text:
    BARBRICK v. WHITE SEWING MACHINE CO.
    1. Trover and Conversion — Value—Damages.
    Evidence that a sewing machine which defendant’s agent was charged with converting had cost a stated sum and testimony comparing the work done by it with the work of a new machine, was admissible, upon the question of damages in trover.
    2. Damages — Value—Evidence.
    Plaintiff’s damages, in an action of trover for converting a second-hand sewing machine, were not limited to the market value, which defendant’s agent testified was only $5 or $10, where plaintiff and his wife gave testimony tending to show the cost and present value and that it worked about as well as a new one; the owner being entitled to full compensation for his property.
    Error to Kent; McDonald, J.
    Submitted April 7, 1914.
    (Docket No. 1.)
    Decided June 1, 1914.

      Trover in justice’s court by William Barbrick against the White Sewing Machine Company for conversion of a sewing machine. From a judgment for plaintiff, defendant appealed to the circuit court in which judgment was rendered for the plaintiff. Defendant brings error.
    Affirmed.

      Holmes & Holmes and Don E. Minor, for appellant.

      Dunham & Dunham, for appellee.
   Moore, J.

This suit is in trover. It was brought in justice’s court to recover the value of a sewing machine. The plaintiff recovered a judgment for $30. The case was appealed by defendant to the circuit court, where plaintiff again recovered a judgment of $30. The case is brought here by writ of error.

Counsel for appellant say, we quote from the brief:

“There are no intricate questions of law involved in this case. It seems to us that all the questions involved and upon which error is assigned are too elementary to admit of discussion, and counsel desire to say at the outset that, but for the fact that the defendant is conducting a large business in this and other parts of this State in which the result of this case in the trial court might establish a dangerous precedent, the amount herein involved would not justify its seeking to have it reviewed by this court.
“While defendant has alleged 11 assignments of error upon the trial, it will be apparent that the error chiefly relied upon will be the improper admission of testimony offered by plaintiff by which he sought to show the value of the old machine, or, in other words, to show_ plaintiff’s measure of damages, and that the verdict is against the weight of the evidence, and the damages are excessive.”

The plaintiff is a married man with a wife and four children. It is his claim that his wife does not speak English well, and that in his absence an agent of defendant visited his house and tried to exchange a new machine for the one they had in the house; that his wife declined to make any exchange in the absence of her husband, but that she was persuaded by the agent to allow him to take the old machine and leave a new one, the agent assuring her that if the husband did riot approve he would return the old machine and take away the new one. It is the further claim that the agent left with the wife, though no money was paid, a paper reading:

“September 13, 1910.
“Received of Mrs. William Barbrick cash, $5.00, and old machine, $5.00, total paid, $10.00; balance $35.00, to be paid $2.00 monthly from this date.
“White Sewing Machine,
“-, Agent.”

He also left with her a contract containing, among other things, the following:

“Having paid by cash, $5.00 and by Disc. $5.00 (stipulated rent for the first month only) for which I receive the company’s so-called ‘blue paper’ receipt, I further agree to pay at the office of the said company, at Grand Rapids, Mich., or to its authorized collector, the sum of three dollars on the 25th day of each and every month after date, upon condition that when the entire amount of forty-five dollars, the agreed value of said sewing machine, including first payment, shall have been paid by me, the said company shall upon demand make me a bill of sale of said machine. And I agree to pay the said monthly rental until the balance of said agreed value shall have been paid; and it is further expressly understood that until the whole sum of said agreed value whether in judgment or not, shall be paid, the said White Sewing Machine Company neither parts with nor do I acquire any title to said White Sewing machine.
“And I agree that until this contract is fully paid, with interest after maturity, all payments made by me shall be considered by the parties hereto as payments by me for the use and rental of said machine under the terms hereof.”

A sum of $5 was indorsed on the back of this paper.

It is the further claim of plaintiff that, when he reached home and found out what had been done, he did not approve, and that the agent was so notified in writing by means of a postal card, the next day; that the agent replied by postal that he regarded the transaction as a sale and should expect payments to be made according to the contract. No payments were made, nor was the old machine returned. The plaintiff declined to let the defendant take the new machine until the old one was returned.

The defendant claimed it was unable to return the old machine, but was willing to replace it with another, and finally brought replevin for the machine left at the house of the plaintiff. No defense was interposed to this action, and defendant recovered the machine. This action was then brought, with the result before stated. Upon the trial in the circuit court the plaintiff was allowed to testify to the cost of his machine, and he and his wife were both allowed to testify as to how its work compared with the work done by the machine left by the agent of defendant. Error is assigned upon the admission of this testimony.

Defendant gave testimony tending to show that the machine of plaintiff was not worth more than $5 to $10, and it is its claim that plaintiff is entitled to recover only the market value of his machine, and that the verdict of $30 is excessive.

In Rose v. Lewis, 10 Mich. 483, which was an action of trover for the wrongful conversion of a promissory note, Justice Campbell, speaking for the court, said:

“It is undoubtedly true that damages for the conversion of articles having a regular market value are measured generally by that value. But that is only _ because such a measure furnishes the precise redress ’ which the law always aims at giving, by making good as near as may be the injury which the aggrieved party has sustained. Where articles have not a standard or market value, then their value to the owner, so far as they are susceptible of pecuniary measurement which is not fanciful or merely speculative, furnishes the true test.”

A judgment for the full amount.of the note was sustained, though some witnesses for the defendant testified that the maker of the note was in debt and had no property to pay his debts.

In Dalton v. Laudahn, 27 Mich. 529, it is said:

“The rule seems to be settled that when property is tortiously taken, the owner is not only entitled to an action, but to full compensation in damages.”

' In Smith v. Mitchell, 12 Mich., at page 191, it is said:

“Evidence of what the property brought at auction is admissible, as having some tendency to prove value.”

In Worthington v. Hanna, 23 Mich., at page 534, it is said:

“It is also alleged as error that the court refused to instruct the jury to disregard the appraisement made under the attachment proceedings, in estimating the value of the goods.
“Plaintiff in error was allowed to introduce testimony on this subject, and the appraisal was left to the jury for what it was worth and not as in any way conclusive. We do not think there' was any objection to this. It is a sworn valuation, made under the statute by persons selected by the plaintiff in error himself, as most likely to value the property judiciously. It is so far conclusive that the sheriff is compelled to release the property on a bond proportioned by its value. Testimony of value, being very much matter of opinion, has been received from many sources supposed to be reasonably reliable, upon less security against error than exists here. In Smith v. Mitchell, 12 Mich. 180, we allowed auction prices to be considered. In Sisson v. Railroad Co., 14 Mich. 489 [90 Am. Dec. 252], values were allowed to be shown by the published prices current. In Cliquot’s Champagne, 3 Wall. [U. S.] 114, and Fennerstein’s Champagne, 3 Wall. [U. S.] 145, a still more liberal rule was adopted. There may be serious objections to making any of these extraneous estimates conclusive. But when an appraisement is made in pursuance of a statute under oath, in the course of the proceedings, under which the party has himself acted, and he himself selected the appraisers, we think it would be going too far to say that such a valuation is entirely worthless as evidence against him. Assuming that he acted fairly in selecting them — and this is a reasonable presumption — it must be supposed that the safeguards provided by the statute with an express reference to securing this evidence will give it at least a claim to consideration against the officer who obtained it! See, also, Comstock v. Smith, 20 Mich. 338; Kermott v. Ayer, 11 Mich. 181.”

We do not think there is occasion to reverse this case.

Judgment is affirmed.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    O’NEIL v. BROOKS.
    1. Chattel Mortgages — Debtor and Creditor — Piling.'
    A creditor, whose claim arose after the giving by his debtor of a chattel mortgage, which was not filed in the office of township clerk, is entitled to assert against such chattels a judgment and execution lien obtained after the mortgage was duly recorded (Act No. 258, Pub. Acts 1905, § 10, 3 How. Stat. [2d Ed.] § 11407) if the conveyance was not accompanied by an actual and continued change of possession of the mortgaged chattels.
    2. Same — Change of Possession — Bailments.
    Where mortgaged horses were turned over to a creditor of the owner, to be used at an agreed rate and the same applied on the indebtedness, and there was no evidence that the bailee creditor was to take possession and hold them for the mortgagee of the team, no such change of possession in behalf of the mortgagee was shown as to protect _his interest against the rights of a subsequent creditor of the mortgagor without notice.
    Error to Marquette; Flannigan, J., presiding.
    Submitted April 17, 1914.
    (Docket No. 62.)
    Decided June 1, 1914.
    Rehearing denied December 19, 1914.
    Replevin by James O’Neil against Arthur Brooks for two teams of horses and their harness. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      J. L. Heffernan (C. F. Button, of counsel), for appellant.

      W. S. Hill, for appellee.
   Steere, J.

This is an action in replevin, involving two teams of horses and their harnesses, brought here for review from the circuit court of Marquette county, where, upon trial by jury, judgment was rendered on a directed verdict for defendant.

Before, and at the time, the parties to this suit became interested in the property in question it belonged to Reichel Bros., a lumbering firm of Marquette county, whose title defendant subsequently acquired on execution sale. Plaintiff’s claim is based upon a chattel mortgage given him by Reichel Bros.

On September 12, 1911, the corporation of A. G. Wells Company commenced an action against Reichel Bros, upon a note given in March, 1911, maturing in July, 1911, and at the same time instituted garnishment proceedings against the Consolidated Fuel & Lumber Company, as garnishees of Reichel Bros. Said fuel and lumber company disclosed that the horses and harnesses involved were held by it under a contract with the principal defendants, whereby the garnishee defendant had use and possession thereof until satisfaction of a debt due it from the Reichel Bros.; which contract provided that Reichel Bros, were to be credited with the sum of $35 per month for the use of each team and its harness, and that there was at the time of the disclosure yet’ owing and unpaid upon said indebtedness the sum of $317.19, for which a lien upon said property was claimed by the garnishee defendant.

On December 6> 1911, A. G. Wells Company recovered in the action upon its note a judgment against Reichel Bros, for $311.81 damages and costs. On the concurrent proceedings in garnishment a judgment was entered providing in part as, follows:

“It is hereby determined that at the time of the service of the writ of garnishment in this cause upon said garnishee it had' in its possession and under its custody and control the following goods and chattels of the said principal defendants, viz.: One team of horses [describing them] and two sets of heavy double harness, including collars, which said goods and chattels were then and are now held by the said garnishee under a contract with said principal defendants, whereby the said garnishee has a lien thereon and a right to retain possession of said goods and chattels and have the use thereof until the full payment to said garnishee of the sum of $71.69, which constitutes the amount of said lien at the rate of $35 per month for the use of each of said teams and harness.”

By said judgment the garnishee defendant was also ordered to deliver said property to the sheriff on demand, to be sold by him to satisfy the execution to be issued upon said judgment, subject to the amount of said lien.

An execution was issued in said garnishee proceedings, reciting the principal judgment, the garnishment, and the garnishee judgment, commanding the sheriff to satisfy thereunder, out of the property, the amount of the principal judgment and costs in the garnishee proceedings, subject, however, to the lien of the garnishee.

Under this execution the sheriff levied upon said property March 1, 1912, and, after seizure, on'the same day made an arrangement with the garnishee defendant, by which the latter gave him a receipt for the property, agreeing therein to hold possession thereof until the 14th of said month, and then turn the same over to him, subject to its lien; that being the day set by the sheriff for execution sale. On that date the sheriff sold said property to defendant, Brooks, as the highest bidder, for the sum of $375, subject to said lien of garnishee defendant, amounting at the date of sale to $17.69. Brooks at that time had also levied an execution upon this property to satisfy a judgment against Reichel Bros, for the sum of $707.98 obtained by him March 8, 1911, with similar ancillary proceedings in garnishment against the same garnishee defendants.

After Brooks secured possession of the property, plaintiff seized it under a writ of replevin, as being property covered by a chattel mortgage dated January 9, 1911, given him by Reichel Bros, to secure the sum of $2,000 which he had loaned them. Said mortgage was not, however, filed for record until January 10, 1912.

On January 14, 1911, after said loan was negotiated, but before the chattel mortgage was delivered,' Reichel Bros., with plaintiff’s consent, gave possession of this property to the fuel and lumber company, under a contract to turn the same over to the latter, to be worked and used in payment of a debt Reichel Bros, then owed it, amounting to $522; said fuel and lumber company agreeing to credit upon said indebtedness the sum of $70 per month for the use of said property, keep and care for the same, and furnish food and drivers for said horses while in its possession.

Shortly after the fuel and lumber company received possession of this property under said contract, it further agreed with Reichel Bros, to furnish the latter from time to time certain supplies, the amount of which should be charged in and become a part of the original indebtedness owing from the latter to the former, and did so furnish the same to the amount of $460, of which supplemental agreement plaintiff was informed by Reichel Bros., and to them gave his consent thereto.

The fuel and lumber company retained, used, and worked said property until the entire indebtedness owing it by Reichel Bros, was paid, including the $18 yet due when defendant bought the same on execution sale, after which he took possession, and plaintiff took it from him, after demand, by writ of replevin, claiming right thereto under his chattel mortgage.

After the property was replevied, default was entered by defendant against plaintiff for failing to file a declaration, and before the case came to trial a stipulation was entered into by counsel of record, providing in part:

“ * * * That the default of the plaintiff heretofore entered in this cause may be, and the same is, hereby set aside, and the plaintiff allowed to serve copy of his declaration in this cause instanter; * * * that upon the trial of the above-entitled cause it will be admitted that all the proceedings in the case of A. G. Wells Co., a corporation, v. George Reichel et al., principal defendants, and the Consolidated Fuel & Lumber Company, garnishee defendant, and also all the proceedings .in the case of Arthur Brooks against the same principal and garnishee defendants, were regular and proper and effective for the purposes thereof, it being the intention hereby to give the said defendant all the benefit that he could derive from such proceedings when regularly and properly carried through, but not to admit that such proceedings, when so conducted, operated to give to the plaintiffs therein such prior rights in the property seized under the writ in this cause as to enable them, or either of them, to sell the same free of the chattel mortgage lien of this plaintiff thereon, that question to remain to be litigated the same as though this stipulation had not been entered into; said O’Neil not admitting these said plaintiffs did not have notice of his chattel mortgage and rights prior to and after judgment in said garnishee proceedings, either by themselves or agents or attorneys.”

As to this stipulation, it is urged by present counsel for appellant that an attorney has no implied power to release errors in the record; that this was entered into under a misapprehension, is but mere admissions of law which the court is not required to act upon if satisfied to the contrary, and ought not to be held binding under the circumstances. Assuming that it will not be, counsel argue at length in their brief against the regularity and validity of the proceedings in the cases mentioned.

Without reviewing in detail the questions there raised, it is sufficient to state that we are not satisfied that the irregularities complained of render those proceedings invalid, and, under this record, we conclude the only serious question for consideration is that of the priority between plaintiff’s chattel mortgage and defendant’s title under the execution sale.

The trial court held that the lien, by virtue of said garnishee proceedings and judgment, took priority over plaintiff’s chattel mortgage, which was unrecorded at the time such lien attached, and therefore directed a verdict in favor of defendant for the value of said property, which, as an issue of fact, was submitted to the jury under proper instructions, resulting in a verdict against said plaintiff in the sum of $641.25.

The recording law relative to chattel mortgages (section 10, Act No. 258, Public Acts 1905), provides that:

“Every mortgage, or conveyance intended to operate as a mortgage, of goods and chattels, which shall hereafter be made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers or mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed in the office of the township clerk * * * where the goods or chattels are located,” etc.

The indebtedness for which A. G. Wells Company obtained judgment against Reichel Bros, arose out of credit extended March 10, 1911, while plaintiff’s mortgage was withheld from record. The company’s claim accrued subsequent to the execution and delivery of an unrecorded chattel mortgage, and it could therefore assert a lien upon the property before or after the mortgage was filed under the recording law. This whole subject has been so recently reviewed, with numerous authorities cited, in People, for use of Esper, v. Burns, 161 Mich. 169 (125 N. W. 740, 137 Am. St. Rep. 466), and City Bank & Trust Co. v. Hurd, 179 Mich. 454 (146 N. W. 299), that further discussion of that question here is. unnecessary.

It is the contention of plaintiff that there was, in legal effect, under the facts shown, such a delivery or change of possession of the things mortgaged at or about the time of delivering the instrument to him as to relieve plaintiff from the necessity of recording the mortgage, not by actual delivery of the property to him, but into the hands of a third party with his consent, who had notice of his mortgage, held actual and exclusive possession against the mortgagor, and, as a matter of law, held possession for the mortgagee.

It may be conceded that, if this property was turned over to the fuel and lumber company to hold for plaintiff, while its indebtedness was being worked out, such change of possession would be sufficient to protect-his security, but the record fails to show such was the case. Plaintiff is not shown to have been a party to the contract' by which Reichel Bros, turned the property over to the fuel and lumber company or to even have communicated with the latter on the subject; his dealings were with Reichel Bros., in which he gave them his consent to their letting the fuel and lumber company take the property and use it for a time. There were no contractual relations between him and the latter, and whether it even had notice or knowledge of his chattel mortgage is a matter in dispute. Its possession came from Reichel Bros, with their consent, was for an indefinite time, not hostile nor adverse to their title, and was contingent on their indebtedness being paid to it. They had, so far as shown, the right at any time to pay up the balance owing and take their property. The property was being held by the bailee for' the bailor from whom it was received and with whom the contract of bailment was made, and from whom there were no instructions to return the property at the expiration of the bailment to any third party.

We conclude the learned circuit judge correctly held that, under the undisputed evidence in this case, there was no change of possession, as between mortgagor and mortgagee, and plaintiff’s chattel mortgage was invalid as to the A. G. Wells Company, which became a creditor of the mortgagor in good faith after said mortgage was given and before the same was put on file and of record.

The judgment is affirmed.

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


text:
    HICKEY v. SHELLENBARGER.
    1. Malicious Prosecution — Elements.
    To entitle a plaintiff to recover' for malicious prosecution, three things must concur and be established by a preponderance of the evidence: that the prosecution was begun and came to a legal termination in favor of the plaintiff, that the defendant instituted it without probable cause, and that in so doing he was actuated by malicious motives.
    2. Same — Malice—Trial.
    If there is any evidence in the case tending to prove malice, the question is for the jury to determine whether a malicious motive existed: it may be proved by direct evidence or it may be inferred from circumstances. And where there was evidence of acts of violence committed by the defendant and expressions of ill will, with facts and circumstances in the dealings of the parties from which malice might be inferred, the issue became one of fact for the jury.
    3. Same — Intoxicating Liquors — Probable Cause.
    Where the defendant made a complaint before a justice of the peace, charging the plaintiff with selling him a quart of whisky and the plaintiff denied that he sold or furnished a bottle of whisky at the time and place stated, i. e., in a county that had adopted prohibition, defendant’s testimony that plaintiff did sell the bottle of whisky as charged, furnished evidence of probable cause for making complaint, but if such testimony was untrue as charged by the plaintiff and as shown by his proofs, there was want of probable cause for the prosecution, and plaintiff’s evidence made out a prima facie case.
    4. Same — Hearsay Evidence — Preliminary Examination — Witnesses.
    Evidence offered to show what the witnesses stated in their examination before the justice of the peace was correctly excluded, the testimony was inadmissible to establish the contention that the discharge of plaintiff from custody was erroneous and a miscarriage of justice.

      5. Same — Evidence—Criminal Law — Other Oeeenses.
    Proof of other offenses similar to the one with which defendant charged the plaintiff, who was taken into custody for the offense complained of, is not competent, In an action for malicious prosecution, to prove the plaintiff’s guilt of the offense for which he was arrested.
    6. Same.
    Nor did the court err in charging the jury that evidence of the plaintiff’s discharge from arrest was admitted solely to prove the termination of the criminal proceeding and could not be considered as proof of want of probable cause.
    Error to Shiawassee; Miner, J.
    Submitted April 9, 1914.
    (Docket No. 19.)
    Decided June 1, 1914.
    Case by Otto Hickey against Henry Shelleiibarger for malicious prosecution. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Chapman, McNamara & Matthews, for appellant.

      Roy M. Chrouch (George E. Pardee, of counsel), for appellee.
   Steere, J.

This is an action for malicious prosecution involving a judgment against defendant for six cents damages and equal costs, brought here by defendant for review on a writ of error for the purpose, as we are informed, of maintaining his right, as a citizen willing to vindicate the law and assist the suppression of crime in discharge of his duty to society, to protection from annoying litigation resulting from such public service.

Plaintiff and defendant were formerly friends and copartners in the business of spraying orchards in Shiawassee county, but differences arose between them which resulted in their ceasing to prosecute the business after some time in February, 1912, though they were unable at that time to satisfactorily adjust their partnership affairs and fully dissolve such relations, in consequence of which, unfriendly feeling developed. While their relations were friendly, Hickey procured some whisky, of a brand known as the “Golden Gift,” by express, from Covington, Ky., for medical purposes, as then assumed and said, in the consumption of which both participated, according to the demands of their health or inclinations. The number of times it was procured and the circumstances under which defendant participated and obtained his portion are questions upon which they are not in harmony. Defendant claims it was procured by plaintiff on three different occasions; plaintiff admitted that it was ordered once by him, but claimed it was for both of them acting in co-operation, either in January or February, 1912, when the weather was very cold. His account of the transaction and his agency is as follows:

“It was 14 months before the warrant was sworn out. I said to Shellenbarger, T believe I am sick, coming down with the gripand I says, T have got to do something for this or I won’t be able to go any further;’ so I says, ‘I believe I will send and get a gallon of whisky and see if I can’t break up my cold.’ Mr. Shellenbarger says to me, he says, T believe I have got the same thing;’ and he says, ‘While you are sending, get some for me.’ I says: ‘Mr. Shellenbarger, I am going to get a gallon, and I don’t need it all. If you want some and you order it, why I will get it for you.’ So he asked me what it was, and I told him it was $3.20 per gallon, or-five quarts; there was one quart thrown in free. I told him I would figure in that quart just the same as I paid for it/ He said ‘You send and get one quart bottle for me/ and offered to pay me. It was so awful cold my hands were frozen stiff. My coat was buttoned up. And I says to Shellenbarger, ‘Never mind, I will advance the money for you, and you can pay me some other time/ He says, ‘Very well/ ”

That the “Golden Gift” was procured from Kentucky and possessed special medicinal properties is said to bear some relation to the fact that Shiawassee county was under the local option law, so called, and the sale or giving away of intoxicating liquors in that territory was prohibited.

After the estrangement of these parties and their inability to settle their partnership affairs became acute, it is claimed by Hickey that Shellenbarger, who was an athlete and had manifested his prowess while on the police force in the city of Toledo, commenced a course of intimidation towards the former both by physical demonstrations and by threatening to make him trouble on account of his having procured and furnished liquor to others in violation of law. Different witnesses testified to such threats and physical violence by Shellenbarger, at one time reaching a point where he grabbed Hickey by the throat and choked him. A settlement of their business matters was reached about a year after they ceased doing business, under circumstances which did not altogether relieve their strained relations.

In the fall of 1912 Shellenbarger became a candidate for sheriff of Shiawassee county on the Progressive ticket, and Hickey does not appear to have been favorably disposed to his candidacy. During the campaign each insinuated that the other had been guilty' of violating the local option law, and threats of prosecution were made in that connection.

On February 27, 1913, Shellenbarger made an affidavit before Gustav F. Friegel, a justice of the peace, charging Hickey with selling deponent one quart of whisky in the city of Owosso on the 21st of April, 1912, receiving therefor the sum of 60 cents. Upon this a complaint was sworn to by a deputy sheriff, and a warrant issued charging Hickey with violation of the local option law. An examination had before said justice resulted in the discharge of Hickey; the justice finding that there was no probable cause to suspect him guilty of the commission of the offense charged, on the date stated. Following Hickey’s discharge he commenced this action against Shellenbarger for malicious prosecution. The case was tried before a jury in the circuit court of Shiawassee county, resulting in a verdict for plaintiff and assessment of damages in the sum of six cents. The various objections to the validity of this judgment propounded in defendant’s assignments of error, and discussed, involve the claims that a verdict should have been directed for defendant because plaintiff failed to prove malice and want of probable cause, and admitted that he himself was guilty of violating the local option law; that defendant “acted in good faith to bring a man he believed guilty to justice;” that various errors were made by the court in its charge and in the admission and rejection of evidence.

To entitle plaintiff to recover in this action for malicious prosecution, these three things must concur and be established by a preponderance of the evidence: That the prosecution was begun and came to a legal termination in plaintiff’s favor; that defendant instituted it without probable cause; and that in doing so he was actuated by malicious motives.

It is undisputed that the prosecution was instituted on the strength of an affidavit made by defendant, and that it has ended favorably to plaintiff, resulting in his discharge.

The question of malice calls for little consideration. It is always exclusively for the jury when there is any evidence in the case tending to establish it.

“It may be proved by direct evidence, or it may be inferred from circumstances.” Hamilton v. Smith, 39 Mich. 223.

The record in this case contains both direct and circumstantial evidence, consisting of acts of violence, threats, and expressions of ill will, with facts and circumstances in the dealings and relations of the parties from which malice might be inferred. • Furthermore, in this record the testimony of the contending parties and their relations to the facts out of which the alleged malicious prosecution arose bring both the questions of malice and want of probable cause to a simplicity of inquiry which relieves from the necessity of resort to fine distinctions and detailed definitions often deemed essential to an understanding of their import. Both litigants claim and testify to first knowledge of the essential fact. No question of misinformation or misunderstanding is involved. Both of them have personal, positive, and direct knowledge of the absolute truth. Plaintiff testified he did not sell or furnish defendant a bottle of whisky at the time, and place stated in the affidavit. His testimony makes out a prima facie case and, if true, establishes want of probable cause for the prosecution and the inference that it was begun maliciously, in bad faith. Defendant swore in his affidavit and testified on the trial that plaintiff did sell him a bottle of whisky at the time and place charged. If true, there was not only probable cause but positive and conclusive cause for the prosecution, and the question of malice is eliminated. If untrue, there was no cause, probable or possible. Whether he “acted in good faith to bring a man he believed guilty to justice” rests upon the same contingency. All citation of authorities and subtlety of reasoning circle back to these elemental propositions. According as the jury determined the truth or falsity of the direct and positive testimony of these opposing litigants, so the questions of probable cause and malice inevitably went. Evidence of their, relations with each other and all facts and circumstances bearing on their veracity, or in any way legitimately tending to throw light on the transaction and refute or substantiate the testimony of either, was competent, and full latitude appears to have been given by the court in that respect, to both parties.

Complaint is made that it was not, in the particular that the court sustained an objection to admission of the testimony of certain witnesses taken at the examination before the magistrate in the criminal prosecution on account of which this action was brought; counsel for defendant stating its purpose was to show that plaintiff’s discharge was wrongful and a miscarriage of justice. No claim was made that any of the witnesses at that examination were dead or for other reasons not available. It was undisputed that there was an affidavit by defendant, a complaint, warrant, and arrest of complainant, followed by an examination before the magistrate and discharge of plaintiff, legally terminating the case. The prosecution did not end on technical grounds but after examination of witnesses and an adjudication by the court. The details and reasons of the court for such decision were immaterial. The court rightly held that the discharge of plaintiff was only admissible and material to show the prosecution was terminated, and what evidence the magistrate had before him to govern his official action, or what he may have thought, was immaterial. Defendant was permitted to go fully into all the original facts and circumstances bearing on plaintiff’s guilt and introduce whatever testimony he desired as to his knowledge, motives, the occasion for and circumstances of his making the affidavit.

It is urged that the circumstances under which the affidavit was made by defendant indicate that he acted in good faith and without malice, because he is shown to have made the affidavit at the solicitation of one Goodwin, who testified that he was looking after “bootlegging” in an effort to bring offenders in that particular to justice, and that a deputy sheriff, who heard defendant knew of certain facts implicating plaintiff, interrogated and solicited him to make complaint. It appears undisputed that matters reached a stage where it was understood by Goodwin, the officer, and others that defendant had made statements that plaintiff had violated the local option law to defendant’s own knowledge on at least three different occasions, and when they interviewed him he asserted such to be the case. He accompanied them to the magistrate and there said he was willing to make an affidavit, but did not care to make complaint, and it is claimed that the officers selected, from the three offenses of which defendant told, the one for which the complaint was made, and therefore, as a matter of law, defendant cannot be held responsible for such selection. This is not borne out by the facts proven. The magistrate testified that when these matters were brought to his attention, and he was solicited by Mr. Goodwin to issue a warrant, he stated that it would be necessary for some evidence to be produced which would justify issuing the same; that later defendant came before him, accompanied by Mr. Goodwin and an officer, and stated that he was willing to make an affidavit, whereupon the magistrate prepared an affidavit, asking defendant particularly for the data from which to make it and the date on which he claimed the offense was committed; that he drew up the affidavit according to such statements made by defendant, and defendant signed and swore to it. This affidavit was the cause and foundation of the prosecution. He is not shown to have made affidavit to any other offense or manifested his willingness to do so.

The claim that a verdict should have been directed in defendant’s favor for the reason that plaintiff admitted facts which show he is guilty of violating the local option law is not tenable. His testimony, on cross-examination, which it is claimed was such an admission, related to an entirely distinct transaction from that involved here. At the worst, it was a different offense, at another time and place. Counsel devote much space in their briefs to the question of whether the facts plaintiff admitted would constitute a violation of the liquor law, under People v. Driver, 174 Mich. 214 (140 N. W. 515). This we regard as immaterial. The evidence was admitted. Defendant had the benefit of it before the jury. It may be considered admissible as. bearing upon plaintiff’s character and veracity and, if known to him, defendant’s good faith; but proof of other similar offenses is not competent to directly prove guilt of the offense charged. 26 Cyc. p. 94; Patterson v. Garlock, 39 Mich. 447; Wilson v. Bowen, 64 Mich. 133 (31 N. W. 81).

Defendant requested the court to “instruct the jury that the discharge at the examination is not evidence of probable cause.” This the court did not give, and manifestly should not have given in the form presented, but did in effect, we think, instruct the jury that the discharge was not to be considered as evidence of want of probable cause, distinctly charging them that it was admitted solely for the purpose of proving the one essential fact that the prosecution was terminated in the discharge of defendant, and what the justice may have thought in so doing was not for the jury to consider, emphasizing at length the rule putting the burden of proof upon plaintiff to establish, by a preponderance of evidence, that defendant was not only actuated by malice but had no reasonable ground or probable cause to think plaintiff guilty, and that plaintiff could not recover “if he has not done that to the satisfaction of the jury, by a preponderance of the evidence.” We think the charge of the court as an entirety was correct, and very clearly stated to the jury the principles of law involved, and under the law their duty in relation to the issues of fact. As before suggested, the paramount problem for the jury was the veracity of the contending litigants. This they have solved in plaintiff’s favor, to the extent of six cents. We are not impressed that the verdict is so against the overwhelming weight of evidence as to demand that it should be set aside for that reason.

No reversible error is found in the record, and the .judgment is affirmed.

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


text:
    JANIK v. FORD MOTOR CO.
    1. Automobiles — License Tag as Evidence.
    Evidence, not in dispute, that the defendant, an automobile manufacturer, sold a car to a purchaser in the regular conduct of its sales business, and, following a custom, permitted the buyer to use its license number in driving through the city, and that defendant furnished for him, at his request, a chauffeur, who was one of the regular employees of the defendant, to drive the car in the city, lielcL, not to charge the defendant with liability to a pedestrian injured by the negligent act of the driver of the automobile which had been paid for in cash and had become the property of the buyer, who was also an experienced driver.

    2. Same — Master and Servant.
    An employee of one person may become the special servant of another with all the mutual rights and obligations of master and servant for the time of, and with respect to, the special service in which he is temporarily engaged. The test is whether the servant becomes subject to the direction of the person to whom he is lent or hired, or remains under the control of his original employer.
    Error to Wayne; Murphy, J.
    Submitted April 7, 1914.
    (Docket No. 2.)
    Decided June 1, 1914.
    Case by Jan Janik against the Ford Motor Company for personal injuries. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Clarence P. Milligan, for appellant.

      Thomas M. Cotter (Edward Donnelly, of counsel), for appellee.

       On the question of the liability of an automobile owner for negligence of chauffeur furnished by third person, see note in 39 L. R. A. (N. S.) 933.

   Steere, J.

This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff, on July 29, 1910, from a passing automobile driven by an employee of defendant, while alighting from a Michigan avenue street railway car in the city of Detroit. From a judgment on a directed verdict for defendant plaintiff brings this case here for review on a writ of error. The controlling question involved is whether the relation of master and servant existed between defendant and the driver of the automobile at the time of the collision.

The uncontroverted facts essential to this inquiry are substantially as follows: On the day in question John I. Werner of Bronson, Branch county, Mich., went to the city of Detroit, purchased and paid for an automobile at the salesrooms of the Ford Motor Company on Jefferson avenue. He was in the hardware business at Bronson, and handled automobiles under what is called a limited dealer’s license contract with defendant, by the terms of which he could purchase its cars at a discount for resale. He was accompanied to Detroit by a prospective purchaser named Kline, to whom he expected to sell the car. He proposed to drive the car to Bronson and deliver it to Kline, whose home was near by. He had owned and driven automobiles, was an experienced driver, and had driven several kinds, including a Ford, making long trips with them. He had owned and driven a Ford at least two years before the time in question. After purchasing the automobile and paying for the same in full, he also purchased and paid for gasoline, oil, and carbide for the drive to Bronson. Upon the car was a card marked with the license number registered for the Ford Motor Company for the year 1910, under the Michigan motor vehicle law. Having fully completed his purchases and preparations for the journey, and when about to leave, accompanied by Mr. Kline, he asked the salesman from whom he had purchased the automobile if they would let him have a driver to take them to the city limits; and the salesman replied that he would see. Werner testified that though he was a competent driver himself, he was not familiar with city driving in the congested streets, and for that reason asked for a driver to go with and pilot him to the city limits; that he had made this request before when he drove cars through to Bronson, and as a matter of accommodation they had sent a driver with him, and on reaching the city limits he would himself take the car and go on. A man by the name of Groholski was furnished, and they started on the journey with him as driver.

Groholski was a regular employee of defendant, having been in its service for some time as a repair man, tester, and demonstrator. His instructions from Walker, the foreman at the salesrooms, were to put on his coat, get into the car, drive it for the two gentlemen out to the city limits, turn the car over to them, and then come back on the street car. The three men got into the car about the same time, Werner sitting upon the back seat and Kline by the side of Groholski, to whom Werner said that they wanted to go over Michigan avenue. They proceeded westerly along Michigan avenue, and when near its intersection with Thirty-fourth street a street car overtook and passed their automobile, which was running along the avenue on its proper side of the track at a speed of from 10 to 15 miles an hour. As the street car neared Thirty-fourth street it commenced to slow down, to make a stop at the corner, and the automobile began to gain upon it. Plaintiff was a passenger upon the street car, and in alighting at Thirty-fourth street was struck by the automobile and injured, to what extent is a matter in dispute, as are also the circumstances surrounding the accident. He was thrown down, but not run over, by the automobile, which made a sudden stop. He was then assisted to his feet by the driver, taken into the automobile and driven to his home, where he walked without assistance from the car to the house. The questions of negligence, contributory negligence, and the extent of his injuries, which were closely contested, are but indirectly involved, and need not be further considered, as a verdict was directed on the ground that the driver was not defendant’s servant, at the time of and in connection with this transaction. The limited dealer’s license under which Werner bought this car provided for the delivery by defendant of cars f. o. b. at Detroit. Werner was required to pay cash for the same. He could then have the cars shipped by rail, he paying the freight, or could get them at defendant’s salesrooms and drive them to Bronson, thus saving the freight. In this case he adopted the latter course. The records of the defendant show that the car was sold, paid for, and delivered to Werner at the salesrooms.

It was shown to be the custom of defendant to mark its license number on pasteboard tags and put them on cars, having as a manufacturer but one regular license number on a metal plate issued by the State. These tags were sometimes left upon the cars when sold and driven away, if the purchaser wished, until he could secure a license for himself from the secretary of state, which sometimes took two or three days. Under this undisputed evidence the fact that defendant’s number was on a tag attached to the car when Werner took it away raises no inference against his ownership and control. Burns v. Paint Co., 152 Mich. 613 (116 N. W. 182, 16 L. R. A. [N. S.] 816).

It is contended by plaintiff that Groholski was not the servant of the purchaser of the car when the accident occurred; but of defendant, his regular employer; that he was acting under orders of his employer within the scope of the customary duties for which he was hired and paid; that in carrying out the orders of defendant he had charge and control of the car, did not know Werner, and took no orders from him, was solely engaged in the work of his general employer, and not that of another; that though Werner may have had the benefit of his work, the servant was in no sense transferred to him or put under his control.

It is the claim of defendant that under the undisputed facts Groholski, though a general servant of and regularly in defendant’s employ, was temporarily loaned to Werner, to do work for him and not for defendant, and for the time being was working for and as the servant of Werner, who became the special master and responsible for Groholski’s acts in relation to the particular service he was then rendering. The rule is long settled that a servant in the general employment of one person may also become the special servant of another, with all the mutual rights and obligations of master and servant between them for the time of, and in relation to, the special service in which the servant is temporarily engaged. If an employer loans a servant to another for some special service, the latter with respect to that service may become liable as a master for the acts of the servant without any actual contract of employment between them or payment for service. Text-book authority, borne out by abundance of cited decisions, shows this is old doctrine. 1 Labatt on Master and Servant, § 52; 1 Bailey on Personal Injuries (2d Ed.), § 25; 26 Cyc. p. 1519; Shearman & Redfield on Negligence (6th Ed.), §§ 160, 160a, 161.

Counsel for the respective parties seem practically in harmony upon the rule by which the question involved should be tested, but widely at variance in applying the test. The essence of the best considered cases upon the temporary loan, or hire, of a servant for a special purpose is thus well stated in 26 Cyc. p. 1522:

“A person who avails himself of the use, temporarily, of the services of a servant regularly employed by another person may be liable as master for the acts of such servant during the temporary service. The test is whether in the particular service which he is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the person to whom he is lent or hired, or who requests his services. It is not so much the actual exercise of control which is regarded, as the right to exercise such control. To escape liability the original master must resign full control of the servant for the time being, it not being sufficient that the servant is partially under control of a third person. Subject to these rules the original master is not liable for injuries resulting from acts of the servant while under the control of a-third person.”

One of the important considerations involved in this class of cases is the ownership of the equipment, appliance, or instrumentality with or in relation to which the temporary service, out of 'which the alleged injury arose, is performed. If it be.the property of the general master who has loaned or hired the servant, there is a stronger reason, followed by a greater presumption, that he should and would retain in whole or in part the control and right to dictate and direct its use in carrying out the work. While not always controlling, this has often been recognized as sufficient to turn the scale in otherwise doubtful cases, particularly in that line of special service relating to transportation, or carrying of persons and property.

In the case of Joslin v. Ice Co., 50 Mich. 516 (15 N. W. 887, 45 Am. Rep. 54), strongly urged by plaintiff as controlling here, the general employer owned the team and wagon which inflicted the injury complained of, and had hired the same, with a driver, for the day to an independent contractor. The court held, citing the English case of Quarman v. Burnett, 6 M. & W. 499, that the owner of the team and general employer was the responsible master of the wrongdoer, being the “owner of the horses, and not any one at whose service the horses and driver were temporarily placed.” Of the Quarman Case the court said that, whether correctly decided or not, it had been too generally recognized and followed to be questioned now, citing numerous English cases regarded as quite analogous to the case then under consideration. It is well pointed out by the trial court that these English cases, upon which the Joslin Case is based, have been later so interpreted as to distinguish them and the cases based upon them from the instant case. In Jones v. Scullard, 2 Q. B. Div. (1898) p. 574, in analyzing the previous English cases mentioned, Chief Justice Bussell said:

"The principle, then, to be extracted from the cases is that, if the hirer simply applies to the livery-stable keeper to drive him between certain points or for a certain period of time, and the latter supplies all necessary for that purpose, the hirer is in no sense responsible for any negligence on the part of the driver. But it seems to me to be an altogether different case where the brougham, the horse, the harness, and the livery are the property of the person hiring the services of the driver.”

Counsel for plaintiff refers to these English cases as being “musty with forgotten lore,” and certain of the conclusions in them reached, as pointed out by Labatt, through resort to what an eminent English judge described as “desperate refinements.” Be that as it may, the Joslin Case from this court, upon which counsel relies, was committed to and based upon one of the earliest English, so-called, “carriage cases,” which the English courts interpreted, as above stated, in 1898. In the case of Perkins v. Stead, 23 Times L. R. 433, following the reasoning of Jones v. Scullard, supra, it was held that the servant of the vendor lent to the purchaser of an auto car, to drive it to a certain point' was in that service the servant of purchaser. Stead purchased and paid for a motor car in London from a dealer who agreed in that connection to provide a driver to take the car to a certain place outside the city. Stead, when making the purchase, was accompanied by his son and his own driver, who was not experienced in driving the class of car purchased, nor familiar with the locality. While the car was being driven through the streets of London by the driver the dealer had furnished, defendant, his son and driver being in the car, a collision occurred with a bicycle, as a result of which the party injured brought an action against Stead for damages. It was held that, though the driver was the general servant of the vendor, yet at the time of the accident he was under the control of defendant in the service which he was rendering in relation to property which defendant owned and was in possession of, and therefore defendant was liable for the driver’s negligence. That case presents an element of uncertainty not found in the instant case in the particular that there the record indicates the vendor’s agreement to furnish the driver to take the car through London was an element in the negotiations of purchase and sale, while here the subject was not mentioned until after the purchase was consummated.

Plaintiff’s counsel cites and urges as controlling Dalrymple v. Motor Car Co., 66 Or. 533 (135 Pae. 91), another automobile case, also similar in many of the circumstances and relations of the parties to the one under consideration. In that case a customer named Dunham purchased an automobile from the defendant, a dealer in the city of Portland, and was furnished a driver named Harrington to take it from defendant’s garage to the suburbs of the city. Dun-ham accompanied the driver, and while they were on the way, the car being driven by Harrington collided with a boy and injured him. In an action against the motor car company for the driver’s negligence it was held that the question of whose servant he was became, under the testimony, an issue of fact for the jury, chiefly on the question of delivery and assumed obligation of defendant to instruct Dunham in the use of the car. It was shown that when Dunham negotiated the purchase he was inexperienced in driving, and it was therefore arranged that the car purchased by him should remain in possession of the dealer until Harrington, a demonstrator in its employ, instructed him in its use. Harrington had given him some instructions in running the automobile two days prior to the accident. On the day of the accident he called for it, having decided to take it away. The head sales-naan instructed Harrington to take the car through the populous part of the city to an outskirt called East Portland, as Dunham was yet inexperienced as a driver, and there let him take charge of it himself. Harrington testified that Dunham was not a competent or experienced driver, and that his object in going with Dunham that morning was—

“Simply to take the car through the city and to get him over on the east side, out of town, where he could go from there by himself, because I refused to let him drive through town alone.”

The court, in a somewhat exhaustive opinion, considers and reviews many of the leading authorities upon the questions involved, apparently with approval, recognizing the rule that the test is not so much the exercise of the power of control as the right to exercise such power; states that under the circumstances of this case it can well be contended that Dun-ham did not have a right to control Harrington in the operation of the car and says:

“Whether the owner, who is conceded to have known little or nothing about running the car, was with the driver while passing through that part of the city, or was to meet him at the place where it was intended that the owner should take charge of the car, would make but little difference. * * * Were it necessary for the act of the chauffeur Harrington to be defined, we would say that the service performed by him for the company on the morning of the accident was of much the same nature as the operation of the car for the purpose of demonstration or instruction. * * * The evidence tended to show * * * that the company undertook to perform the service as a part of the transaction, in connection with the sale of the automobile, as a part of its general business and in furtherance of the same; that Harrington, the servant, was doing the work for his master, the company, and not for himself, nor on his own account, nor as a mere favor to the purchaser; that it was as much a part of the general business of the company as though it had been performed prior to the time of the purchase of the car.”

In the instant case there was no agreement or suggestion, as a part of the negotiations and purchase, that the motor company should assume, or undertake, any instructions to the purchaser relative to operating the car, or to see that when it left the salesrooms it was properly run for any length of time, or to any place. He was a dealer in cars himself, experienced in their use, and knew what was necessary. The deal was closed, he had his receipt, and the car had been delivered to him at the time he asked for the accommodation. Groholski was sent along to drive as a “mere favor to the purchaser.” At the time of the accident Werner, an experienced driver, not only owned the car but was in actual occupation and possession of it, riding with a prospective purchaser out from the city towards their homes. He was in no sense helpless, looking to, and dependent upon, the driver, as would be the case of an inexperienced purchaser. Like many other experienced drivers from the country or small towns he felt less confidence in driving through the congested thoroughfares of a large city, and for that reason asked the loan of a driver to the suburbs. The fact that he found no occasion to give instructions to the driver, except to tell him along what street to drive, and relied upon his skill and experience, in no way affected Werner’s absolute right to control him in everything he did in connection with the car. Samuelian v. Machine Co., 168 Mass. 12 (46 N. E. 98). Under the undisputed testimony, the motor company had no control over nor interest in the car after it left its salesrooms, nor in the manner in which it was run, nor in where it went. It could not dictate how the car should be run; the most it could do would be to recall from this special employment the servant it had loaned. During Groholski’s absence from the salesrooms in this service he was doing the work of Werner, to whom he was gratuitously loaned, on the initiative and request of Werner, who had full right to dictate as to his own property and direct in what manner the car should be operated. He unquestionably could have taken charge and driven it himself, if he saw fit at any time, and, if so disposed, could have discharged the driver and proceeded without him; he was therefore for the time being the special master.

The conclusion of law deduced by the trial court from the undisputed fact that Groholski was, at the time of the accident, the servant of Werner, whose automobile he was driving, and not of defendant, whose interest in and control over that instrumentality had ended, is sustained. .

The judgment is affirmed.

McAlvay, C. J., and Bbooke, Kuhn, Stone, OsTEANDEE, Bied, and Mooee, JJ., concurred.


author: McAlvay, C. J.

text:
    HOLDEN v. HADLEY.
    Automobiles — Evidence—Negligence.
    Evidence, in an action for personal injuries,- tending to show that the defendant’s automobile collided with plaintiff who was riding on a bicycle, that defendant in operating his car turned the corner on the wrong side of ■ the street intersection, and that he was driving at an excessive rate of speed, sustained a judgment for the plaintiff, although the defendant’s evidence tended to dispute the claim.

      Error to Eaton; Smith, J.
    Submitted April 7, 1914.
    (Docket No. 5.)
    Decided June 1, 1914.
    Case by Walter Holden against Adelbert Hadley for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Stewart & Jacobs, for appellant.

      Rosslyn L. Sowers, for appellee.
   McAlvay, C. J.

Plaintiff recovered judgment against defendant for personal injuries claimed to have been caused by defendant in negligently running over him in the highway with an automobile which defendant was operating. Defendant brings the case to this court for review and asks for reversal upon errors assigned.

The accident occurred in the city of Sturgis, Mich., at the intersection of Chicago and Nottawa streets. It is the claim of the plaintiff that, at the time of the accident, he was riding a bicycle westward on Chicago street, which runs east and west through Sturgis, on the right-hand side of said street about 10 feet from the curb, and was some distance east of the intersection of these streets when he noticed automobiles, with tops up, approaching from the west on the same side of said street in a direct line with him. He saw but two automobiles coming quite near to each other, one directly in line with the other. There was in fact a third automobile in the same line which he says he did not see. Plaintiff was riding at a speed of not more than six miles an hour. As the automobiles approached the intersection of these streets, the first turned north into Nottawa street and was immediately followed by the other. Both of these machines turned into said street at the right of its center line. Plaintiff had at that time gone west nearly to the middle of Nottawa street and, proceeding to cross immediately behind the second car, was struck by the third automobile, which was a 5-passenger 40-horse power touring car, weighing 2,500 pounds; This car struck him when he was nearly across Nottawa street. He was picked up about 8 feet from the sidewalk line of that street and about 15 or 20 feet north of the curb line of Chicago street. He says he did not discover the third car until the second car had gotten away from in front of it, and then he immediately turned his wheel to the north to avoid collision. When the collision occurred he was about in a line with the crosswalk on the right-hand side of Chicago street.' He was struck by the fender over the left-hand front wheel of defendant’s machine.

The negligence charged by plaintiff is that, in violation of Act No. 318, Pub. Acts 1909, defendant negligently operated his machine in the city of Sturgis at a higher rate of speed than 10 miles per hour, and also failed to keep his automobile to the right side of Chicago street, and at the intersection of these streets failed to keep to the right of the center of intersection of these streets. There was a dispute relative to both of these propositions. The facts were submitted to the jury, which found in favor of plaintiff.

The errors assigned and relied upon are that the declaration did not state a cause of action, and the court erred in receiving any evidence under it, also in overruling other objections to evidence, the refusal of the court to direct a verdict for the defendant on the ground of contributory negligence of plaintiff, in refusing to give certain requests of defendant, and upon exceptions to certain portions of the charge of the court.

An examination of the declaration shows that the claim of defendant that there is no negligence charged, and that there is no allegation that plaintiff was exercising due care and was without negligence on his part, is not sustained. The case was tried upon the second count of plaintiff's declaration, and it contains sufficient allegations of a violation of the statute in driving on the left-hand side of the road at an excessive rate of speed into Nottawa street on the left of the center and negligently turning, contrary to statute, and also as to due care exercised on plaintiffs part. No error was committed in refusing to direct a verdict for defendant.

Several errors are assigned upon the admission of evidence permitted by the court. These have been examined, and we do not find that any error was committed by the court in receiving such testimony.

Errors are assigned upon the refusal to give five requests of defendant. These requests asked for a directed verdict in favor of defendant and related to the contributory negligence of plaintiff. The court was not in error in refusing to give them as they were not adapted to the evidence in the case. The court correctly charged the jury upon the question of contributory negligence of plaintiff and upon the law applicable to the case. Defendant can have no cause to complain that this charge was unfavorable to him.

The theory of the plaintiff was that defendant was driving his automobile unlawfully at a high rate of speed behind the other automobiles on the wrong side of the highway and, turning into Nottawa street as close as possible to the left-hand side of said street, could not be seen by plaintiff until after the other machines had passed into Nottawa street, when it was too late to avoid a collision.

Upon the disputed questions of fact, the jury found against the defendant. Such finding was supported by the great weight of the evidence in the case, and the amount of the verdict is not claimed to be excessive. In his charge the court refused to allow a recovery for the bicycle, which was not plaintiff’s property, and limited the plaintiff’s damages to the value of his loss of time, expenses incurred for medical attendance and medicines, caring for and treating his injury, and compensation for his pain and suffering, but excluded recovery for care given to him by his wife.

We find no reversible error in the case. The judgment of the circuit court is affirmed.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Kuhn, J.

text:
    DUFFY v. CHARTERS.
    1. Physicians and Surgeons — Malpractice — Evidence — Hypothetical Question.
    In an action against a physician for malpractice, the trial court did not err in permitting plaintiff’s counsel to ask of a medical witness whether the treatment, which plaintiff’s evidence disclosed was adopted, was a proper method, although defendant’s witnesses denied that such method was used and claimed other treatment was employed, and their claims were not included in the hypothetical question.
    2. Same — Pleading—Variance.
    Under plaintiff’s declaration, alleging that the defendant neglected to use proper skill and care in setting plaintiff’s collar bone and broken clavicle, and failed to bring the ends of the bones in apposition and to employ proper means for placing and keeping them in position so that the shoulder and said bones became deformed, diseased, that the bones were allowed to overlap, etc., evidence

      that a fibrous union of tbe bones resulted was not a fatal variance and tended to support tbe declaration.
    3. Same — Dam-ages—Pain and Sueeeking.
    Plaintiff was also entitled to recover damages for extra pain and suffering wbicb be may bave sustained because of tbe improper treatment, but be was not entitled to recover for tbe discomfort and pain wbicb would in any event bave resulted from tbe broken bone under proper treatment.
    Error to Charlevoix; Mayne, J.
    Submitted April 8, 1914.
    (Docket No. 7.)
    Decided June 1, 1914.
    Case by Matthew Duffy against John Charters for malpractice and negligence in treating injuries of plaintiff. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      A. G. Urquhart (J. M. Harris, of counsel), for appellant.

      Mesick & Miller, for appellee.
   Kuhn, J.

The plaintiff was employed as a common laborer by the city of Boyne City to work in the construction of sewers, and on August 30, 1910, he was injured by the caving in of the earth while engaged in this work. The defendant, a regularly licensed physician and surgeon in the general practice of medicine and surgery in Boyne City, was called to the plaintiff’s residence, and found him suffering from an oblique fracture of the left clavicle. It is the claim of the plaintiff that the defendant did not reduce the fracture properly; that there has been no proper union of the bone; that there has been a shortening of the bone; and that, as a result, the use of his arm is greatly impaired. A suit for malpractice was brought, and a verdict and judgment for $1,080 was had. Defendant brings the case to this court by writ of error.

The first contention argued by defendant’s counsel in his brief is that the court erred in overruling defendant’s motion for a directed verdict, and it is insisted that there was no question of fact to submit to the jury. The plaintiff’s claim'is, and he supported it by his own testimony and that of two others who were present, that when the defendant came to the house all he did was to pick up plaintiff’s arm and place it diagonally across plaintiff’s breast so that the points'of the fingers of the left hand were against the lower part of the right shoulder, above the armpit and below the top of the shoulder; that thereupon he applied bandages, which the defendant claims was done in the approved method known as Sayre’s dressing, but, it is claimed by plaintiff, was not done as Sayre’s method requires. Whether the defendant was negligent in that he did not use a proper method in reducing the fracture presents the question in issue in this case.

The following hypothetical question was asked of Dr. Shaver, a witness produced on behalf of the plaintiff:

“If a man 52 years of age was injured by the caving in for a sewer in which he was working, and taken directly to his home and within an hour from the time of the injury a doctor was called and diagnosed the injury as a broken clavicle of the left shoulder, and thereupon proceeded to reduce the fracture by placing the left forearm diagonally across the breast in such position that the ends of the fingers of the left hand reached the front of the right shoulder between the armpit and the top of the shoulder, the ends of the fingers reaching the shoulder joint, and securing the arm by means of bandages, would this treatment properly reduce the fracture and secure a union of the fractured ends of the clavicle, in your opinion?
“A. In my opinion, no.”

This hypothetical question is based upon what the lay witnesses testified was done by the defendant when he put on the bandages. It is urged that the question is incomplete, and so insufficient as to have no value in assisting the jury in determining the defendant’s responsibility. The question does not contain what the defendant claims he did in reducing the fracture, but does state substantially what plaintiff claims he did, as testified to by the witnesses present. Dr. Marshall described the proper method to be used in reducing such a fracture, as follows:

“In reducing the fracture and overcoming the deformity present in the case of a fractured clavicle, we have the shoulder pulling the outer fragment down and the muscles of the chest pulling it in. These two forces must be overcome by some method of lifting up the shoulder and pulling it outward to overcome the muscles in the chest that are bringing it in. The particular method may vary. Personally, I have them sit in a chair and have an assistant pull back the shoulder while I put on the dressing, or some form of retentive apparatus is usually applied, and that varies with the particular surgeon’s wishes. Some use one form and some another. No matter what method is employed, the object to be attained in order to get the bones in apposition is to overcome the tendency of the muscles to draw the shoulder inward and the weight of the shoulder to hold it down. It is necessary, in order to get the bones in apposition, that the tendency of the muscles to draw the shoulder inward and the weight of the shoulder to hold it down be overcome. The clavicle acts as a brace, and when the brace is broken the shoulder swings forward. The ends then override or pass each other, if it is a complete fracture. It is necessary to get the ends of the bone together, and to do that, the shoulder must be put back there. And no matter what system is used, all systems must get the ends of these bones together, and under the circumstances, they can’t come together unless the shoulder is held back or put back. When the shoulder is placed back and the bones are nearly in apposition as the physician can get them, then the immediate problem is to hold the shoulder there. In order to do that some kind of retentive apparatus is used. In Sayre’s method the idea is to fasten the arm back and lift the elbow. One strip is put on the arm and attached to the back, and then, using that as a fulcrum, the point of the elbow is brought forward by another piece of plaster and passed over the shoulder.”

The testimony of the experts being based on the testimony of plaintiff’s witnesses, it was proper to have their answers stand. The question of the value of their evidence and that of the other witnesses for plaintiff was for the jury, and was properly submitted by the trial court. Fye v. Chapin, 121 Mich. 675 (80 N. W. 797).

It is contended that there is a fatal variance between the declaration and the attempted proof of a want of proper union of the broken ends of the plaintiff’s clavicle. The declaration charges:

“The said defendant then and there so negligently, carelessly, and unskillfully behaved and governed himself, in and about the care of said plaintiff, and in and about the setting, treatment and care of said collar bone or clavicle, disrupted, fractured, wounded, and bruised, in not properly setting the same, and not using the proper care, attention, medicaments, appliances, and skill in the treatment of said collar bone or clavicle, that by and through neglect, carelessness, default, and the unskillfulness of said defendant, as such physician and surgeon, the said plaintiff was, and still is, caused to suffer great and excruciating pain in his shoulder, and his said shoulder was caused to become greatly swollen, inflamed, and .diseased, to an unnecessary extent, and the bones so disrupted, broken, fractured, wounded, and bruised, were caused and allowed to override and overlap, and the said shoulder to become greatly deformed and diseased, and does still so remain, and the general health of the said plaintiff greatly impaired, weakened, and ruined; * * * yet the said defendant did so negligently, unskillfully, and carelessly treat the said plaintiff that by reason of his neglect, unskillfulness, and carelessness, and by reason of his failure to put the bone or bones of said shoulder properly in apposition, and to use the proper means for so placing and keeping said bones in apposition, and by reason of his failure to use the proper appliances, at the proper time, in the treatment of said shoulder, and also by reason of the gross neglect and inattention of the said defendant in not thoroughly examining and properly treating the shoulder of said plaintiff, his said shoulder became useless and diseased, and is left uncured,” etc.

It is the plaintiff’s contention that the false or fibrous union shown by the proofs is the natural result of imperfect apposition, as set forth in the declaration, and that it was therefore not necessary to specifically allege it. This is supported by the testimony of the physicians, who testified that the first step in the treatment of such a fracture is to get the ends of the bone together and keep them there, if possible, and, unless this is done, no perfect union results. We think the declaration was sufficient to warrant receiving this evidence, under authority of Groat v. Railway, 158 Mich. 165 (116 N. W. 1081), and cases cited therein.

Complaint is made that the court erred in submitting to the jury the question of compensation for extra pain and suffering. With reference thereto the court said:

“For the pain and suffering which the plaintiff would have actually sustained by reason of this broken clavicle and its treatment, if properly treated, he cannot recover in this case, because the defendant is not responsible for that; that he had to sustain anyway. But for the pain and suffering which was extra, if any, which was caused by the defendant, plaintiff can recover, and only so much as was caused by defendant, that which has already been sustained by him, and that which he will sustain in the future, if you find that he will sustain pain in the future. You will see that it is any extra pain and suffering which he would not have sustained had it been correctly treated for which he can recover.”

Under the issue in this ease, it was entirely proper to submit this question to the jury.

We have examined the other assignments of error, but find them without merit. The learned trial judge submitted the case to the jury in a careful charge, and, finding no prejudicial error in the record, the judgment of the trial court is affirmed.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    GATES v. SEBALD.
    Easements — Adverse Possession — Partnership — Joint Ownership — Stairways.
    Where 'partners owned two store buildings with a stairway between, and, on dissolving partnership, they divided the property into two parcels, reserving to each the use in common of the intervening hall and stairway, they created a mutual easement in the land occupied thereby, so that the use of the premises was permissive, not adverse, and neither party could gain title by ad- . verse possession.
    Appeal from Lenawee; O’Mealey, J.
    Submitted April 10, 1914.
    (Docket No. 20.)
    Decided June 1, 1914.
    Bill by Julia M. Gates and others against M. G. Sebald and another for injunction and other equitable relief. From a decree for defendants, complainants appeal.
    Affirmed.

      Fellows & Chandler, for complainants.

      Willard M. Cornelius and B. L. Hart, for defendants.
   McAlvay, C. J.

Complainants filed this bill claiming to own a certain strip of land in the village of Morenci, Lenawee county, Mich., next adjoining on the east to the premises of defendants, where defendants were proceeding to erect a certain building, and to make excavations for the basement walls and foundations of such building, whereby they were encroaching 2 feet upon complainants’ premises, who seek to enjoin such encroachment and trespass and establish their title to such strip of land. A temporary injunction was issued according to the prayer of the bill. Defendants answered, denying complainants’ right and title to the strip of land in question. An issue was joined, and a hearing of the cause had before the court, which resulted in a finding and decree that complainants had “not sustained their claim of title by adverse possession to” the strip of land 2 feet in width in dispute, and dismissed the bill of complaint, with costs to defendant. Complainants have appealed from such decree.

The material facts in the case, except the matter of adverse possession of this strip of land by complainants, are not in dispute. The facts necessary to be stated are that these adjoining properties are lo-' cated in the village of Morenci, fronting on Main street, which runs east and west; the west line of the west lot being the east line of North street, which runs north and south. The size of the two parcels of land is 48 feet fronting on Main street and 60 feet in depth along North street.

The two buildings, which were erected years ago on this entire description, were destroyed by fire in the year 1912. The westerly building, which fronted on Main street, and the west line of which extended 60 feet along the east line of North street, is known as the Mace building, and was built in 1855 upon the west half of the above description. This building was 22 feet wide on Main street. The lot was 24 feet wide. A narrow stairway occupied the east 2 feet, by means of which access was had to the second and third stories.

The building on the east was built by Mr. Gates, from whom the title of complainants is derived, about two years after the Mace building. The east line of defendants’ east wall extended to the east line of this property. Defendants’ west wall was built 22 feet from its east line, built of brick 8 inches thick from the foundation in the basement to the ground floor, and from the ground floor to the roof each story of it was built of studding 8 inches thick, covered with lath and plaster.

The 4 feet between the east wall of the Mace building and the west wall of the Gates building was occupied by a stairway, the foot of which began about 15 feet back from the front entrance on Main street to the landing on the second floor, and from this landing the second flight ran to the third floor landing, which extended back to the north wall of the building. This stairway was built for the use of all the tenants who occupied the second and third floors of both buildings, which were each three stories high, with a basement. The roof and front and rear walls of the Gates building extended to and joined the east wall of the Mace building.

These buildings, at or about the time the Gates building was constructed, became the property of and were occupied by a copartnership, known as W. R. Gates & Co., which consisted of William R. Gates, Waddell A. Mace, and George Acker, Jr. The basement in both buildings and the first floors were occupied by said firm in the conduct of their business, and the second and third floors were occupied by their tenants continuously from that time until the dissolution of said partnership, which occurred in 1872. When the partnership was dissolved, this property was acquired by two of the partners by deeds dated November 23, 1872, by which Mr. Mace took the west 24 feet and Mr. Gates, the east 24 feet of these premises, with the written condition in the deeds to each of them that the hall and stairway on the east side of the premises deeded to Mr. Mace and the west side of the premises deeded to Gates were to be used in common and kept in repair by the owners thereof. The record shows that, from the time the second building was built, in the year 1858, up to the time the buildings were destroyed by fire, in 1912, this hallway and stairs between the buildings were so used, occupied, and kept in repair by the owners.

Complainants claim title by adverse possession to the east 2 feet of defendants’ lot, except the south 15 feet of said strip, claiming that they and their predecessors in title have for many years last past been in the open, exclusive, and hostile possession and occupancy of the same, to the exclusion of all other persons; that in the basement they have occupied all of said strip up to the east basement wall of the building which stood upon defendants’ land, and in like manner have occupied for the same length of time the space under the stairway on the ground floor; and that by such adverse user have acquired title thereto.

On the part of defendants it is contended that, during all the time that complainants claim to have been acquiring this strip of land by adverse possession, it has all been occupied and used by defendants’ predecessors in title continuously and jointly with complainants, without interruption, and that the occupation of the same by complainants has not been and could not be a hostile and adverse possession.

The record shows, as already stated, that when the copartnership of W. R. Gates & Co. was dissolved, this property which was owned by them was divided, and deeds were duly executed, the west half to Mace, and the east half to Gates. Each of the deeds mentioned contained the following agreement:

“With the understanding that the hall_ and stairway on the east side thereof is to be used in common, and that the stairs be occupied and repaired by the owners of the same.”

The only difference in such agreements being that the deed to Gates of the east 24 feet of these premises describes “the hall and stairway on the west side of the premises.”

Defendants in this case have succeeded, by different conveyances, subject to this same condition, to the premises deeded to Mr. Mace. Complainants are the successors in title to the premises deeded to Mr. Gates through his will. It is apparent that, by these conveyances made by the predecessors in title of both parties to this suit, an easement was created in the 4 feet of land occupied by this hallway and these stairs for the mutual use and benefit of the grantees in such deeds and their successors in title for the joint and mutual use of such hallway and stairs, and, as already-stated, such joint and mutual use was continued until the buildings were destroyed by fire, in 1912.

The question arises whether either of the grantees in such deeds, or their successors, could acquire title to the 2-foot strip of land reserved in such deeds by adverse possession. The fundamental principle upon which adverse possession may be based is that it must be a hostile possession. It cannot be possible that any, use or occupation of any portion of these strips of land by either of the parties under these deeds, while both were in the exercise of the rights given to them under this easement, could be or was hostile to the other. Such a condition is repugnant to the terms of" the instruments under which they occupied. This is fundamental and axiomatic. Whatever use the complainants and their predecessors in title made of said disputed 2-foot strip was a permissive' user. Township of Jasper v. Martin, 161 Mich. 341- (126 N. W. 437, 137 Am. St. Rep. 508). In which case appears the following quotation from an opinion of Chief Justice Marshall:

“It would shock that sense of right which must be felt equally by legislators and judges, if a possession which was permissive, and entirely consistent with the title of another, should silently bar that title.” Kirk v. Smith, 9 Wheat. (U. S.) 241, 288.

We concur in the opinion of the trial court “that the proofs in the case do not sustain the claim of title by adverse possession made by the complainants to the strip of land mentioned and described in the bill of complaint.”

The decree of the circuit court is affirmed, with costs to defendants.

Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. Bird, J., did not sit.