author: Per Curiam.

text:
    LANAGAN v. WAYNE CIRCUIT JUDGE.
    Attorney and Client — Fees—Substitution.
    Upon motion to permit a substitution of solicitors, the court erroneously permitted the client, who was indebted to his former solicitor for services rendered in the litigation, to make the change without requiring payment of the solicitor’s fees or securing them.
    Mandamus by Richard F. Lanagan to compel George P. Codd, one of the circuit judges of Wayne county, to set aside an order permitting another solicitor to be substituted for relator in litigation pending before said court.
    Submitted February 29, 1912.
    (Calendar No. 24,933.)
    Writ granted May 31, 1912.

      William Van Dyke, for relator.

      James H. Pound, for respondent.
   Per Curiam.

Mr. Alfred Canney was sued by his wife. He employed the relator as his solicitor. There was also other litigation in which relator was employed. Difficulty arose between Mr. Canney and the relator. Mr. Canney filed a petition before respondent to have another solicitor substituted in the place of Mr. Lanagan. The latter objected, unless he was paid for the services he had rendered. The circuit judge ignored Mr. Lanagan’s protest, and made the order of substitution without any conditions attached. A motion was made to set aside this order, and that was denied. Mandamus was brought to review this action. Counsel for the respondent cited the case of Canney v. Canney, 131 Mich. 363 (91 N. W. 620). A reference to the case will show it is easily distinguishable from the one now under consideration. So far as it is applicable, it is against the contention of counsel. There is also the same difficulty with the other cases cited by counsel for respondent. In, 20 Enc. Pl. & Prac., at page 1013, it is said:

“ Right of Client to Change Attorney. — Generally speaking, a party has an absolute right to change his attorney at will, at any point in the suit, and without assigning any cause therefor, upon making application for the substitution in the proper manner.
“ Payment of Pees Earned. — This general rule is, however, subject to the exception that the attorney’s fees for services already rendered must be paid or secured to him, where the application for substitution assigns no cause therefor.”

The note says:

“Where a board of supervisors by their vote discharge a firm of attorneys who have been acting in their employ (so far as their vote can discharge them) merely because the supervisors choose so to do, with a view to substitute another attorney for the board, they must pay the firm of attorneys their reasonable claims, which may be .ascertained by a reference. And the attorneys are not bound to consent to a substitution or to deliver the papers upon which they have a lien, until the amount of their just demands is ascertained by the court or a referee, and paid them. Ulster County v. Brodhead (Sup. Ct. Spec. T.), 44 How. Prac. (N. Y.) 411.
“Matter of Prospect Ave., 85 Hun (N. Y.), 257 [33 N. Y. Supp. 196], in which case the court said:
“ ‘If an unconditional substitution is asked for, this will not be granted unless such misconduct on the part of the attorney is shown as would deny him the protection which the court would otherwise afford him for his fees or for any other lien that he might have. We think, apart from the question of misconduct or bad faith, that a client subject only to the payment of the attorney’s fees in a proper case, or securing them if they cannot then be fixed and determined, has the right, without assigning cause, at any point in a suit or proceeding, to change his or her attorney. While, therefore, the client has a right to a substitution at any time upon payment or the securing of the attorney’s fees — which is but another way of saying that such right is conditional — there is the other right, arising from the misconduct of the attorney, which, when shown to the satisfaction of the court, is unconditional. In one case a substitution is granted as a matter of course upon terms; and in the latter, for misconduct, the substitution is unconditional’ —citing Ogden v. Devlin, 45 N. Y. Super. Ct. 631; Prentiss v. Livingston (Marine Ct. Spec. T.), 60 How. Prac. (N. Y.) 380; In re Paschal, 10 Wall. [U. S.] 483.”

See, also, Green’s Practice (1st Ed.), § 788; 1 Tidd’s Practice (9th Ed.), p. 94; Weeks on Attorneys at Law (2d Ed.), p. 515; New York Phonograph Co. v. Edison (C. C.), 148 Fed. 397. The petition does not allege, and. the order of substitution does not give, any cause for making the change unless a disagreement as to how much the client should pay his solicitor is to be regarded as such misconduct or bad faith as would warrant his discharge.

The order should preserve the lien of the attorney. Jones v. Muskegon Circuit Judge, 95 Mich. 289 (54 N. W. 876); Wipfler v. Warren, 163 Mich. 189 (128 N. W. 178). The writ of mandamus should issue as prayed.

Bird, J., did not sit.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    KROUSE v. DETROIT UNITED RAILWAY.
    1. Carriers —Alighting from and Boarding Cars — Personal In juries — N egligenoe.
    Plaintiff’s judgment of $1,500 for personal injuries sustained in alighting from defendant’s street car which plaintiff, supported by one witness, claimed started too'soon, but which three witnesses testified did not stop at the crossing at which plaintiff tried to' alight, was properly allowed to stand, on motion for new trial, after three trials wherein the several juries rendered verdicts for plaintiff.

      2. Same.
    The fact that the trial court indicated an opinion that the verdict is contrary to the weight of the evidence, where he refuses a new trial, is not controlling.
    3. Same — Damages—Verdict.
    The amount of plaintiff’s verdict for injuries to her skull requiring the removal of a piece of the bone and for shock to her nerves, was not so excessive as .to warrant the court in granting a new trial.
    4. Evidence — Former Testimony.
    Proof of inability to find a witness at his former address or to find his name in the city directory was not so full and convincing as to warrant the appellate court in reversing the discretion of the trial judge who excluded his testimony given on a former trial.
    5. Same — Instructions to Jury — Trial.
    There was no error on the part of the court in refusing to instruct the jury that there was an entire absence of proof of the conductor’s signaling the motorman to start the car, when the declaration counted on negligence of both conductor and motorman in starting the car.
    Error to Wayne; Hosmer, J.
    Submitted April 5, 1912.
    (Docket No. 49.)
    Decided May 31, 1912.
    Case by Ella Krouse against the Detroit United Railways for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.
    Brennan, Donnelly & Van De Mark, for appellant.

      William G. Gottman, for appellee.

       Duty of street-car conductor to see that passenger is off before starting the car, see note in 11 L. R. A. (N. S.) 140.

   Steere, J.

Plaintiff was injured on tbe 20th of April, 1908, while alighting from one of defendant’s west-bound cars at or near the corner of Scotten avenue and Fort street in the city of Detroit. The negligence alleged as ground of recovery was starting the car while she was in the act of alighting, and before she had reasonable time to alight, thus throwing her to the pavement, from which she sustained serious bodily injuries.

The case has now been three times tried in the circuit court, resulting each time in a verdict in favor of plaintiff. After the first trial the circuit judge set aside the verdict for the reason that, in his opinion, it was against the weight of evidence. The second trial again resulted in a verdict in favor of plaintiff. A motion to set aside the verdict having been denied, the case was brought to this court by writ of error.

The circumstances of the accident and claims of the respective parties put in issue by the conflicting testimony are sufficiently stated in the previous decision, found in 166 Mich. 147 (131 N. W. 548). The case was then reversed and a new trial granted on the ground that the verdict was against the weight of evidence; it being said in the majority opinion—

The plaintiff’s right to recover rests on her own unsupported statements as to the facts. Her interest is, of course, manifest. Opposed to her are four witnesses, not one of whom, at the time of the trial, had the slightest interest in the controversy.”

On the trial now here for review, additional evidence was produced by the plaintiff. The verdicts in both the former trials were sustained by her unsupported testimony as to how the accident happened, while on the last trial she stands corroborated on material points by a witness named Maher who saw the accident, was the first one at her side after she was injured, and assisted in carrying her to a drug store. This witness was entirely disinterested, so far as appears. His name was obtained from the memoranda of a policeman who came upon the scene shortly after the accident, and in the line of his duty took notes of the circumstances as he gathered them. Maher was standing on the sidewalk at the corner near where the car was expected to stop, watching for it, and waiting to meet a friend he expected on that car. That plaintiff fell from one of defendant’s cars and was injured on the occasion in question is not denied, though the extent of her injuries is in dispute. It is her claim that she proceeded with reasonable dispatch to alight from the car after it had stopped at the crossing; that just as she was about to step to the ground, in the meantime putting her hand on the bar at the side of the door, the car suddenly started up, causing her to fall on the pavement, striking on her head. It is the claim of defendant that the car made no stop at or near the crossing where she fell until after the accident ; that she went out upon the platform and attempted to alight while the car was running, thus causing her injuries by her own recklessness and negligence. There was direct conflict of testimony on these material issues. Two witnesses testified the car stopped, three that it did not. One of the plaintiff’s witnesses and two of defendant’s are not shown to have had any interest in the controversy. Plaintiff’s witness was standing on the walk watching the car and expecting a friend to alight from it. Defendant’s witnesses were riding on the car.

Error is alleged on the refusal of the court to grant defendant’s motion for a new trial, based on the ground that the verdict was excessive and against the weight of evidence.

In his reasons for denying the motion, the learned circuit judge said:

“I cannot stultify myself by saying that I should have reached the same conclusion the jury reached, but upon the other hand I cannot say that the verdict is so manifestly against the weight of the evidence that the court ought at this stage of the proceedings to interfere. This cause came on before me first for trial and, the plaintiff having recovered a verdict, I set the same aside as being against the weight of the evidence. It was tried again before Judge Mandell and he declined to grant a new trial, but on the removal to the Supreme Court by error * * * a new trial was granted as against the weight of the evidence. The third jury reached the same conclusion that the two prior juries reached, and on this trial the plaintiff found another witness who supported her side of the case; under these circumstances I do not think a new trial should be granted. Where three juries have reached the same conclusion, the court ought not lightly to interfere, and I am forced to the conclusion that the matter should be again presented to the Supreme Court before a circuit judge should grant a new trial. I cannot say that the verdict is excessive. I think if I had been in the place of the jury and if I could have reached the conclusion that the plaintiff was entitled to recover, I should have awarded larger damages than the jury has given. There can be no question but what she was severely injured. There can be no question but what she received a very great shock, and it would be manifestly improper for the court to set aside this verdict as excessive.”

While the judge intimates that if his judgment was substituted for that of the jury on the issues of fact presented by the conflicting testimony of witnesses, he would incline to a different conclusion, yet he also finds himself unable to say that the verdict is so manifestly against the weight of evidence as to require the court to invade the province of the jury and interfere. Neither should this court do so simply because its members might, if jurors, incline to a different verdict.

The functions and prerogatives of the jury are yet distinct and well-defined. The statute (B Comp. Laws, § 10504) authorizing this court to review the action of the trial court in refusing to grant a motion for a new trial has been so often construed in previous decisions that there can remain no doubt of its import and scope. The only question which can arise is its application to the case at hand.

The fact that the circuit judge in refusing a new trial indicates an opinion that the verdict is not according to the weight of evidence is not controlling. In re Hoyle's Estate, 162 Mich. 275 (127 N. W. 284).

In Hintz v. Railroad Co., 132 Mich. 305 (93 N. W. 634), in an able review of the subject by Justice Carpenter, a new trial was granted on the ground that the verdict was against the weight of evidence. After another trial the case again came before this court (140 Mich. 565 [104 N. W. 23]), and in affirming the judgment it was said:

“We are asked to set aside this verdict, as we did the verdict in the former trial, on the ground that it is against the weight of the testimony. We thought the weight of the testimony as shown by the former record proved that the plaintiff’s injuries resulted, not from a collision with defendant’s train, but from a runaway which occurred after defendant’s train had passed Davenport street. On this occasion, and on this record, we are less confident of the correctness of that conclusion. Our confidence is somewhat lessened by the fact that since that time two juries, who are the ultimate triers of the issue of facts, have decided that plaintiff’s injuries did result from such collision.”

In this case three juries, 36 men properly selected by drawing at random from the box containing a list of jurors duly qualified and disinterested, so far as appears, have reached the same conclusion from the testimony as to defendant’s liability. While not necessarily controlling, this is significant. The court will only interfere when a verdict is so manifestly contrary to the overwhelming weight of evidence and so palpably wrong as to force the conviction that it was the result of either passion or prejudice or a dense incapacity to analyze testimony and discern the truth. We do not think this is so clearly shown as to require this court to decide adversely on the action of the lower court in declining to grant a fourth trial.

It is claimed that the verdict which was for $1,500 was excessive, and the case should be reversed on that ground.

The testimony tended to show that plaintiff was seriously hurt by her fall from the car; that she struck on her head on the pavement, fracturing her skull; that she was carried unconscious to a drug store where she received the attention of a physician, and from thence was taken to a hospital before she regained consciousness; that she was confined to her bed for a period of nearly three weeks as a result of the injury, and an operation was found to be necessary in which a piece of bone was removed from her skull; that her nervous system was shattered and she has never fully recovered, being treated from time to time by a physician nearly ever since. In view of the testimony upon that subject, which was for the jury, we are not able to say that the verdict was excessive.

Error is alleged on refusal of the court to allow defendant to read to the jury the testimony of a witness named Rogers taken on a former trial. As foundation for so doing, defendant proved by a witness named Btassig that he had searched for Rogers in an endeavor to subpoena him and could not find him; the search consisting of going to Rogers’ former address and also looking for his name in the city directory in vain. There was no showing that the witness was dead or out of the jurisdiction of the court or that all reasonable efforts to find him had been diligently made.

The proof of inability to find a witness should be full and convincing, and the sufficiency of such proof is largely in the discretion of the trial court, which will not be revised in the absence of evidence of gross abuse of such discretion. 16 Cyc. p. 1098; Vaughan v. State, 58 Ark. 353-371 (24 S. W. 885).

Error is also assigned on refusal of the court to charge that there was an entire absence of proof that the car was started on a signal from the conductor; the declaration copnting on a failure of duty on his part. An examination of the declaration discloses the averment, amongst other things:

“That the said defendant, by its agents and servants, said motorman and conductor, * * * neglected its said duty * * * in the exercise of due care on her part, and, while so getting off said car as aforesaid, said motorman and conductor did wrongfully, etc., suddenly start said car.”

If the car was negligently started it would be immaterial whether it was the fault, of the motorman or the conductor.

The charge was very complete and correctly advised the jury of the issues and their duties in that connection. It contained the substance of defendant’s requests so far as they were applicable. The judgment is affirmed.

Moore, C. J., and McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Moore, C. J.

text:
    DROUILLARD v. DETROIT UNITED RAILWAY.
    Master and Servant — Contributory Negligence — Personal Injuries — Street Railways.
    Plaintiff, a street oar conductor, who was injured by the sudden starting of a car upon his adjusting the trolley to the wire, without first ascertaining, in the absence of the motorman, that the controller was turned off, having violated a rule of his employer, which required conductors to so ascertain, was guilty of contributory negligence.
    Error to Wayne; Rohnert, J.
    Submitted April 10, 1912.
    (Docket No. 88.)
    Decided May 31, 1912.

      Case by Delphis Drouillard against tbe Detroit United Railway for personal injuries. A judgment for defendant upon a verdict directed by tbe court is reviewed by plaintiff on writ of error.
    Affirmed.

      Frank F. Bumps (Ormond F. Hunt, of counsel), for appellant.

      Corliss, Leete & Joslyn and A. B. Hall, for appellee.
   Moore, C. J.

In September, 1908, while in the employ of defendant as a conductor, plaintiff was directed to take from the Warren avenue car house a car. He asked the car house foreman which car he should take out for his run. The foreman told .him to take the car on track No. 7. After plaintiff received this direction, he went to brack No. 7, untied the trolley pole which was tied down at the front end of the car, and turned the trolley around to the back end of the car. The car which plaintiff was to take out, and the one immediately behind it, were about five feet apart. He stepped on the fender of the rear car and adjusted the trolley to the wire. The instant the trolley touched the wire the car jumped back and injured the left leg of the plaintiff between the hip and knee. Suit was brought to recover damages for these injuries. No witnesses were sworn on the part of defendant. The trial judge directed a verdict in favor of the defendant. The case is brought here by writ of error.

It was the claim of the plaintiff, and he gave evidence tending to show, that the car house foreman was invested with complete control of the car house, car yard, and the cars therein placed from time to time; that he was invested with authority to order and direct conductors what cars to take out, and when to take them; that it was his duty, when he directed a conductor to take out a car, to see to it that the car was in a safe and proper condition to be taken out and that the apparatus in the motor end of the car was so adjusted that the current of electricity brought to said oar by contact of the trolley with the overhead wire above the car would not set the car in motion while the conductor was adjusting the trolley to the overhead wife preparatory to taking the car out of the yard. "We quote from the brief:

“ Plaintiff was entitled to go to the jury upon the question as to whether or not defendant was negligent in ordering plaintiff to take out the car in its then condition without previous inspection. * * *
“(1) Upon the theory that the car house foreman was a vice-principal and represented the master in this respect.
“(2) Upon the ground that the matter of the safety of the materials and appliances could not be delegated by the principal to another so as to relieve the master of any defect or want of safety therein.”

Before the claims can be properly understood, it is necessary to refer further to the record. The plaintiff had been in the employ of the defendant for a series of years, as conductor. He was furnished with a copy of the rules and was familiar with them. Among them were the following :

“Rule 144. Whether going ahead or backing, do not attempt to place the trolley on the wire until car has been brought to a standstill. A trolley wheel should never be taken off or put on the trolley wire while the controller is turned on.”
“ Rule 148. You are required to exercise the greatest precaution when backing cars, to prevent injury to persons or damage to the car or overhead wires, and under no circumstances must the car be moved backward until the trolley rope has been untied and the conductor is on the rear platform holding it and in position to promptly signal to avoid collision.”
“ Rule 180. After running the car into the car house or yard, motorman must throw off the overhead switch, move reverse lever to the off position and release brake. Conductor will remove trolley from the wire and place it in the trough, or tie it clear of the wire; also see that all doors and windows are closed, and that fires are properly regulated before leaving the car.”

The record shows that plaintiff did not wait for the appearance of the motorman before throwing the trolley against the live wire. It discloses that the switch in the front end of the car, which is operated by the motorman for the purpose of controlling the movements of the car, could be seen from the ground. The conductor made no effort to inform himself whether the overhead switch had been thrown off and the reverse lever had been put in the off position. The conductor knew that, if these things had not been done, the moment the trolley was put in place the car would do just what it did do. Without waiting for the motorman, and without informing himself whether it was safe to put the trolley against the wire, and in violation of the instructions contained in the rules, he put the trolley wheel against the wire, and the accident happened. Under these circumstances, we think it must be held that he was guilty of such contributory negligence as to preclude recovery.

Judgment is affirmed.

Steere, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Stone, J.

text:
    JOHNSON v. GRONDIN.
    1. Intoxicating Liquors — Civil-Damage Action — Pleading-Bond oe Liquor Dealer.
    In an aotion under the civil-damage law, a declaration averring that a bond in due statutory form was filed by defendant, a saloonkeeper, that defendant sold plaintiff’s husband liquors under circumstances averred in detail rendering the sales unlawful, sufficiently stated a breach of the condition of the bond which was set out in full.

      3. Same — Execution of Bond — Declaration.
    And in the absence of a demurrer, averments that defendant duly executed the bond required by statute, that the other defendant became surety, and the instrument was duly filed, were not objectionable for failing to allege that it was signed, sealed and executed by defendant.
    3. Same.
    Nor was it insufficient for not averring that the liquor dealer paid the tax and received and posted the receipt and notice, or that the defendant surety, a corporation, was authorized by statute to execute liquor bonds.
    4. Same — Damages—Loss of Support.
    Averments that by reason of the sums spent by plaintiff’s husband for liquors, etc., he was unable to furnish plaintiff with necessary means of support, and plaintiff thereby had been injured in property and means of support, warranted proof of damage to her property and means of support.
    5. Same — Ill-Treatment.
    Under a charge of ill-treatment, calling plaintiff vile and obscene names in the presence of her children, neighbors, and others, plaintiff was correctly permitted to show that her husband charged her with infidelity.
    6. Same — Trial—Parent and Child.
    The objection that plaintiff introduced evidence that she had children was not sufficient to reverse the case, where the evidence was otherwise competent, being introduced to show who prepared the written notice served on defendant and who was present when it was served, and where plaintiff’s son was called as a witness to substantiate her testimony.
    7. Same — Witnesses.
    It was not incompetent to introduce plaintiff’s son as a witness for such purpose, or to show that he was present when plaintiff’s husband mistreated her, and that he was her son.
    8. Same — Sales—Evidence.
    It was not error to introduce evidence of sales of liquor made to plaintiff’s husband by defendant at hours prohibited by law and on Sundays and holidays, or to cross-examine one of defendant’s witnesses for the same purpose.
    9. Same — Cross-Examination.
    While proof of other illegal sales may be erroneous, plaintiff’s counsel was within his rights in cross-examining defendant as to whether he sold liquor to any one on the 22nd of February, on which day plaintiff’s, husband was shown to have purchased intoxicants of defendant: and the answers, being negative, did not prejudice defendant.
    10. Same — Damages—Mental Suffering.
    Evidence of plaintiff’s mental suffering was sufficient to authorize the jury in awarding damages therefor as a result of assaults and other mistreatment, although no proof of the extent or value of such suffering was presented.
    11. Same — Previous Habits.
    Defendants were liable for the injury, if any, done to plaintiff’s wife in furnishing liquors so as to enable her husband to continue the habit of drunkenness previously formed.
    Error to Schoolcraft; Oren, J.
    Submitted April 8, 1912.
    (Docket No. 62.)
    Decided May 31, 1912.
    Case by Anna Johnson against Philip Grondin and the Michigan Bonding & Surety Company for illegal sales of liquor to plaintiff’s husband. Judgment for plaintiff, defendants bring error.
    Affirmed.

      L. H. Fead, F. T. McDonald, and A. F. Bunting, for appellants.

      G. W. Dunton, V. I. Hixson, and F. P. Sullivan, for appellee.
   Stone, J.

This action is brought under the provisions of the civil-damage law (Act No. 313, Pub. Acts 1887, § 20, 2 Comp. Laws, § 5398) against the keeper of a saloon and his bondsmen. The declaration consists of two counts. The first count alleges that on, to wit, May 1, 1909, and continuously from that time to the time of the commencement of suit, which was on November 4, 1910, the defendant Philip Grondin was engaged in the business and occupation of selling spirituous and intoxicating liquors at retail in the township of Seney, in Schoolcraft county; and that to enable him to engage in said business he on, to wit, May 1, 1909, gave a duly executed bond in compliance with the law, upon which bond the defendant the Michigan Bonding & Surety Company became and was the surety; and that he on, to wit, May 1, 1910, to enable him to engage in said business, gave a like bond with the same surety; and that each of said bonds, so executed and given as aforesaid, was approved by the township board of the township. of Seney; and that each of said bonds with the certificate of approval of said board.was duly filed with the treasurer of said county, and a copy of each of said bonds was attached to and made a part of the declaration, and they were offered and received in evidence and are described in the record, the first one being Exhibit 1, as retail liquor dealer’s bond in the form prescribed by statute in the penal sum of $3,000, signed by Philip Grondin as principal, and the Michigan Bonding & Surety Company as surety, covering the period from May 1, 1909, to April 30, 1910, at Grondin’s hotel building in Seney, Schoolcraft county. Plaintiff’s Exhibit % is described as a bond same as last above covering the period from May 1, 1910, to April 30, 1911.

The declaration alleges that the plaintiff had for 15 years last past been and remained the lawful wife of John Johnson, and that during said time .they had lived and cohabited together at said township of Seney, where said Johnson had been engaged in the occupation of section-man for a railroad company, earning the sum of, to wit, $60 per month for such work.

The first count of the declaration further alleges that said John Johnson on, to wit, May 1, 1909, was, and since said time has remained, a person addicted to the use of spirituous and intoxicating liquors, and in the habit of becoming intoxicated; and that said plaintiff on, to wit, the 1st day of May, 1909, notified the said Philip Grondin to cease and refrain from selling, giving, or furnishing said John Johnson with spirituous qr intoxicating liquors, which said request so made by said plaintiff was thereafter frequently repeated; and that on, to wit, December 1, 1909, the said plaintiff served upon said Philip Grondin a written notice forbidding him, the said Philip Grondin, to sell, furnish, give, or deliver any spirituous or intoxicating liquors to the said John Johnson. The declaration proceeds to allege that, despite the notices, both verbal and written, so served upon him by the plaintiff, the said Grondin did frequently after May 1, 1909, by himself, his servant, agent, or representative sell, give, and furnish to the said Johnson, at said defendant’s saloon and place of business, large quantities of spirituous and intoxicating liquors which had continued from said time down to the commencement of this suit; and that by reason thereof said Johnson had frequently become intoxicated and spent large sums of money for intoxicating liquors in the said saloon and place of business of the said defendant

It was further alleged that the money spent as aforesaid for intoxicating liquors by said Johnson in said saloon and place of business of said defendant Philip Grondin had taken the greater part of the earnings and wages of said husband of plaintiff, and that by reason thereof the said husband had since May 1,1909, been unable to furnish plaintiff the necessary and usual means of support, raiment, food, and living, which was and is reasonably the plaintiff’s due from the wages so earned and received by her said husband, and that the said husband of said plaintiff, by reason of said money so paid by him to said defendant Philip Grondin for intoxicating liquors, had failed and neglected to furnish the plaintiff with the necessary means of support, whereby and by reason of which the plaintiff had been injured in property and means of support in a large sum, to wit, $1,000.

The second count of the declaration, after the statement in the introductory part thereof — substantially the same as the first count as to the business of defendant Grondin and notice to him and the furnishing of liquors — alleges that plaintiff’s said husband shortly after, to wit, May 1, 1909, and on other days and times between that date and the commencement of the suit, became drunk and intoxicated, and by being so intoxicated, or in consequence thereof, frequently on divers days and times assaulted, beat, wounded, and ill-treated the plaintiff, caused her great bodily pain and suffering, called her vile and obscene names in the presence of her children, neighbors, and others, drove her from her home, threatened to take her life, and caused the plaintiff to suffer great and grievous anguish and care of body and mind, shame, mortification, and disgrace, depriving her of the society of her friends and’ acquaintances, and other wrongs to the plaintiff to her great damage to the amount of $3,000, all of which injuries were caused by the unlawful selling, giving, and furnishing and delivering of intoxicating liquors by said Philip Grondin to said John Johnson.

The trial of the case before a jury resulted in a verdict and judgment for the plaintiff in the sum of $750 damages and costs. The defendants have removed the case to this court, and there are 38 assignments of error in the record. We shall discuss such questions as are raised by defendants in their brief; the same appearing to be covered by assignments of error. (1) It is first claimed by defendant Bonding Company that no testimony should have been permitted to be introduced under the declaration for the following reasons: (a) The declaration does not sufficiently assign a breach of the bonds mentioned in the declaration whereby the defendants became liable to the plaintiff. (6) The plaintiff’s declaration does not allege that the defendant Philip Grondin paid the tax and received the receipt from the county treasurer and posted up the notice required by the statute, (c) The plaintiff’s declaration does not allege that the bonds mentioned in the declaration were signed, executed and sealed by this defendant. (d) The plaintiff’s declaration does not charge that the defendant Bonding Company was authorized under the statute to execute liquor bonds and do business thereon.

We do not think that there is any merit in the above objections. It appearing that the bonds were in the statutory form, the allegation of the sales and furnishing of liquors under the circumstances stated in the declaration constituted a sufficient allegation of a breach of the bonds.

It being alleged that the defendant Philip Grondin duly executed the statutory bonds in compliance with the law, and that the Michigan Bonding & Surety Company became surety, and that the same were duly approved by the township board and filed with the county treasurer, we think the declaration sufficient. We think the declaration wherein it alleges that the bonds were executed in compliance with the statute is broad enough to admit evidence, in the absence of a demurrer.

It is urged that the declaration was not sufficient to allow evidence of damage to plaintiff in her property or means of support. We cannot agree with this contention. The declaration alleges, as we have already indicated, that, by reason of intoxicating liquors having been furnished the plaintiff’s husband by the defendant, the husband frequently became intoxicated and spent large sums of money at said place for intoxicating liquors, that it took a greater part of his wages, and by reason thereof he was unable to furnish the plaintiff the necessary and usual means of support, raiment, food, and living which were reasonably her due from the wages and earnings of her husband, all of which it is said damaged her in her means of support. This element of damage is within the statute, and we think the point should be ruled against the defendants upon the authority of Rouse v. Melsheimer, 82 Mich. 172 (46 N. W. 372). This is not an action to recover back money as was the case of Friend v. Dunks, 39 Mich. 733, cited by defendants’ counsel under a former statute.

It is urged that the court erred in overruling defendants’ objection to the question asked of the plaintiff relative to her husband’s conduct, as follows:

“Q. Did he on any of these occasions charge you with being untrue to him ? ”

We do not think there is any merit in this assignment of error/ The declaration had claimed that her husband among other things had ill-treated her and called her vile and obscene names in the presence of her children, neighbors, and others, and had caused the plaintiff to suffer great and grievous anguish in body and mind, shame, mortification, disgrace, etc. We think that it was a sufficient charge of ill-treatment to warrant the admission of this testimony. Most certainly it is not necessary that the declaration should set forth the testimony in the case.

The next assignments of error allege that the court erred in permitting the introduction into the case of the fact that the plaintiff had children. This subject is treated under the third, fourth, fifth, sixth, seventh, eighth, ninth, and thirty-third assignments of error; the last assignment relating to the charge of the court where, in stating the claim of the plaintiff, the court said that the plaintiff claimed that the conduct of her husband when intoxicated had caused her great bodily pain and suffering, he (the husband) calling her vile and obscene names in the presence of her children,, neighbors, and others, etc., quoting the language of the declaration.

The testimony above referred to is a part of the direct examination of the plaintiff where her counsel were seeking to show service of written notice upon the defendant Grondin, and the following occurred:

“Q. Where did you go to serve it ?
“A. I took my little boy with me and he went—
“Mr. Bunting (interrupting): I desire to strike out testimony as to any other member of the family.
“The Court: That may be stricken out.
“Mr. Bunting: Incompetent, irrelevant and immaterial.
“Q. Did you go into the place or did he come out at the time you served him with the notice ?
“Mr. Bunting: Object to that as leading.
“The Court: You may take the answer.
“A. Outside. My little boy called Mr. Grondin out.
“Mr. Bunting: I desire an exception to the statement of witness as to other members of the family.
“The Court: That answer may stand.
“Mr. Bunting: Exception follows the rule ?
“The Court: Yes.
“A. I served the notice some time after the 15th of January, 1910.
“Q. I show you a paper and ask you if it is the notice which you handed to Mr. Grondin on that occasion ?
“A. I can’t read any English; the little boy wrote it for me.
“Mr. Bunting: Same exception as to the little boy.
“The Court: That may stand.
“A. I don’t know whether that is the paper; I can’t read English.”

In order to identify paper, witness Anna Johnson withdrawn by leave of court, and Albert Johnson was sworn on behalf of plaintiff and testified as follows:

"My name is Albert Johnson and I am 12 years old; • I live at Seney.
“Q. Is Mrs. Johnson your mother ?
“A. Yes, sir.
“Mr. Bunting: Object to that as incompetent, irrelevant, and immaterial.
“Mr. Dunton: I will withdraw the question.
“Q. I show you a paper and ask you if that is in your handwriting ?
“A. Yes, that is.
“Q. All of it?
“A. I don’t know.
“Q. Is this in your handwriting ?
“A. Yes, sir'.
“Q. You wrote it ?
"A. Yes, sir.
“Q. Who, if anyone, asked you to write it'?
"A. My mother asked me to write it.
“Q. Mrs. Johnson ?
“A. Yes, sir.
“Mr. Bunting: I desire an exception to the counsel asking that question.
“ The Court: Object to his asking ? I think so far as he has asked the questions are competent.
" Mr. Bunting: I now move to strike out the answer that his mother asked him to write it, and question of counsel, ‘ Mrs. Johnson,’ and his answer, and I move to strike that out as incompetent, irrelevant, and immaterial.
" Mr. Sullivan: We consent to the striking out of that part of the question, I think it was, ‘Did your mother,’ ‘Who did you write it for,’and ‘For my mother,’the answer.
The Court: It may be stricken out.
“Mr. Bunting: I want an exception to the counsel asking the question to get it before the jury and then consenting to strike it out, and an exception to the question asked the wife a while ago as to her boy.
The Court: Well, that appears on the record.”

Cross-examination:

“ This paper was written at my home.
“Q. Did your mother read to you what she wanted to go into this ?
“A. Yes, she stated it to me. I wrote it down. If I am not mistaken, I think I signed the paper. The name signed there as Mrs. John Johnson is in my handwriting.”

On behalf of plaintiff, Anna Johnson was recalled and testified further as follows:

“Q. What, if anything, did you do with this paper which I hold in my hand ?
“A. I went out and took it in my hand and took my little boy with me and went to Grondin’s and told him—
“Mr. Bunting (interrupting): I want my same objection, and move to strike out the plaintiff’s ‘little boy.’
“The Court: That may be stricken out.
“Q. Where did you give it to Mr. Grondin ?
“A. Right outside of Grondin’s.
Q. Place of business in Seney ?
“A. Yes, sir.
“Mr. Dunton: We now offer this paper in evidence.
“Mr. Bunting: Object to it as not being dated and as not being sufficiently identified.
The Court: It may be received in evidence. (Marked ‘Plaintiff’s Exhibit 3.’)
“Q. Did you write any part of that paper ?
“A. No, sir.
“Q. Who did write it ?
“A. My little boy.
“Q. Did you tell him what to write ?
. “ Mr. Bunting: Same objection and motion tó strike.
The Court: I understand that your objection is directed to the introduction of the boy, or at least bring it out in this matter ?
Mr. Bunting: Yes.
The Court: Not having put the question as leading? I think the question is proper other than it may be rather leading. (To which ruling the defendants excepted.)
* A. I told Albert Johnson what to write.”

It is the claim of the appellant that the principle involved in these assignments of error has been covered by the following cases in this court: Larzelere v. Kirchgessner, 73 Mich. 276 (41 N. W. 488); Johnson v. Schultz, 74 Mich. 75 (41 N. W. 865); Boydan v. Haberstumpf, 129 Mich. 137 (88 N. W. 386); Manzer v. Phillips, 139 Mich. 61 (102 N. W. 292); Montross v. Alexander, 152 Mich. 513 (116 N. W. 190); Pearson v. Schoenberg, 167 Mich. 255 (132 N. W. 1011). A brief reference to these cases will aid us in determining just how far this court has gone upon the subject.

In Larzelere v. Kirchgessner, supra, there was apparently a studied attempt to introduce the subject of the children into the case. When the plaintiff was being examined in her own behalf she was asked the following question relating to her husband, “What family did he have ?” to which question counsel for. defendant objected as incompetent and irrelevant. The court ruled as follows:

“I will admit that for a qualified purpose so that it shall not be considered, under the present ruling, as affecting the question of damages, but for the purpose of showing the situation of this woman with reference to her own right.”

The witness then answered:

“Four children; the oldest is 13, the next is 11, the next is 7, and the youngest is 4.”

Counsel for defendant then moved to strike out the answer; the motion was overruled by the court and exceptions were duly taken. The court there ruled that in the statutory right of action by the wife where her recovery is confined to the injury to herself alone, and where the children are given separate rights of action, that such testimony was irrelevant and immaterial.

That case was followed by Johnson v. Schultz, supra, in which case the plaintiff, when testifying in her own behalf, was permitted against objection to state how many children she had; the court stating that it admitted the testimony as bearing upon the question of punitory or exemplary damages. The jury in their verdict returned that they found actual damages in the plaintiff’s favor of $100 and exemplary damages of $500. This court held that, under the authority of the case first above cited, the testimony should have been excluded.

In Boydan v. Haberstumpf, supra, the plaintiff, while a witness on the stand, was permitted to testify that she had a young child, some three years old, which child was in the courtroom at the time and remained during the trial, and counsel, in arguing to the jury, dwelt upon this fact. The court later on struck out this testimony and attempted to cure the error in its admission by its charge, but this court held that it was not satisfied that the error was without prejudice, and the case was reversed upon the authority of the case first above cited.

In Manzer v. Phillips, supra, the court admitted evidence that the plaintiff had two children. As to the action of the court the record is as follows:

Q. Were your children present when the neighbors came in and were relating what had taken place — they were relating what had taken place ?
“A. Yes, sir.
“Mr. McCurdy: I object to that as incompetent, inadmissible, and an improper method of getting in inadmissible testimony. I move to strike out the answer. The question itself is improper.
“The Court: I will strike out the answer if you want to strike out the answer. That is as far as I will go, if you want it stricken out.
“Q. They were not?
“A. Yes, they were. I said, ‘Yes, sir.’
“Mr. McCurdy: I now renew my motion to have that answer stricken from the record, and the jury instructed that they should pay no attention to it.
The Court: I will deny the motion. (Defendant excepted.)
“Q. How did you feel at having that knowledge come home to you, under the circumstances there as you have related ait your home ?
“Mr. McCurdy: I object to it as incompetent and inadmissible.
“ The Court: She may answer. (Exception for defendant.)
“A. Well, I felt pretty bad over it.”

This court, in passing upon the subject, called attention to the fact that there was nothing in the record to indicate that the boys were present as witnesses, nor were they called as witnesses so far as the record disclosed. Later the plaintiff was further interrogated and answered as follows, referring to her husband’s earnings:

“Q. You were speaking about his earning more money now than he did formerly. You may state whether or not you haven’t boys that are grown up, and assist in earning this money at the present time ?
“Mr. McCurdy: I object to it as incompetent, and an improper way of getting inadmissible evidence before the jury.
The Court: I think, in view of the cross-examination, she may answer it. (Exception for defendant.)
“A. Yes, sir.
“Q. Are these the two boys that you speak of ?
“A. Yes, sir.”

Recross-examination by Mr. McCurdy:

“Q. These two young men are 18 or 19 years old, are they ?
“A. No, sir.
“Q. How old are they ?
“A. One 15; the other 1?.”

This court held that nothing was found in the cross-examination of the plaintiff to warrant the court’s action, unless it was the' answer drawn out that Mr. Manzer made a little more money ditching than when he first married, and had more jobs owing to the clearing up of the country. It is pointed out, also, that no reference was made in the cross-examination to Mrs. Manzer’s children, but the questions by defendant’s counsel were confined entirely to her husband’s earnings and business. This court held that it did not think such questions authorized the bringing in of the children, and that it was not competent to show an aggravation of the injuries of the plaintiff’s feelings by showing the presence of her children when she was informed of her husband’s misfortune. Reference is then made to the cases above cited, and the conduct of the court was held to be error; Justice Blair, who wrote the opinion, adding:

“We do not intend to intimate that the children could not have been called as witnesses to material facts in the case, or that there might not be cases in which the presence of the children would be part of the res gestee, and so admissible, but we find nothing in this case to authorize the taking of this testimony.”

In Montross v. Alexander, supra, the plaintiff was asked the following question, “ How many children have you?” And she was allowed to answer “Six,” and the case was reversed upon the authority of the foregoing cases.

This question was last before this court in Pearson v. Schoenberg, supra. Complaint was made in that case because the fact that plaintiff had a little daughter present in court with her was gotten before the jury by plaintiff’s counsel. The husband of plaintiff was a witness in her behalf, and was interrogated by counsel as follows:

“Q. Who constituted your family at that time ?
“Mr. Clink: I object to that as incompetent.
“The Court: What is the purpose of that ?
“Mr. Turner: I don’t know, if your honor please, as thát would be.
“The Court: Outside of the wife. It already appears that he had a wife.
“Mr. Anderson: I think that is a competent question for this reason: If there were any children in that family it shows — I think we have a right to show that; to show why it was necessary, in part, for her to dispose of these goods to support herself and small child.
“The Court: Before that is passed upon, I simply advise counsel to look at the case of Haberstumpf, decided about four years ago by our Supreme Court, which I think will satisfy counsel upon that question.
“Mr. Anderson: There is no question but what the child would have an action also. It would tend to show the damage it was to her; she having to support that child during that time.”

There then followed an extended colloquy over this matter, which was indulged in by both court and counsel before the jury. The testimony was finally rejected, and the jury were instructed not to consider it. Later in the trial, plaintiff testified that during her husband’s two months’ spree she stayed alone with her little child night after night. This, also, was objected to and subsequently stricken out upon motion of defendant’s counsel. The above cases were referred to by Justice Bird, and it was held that if they were to be followed the case must be reversed. It is here apparent that there was again a studied attempt to get before the jury the fact that there was a child, for the purpose of enhancing damages; and, although the testimony was stricken out, we held that the harm which the rule seeks to prevent was accomplished.

Can the instant case be distinguished from this line of decisions? We think it can, and we are of opinion that this rule should not be extended beyond the previous holdings of this court. Here it was material and necessary for the plaintiff to show service of the written notice upon the defendant Grondin. It was perfectly competent and proper for her to show the manner in which the notice had been prepared and served. It was relevant and material for the plaintiff to fortify her own testimony upon the subject by showing who prepared the notice under her direction, and who, if anybody, was present when it was served. The presence of her 12-year old boy when the notice was served was a part of the res gestee of the service, and it was as competent for her to show that her boy witnessed that service as it would have been to show that anybody else was present.

We do not think there was error in showing her relationship to that witness. In view of the language of Justice Blair, above quoted, it certainly cannot be held to have been error to permit the little boy to testify as a witness relating both to the preparation of the notice and the service of it. For the purposes of identification, it was perfectly competent for him to state that he was the son of the plaintiff, and to state the circumstances surrounding the transaction. It was also competent for the little boy to testify to acts which he witnessed on the part of his father in pursuing his mother when the father was intoxicated, and we see no error in the charge of the court relating to the fact that, in the presence of the boy, the husband when intoxicated had called the plaintiff vile names. Unless we are to go to the length of holding that children of the plaintiff are not competent witnesses in such a case, we think that it must be held that there was no error in the instant case relating to this matter. We think the case can be readily distinguished from the former cases above referred to.

It is next claimed that the court erred in permitting testimony relating to defendant Grondin’s conduct of his saloon on hours and days when he was prohibited by law from keeping it open. This refers to the opening statement of plaintiff’s counsel that the plaintiff’s husband was furnished liquor at the bar of the defendant, “not only during the hours which under the laws of the State of Michigan he was permitted to sell, but at any time and during prohibited hours.” A reading of the record shows that the plaintiff, under the declaration, not only attempted to show the sale of liquors to plaintiff’s husband after the service of the notice, but also at certain prohibited times, as well after the hours for closing as upon primary election day and the 33d of February.

It is further claimed that it was error to admit the following testimony of plaintiff. A portion only of this testimony is given in the assignment of error. We shall quote entire the plaintiff’s testimony upon this subject. We quote as follows from plaintiff’s testimony:

“The night before Mr. Grondin came up to my house in November, 1909, my husband was at his (Grondin’s) place. It was a Saturday night that my husband was there and at about 12 o’clock I went up there, rapped at the side door, and the bartender came out through the kitchen door and I said to him, ‘ Is my husband here ? * He says to me, ‘ No, ma’am.’ I said, ‘ He must be in here, because everything else is locked up and I can hear playing cards and talking in there; he must be in there.’ He says, ‘ No, ma’am.’ He went in again with a lantern and came out through another back door. He says, ‘ Mrs. Johnson, you can come in and see if he is there.’ I says, ‘ No, I don’t want to go in there, but I am going to wait to see if he is in here. ’ I stood around and watched and finally Johnny Grondin got some liquor to carry in the back room.
“Q. What time was this ?
“A. Between 12 and 1 o’clock.
“Counsel for defendant: I move to strike out the testimony as incompetent, irrelevant, and immaterial; we are not now trying criminal cases. I also wish to strike out all testimony with reference to this witness and Johnny Grondin near the kitchen door, or any other conversation — can have no reference to this defendant.
“The Court: The testimony may stand, objection overruled.
“Defendants’ counsel: Both objections ?
“The Court: Yes. (Exception noted for defendants.)”

The plaintiff continued to testify:

“ I rapped the glass on the saloon window. I says, ‘ Here, you stop that business now; it is pretty near 1 o’clock; tell my husband, Mr. Johnson, to come.’ So he dropped the bottles and went in the back room. A few minutes later my husband came out the side door. He had lots of bottles with beer in them in his hands and he was full. I followed him home and he put the bottles in front of the house, and went back again. I went in and a few minutes after he came home and took the bottles in. He always swore and used bad language when he was drunk.”

It is very apparent from this record that the plaintiff is here testifying to an occasion when, according to her testimony, her husband was in Grondin’s saloon, and it shows that he came out of the saloon at this late hour of the night with bottles of beer in his hands and that he was in an intoxicated condition. In our view of the case, we think this testimony was competent.

In this same connection it is clamed there was error in the cross-examination of the witness Mike Ryan. This man was a witness in behalf of the defendants, and on direct examination testified that he was in Seney on the 22d of February, 1910, and September 6, 1910, which was primary election day, and that he could say that Grondin’s saloon was closed on both of those dates; there having been testimony offered by the plaintiff tending to show sales of liquor to the plaintiff’s husband on those dates. He was cross-examined at some length upon this subject and testified as follows:

“ Mr. Grondin always closed his saloon up at 9 o’clock in the evening, as far as I know. I wouldn’t know. I know that on Sundays, election day, and some holidays it is not open. I have never seen any one get liquor there on any day where by law he ought not to sell it.”

Question by plaintiff’s counsel:

Never knew of any men to get liquor there on Sunday ?
“A. No, sir.”

This was objected to and permitted to stand for the reason, as stated by the court, that there had been testimony tending to show this defendant had sold liquor to plaintiff’s husband on some of the prohibited days.

«Under the same general head, a question asked the defendant Philip Grondin upon cross-examination was objected to by defendants’ counsel. The defendant Grondin on his direct examination had testified that his saloon was not open on Washington’s Birthday, 1910, and that it was not open on September 6, 1910, primary election day, and that no liquor was furnished to plaintiff’s husband by him or at his saloon on either of these days. On cross-examination he further testified:

“ I remember the 6th of September, 1910, primary election day. I organized the board in the morning but did not sit on it. I went home and was around home the rest of the day. My bar was not open nor was the back room.”

Then follows the question specifically objected to:

“You sold no liquor to anybody on that day?”

Objected to by defendants’ counsel as incompetent, irrelevant and immaterial, whether he did or did not. The court held:

“It is possibly bearing upon the fact that liquor was sold to Johnson. I think it is competent.”

To which counsel for defendants excepted. A similar question was put to the witness John Grondin by plaintiff’s counsel on cross-examination. It was the following:

“Do you expose your barroom to the view of passersby in the street during the hours that liquor is not sold there ?”

We think, in view of the fact that the witness was here testifying relative to the time when the plaintiff claimed to have visited the saloon at night on the occasion when her husband was found there, the above was proper cross-examination. We are aware of the rule that proof of other illegal sales or violations not bearing on the issue may be prejudicial error. But that does not dispose of this question. This cross-examination was connected with this case, and, there having been evidence tending to show that the husband was furnished with liquors during prohibited hours, and the cross-examination having been directed to those instances, we think no error was committed in this connection. No evidence was offered here on the part of plaintiff to show unlawful sales to other persons on the days or times in question, and we think the ruling of the court finds support in Hilliker v. Farr, 149 Mich. 444 (112 N. W. 1116).

As all the questions on cross-examination except the last one were answered in the negative, the error, if any error was committed, which we do not think was the case, would have been harmless error.

We have examined the remaining assignments of error with great care and are unable to find that they are well assigned. A single remark of plaintiff’s counsel when the court sustained an objection made by him was addressed to defendants’ counsel:

“ That is the way with most of your testimony.”

While this was an unnecessary and improper remark by plaintiff’s counsel, the attention of the court was not challenged to it by asking for any ruling, or by presenting any request to charge. We do not think that it was reversible error. We have examined the charge of the court very carefully in connection with the assignments of error relating thereto. We find no error therein.

It is claimed that there were no damages proven, or that the plaintiff suffered any mortification or mental anguish on account of her husband calling her vile names. There was testimony tending to show the use of such language addressed to the plaintiff by her husband when he was in an intoxicated condition, of repeated assaults upon her, and of other misconduct on his part. We think, as was said by this court in Rice v. Rice, 104 Mich. 371 (62 N. W. 833), that when damages of this nature arerecoverable, the amount of damages lies in the sound discretion of the jury; that they are not capable of actual measurement, and that it is not necessary to introduce any evidence of value. When the jury have before them the circumstances surrounding the wrong done, they have the basis on which they may find a verdict.

Complaint is also made because there was evidence tending to show that the plaintiff’s husband had been addicted to drinking before the time alleged in the declaration. We think that subject is fully covered in Ford v. Cheever, 105 Mich. 679 (63 N. W. 975), in which it was held, referring to a former case, that it was not intended by what was said in Johnson v. Shultz, supra, to imply that the wife was wholly without remedy for the wrong done in furnishing liquors to her husband which enabled him to continue the habit of drunkenness which he had already formed.

The court in its charge limited the recovery to sales made after November 1, 1909, by distinctly calling the attention of the jury to the matter at least twice in its charge. We have examined the defendants’ requests to charge and are of opinion that the court in its general charge covered all the questions embraced in such requests which were proper to submit to the jury.

We find no reversible error in the record, and the judgment of the court below is affirmed.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    MINKSTIMAS v. PANTLIND.
    Trial — Directing Verdict — Statement oe Counsel — Mistrial.
    A mistrial of a personal injury case occurred where the court directed a verdict for defendant on the opening statement and the testimony of one witness, the plaintiff, who claimed that she was injured while cleaning a dishwashing machine into which plaintiff's superior servant, the steward, who hired her and had charge of the machine, turned hot water, scalding plaintiff; the issue as to the steward being a vice principal or a subordinate was a question for the jury which plaintiff was entitled to develop.
    Error to Kent;* McDonald, J.
    Submitted April 5, 1912.

    (Docket No. 45.)
    Decided May 31, 1912.
    Case by Sielma Minkstimas against J. Boyd Pantlind for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Martin L. Fetta and Geo. E. & M. A. Nichols, for appellant.

      Fred L. Vandeveer and Henry T. Heald, for appellee.
   Stone, J.

The plaintiff in this case, a young woman of foreign birth, 22 years of age, who had been in this country less than a year and a half, and who spoke but little English and testified at the trial through an interpreter, was severely scalded on April 24, 1911, while in the employ of defendant at the Hotel Pantlind in the city of Grand Rapids, under the circumstances hereinafter disclosed.

Owing to the course which the trial took, the opening statement of plaintiff’s counsel becomes material. We quote the following:

“We will show you, gentlemen, that the plaintiff was in the employ of J. Boyd Pantlind in his hotel kitchen on. or about the 24th day of April of this year; we will show you that the plaintiff was hired, and was given her job, by one James Smith, and that James Smith was the steward in the kitchen of the Hotel Pantlind. We will show you further that the plaintiff, being thus in the employ of the defendant, was given some duties to perform in and about the kitchen of the hotel, and that anjong her duties it was her duty to perform the washing and the cleaning of the dishes in the kitchen. * * * And also to clean and wash and scrub up a certain dishwashing machine in the kitchen; but, gentlemen, mind that it was not her duty to run the machinery of the dishwashing machine in question, or turn on the water, or to do anything that had to do with the operation of the machinery of the dishwashing machine in question. We will show you that the defendant did not warn or instruct the plaintiff in the use of this dishwashing machine, and in the operation of the machinery of the machine. We will show you that her foreman or steward, James Smith, did not instruct her how to operate this machinery of the dishwashing machine. We will show you that James Smith did not warn her of any danger connected with the operation of this machine; we will show you that James Smith did not warn her of any defect in this machinery, in this dishwashing machine.”

Counsel further stated in substance that plaintiff would show that nobody connected with the hotel instructed the plaintiff in the use or operation of the machinery of the dishwashing machine, nor of any danger connected with the running of the machine, nor was she warned of any defects in the machinery; that, being thus in the employ of the defendant and under charge of James Smith, the foreman or steward, the plaintiff was directed by him to go. and scrub the dishwashing machine and clean out the kettles of the machine. That plaintiff would show that there were three circular kettles or tanks made of galvanized iron connected together in a row horizontally, each about two feet in diameter, two washing tanks for washing dishes, and one rinsing tank; that the two washing tanks were a little over three feet deep, and the rinsing tank a little over two feet deep. These three tanks were connected together; that there was a number of pipes running along on the side of the machine, steam and water pipes. In each tank or kettle there were holes in the bottom to admit the steam and hot water through these pipes down and up through the bottom; that plaintiff would show by expert testimony just how this machine was constructed ; that at each end of these tanks there were two valves — that is, a knob to turn on the water and the hot steam — and that there was a separate hole in the bottom of the tank for the hot water to come up through; that there was a separate hole for the hot steam to come up through; that these two holes in the bottom of each of these tanks were circular, and almost an inch in width or diameter; that there was no cap over these holes to prevent the water from coming straight up, or to prevent the steam flying straight up; that these were defects; that with reasonable care the defendant should have known this; that if he had made reasonable investigation he would have found that these holes were unguarded in the bottom; that the plaintiff would show by expert testimony, if there had been a cap over each one of the holes, or if there had been a small pipe coming up through the hole, and a covering on top of the pipe and a perforation or holes at the side of the pipe, then the hot water would shoot to the sides of the kettles or tanks, and also the hot steam, and the tanks or kettles would fill up gradually, without any danger to anybody; that James Smith was the operator of this machine, or machinery, and that he was the foreman and the vice principal; that when the plaintiff was directed to go and clean these tanks or kettles she obeyed his order; that he was the boss, and she had a right to rely on his care. She commenced on the end washing tank, then she cleaned the middle washing tank, and started to scrub the rinsing tank, and while she was so doing, and while bending over the rinsing tub, said James Smith came rapidly there, and without any warning to the plaintiff, and without telling her to get out of the way or anything, turned on this machinery — he turned on the hot water and steam —and scalded the plaintiff in the face, eyes, neck, and other parts of her body.

The only witness sworn in the case was the plaintiff. She testified in substance that she was working in the kitchen; that James Smith, the steward, gave her the job; that he was the boss; that he was her foreman; that he gave her the orders to scrub the kettles; that it was not her duty to run the machinery of the dishwashing machine; that defendant gave her no instructions how to run the machine.

“Q. State whether or not James Smith, the foreman, ever gave you any ?

“Mr. Vcmdeveer: There is not any testimony here about any foreman; the testimony is that he was a steward, and I don’t want that injected into the case.”

The question was then changed, substituting the word “steward” for “foreman,” and she answered, “No.” She was then asked whether the defendant or Smith ever warned her of any danger which might happen to her from the dishwashing machinery or machine. This was objected to as too broad a question, and the objection was sustained. She was finally permitted to testify that neither the defendant nor Smith ever told her of any defects in the dishwashing machine, and that she did not talk with the defendant about the machinery. She further testified that she had to do what James Smith, the steward, asked her to do around the kitchen; that he told her to clean the kettles on the day of her injury; that she went ahead and obeyed his orders; that while she was cleaning the third kettle Smith stood right there and turned on the steam and hot water, and that she was burned. She then testified fully as to the extent of her injury, the amount of her wages, and the amount of the expenses of. medicine and medical attendance. She further testified that she never had turned on the machinery of the dishwashing machine; that she did not know that the machine was dangerous; that James Smith did not tell her he was going to turn on the machinery; and that she didn’t know anything of it.

At this point plaintiff’s counsel indicated that he was through with the witness. Whereupon the court excused the jury, and the following occurred:

The Court: Since there is going to be a motion to direct a verdict in this case, I don’t know whether it cannot be made at this time as well as later, because the plaintiff’s theory has been stated by the plaintiff in his opening statement, and this witness has testified to an undisputed fact. As to how the accident occurred will be undisputed.
“Mr. Vandeveer: If I may make this statement as to what occurred, the statement that has been made by plaintiff’s counsel is practically true, although in one or two details there may be a variation. In the employ of the defendant there were two Smiths; that is, pronounced Schmidt; one is Mr. William Schmidt, and the other was Mr. James Smith. Mr. Schmidt was the steward, and Mr. James Smith was an employé of his, the same as this lady was, an assistant; he had charge of certain work there, Mr. James Smith did, and this lady had charge of certain work, and I think the testimony on behalf of the defendant would disclose without doubt, and that during the cross-examination of the plaintiff she would admit it. I don’t know as to whether or not that is material in the case, but, in order to clear the record up, I would like to state that fact. Outside of that, I cannot at this time think of any material changes in the testimony so far as the conflict would be, and if this is a case that may ultimately go to the Supreme Court, and if the plaintiff has a desire to take it to the Supreme Court, I don’t know of any other record that can, because all the other testimony is accumulative. There has been no dispute on the facts. We admit the facts practically as stated by plaintiff’s counsel, and it is simply a question of the application of the law on those facts, and it would be cheaper for them, if they want to go to the Supreme Court, to go on this record than to accumulate a large record.
“ The Court: I do not want to take the time to put in a lot of testimony if eventually I should direct a verdict. Of course the testimony that you would offer when you come to your defense is that Mr. James Smith, who started the dishwashing machine in operation, was not the foreman or superintendent, and did not have charge of the defendant’s business — that would be an important matter.
“Mr. Vandeveer: Let me ask the witness this question in order to clear the record up to this extent, so that the court can go on and make a ruling. (Mr. James Smith here stood up in the courtroom at the request of Mr. Vandeveer.)”

Cross-examination of plaintiff by Mr. Vandeveer:

“Q. Is this the same James Smith that turned the water and steam on ?
“A. Yes, sir.
(At the request of Mr. Vandeveer, Mr. William Schmidt stood up.)
“Q. Mr. William Schmidt here is the one that hired you?
“A. No; it was this fellow.
“Q. Did Mr. James Smith hire you ?
“A. Yes, sir.
“Q. What did Mr. James Smith do; was he the steward ?
“A. Yes.
“Q. Was Mr. William Schmidt the steward?
“A. No.
“Q. What was he?
“A. Chef.
“Q. He was the chef ?
“A. Yes, sir.
Mr. Vandeveer: We cannot clear it up with her. If the court wants any testimony, we will have to show that William Schmidt was in charge of the kitchen and he hired James Smith, and that both of them were his subordinates.
“Mr. Vandeveer: Now the question is before the court, what are you going to do ?
“ The Court: Mr. Fetta, do you expect to show that Mr. James Smith was in entire charge of the defendant’s business there ?
“Mr. Fetta: If your honor please, we expect to show by our witnesses that James Smith was vice principal; that he was in charge of overseeing the help and directing their affairs in their work.
“ The Court: What will your testimony show in regard to the other man; what position did he hold ?
“Mr. Fetta: We did not have anything to do with the other man because he is not involved in this transaction, and the burden would be on the defendant to bring out that matter, we believe. We contend that there is a distinction between the chef’s position and the steward’s position. The steward, in my opinion, does all the buying of the food products, and directs the general work about the kitchen, whereas the chef has charge mainly of the cooking; he is the head cook, and we believe there is no argument or controversy but that the chef is the head cook.
“Mr. Vandeveer: I may say this, if that question gets into the case, I think we will be able to bring some 25 or 30 employes from the kitchen down here to show that Mr. William Schmidt does all the hiring and is the one who is in charge of the kitchen, and has absolute control of it, so that that statement will not stand.
“The Court: So far as that is concerned, that would raise a question for the jury.
“Mr. Vandeveer: That is merely as to the weight of it on a motion for a new trial.”

After a lengthy argument of counsel on both sides, the court said:

“Well, the reason why I halted the proceedings where I did was because it was my judgment, from the appearance of your case, that there was no liability on the part of the defendant. Of course it is the duty to provide safe machinery, and a safe place in which to work, and if James Smith started that machine in operation to see if it was safe for employés to work upon, that would be an act of the master for which the master would be liable. But the turning of it on at that time was peculiarly, in my judgment, á negligent act of a servant, of the steward, for which he alone was liable. I cannot see where you have any case to go to the jury because of the fellow-servant proposition.”

After further discussion* and colloquy, the court directed a verdict for the defendant, and a judgment for defendant was entered.

The plaintiff has brought the case here by writ of error, and among the assignments of error are the following:

(1) The court erred in directing a verdict and rendering judgment for the defendant.

(9) The court erred in refusing to permit the plaintiff to ' make her case in said cause, and in directing a verdict before said plaintiff had an opportunity to offer all of her proof.

We have read this record carefully, and have quoted sufficiently from it to show that upon a number of propositions asserted by plaintiff’s counsel in his opening statement, and bearing upon which he was proceeding to offer evidence, there was not an agreement between opposing counsel, or between plaintiff’s counsel and the court, when the trial was interrupted. As an illustration: We are unable to tell from the state of this record what relation James Smith bore to either the plaintiff or defendant. Plaintiff’s counsel in.his opening had said that he would show that Smith' was the foreman of the kitchen, and in fact the vice principal. While calling him by that title would not be evidence of the fact, yet it would seem to give the right to show the facts. At the time the trial was interrupted, counsel for defendant was not satisfied with the state of the record upon that point, but attempted to show by the cross-examination of the plaintiff that William Schmidt and not James Smith was the person who hired plaintiff and who had charge of the kitchen. This he was unable to do, and said, “We cannot clear it up with her. If the court wants any testimony, we will have to show that William Schmidt was in charge of the kitchen, and he hired James Smith, and that both of them [meaning, we suppose, James Smith and plaintiff] were bis subordinates,” and later counsel asserted that he would be able to bring 25 or 30 employés to prove that fact. Notwithstanding the statement of plaintiff’s counsel, again repeated, that he expected to show that James Smith was vice principal and was in charge of the kitchen, which, in view of the assertion of defendant’s counsel, the court said would raise a question for the jury, yet the court proceeded to direct a verdict and judgment for the defendant. We are not able to say, from an inspection of this record, whether or not the plaintiff has a cause of action against the defendant. What we do say is that in our opinion, the plaintiff had the right to put in her, evidence and develop her case, and that she was deprived of that right.

What occurred was not a trial, but a mistrial, and, for the reasons stated, the judgment of the circuit court is reversed and a new trial granted.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.