you did see the car it was turning around going towards the west?
“A. Yes, sir.
“Q. Turned around in the street, did it not?
“A. Yes. It was not backed up. I don’t know how far deceased got into the street when these men were in the car, or when one man got in the car. Mr. Amley was pretty near middle ways of the street when I started to cross. When I saw one man get into the car, and when I looked down Mr. Amley was in the middle of the street. That would be maybe 30 feet from the car. I didn’t measure it. He was going towards the hotel, angling a little towards the hotel going in a northwesterly direction, and he was 30 feet from the car in the middle of the street.
“Q. Now, then, you think, and your best opinion is, that he was 30 feet out in the street when you saw the man get into the car?
“A. I think he was.
“Q. And how far did you go before you met him?
“A. I hustled right along; he was going so slow I overtook him. I took a good sharp walk. I don’t know how fast he was going. He was just going along about his business. * * *
“Q. Whereabouts was he when you said to him to look out? Was he east of you or south of you?
“A. He was west of me, on the left-hand side of me, and just got even with him when the car came.
“Q. He was west of you, and the car was going west?
“A. Yes, sir. * * * I said, 'Look out for the car.’
“Q. Did you step to one side, or take a step going west?
“A. I stepped north.
“Q. That took you out of range of the wheel, did it not?
“A. Yes, sir. He was still west of me, right close together. When I said, 'Look out for the car,’ I don’t think he turned around and stopped. He didn’t have time to turn around. When I spoke I stepped, and when. I turned around the car was on top of him.”

When the plaintiff rested his case the counsel for defendant moved for a directed verdict in its favor, upon the ground that under the evidence the plaintiff had not made a case that entitled him to recover, which motion was denied.

On behalf of the defendant, Richard Quinan, the companion of Miller, testified as follows •

“We saw Mr. Amley and Mr. Cummings when we came out of the hotel. I remember particularly when we arrived at our car and got ready to get into the car. Mr. Cummings and Mr. Amley stood about 20 feet, 15 or 20 feet behind the car talking. This was west of the car. I saw no one else there on the street. They were in that part of the street where people ordinarily walk on the sidewalk. Mr. Miller cranked the car. He drove it. We turned the car around; just made an ordinary turn. The top was down. We used the traveled portion of the highway; the part we would ordinarily use in making a turn of that kind.
“Q. You were facing, as I understand, east, when you started your car up?
“A. Yes.
“Q. How much of a noise did the car make after you cranked it?
“A. Oh, it made noise; a Ford generally makes quite a lot of noise; you can hear them quite a considerable distance; as Mr. Archambeau says, a block at least,, I should think. We got into the car; we were in no' hurry; just got in leisurely. Mr. Miller got in-first; I got in after him, and we turned around at that time, and the two gentlemen were standing back there ; that is my recollection of it now. Mr. Miller drove the car, and was sitting on the left-hand side going west. When we started the car our backs were to the gentlemen standing on the sidewalk.
“Q. When you made the turn, and before you got the car fairly turned around going toward the west, did you see anybody?
“A. No, I didn’t see anybody. Of course we looked before we started; I looked myself, and Mr. Miller looked. There was no one in sight, only these two gentlemen who were standing on the walk on the south side of the street and about 20 feet behind the car. We looked to see if any one was on the street before we made the turn. * * * Up to the time when we made the turn, the car was in low speed all the time. When we made the turn the car was going 4 or 5 miles, an hour. I don’t think a Ford can go faster than that when it is starting. * * * When we got into the ■ car and were turning around the first time I saw Mr. Amley, he was about 4 or 5 feet ahead of us.
“Q. What did the deceased do?
“A. Well, he appeared to get rattled, and he made no effort to get out of the way.
“Q. What did yoú do with the car so far as stopping it?
“A. Well, I wasn’t driving-the car, but I know Mr. Miller put the brakes on right away. * * * The brake was on when the deceased was struck.
“Q. Which side of the auto struck him ? What part -of the car?
“A. Left-hand side and down the fender. I wasn’t positive about that, but I think the fender on the left-hand side. * * * His body was lying right alongside of the left front wheel under the fender. Evidently we had pushed him 2 or 3 feet in the gravel road.
“Q. How far did your car run after you felt the impact?
“A. Oh, I should think about 3 or 4 feet. * * * The top was down so we had a full view. We saw the parties about 4 feet away, and the brakes were applied.
“Q. What became of Mr. Cummings, the witness who has been upon the stand here?
“A. He stepped forward; stepped out of the way.
“Q. Were both walking side by side, or one behind the other?
“A. Well, they were both pretty close; side by side.
“Q. Now, if he had kept on walking the same as Cummings had, would the car in any way have injured him?
“A. Not a bit. I cannot see how it would; no.
“Q. But it was by his stepping or backing up, when the car struck him?
“A. Yes; he was further away from the car than Cummings was.
“Q. Was he farther to the north side of the street than Cummings was?
“A. He was further from the car. Mr. Cummings was between him and the car. My recollection is that they were both walking along together, ordinarily like two people walk together.
“Q. Were the brakes applied, so far as your knowledge being in the car, as soon as these persons were seen?
“A. Yes, sir; absolutely, yes. Mr. Cummings kept on walking, and it didn’t touch him, either side of the car.”

On cross-examination this witness testified:

“I first saw Mr. Amley when he was 4 or 5 feet ahead of us. He was walking in a northwesterly direction. His side was to the east. We were coming from the east and turned round to go to the west. We turned round north, and we intended to go west.
“Q. And you were going west when you hit him?
“A. No, we were just getting turned.
“Q. You were going in the same direction he was, is that it?
“A. No; we went into him sideways; he was going north, and we were turning to go west; we were just getting turned to go west.
“Q. Then you would say you were not turned around?
“A. Not completely; no, sir.
“Q. And he was going north?
“A. North, and a little west; mostly north.
“Q. And you say that his back was not to the machine?
“A. No, sir; his back was not to the machine.
“Q. What do you say as to Mr. Cummings’ back?
“A. Mr. Cummings was in the same position as Mr. Amley; sideways.
“Q. Neither one of their backs was to the machine?
“A. No, sir.”

Fred C. Miller, the driver of the car, corroborated the testimony of the witness Quinan, and testified, among other things, on direct examination, as follows:

“Q. When you got- into your car did you look to see if anybody was on the street?
“A. Yes, sir.
“Q. At that time in the traveled portion of the street?
“A. Yes, sir. As I cranked the machine I looked backward and saw two men standing there.-
“Q. Looking west on the street and looking east on the street, was the way all clear?
“A. Yes, sir; there was nobody at all with buggy or teams or pedestrians on the street that I remember. It is a straight street, and you can look west for a long ways.
“Q. Did you stop the car as soon as you could stop the car when you saw these gentlemen S or 4 feet away?
“A. I stopped it so quick as I could.
“Q. Was the car in low or high speed at the time when you saw them?
“A. Low speed.”

On cross-examination this witness, among other things, testified:

“I didn’t put the car in high speed before we struck Mr. Amley. The car was in low speed at the time when I turned round. The car was standing southwest when we came to a stop.
“Q. Yes, but when the machine was stopped it was southwest you say; you mean southeast and northwest don’t you?
“A. No, sir.
“Q. You would not be going southwest?
“A. Well, I tried to get over to the south side; I was turning round. I was on the east side of the road as I started up, and I went around west.
“Q. Your idea was to get back in the middle of the road and go in a straight line west?
“A. That was my idea; yes, sir.
“Q. Now you say that you were completely turned, but that you wanted to go more to the south, and you were going southwest?
“A. I wasn’t turned yet as I struck the man, I said.
“Q. You didn’t change the wheel after you struck him, did you?
“A. Well, I stopped the macidne.
“Q. Now, when you stopped it which way were you facing in the seat of the machine? Which way were you looking, facing straight ahead?
“A. Southwest.
“Q. Then you had completely turned around, hadn’t you?
“A. Not quite.
“Q. You told the jury that Mr. Amley was struck by the left side of your machine, is that right?
“A. Yes, sir.
“Q. And this is the side that you were sitting and driving on?
“A. Yes, sir.
“Q. You didn’t watch that? You didn’t have any speedometer on the machine that day?
“A. No, sir.
“Q. And you haven’t a horn?
“A. Yes, sir; but I didn’t have time to blow it;”

At the close of all the testimony defendant’s counsel again moved for an instructed verdict in its favor, and stated the reason to be because of the fact that the deceased was guilty of contributory negligence. This motion was denied, and exception duly taken.

From the brief of appellant we understand the position taken is that there should have been a directed verdict for the defendant upon the grounds that there was no evidence of any negligence on the part of the defendant, and that the deceased was guilty of contributory negligence. We have quoted thus extensively from the testimony on behalf of both parties to show, and we think it demonstrates, that pertinent questions of fact were involved; and we are of the opinion that the claim that defendant was guilty of no conduct constituting actionable negligence cannot be disposed of as a proposition of law. Neither can we say, as matter of law, that the deceased was guilty of contributory negligence. The trial resulted in a verdict for the plaintiff in the sum of $1,500 damages, and the case has been brought here upon writ of error.

We have examined the assignments of error relating to the alleged errors in the rulings of the trial court in the introduction of testimony, and we are of the opinion that there was no reversible error in the rulings of the court upon that branch of the case. There were lengthy requests to charge proffered on the part of the defendant covering the entire case. They were not given in terms. We have examined the requests to charge in connection with the charge of the court as given. The charge was a very lengthy and exhaustive one, and we think covered the entire case and submitted fairly to the jury the questions involved, to wit, whether the defendant was guilty of the negligence alleged in the operation of the car, as charged in the declaration, particularly the allegations, that it carelessly and negligently failed and omitted to give plaintiff’s intestate reasonable warning of the approach of said automobile while plaintiff’s intestate was walking upon said public highway as aforesaid; and whether it carelessly and negligently failed and omitted to use reasonable precaution to insure the safety of plaintiff’s intestate while he was walking in the roadway of said highway; and whether it failed and neglected to operate said car at a rate of speed that was reasonable and proper, having regard to the traffic and use of said highway, when approaching plaintiff’s intestate walking upon said highway. And the jury were instructed that the burden of proof was upon the plaintiff to establish all the elements of his cause by a preponderance of the evidence; that this proof must sustain two essential propositions:

The plaintiff must establish by a preponderance of the evidence the fact that the defendant company, through its agent, Mr. Miller, in charge of the car, was guilty of negligence that was the proximate cause of the injuries to the deceased.

That the burden of proof was also upon the plaintiff to establish, by a preponderance of the evidence, that he himself was free from any carelessness or. negligence that caused, or contributed to cause, the injuries that he received.

The statute in force at the time of the injury is familiar to the profession, and may be found in 1 Comp. Laws 1915, §§ 4817, 4818. We think that this statute has so often been construed by this court that it is only necessary to refer to some of our recent decisions ; among them are Schock v. Cooling, 175 Mich. 318, 323 (141 N. W. 675), and Tuttle v. Briscoe Manfg. Co., 190 Mich. 22 (155 N. W. 724). In both of the above-cited cases Diamond v. Cowles, 174 Fed. 571 (98 C. C. A. 417), is referred to, and the facts in that case were so similar to the facts, in the instant case that the authority is. very pertinent. An examination of the charge satisfies us that the case was fully and fairly presented to the jury; that the substance of defendant’s requests that were appropriate was given in the charge of the court; and that upon both branches of the case it was properly and fully submitted to the jury.

There would be no profit in analyzing at length the requests to charge, and the charge of the court. We are of the opinion that there is no reversible error in the record, and that the judgment of the court below should be affirmed, and the same is affirmed.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


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    BILLETT v. MICHIGAN BONDING & SURETY CO.
    1. Intoxicating Liquors — Civil-Damage Act — Evidence—Admissibility.
    Where plaintiff's husband was injured in a drunken fight, in an action by the wife against the surety on the liquor dealer’s bond, under the civil-damage act, articles in a newspaper relating to the commencement of suit by the husband against his assailant are inadmissible in evidence, in the absence of any showing that plaintiff was not instrumental in causing the publications.
    2. Trial — Conduct oe Counsel — Argument oe Counsel.
    The use of a steelyard by plaintiff’s counsel to illustrate the preponderance of evidence, in his argument to the jury, was not prejudicial to defendant.
    3. Intoxicating Liquors — Civil-Damage Act — Injury to Feelings — Instructions.
    Plaintiff’s right to recover for injury to her feelings, under the act, is for the shame, mortification, or disgrace arising from the fact of intoxication, and an instruction allowing her to recover for permanent disfigurement of her husband’s face was erroneous.

    4. Appeal and Error — Damages — Excessive Verdict — Prejudicial Error.
    In an action under the civil-damage act, where the verdict was excessive in comparison with the meager evidence of actual damages, error in the case must be held to be prejudicial.
    Error to Berrien; Bridgman, J.
    Submitted January 9, 1917.
    (Docket No. 59.)
    Decided March 29, 1917.
    Case by Lena A. Billett against the Michigan Bonding & Surety Company for damages under the civil-damage act. Judgment for plaintiff. Defendant brings error.
    Reversed.
    O. F. Bunting and Coolidge & White, for appellant.

      Charles H. Kavanaugh, for appellee.

      ‘On wife’s right of action at common law against one selling liquor to husband, see note in 40 L. R. A. (N. S.) 360.
      On the necessity, to sustain a recovery under civil-damage act, that the intoxication be the proximate cause of the injury, see note in 13 L. R. A. (N. S.) 1158.

   Stone, J.

Action for damages under civil-damage act (section 20, Act No. 313, Pub. Acts 1887 [2 Comp. Laws 1915, § 7050]). In 1914 William R. Baker was a retail liquor dealer at Niles, Mich., and the defendant was the surety on Baker’s liquor bond. Plaintiff is the wife of one Henry Billett. It is the claim of the plaintiff that on December 19, 1914, her said husband became intoxicated at Niles, from intoxicating liquors sold him by Baker and other saloonkeepers there; also that one Vandenburg was also intoxicated at said time and place; that on the evening of said day both Billett and Vandenburg were in Baker’s saloon in an intoxicated condition, and that while in such condition Baker furnished both of these men intoxicating liquors, which they drank on the premises. While Vandenburg and Billett were in Baker’s saloon on this occasion they had a fight, in which Billett was cut upon the face by Vandenburg with a broken beer glass, which Vandenburg had in his hand at the time the fight started. Billett was a witness at the trial, and testified that both he and Vandenburg were intoxicated in Baker’s saloon on the night in question, and that they both drank liquor there, and that Vandenburg struck him in the face, without any provocation whatever, and that Vandenburg was the aggressor. While there is some dispute in the testimony, it was the claim of the plaintiff at the trial that Baker sold both of these men intoxicating liquors when they were in an intoxicated condition, and that as the result of such intoxication the fight occurred, and Billett received severe injuries upon the face with a beer glass. There was testimony in support of this claim.

For nearly a year before this fight Billett had been employed as a carpenter by the Michigan Central Railroad Company, at $3 a day, and he testified that out of his wages he gave the plaintiff $25 every two weeks. Plaintiff claimed that as a result of the injury Billett lost his job with the company, and that thereafter he was unable to secure other steady employment; and that she had been injured in her means of support because her husband was unable to work, when laid up on account of his injuries, and also because of such loss of job. These were disputed questions upon the trial.

Billett also testified that he had not earned to exceed $170 to $200 from the time of said injury to the time of the trial, which was on March 24, 1916. Billett was treated for his injuries by Dr. Bonine, who testified that Billett came to his office that evening with quite a severe cut on his left cheek, requiring several stitches to put the tissues back in position; that the wound was quite deep, having penetrated the skin and muscles, and that the wound was an inch below the eye. In his opinion there was nothing about the injury that would in any way affect the eye, or eyesight; that the scar on the face would be permanent, and that he treated Billett for a period of five or six weeks and dressed the wound 35 or 40 times. Billett testified that the left eye was affected by the injury; that it jerked and a blur got in front of him. He testified:

_ “When I am driving a nail, I will have to stop sometimes, kind of blur gets in front of me; and I used to be a pretty good saw filer, and it has got me on that. I can’t see to fit up the saw on that.”

The plaintiff testified that her husband’s coming home injured and bleeding, and his sickness thereafter, made her nervous and set her crazy; that “this feeling lasted for weeks, I cannot tell just how many, the nervousness lasted. It still lasts.” And she also testified that she had been greatly shamed and injured in her feelings because of the affair complained of. She testified:

“This affair was talked about by our friends and neighbors in this vicinity, and it reached my ears at thq time. It made me ashamed and mortified me, and it does yet, and has during this entire time.”

It appeared that soon after this affray, Billett caused the arrest of Vandenburg on a civil warrant for assault and battery growing out of the fight in question. Articles relating to the commencement of this civil suit appeared in the Berrien Springs Era, a newspaper published at Berrien Springs, Mich., under date of January 15, 1915, and in the Niles Daily Sun, a. newspaper published at Niles under date of January 13, 1915. Upon the trial, plaintiff, over defendant’s objections and exceptions, offered these newspaper articles in evidence for the purpose of enhancing her damages by reason of the fact that her feelings were greatly injured by such publications. It appearing that plaintiff had only read the headings, the trial court declined to admit the newspaper articles as a whole, but admitted in evidence the headings, and permitted plaintiff to testify as to how her feelings were affected by such headings, which were, in so far as the record shows: “Victim of Assault Sues for Damages.” The court charged the jury in part as follows:

“Also you have a right to ascertain and determine how much damage she will suffer in the future by reason of injury to her person, property, means of support, or otherwise, by reason of any effects of said injury to said Billett that you may find was occasioned by his said intoxication, or that of Vandenburg, and for such time in the future as you may determine he will suffer from and be disabled by such injury. * * * Means of support relate to the future as well as the. present. And in case she has shown by the evidence that the sources of her future support have been cut off or diminished below what is reasonable or competent for a person in her station of life and below what they would otherwise have been is a fair matter for you to take into consideration; that is, any and all evidence bearing upon such fact.”

The trial resulted in a verdict and judgment for the plaintiff in the sum of $1,500. There was a motion for a new trial upon the following grounds:

(1) That the court erred in admitting in evidence the headings of the newspaper articles.
(2) That the court erred in permitting plaintiff’s counsel to use a certain balance, or steelyard, in his argument, which had not been introduced in evidence.
(3) That the verdict was grossly excessive.
(4) That the verdict was against the weight of the evidence.

The motion was denied, and the reasons for such denial were filed, and duly excepted to. The defendant has brought the case here upon writ of error, and errors are assigned upon the several grounds stated in the motion for a new trial, and also that the court-erred in not setting aside the judgment for the reasons stated, and also in that part of the charge above set forth.

It is said that the trial court admitted in evidence the newspaper headings upon the authority of Lucker v. Liske, 111 Mich. 683 (70 N. W. 421). In that case, as here, the suit was brought by the wife. The husband had been arrested and convicted of drunkenness. There were newspaper articles giving an account of the row and of Lucker’s participation in and connection with it. Upon the theory that a public conviction of the offense of drunkenness would contribute to plaintiff’s feeling of disgrace, the record of the conviction, and also the articles were admitted. In the instant case the articles related to the commencement of a civil suit by the husband against Vandenburg for damages. The trial judge in giving his reasons for denying the motion said:

“Who caused the facts to be published and commented upon, or why they were published, or when, if without the consent of the plaintiff, cannot affect the question.”

One difficulty is that there is nothing in the record to show that the plaintiff may not have been instrumental in causing the publications. To allow publications of collateral matters to be received in evidence would be to extend the rule, and might open the door .unreasonably to abuse. We think that the publications were not admissible.

We think there is no merit in the assignment relating to the use of a balance by counsel for plaintiff, upon the argument. The court says that the article was used to illustrate the preponderance of evidence. Counsel might as well have used a lead pencil, by way of illustration.

Did the court err in its charge? That part of the charge, above quoted, would permit the jury to award damages for future injury to plaintiff’s feelings because of the disfigurement of the husband’s face, by the permanent scar. To show that plaintiff’s counsel so understood the charge, we have only to look at his brief wherein he argues:

“As long as Mrs. Billett lives with her husband, that scar will be an occasion of shame and disgrace to her. She will be called upon perhaps many times to explain to others the cause of that scar. This ought to be worth the entire amount of the verdict itself.”

In Sissing v. Beach, 99 Mich. 439 (58 N. W. 364), this court said:

“The court further instructed the jury that they had a right to take into account the injury which plaintiff may have sustained in her feelings on account of this injury to her father. This was error. The injury to the feelings, contemplated by the statute, is the shame, mortification, or disgrace arising from the fact of intoxication; and it does not include, as an element of actual damages, the mental anguish because of the injury received by the person so intoxicated.”

See, also, 2 Woollen & Thornton’s Law of Intoxicating Liquors, § 1071.

We think there was error in the charge.

The amount of the recovery, when considered in connection with the evidence of positive damages, was a large one. In comparison with the size of the verdict it must be said that the evidence of actual damages, and especially of future damages, was meager. In fact, in view of the record, we think the verdict was excessive, and because of the evidence admitted, and the charge of the court, we are of opinion that the excessive verdict was the result of the errors above referred to. Because of the errors pointed out we are constrained to reverse the judgment below and grant a new trial, with costs to appellant.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Ostrander, J.

text:
    BARRETT v. CONNECTICUT FIRE INS. CO.
    1. Insurance — Fire Insurance — Fraud—Intent—Forfeiture.
    Proof of fraudulent intent is necessary in order to create a forfeiture of a Michigan standard fire insurance policy, under the clause of the policy providing that in “case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof,” the entire policy shall be void.

    2. ' Same — False Swearing — Intent—Question for Jury.
    In an action on a fire insurance policy, claimed by the insurer to be void under its terms by reason of the fraud and false swearing of the insured, the intent of the false swearing and false representation was properly a question for the jury.
    3. Appeal and Error — New Trial — Weight of Evidence — Saving Question for .Review.
    Where no error was assigned upon the refusal of the court to grant a new trial because the verdict was against the weight of the evidence, that question is not open to review in this court.
    4. Insurance-Walue of Destroyed Property — Evidence.
    The question of the cash value of property destroyed or injured being material, it was not error to permit plaintiff to testify to what she was informed a piano was worth when she bought it.
    5. Same — Evidence—Immateriality.
    Testimony as to what prompted a witness to inquire into plaintiff’s history was immaterial and was properly excluded.
    6. Appeal and Error — Insurance — Fraud — Instructions — Weight of Evidence — Presumptions.
    In an action on a fire insurance policy, defended on the ground of fraud, where the evidence" of plaintiff’s fraud was very convincing, it cannot be presumed that erroneous instruction, that the fraud must be proved “by overwhelming evidence” was not prejudicial, although the court had previously given the proper rule.
    Error to Genesee; Barton, J., presiding.
    Submitted January 19, 1917.
    (Docket No. 48.)
    Decided March 29, 1917.
    Assumpsit by Stella Barrett against the Connecticut Fire Insurance Company upon a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Clinton Roberts, for appellant.

      Marshall M. Frisbie and James S. Parker, for appellee.
    After a fire which destroyed certain insured property plaintiff made, verified, and filed with defendant, whose policy she held, proofs of loss. She said therein' that by a fire occurring August 25, 1915* she sustained loss and damage “as stated in the papers hereto attached, marked Exhibits A and B”; that the property described in Exhibit A—
    “belonged exclusively to this deponent, and to no other person or persons, and no other person had any interest therein; that the property described in Exhibit B this deponent says she had at the time of said fire an equity in having purchased said property on a contract from the Kobacker Furniture Company, of the city of Flint, Mich., and that part of the money due under said contract to said Kobacker Furniture Company was at the time of said fire unpaid; * * * that Exhibits A and B, attached hereto, are a correct and full inventory of the property destroyed in said fire, with the costs of each article.”
    There was no other insurance. The footing of Exhibit A is $1,299.90, and of Exhibit B is $308.10. The policy indemnified plaintiff to the amount of $1,500. Listed in Exhibit A are some household furniture, dishes, clothing, pictures, a trunk, and a piano; the piano being valued therein at $350. In fact, the piano had been purchased by her upon a contract, and she had paid $5 of the purchase price, which was $165. The title thereto was reserved by the vendor, Grinnell Bros. The manager of Grinnell Bros, at Flint testified that after the fire plaintiff told him she had valued the piano in her proofs of loss at $350, and asked him to state to any one making the inquiry that $350 was its value, which he declined to promise to do. TJpon cross-examination he testified, in part:

      “Q. Did Mrs. Barrett at the time she was discussing the value of the piano with you call your attention to the fact she had been informed by you or your agents the piano was actually worth $350 and you had made a special price to her on that piano? * * *

      “A. In discussing the price of the piano now — I told her probably the piano now would be worth $350.

      “Q. This piano had been a used piano?
    “A. Had been a used piano.

      “Q. You were having a sale on at the time she bought it, weren’t you?

      “A. Yes.
    “Q. You made it as a special discount to your trade at the time she bought this piano a certain amount of its value in order to induce a purchase?

      “A. It was the price we had on the piano during this time.”
    On redirect examination he testified:

      “Q. Mr. Baird, at the time the .price of this piano was spoken of, was at the time of the fire, was it not?
    “A. Yes, sir.

      “Q. That is the time you have reference to in your testimony?

      “A. You mean the price new?

      “Q. Yes.

      “Q. State whether or not that was when Mrs. Barrett came to you after the fire.

      “A. Yes.

      “Q. You may state whether or not, Mr. Baird, that piano was sold to Mrs. Barrett as a secondhand piano when it was sold.

      “A. It was.”
    In exhibit B are items of household furniture. The goods purchased from Kobacker Furniture Company cost — were priced and sold to her for $307.60, the vendors retaining title. She had paid $75 cash, and had returned and been credited $18.50 for a rug.
    No written application for the policy was made. The policy was issued by the local agent of defendant at Flint, who made no inquiry concerning the title to the property insured. He stated and was paid the premium for a policy of $1,500. Testimony for defendant tended to prove that but few of the goods were actually destroyed, and that the loss did not exceed $300. Proofs of loss were furnished October 18, 1915, payment was refused by defendant, and this suit was begun in December, 1915. With its plea defendant gave notice of special defenses, based upon provisions of the policy of insurance. Among them was the provision that the policy should be void, unless otherwise provided by indorsed or attached agreement, if the interest of the assured “be other than unconditional and sole ownership,” and one that— “this entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact * * * if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether, before or after a loss.”
    Upon the trial, the testimony being concluded, defendant moved for a directed verdict, based upon the testimony and the clause of the policy last above referred to, contending that fraud had been established and false swearing, as matter of law. The court instructed the jury in part as follows:

      “It appears from this policy that it contains this provision:
    “ ‘This entire policy shall be void if the insured has concealed •or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.’
    “Mark the language. The clause concerning the insurance or the property insured, or the loss of the value of the property, required the insured to make truthful representations of the fact concerning the entire subject of insurance before and at the time of the fire, and also statements as to the property and its value at any time since the fire, and also by means of her written and sworn-proofs of loss, and the evidence here upon the witness stand requires all these statements and representations to be truthfully made. By the terms of the policy any false or fraudulent statements affecting this insurance renders the policy void.
    “Now, gentlemen, I charge you that the burden of establishing fraud rests upon the defendant company. Such fraud on the part of the plaintiff must be established by a preponderance of the evidence in determining whether the plaintiff has been guilty of fraud as charged. You are to consider all the proofs and circumstances relating to the making and presenting the said proofs of loss and to all other circumstances surrounding the condition of the property as appears from the evidence. I further charge you that fraud need not be established by direct proof. In a great majority of cases where fraud exists, it becomes impossible to bring witnesses that can give direct proof that fraud exists. For this reason it may be established by circumstances that convince you that fraud was actually intended and committed by the plaintiff. I charge you that if you find any of the values specified in the proofs of loss furnished to the defendant company were too high, and that the plaintiff caused or permitted the furnishing of such proofs of a greater amount for any such article than she knew it to be worth with the intention or expectation of getting a greater amount for the article than she knew she ought to have in fáirness to the defendant, then she was guilty of such fraudulent conduct as would make void the policy, and result in the forfeiture of any claim that she might otherwise have had. I further charge you in this connection that any statement concerning the subject of insurance or concerning the amount or value of the property insured or destroyed, or any statement as to its condition or value in her written proof of loss, or here on the witness stand,,, or her statements on the witness stand, and were made by her fraudulently and with the intention of fraud that would render the policy void.”
    Further on the instruction was:
    > “There are two important questions for you to decide : that is, first, was there a fraud committed in the making of these proofs or in the representations made by her in those proofs as to the value of this piano or any article? Did she intentionally, mark you the language, gentlemen, did she misrepresent the value of any piece of property included within this, insurance? Did she make these misrepresentations with intent to defraud the company of any amount? Now, gentlemen, there is this fact for you to find. If you find she did, you will go no further, and your verdict should be no cause of action. If you find there was no intention of fraud perpetrated, then you will consider the proofs as to the value of .loss; in other words, the amount of the loss she suffered by virtue of this fire,_ and assess her damages fairly and reasonably, finding it alone from the proofs, and the evidence in this case, and from no other source.”
    And at the very conclusion of the charge the court said:
    “If you find the plaintiff has proven her case by that preponderance of the evidence which I have defined, you will find a verdict in her favor not to exceed the sum or amount claimed, $1,079. If, on the other hand, the company, the defendant company, has proven by overwhelming evidence the fraud or intention of fraud, then you will find the verdict in their favor, and the form of the verdict would .be no cause of action.”
    The jury returned a verdict for plaintiff for $965.58, no interest being claimed, or included; and judgment was entered on the verdict. A motion for a new trial, based upon the grounds that the verdict was against the weight of evidence, the charge of the court, and was excessive, and that a verdict should have been directed, was overruled.
    In this court, defendant complains of the charge, complains that a verdict was not directed, complains of the admission of plaintiff’s testimony that she was informed the piano was worth $850.

      On the effect of false swearing in proofs of loss in action for insurance, see note in 32 L. R. A. (N. S.) 453.

   Ostrander, J.

(after stating the facts). The Michigan standard policy limits the liability of the insurer to the actual cash value of the property at the time loss or damage occurs, in no event to exceed what it would then cost the insured to repair or replace the same with material of like kind and quality. It requires, in case a loss occurs, that the insured make a complete inventory, stating the quantity and cost of each article and amount claimed thereon, and within 60 days, unless the time.is extended, a statement to the insurer, signed and sworn to by. said insured, stating the cash value of each item, and the amount of loss thereon, and the interest of the insured, and of all others in the property. That plaintiff and whoever made up her proofs of loss had these provisions of her contract in mind is fairly established by the fact that she made an itemized statement, made two schedules, and as to the goods described in one of them stated that another had an interest in them. The apparent compliance with the provisions of her contract was particularly calculated to deceive. It is singular, if it is true, that she should have innocently listed the piano, upon which she had paid but $5, in the other schedule, valuing it therein at more than double the sum she had agreed to pay for it.

With respect to the forfeiture clause of the policy which is relied upon by defendant, it was held in Tiefenthal v. Insurance Co., 53 Mich. 306, 309, 310 (19 N. W. 9, 10), that it was properly construed in the following charge to a jury:

“That to defeat the plaintiff’s right to recover upon the basis of false swearing, you must not only find that he swore to that which was false, but that he did so with fraudulent intent; and in weighing the question of false swearing with fraudulent intent, it is your duty to take into consideration the knowledge that the affiant, Mr. Tiefenthal, had of the facts that he is alleged to have sworn to, and it is for you to determine what statements in that paper or items he understood he was swearing to. If you should come to the conclusion from the evidence that any of the items that he understood he was swearing to were false, you will then inquire whether he made it with a fraudulent intent; that is to say, with an intent knowingly to get a greater price for an article than’ he knew it to be worth, or to get pay for articles that he knew he had not lost.”

See, also, Knop v. Insurance Co., 107 Mich. 323 165 N. W. 228).

In Brunswick-Balke-Collender Co. v. Assurance Co., 142 Mich. 29, 36 (105 N. W. 76, 79), the following rule from 1 Clement on Fire Insurance (p. 273) is cited with approval:

“Fraud or false swearing implies something more than mistake of fact or honest misstatements on part of assured. They may consist in knowingly and intentionally stating upon oath what is not true, or a statement of a fact as true which the party does not know to be true, and which he has no reasonable ground of believing to be true.”

And it was said by this court:

“We think that the fraud referred to in this clause must be held to be actual fraud, and that the same rule applies which, in case the charge is fálse swearing, as we have heretofore held, requires proof of a fraudulent intent.”

This rule and view of the law requires usually that the question of the intent with which, as here, false swearing is done and false representation is made be inquired into by the jury, and it cannot be held error for the court in this case to submit the question to the jury. No error being assigned upon the refusal of the court to grant a new trial, the question of the weight of evidence upon this point is not before us.

As the question of the cash value of the property destroyed or injured was material, it was not error to permit plaintiff to testify to what she was informed the piano was worth when she bought it.

This disposes of the fifth, fourth, and second assignments of error. The third assignment is overruled, the question propounded to which an answer was refused calling for immaterial testimony. It was plainly not competent to lay before the jury what it was that prompted the witness to inquire into plaintiff’s history.

The first assignment of error presents the serious question; more serious because the evidence of plaintiff’s fraudulent intent is so convincing. It surely was an inadvertence when the court, after laying down proper rules for the guidance of the jury, concluded the charge by indicating that “the fraud or intention of fraud” with which plaintiff was charged must be proved “by overwhelming evidence,” having immediately before then said that:

“If you find , the plaintiff has proven her case by that preponderance of the evidence which I have defined, you will find a verdict in her favor. * * *”

Can it be assumed that no harm to defendant followed this erroneous, if inadvertent, instruction? I feel constrained to conclude that, in view of the evidence and the verdict returned, such a presumption cannot be indulged, and that the case should be submitted to another jury.

The judgment is reversed, and a new trial granted.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.