text:
    SHERWOOD v. BABCOCK.
    1. Appeal and Error — Exception as Matter of Course — Denial op Judgment Non Obstante Veredicto.
    Under section 1, Act No. 217, Pub. Acts 1915, if the request for judgment non obstante veredicto is denied, an exception in favor of the party making the request follows as a matter of course.
    2. Judgment — Physicians and Surgeons — Malpractice — Evidence — Sufficiency.
    In an action against a physician for malpractice, evidence of plaintiff in support of his theory that a child in his family, treated by defendant for pneumonia, died of cerebro-spinal meningitis and that other children in the family were exposed and thereby became afflicted therewith, while defendant treated them for typhoid fever, held, insufficient, and that a motion for a directed verdict non obstante veredicto should have been granted.

      3. Same — Judgment Entered in Supreme Court.
    Under section 2, Act No. 217, Pub. Acts 1915, where the Supreme Court finds that the trial court was in error in not entering judgment non obstante veredicto, as requested, judgment will be entered in this court.
    4. Appeal and Error — Argument oe Counsel — Trial.
    It was prejudicial error, in an action against a physician for malpractice, for plaintiff’s counsel, in his argument to the jury, without any basis therefor, to state that defendant was represented by an attorney for the insurance company.
    Error to Kalkaska; Lamb (Fred S.), J.
    Submitted November 4, 1919.
    (Docket No. 75.)
    Decided December 23, 1919.
    Case by Wakeman L. Sherwood against Edgar B. Babcock for malpractice. Judgment for plaintiff. Defendant brings error.
    Reversed, and judgment entered for defendant.

      Douglas, Eaman, Barbour & Rogers, for appellant.

      Patchin & Duncan, for appellee.
   Stone, J.

This case has been brought here by defendant upon writ of error, to review a judgment against him for $1,000 in an alleged case of malpractice. Defendant lived at Kalkaska, Michigan, and had been practicing medicine 35 years at the time of the trial. He is a graduate of the Detroit College of Medicine and licensed to practice medicine in this State. In April, 1917, defendant was called to the home of the plaintiff to treat a grandchild of the plaintiff, named Edwin Sen, and the child died on or about May 16, 1917. The case was diagnosed by the defendant as pneumonia, and during the last stages of the illness meningitis developed, and this was the immediate cause of the death of the child. About the time of the death of the Sen child, a child of the plaintiff, named Irene, became ill, and died on May 30, 1917, the cause of her death being reported as typhoid fever. Later in the month of May two other younger children of the plaintiff, Edith and Imogene, were taken ill, and these children’s cases were diagnosed as typhoid fever, by the defendant, and they were treated accordingly. The last two named children recovered from said illness. Soon after the death of Irene the defendant was discharged, and Dr. G. E. Tripp, was called to take charge of the patients. Dr. Tripp never saw the Sen child, and was called into the case after the death of Irene. He saw and treated Edith and Imogene. At the time of his first call he was accompanied by Dr. A. S. Burrill, and Dr. Neihardt was also called in consultation on May 27th, and saw the three sick children of the plaintiff, as this was before the death of Irene. It is undisputed that the defendant consulted with Dr. Neihardt twice and with Drs. Burrill and Tripp once during his attendance upon the family. Dr. Burrill was also present.when Dr. R. M. Olin, secretary of the State board of health, visited the two younger children after the death of Irene. A trained nurse was called on May 28th, about two days before the death of Irene. She testified as to the symptoms of the children and kept the chart of the cases.

Three claims of negligence are alleged in the declaration:

(1) For failure of the defendant to segregate the other children from Edwin Sen when he was taken ill.

(2) For failure to report the illness of Edwin Sen to the health board.

(3) In not treating the children for cerebro-spinal meningitis.

When Dr. Tripp was called the patients were convalescing, and he was called by the plaintiff as a witness. It is the claim of the defendant that there was no medical testimony introduced showing that the defendant did not use the means ordinarily used in that community in diagnosing the diseases from which the children were suffering; and it is the claim also of the defendant that there was no testimony that any child had cerebro-spinal meningitis^ and that on the contrary all the medical testimony was to the effect that all the children of the plaintiff were suffering from typhoid fever. The defendant testified that the child Edwin Sen did not have cerebro-spinal meningitis. His report of the death certified that he attended the deceased child, Edwin Sen, from April 28,1917, until May 15, 1917, and saw him alive on the last-named date, the death having occurred May 16, 1917, at 10 a. m. The report contains the following: ,

“Cause of death was as follows: Meningitis. The contributory, pneumonia.”

The record shows that the certificate of death in the case of Irene Sherwood gave the date of death as May 30, 1917, and the cause of death as typhoid fever. Dr. S. E. Neihardt, who was called in consultation during the time the patients were under treatment by the defendant, testified that he had treated hundreds of cases of typhoid fever, and that he saw no evidence of cerebro-spinal meningitis, but concluded that the children were suffering from typhoid fever. Dr. Bur-rill also testified that the children were suffering from typhoid fever. The plaintiff, during the illness of his children, complained to the secretary of the State board of health about the treatment given his children by the defendant, and' Dr. Olin personally made an examination of two of the patients and the surroundings, and gave as his opinion that the children had typhoid fever.

The complaint of the defendant is that in spite of the fact that there was no medical testimony supporting the allegations in plaintiff’s declaration, and that all the medical testimony was in direct contradiction of these claims, the case was submitted to the jury and the verdict rendered and judgment entered for the plaintiff. The court seems to have submitted the case to the jury on the theory that they had a right to gather from the symptoms given by the plaintiff and his wife, which they observed during the illness of the children, coupled with the statement of Dr. Tripp that he treated the patients as though they were suffering' from meningeal infection, whether or not Edwin Sen had cerebro-spinal meningitis, and whether or not the other children were suffering from the same disease. The court charged the jury that before the defendant could be liable they must be satisfied that the child Edwin Sen was suffering from cerebro-spinal meningitis and that if they decided that it was not cerebrospinal meningitis a verdict must be rendered for the defendant.

It is urged that all the evidence showed that the child Edwin Sen did not have cerebro-spinal meningitis but pneumonia, which terminated in simple meningitis; and the distinction between meningitis and cerebro-spinal meningitis, a communicable disease, was pointed out. It is the claim of the defendant' that there was absolutely no evidence of any failure on his part to use the ordinary means of diagnosing the cases as practiced in cases of a similar nature in Kalkaska and vicinity; and that there was no medical testimony that he made any error in diagnosing the cases.

So mucn stress was iaid by the trial court upon the testimony of Dr. Tripp that it is well for us to examine that testimony somewhat minutely and at some length. He testified on direct examination that he had been in the practice of medicine 16 or 17 years at the time of the trial, and that he graduated from the Grand Rapids Medical College in 1901. He testided that the first time he saw the cases was with the defendant and Dr. Burrill, which was two or three days before he was called to treat the children, and before the defendant had been dismissed from the cases. He testified that on the first occasion defendant called him at the plaintiff’s request, and that Irene was dead before he was called into the case, and that when he came into the cases the two children, Edith and Imogene, were the patients that were ill. Asked if he made a diagnosis of the cases he answered:

“I made a pretty thorough examination, and then Dr. Burrill and Dr. Babcock and myself retired to a room adjoining the sick room and had probably what you would call a diagnosis. After D,r. Babcock was dismissed from the cases and I had charge of them alone, I did not make a further diagnosis of the cases; I prescribed medicine for them and went on treating the children for the disease or sickness which they had.
“Q. Now, what symptoms did you discover in the case of the girl Edith, when you took charge of her case and started your treatment, doctor?
“A. Why, as far as the objective symptoms were concerned the girl was, of course, from her long illness —was pale and more or less emaciated and there was an absence of reflexes and, I think, the head was a little bit drawn to one side. And the subjective symptoms, the little girl had a temperature of — probably 102 or 102%, and a little tendency to coma. There was some conjunctivitis — redness of the eyes, and I guess that was about the only symptoms that I noticed.
“Q. Then had you learned in any way the history of the case, previous to the time that you had taken charge of the case?
“A. Only as the cases were talked over among the doctors.
“Q. Then all the information you had as to the history of the cases was from the statement of Dr. Babcock?
“A. Why, I presume that the family naturally would talk about their own cases.
“Q. And at the time that you had made your call— at the time that you say the diagnosis was made, all the information you had as to the history of the cases was derived from the statement of Dr. Babcock?
"A. I believe it was, yes, sir. ,
, “Q. And that was the only basis upon which you could make your diagnosis from the history — that is, the historical part of it?
“A. Well, we had, I believe, the case report, the clinical report of the nurse in attendance — Dr. Babcock’s nurse;. I wouldn’t say that positively, but I think we had the report there. * * *
“Q. Now in that report, or in giving you a history of the case, was the case of Edwin Sen, who had been in the family before, reported to you in order to assist you in making the diagnosis?
“A. I don’t think so.
“Q. So your diagnosis was made independently of the history of the case of Edwin Sen?
“A. I believe so.
“Q. And also of Irene Sherwood's?
“A. Oh, I presume these things would have a direct or indirect bearing. It would be a natural thing in an illness of that kind to touch upon all those cases. # sfc iii
“Q. Now, doctor, did you know at that time that the child Edwin Sen had died in that house and that his case had been reported as — the cause of death as meningitis, and that the patients that you were then examining had been associating and mingling with that patient during the time that he was ill with that sickness? * * *
“A. Yes, I believe I learned from some source that Edwin Sen was supposed to have pneumonia, and died from meningitis.
“Q. Well, was that fact taken into consideration in your first — at the time you were in consultation with Drs. Babcock and Burrill on this case? '
“A. Yes, I believe it was.
“Q. Now, you hadn't at that time examined the symptoms of those children yourself — the remaining children?
“A. Yés, I had. * * *
“Q. Now, when you came into the cases to take charge of them yourself, did you learn anything further of the history of the cases from what you learned at the time that you were there in consultation with Dr. Babcock?
“A. No, I don’t believe I did, only as, probably Mr. or Mrs. Sherwood told me how the children died.
“Q. Did they tell you the symptoms that the other children had manifested?
“A. I presume so, as nearly as they could.
“Q. Now, had you heard, or had you known, outside of that, and before the time you came there the first time, as to whether these children were sick and what purported to be the ailment?
“A. Yes, sir.
“Q. And what was reported to be the ailment, doctor?-
“A. I believe typhoid fever.
“Q. As to which children?
“A. Why, the children that were ill.
“Q. You had received that report from Dr. Babcock, hadn’t you?
“A. I think that was generally reported in the neighborhood and throughout the country — throughout the town — that the Sherwood family had got typhoid fever. * * *
“Q. Now when you found and examined those children, doctor, on your own account, did you find symptoms there that would indicate the presence of cerebrospinal meningitis?
“A. No, sir, I did not.
“Q. Well, what would you say, Dr. Tripp, that the symptoms of cerebro-spinal meningitis were?”

The question was objected to because the witness said there were no symptoms of that, but the question was repeated.

“Q. What are the symptoms of cerebro-spinal meningitis?
“A. Why, in the history of the case I presume the child as a rule was taken suddenly, and with exaggerated train of symptoms and probably with a vomiting that you find — well, it is said to be a reflex from spinal irritations, that is, you might say a brain vomit, and you would get the spasmodic condition of the muscles perhaps, and arching of the back which produces a pain in the back of the neck and with high temperature, muscular movements and jerking.
“Q. What about the brain, or whether there would be delirium, doctor?
“A. Yes, sir, you would be apt to get a delirium.
“Q. And what condition would you expect to find the eyes in, in such a case?
“A. Well, I don’t think that would be — why, inequality of the pupils or perhaps dilation, or maybe a contraction, but I don’t think the condition of the eyes would be a positive symptom, that would be variable.
“Q. But there might be a dilation of the pupil?
“A. Oh, there might be, yes, sir.
“Q. And if you found a case that manifested these particular symptoms that you have now enumerated, you would expect that cerebro-spinal meningitis, was present?
“A. No, I don’t really think I would, I would probably look for meningitis, something that would give you a cause of the meningeal trouble, whether it came primarily or secondarily from something else.
“Q. But you have enumerated some symptoms that are manifested in cases where the patient was afflicted with cerebro-spinal meningitis?
“A. Yes, sir.
“Q. Now, if you found the great number or the greater part of those symptoms manifested in a particular case, what would your conclusions be from that, as to whether or not they had spinal meningitis?
“A. I would think there was a possibility of their having spinal meningitis.
“Q. And if they manifested these symptoms that you have enumerated as being the prime symptoms and those direct or characteristic of that particular case, would you not say that that child or patient was afflicted with spinal meningitis from that?
“A. No, sir, I would not.
“Q. What other disease would manifest that same combination of symptoms?
“A. Well, there might be a meningitis from perhaps some other cause, I think I would go further in my diagnosis.
“Q. Well, what further would you do?
“A. I would probably have to have a laboratory diagnosis, before I imparted that intelligence to the family.
“Q. Then you think that all of those symptoms might be present and the laboratory diagnosis show some other ailment?
“A. No, it might verify my diagnosis.
“Q. But you could not attribute these symptoms to any other disease, could you, if you found those symptoms present there, the symptoms that would lead you to believe that the patient was afflicted with cerebrospinal meningitis, wouldn’t you?
“A. Well, now, I don’t know whether you are making any distinction in the form of meningitis?
“Q. I am not.
“A. Well, then I would suspect spinal meningitis, yes, sir.
“Q. And unless you had some proof to the contrary, if those symptoms were manifested you would call the case spinal meningitis, would you not, cerebro-spinal meningitis?
“A. Well, I would probably have a further diagnosis in that particular case to verify my own ideas. * * *
“Q. Well, doctor, what would you do while you were getting the further diagnosis, what would you be treating the patient for?
“A. Well, I think, in any case, I would perhaps isolate this patient — in any case and wait.
“Q. If you found those symptoms there you think it would be sufficient cause to have the patient isolated?
“A. Yes, sir.
“Q. Then if you didn’t find anything to the contrary . from subsequent examination you would be satisfied in your own mind that the patient was afflicted with cerebro-spinal meningitis if it exhibited the symptoms you have enumerated?
“A. I would either do that or I would have to go on and treat it symptomatically, and meet those conditions as I found them, that is what anyone would do, I think. * * *
“Q. But you did segregate them?
“A. No, sir, I did not.
“Q. Then they had already been segregated at the time you took them?
“A. I think those cases were ill right there in the room, that is the way the house is arranged, those cases were there ill in the room just as they had been previous to that — Mr. Sherwood can tell you about that, but I know I did not take any special precautions as far as isolating those cases.
“Q. But you treated for symptoms you found—
“A. At the time.
“Q. And those were symptoms that would indicate that there was cerebro-spinal meningitis present, weren’t they? * * *
“A. No, sir, there has been no diagnosis made of cerebro-spinal meningitis. * * *
“Q. Well, doctor, what did you treat the patients for, what particular disease?
“A. I treated those patients as though they were suffering from meningeal infection.
“Q. You mean by that an infection of the meninges of the brain and spinal cords?
“A. Yes, sir, of the brain and cords.
“Q. I ask you doctor, whether or not segregation is f] not one of the instructions from the health board, the health department, in all cases where meninges is present?
“A. Well, I really believe that if that is cerebrospinal meningitis in its nature that that is what we are instructed to do.
“Q. Is there any medical distinction made between any other meningitis and cerebro-spinal meningitis?
“A. Why, yes, I believe there is.”

At the close of the plaintiff’s testimony, counsel moved for a directed verdict of no cause of action for the following reasons:

“First. In order to submit a case of malpractice to a jury it must be shown by expert testimony — that is, some doctor or medical man, that what the defendant did, or omitted to do, was not in accordance with the ordinary and usual practice in the community where he practiced.
, “Second. It must be shown affirmatively by the plaintiff that on account of the failure to do something, or on account of doing something, that actual damage resulted. In this case the record is absolutely barren in such testimony, there is not any professional expert testimony offered, I mean the testimony of any doctor that in the diagnosis of these cases, Dr. Babcock did not follow the usual ordinary practice of diagnosis in this community. The record is absolutely barren also as to the treatment that was given by the doctor; so there could be no hypothetical question asked as to whether it was the proper or ordinary treatment followed by physicians in this community. In order for plaintiff to recover they would have to show—
“(a) That the first child that died had cerebrospinal meningitis, a communicable disease. Because there is no testimony in this case that ordinary meningitis is communicáble.
**(&) That the doctor knew at once that the child had this disease.
“(g) That the other children took this disease from it, there is' absolutely nothing in this record, excepting the testiriiony that the others died of typhoid fever, all the doctors concur in that, and that is the record in the case, and it seems to me that every element to submit the case to the jury is lacking, and I ask the cofirt to instruct a verdict of no cause of action in favor,of Dr. Babcock.”

The! motion for a directed verdict was refused, and defendant was directed to proceed with the case. Agaiii, at the close of all the evidence, the said motion for a directed verdict was requested in the following language:

“I want to again renew my motion for a directed verdict in favor of Dr. Babcock for the reasons I /have already urged when I made the motion at the conclusion of the plaintiff’s case, for the reason /chat it now shows conclusively on the part of all the ; doctors who visited those patients, that they had ty- / phoid fever, and you cannot take typhoid fever for / spinal meningitis. And even if Dr. Babcock was wrong in his original diagnosis of its being pneumonia instead of meningitis, there would be no blame attached to him because none of the other patients took meningitis, but all of them typhoid fever. Your honor can see what a dangerous practice it would be, if we were to come in here and on the testimony of the father, mother and grandmother, those interested, who would detail one after the other all the symptoms, which they seem to know by heart, of spinal meningitis, and then say that the jury can speculate from that, in view of the absolute testimony of four reputable physicians that they had typhoid fever, and allow the jury to speculate whether those children had typhoid fever or spinal meningitis, and it has not been shown that if the doctor did follow the rule in regard to reporting to the health officer, it is shown that the health officer of this State has exonerated him, and if he did violate that rule it has not been shown that any damage came from that.” '■

After a somewhat lengthy colloquy between counsel upon both sides and the court, the court said:

“Well, I think I will submit it to the jury upon those two propositions and reserve the right under the 1915 statute to set aside the verdict, if I am satisfied that it was wrong, or satisfied that I am wtcng”;

—and the case was accordingly submitted to the. jury.

After the' verdict, and before judgment, a motion to direct a verdict non obstante veredicto, and ¡for a new trial, was entered. It appears to be a oo'rt of combination motion, the request being: \

(1) Because the court erred in refusing to direct a verdict for the defendant on the ground that there was no competent evidence showing that the defendant was guilty of any negligence. ¡

(2) Because the court erred in submitting to tlae jury the question as to whether or not the children of. plaintiff died of eerebro-spinal meningitis or typhoid\ fever, as this question is purely a scientific one, and ' could only be passed on by the jury, provided there was evidence of some doctor that the plaintiff’s children did die of eerebro-spinal meningitis, and the record was absolutely barren of any such testimony.

(3) Because the court erred in charging the jury that the only evidence that the grandchild died of cerebro-spinal meningitis was the evidence of the family and Dr. Tripp. This was error because Dr. Tripp testified that he never saw the grandchild, and that he saw no symptom of cerebro-spinal meningitis in the Sherwood children.

(4) Because, under the charge of the court, the jury were allowed to speculate as to whether or not the children died of typhoid fever or cerebro-spinal meningitis; which speculation could only be based on lay testimony, as the five doctors who testified stated there were no symptoms of cerebro-spinal meningitis.

(5) Because said verdict is contrary to the great weight of the evidence.

This motion was denied, and judgment entered for the plaintiff upon the verdict.

It should be stated that in the course of the argument of the case to the jury one of plaintiff’s counsel used the following language:

“It is for you gentlemen to say whether Dr. Babcock or the insurance company, whose very able attorney is here today—
“Mr. Barbour: We object to that remark; there is no insurance company here today nor in this case at all.
“The Court: There is no insurance company here at all, and the‘remark is uncalled for.”

In the course of its charge to the jury the court used the following language:

“Now, during the progress of the trial, some statements have been made by counsel, and some of them' have not been warranted or justified by the testimony. I have tried to intimate to you that the trial should be had upon the testimony that is admitted in the case, and upon that alone, and not upon the statements of counsel, unless they are borne out by the testimony; you may use the statements and arguments of counsel, so far as they are borne out by the evidence in the case, and use them in determining what the facts are; if they have gone outside, then don’t use what they have said in going outside for any purpose; be careful about that, simply confine yourself to the testimony and these instructions I have given you.”

In his assignments of error the defendant claims:

(1) That the court erred in denying the motion for a directed verdict on behalf of the defendant made at the termination of the plaintiff’s case.

(2) Also in denying the motion for a directed verdict at .the termination of the defendant’s case.

(3) That the court erred in not declaring the case a mistrial on account of the argument of counsel, above set forth.

(4) Also that the court erred in certain portions of the charge.

(5) And, lastly, that the court erred in denying defendant’s motion for a new trial.

1. In the discussion of the case appellant’s counsel urged that the rule of law, both in this and other States, is that a physician is not liable for errors in diagnosing a case or for errors in judgment, provided he uses the means ordinarily used by physicians practicing in that or similar communities, and the following cases are cited: Pelky v. Palmer, 109 Mich. 561; Luka v. Lowrie, 171 Mich. 122 (41 L. R. A. [N. S.] 290).

2. That in order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician did was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities, and on the failure of the plaintiff to produce any such evidence, he has failed to establish his claim, and the following cases are cited: Farrell v. Haze, 157 Mich. 374, 379; Miller v. Toles, 183 Mich. 252 (L. R. A. 1915C, 595). From a careful reading of this record we are impressed with the fact that the verdict and judgment entered are contrary to the great weight of the evidence in the case. Defendant has, however, failed to file any exceptions to the refusal of the court to grant a new trial. That matter, to wit, that the verdict was contrary to the great weight of the evidence, is embraced in the motion for a directed verdict non obstante veredicto. The statute is peculiar upon that subject and provides (Act No. 217, Pub. Acts 1915, § 1 [3 Comp. Laws 1915, § 14568]):

“If such request is denied an exception in favor of the party making such request shall follow as a matter of course.”

The question as to the weight of evidence is akin to the questions raised upon the motion for a directed verdict. We are impressed with the claim that a judgment should have been entered in favor of the defendant notwithstanding the verdict of the jury, and that the court erred in overruling such motion. A careful reading of the testimony of Dr. Tripp shows that it falls far short of furnishing evidence that any of the children had cerebro-spinal meningitis. He used the words “possibility,” “suspect” and “perhaps.” The testimony was too problematical and speculative to warrant the submission of the question to the jury. It gave the jury an opportunity to speculate, and the evidence failed to make a case of malpractice.

We are also impressed with the claim that it was prejudicial error for counsel to use the language he did in the argument to the jury, as above set forth. This language was not only improper, but was reprehensible, and was used without any provocation, there not being a word of testimony in the case with reference to an insurance company. We had occasion in the case of Morrison v. Carpenter, 179 Mich. 207, 221 (Ann. Cas. 1915D, 319), to reverse a case for the improper argument of counsel — one where the language used was no more damaging than it was here, and a large number of cases are there cited. See, also, Peter v. Railway Co., 121 Mich. 324, 330 (46 L. R. A. 224). As the case must be reversed on other grounds we need not determine whether this error was cured by the charge of the court.

Upon the whole record we think that the plaintiff failed to make out a case. Even from the testimony of Dr. Tripp as to assumed symptoms which would cause one to “suspect” the presence of cerebro-spinal meningitis, there was not sufficient evidence upon that subject to warrant the submission of the case to the jury. The charge gave them an opportunity to speculate as to whether cerebro-spinal meningitis was present or not in the family of the plaintiff.

For the reasons above stated, the judgment of the court below is reversed with costs to appellant. Judgment notwithstanding the verdict is ordered to be entered for the defendant in accordance with the statute, and the case is remanded for such purpose.

Bird, C. J., and Sharpe, Moore, Steers, Brooke, Fellows, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THIEDEMANN v. MICHIGAN STATE BOARD OF DENTAL EXAMINERS.
    X. Mandamus — Judicature Act — Issues Formed by Plea to Return — Determination.
    Under section 4, chap. 36, of the judicature' act (3 Comp. Laws 1915, § 13440), which supersedes sections 9970, 9971, 3 Comp. Laws 1897, the person prosecuting the writ of mandamus may plead to any or all of the material facts contained in the return, and such issue of fact shall be determined as in other cases; but all material facts stated in said return not speciflcally'denied shall be taken to be admitted as true.

      2. Same — Reference to Circuit Court to Take Testimont on Issues.
    Where plaintiff's plea denied all of the material statements in defendant’s answer, but the material facts necessary to the disposal of the issues thus formed are not available to this court, the case will be referred to the circuit court to take testimony thereon and return same to this court with the opinion of the court thereon.
    3. Same — Affidavits in Support of Return.

      Ex parte affidavits in support of the return, filed- four or five months after it was filed, cannot be considered by this court, since affidavits of others than the defendant, attached even to' the return, are properly no part thereof.
    Mandamus by William L. Thiedemann to compel the Michigan State board of dental examiners to issue a license for the practice of dentistry.
    Submitted October 28, 1919.
    (Calendar No. 28,785.)
    Remanded to the circuit court of Kent county for the taking of testimony December 23, 1919.

      Charles G. Turner, for plaintiff.

      William K. Klute, for defendant.
   Per Curiam.

In May, 1918, this plaintiff, as petitioner, presented his petition to this court, sworn to May 3, 1918, praying that a writ of mandamus might issue directed to the defendant board, commanding it to cause a license to be issued to him under sections 3 and 5 of Act No. 338 of the Public Acts of 1907, as amended by Act No. 183 of the Public Acts of 1913 (2 Comp. Laws 1915, §§ 6750, 6752), to practice dentistry in this State. He represented that, in the fall of 1917, desiring to locate and practice his profession in this State, he made such application for an examination as to his proficiency in his profession. He represented that he successfully passed the examination required of him by the defendant board, and that he had never received his license to practice dental surgery in this State, and that the board refused to give the same to him.

An order to show cause why the writ of mandamus should not issue was made, and the board made return and answer thereto. Among other things it was specifically stated in the return of said defendant board that the petitioner had failed to pass his examination on certain subjects, and was not entitled to a license to practice under the laws of the State of Michigan. This return'was not traversed by any plea; and this court, applying the somewhat technical rule of the statute, held that the answer of the defendant board, in the absence of a plea, must be taken as true and conclusive, and for that reason the writ of mandamus was denied. (See 204 Mich. 151.)

In April, 1919, the petitioner presented the petition in the instant proceeding, under section 10 of the said acts, praying to be licensed and registered by the defendant board to practice dentistry and dental surgery in the State of Michigan; that such application was made on the 2d day of April, 1919; and that said application was refused by the defendant board. The return of the defendant board stated, among other things, that the equality of the standards recognized as. a matter of comity between the States of Wisconsin and Michigan pertaining to the practice of dentistry and the reciprocal issue of licenses was regulated between the dental boards of the two States under a contract for the purpose of effecting a mutual understanding, executed by their respective dental boards, and a true copy of such contract, called a “reciprocity contract,” was set forth in said answer in full. The return averred that the said contract was on file and a part of the records of the defendant board, and had been in operation between the two States since the 29th day of May, 1917, the date of its execution, and was still in force; that it constituted a part of the rules and regulations of the defendant board with reference to the application for license of registrants coming from the State of Wisconsin and seeking a license to practice dentistry in the State of Michigan, and that no other or different regulations touching that subject were in force between the two States. The return further stated that dental registrants from no State in the Union not having reciprocal contracts with Michigan of like terms, as shown in said contract, were granted licenses by the board, without such registrants seeking license in Michigan should have first passed a full examination by said board upon both practical and theoretical dentistry; and that all registrants from such States were uniformly required to take and pass such examination In practical dentistry, as set forth by defendant in the former mandamus case of petitioner; that all registrants from numerous States, including Wisconsin, seeking license to practice dentistry in Michigan, were required, among other conditions, to take and pass an examination in practical dentistry before in any event being entitled to practice dentistry in Michigan. It further stated that the dental board of the State of Wisconsin did not accord to residents of Michigan, dental registrants seeking license to practice dentistry in that State, any other or different privileges or rights than such as are provided in the said reciprocity contract, and does not issue licenses to Michigan dental registrants applying for licenses to practice dentistry in Wisconsin, merely upon presentation of a license from the Michigan dental board. We shall not here set forth all the statements contained in the return of the defendant board, as the same are readily found in the record.

Upon the filing of said return, the plaintiff and petitioner filed a plea, in which every substantial allegation of fact contained in said answer was denied, thus forming an issue as to nearly every allegation contained in the return of defendant board. It thus appears that this controversy is before this court for the second time. We have been, and are, desirous of disposing of the case upon its merits, but cannot do so in the present state of the record. Section 4 of chapter 36 of the judicature act, being section 13440 of the Compiled Laws of 1915, which is a re-enactment in part of and supersedes sections 9970 and 9971 of the Compiled Laws of 1897, provides as follows:

“Whenever a return shall be made to any such writ, the person prosecuting the same may plead to all, or any of the material facts contained in said return; and such issue of fact thus joined, shall be determined as in other cases: Provided, That all material facts stated in said return, that are not specifically denied by the plea, shall be taken as admitted to be true. In case no plea is filed to such return the cause shall stand for hearing upon the petition and return. Such issue of fact shall be tried in the county within which the material facts are alleged to have taken place.”

In referring to the statute which has been merged into the present statute, Justice Campbell, speaking for the court, in Township of Roscommon v. Midland Supervisors, 49 Mich. 454, 457, said that its provisions relate to cases where the writ of mandamus had been issued in the first place, and a return had been made to it under which issues were made of fact or law; but he goes on to state that substantially the same practice obtained where an order to show cause had been made, and a return filed thereto. Formerly in this State in mandamus cases the only pleadings contemplated were the relator’s petition and the respondent’s answer or return; and if the relator desired to 'controvert the facts stated in the answer issues were formed under the direction of the court. See Lewis v. Detroit Board of Education, 139 Mich. 306.

Under the present practice this issue is now formed by the filing of a plea under the modified statute above set forth; and hence we held that, in the instant case, there was no occasion for framing issues, as the issues are already presented by the plea of the petitioner. The record showing that by the plea substantially all the material statements contained in the return of the defendant board are denied, we find it impossible to lay our hands upon facts in the case necessary to its disposal. For instance, desiring to look into the so-called reciprocity contract, we are confronted with the plea, which denies the very existence of such contract. The fact that such contract was made and exists, as well as the facts upon the claimed practice of the respective boards thereunder, cannot be disposed of without testimony in the case. It is true that the plea of petitioner, and argument of his counsel, goes largely to the question of the validity of any such claimed contract, but the -fact of its existence being denied renders it impossible, upon this record, for us to consider it at all. We defer expression of opinion upon the validity of such contract, if one is. shown by the evidence to exist, and to be in operation, until final decision of the case.

Another difficulty that confronts us with the present record is that we are asked by the defendant board to consider numerous ex parte affidavits in support of the return of the board, but filed four or five months after such return was. filed. It has been held in this State that affidavits of others than the defendant, attached even to the return, are properly no part thereof. See 2 Stevens’ Michigan Practice, p. 407, and Michigan cases there cited. This is an additional reason why testimony should be taken in this case. We have here presented the anomalous condition of square issues of fact, without any evidence upon the subjects.

A perusal of the pleadings, so-called, makes clear the issues formed by the plea. We think it our duty, in view of the public interest involved, to refer these issues to the circuit court for the county of Kent, that testimony offered by either party may be taken and returned to this court. A reference to the circuit court for the county of Kent to take testimony on the issues formed by the plea is hereby made. Such testimony will be returned to this court by the judge of said circuit court, together with his opinion thereon, with all convenient speed, and in the meantime the determination of the case will be withheld.


author: Stone, J.

text:
    GRAVES v. TOWNSHIP OF DORR.
    1. Judgment — Non Obstante Veredicto — Disagreement of Jury.
    In a case where the jury have disagreed and been dis- • charged, and the case continued over the term, the circuit judge cannot afterwards enter a judgment non obstante veredicto’ on the motion made therefor upon the trial, since the statute, section 1, Act No. 217, Pub. Acts 1915 (3 Comp. Laws 1915, § 14568), contemplates that a verdict must be entered and must be adverse to the party making such request.
    2. Trial — Disagreement of Jury — Right to Jury Trial.
    Under 3 Comp. Laws 1915, § 12625, when the jury disagrees and is discharged, that trial is ended, and the parties are entitled to another jury trial.
    Error to Allegan; Cross (Orien S.), J.
    Submitted October 24, 1919.
    (Docket No. 36.)
    Decided December 23, 1919.
    Case by Robert P. Graves against the townsnip of Dorr for personal injuries. Judgment for defendant on a directed verdict after a disagreement of the jury. Plaintiff brings error.
    Reversed.

      Cornelius Hoffius and Fred P. Geib, for appellant.

      Wilkes & Stone, for appellee.
   Stone, J.

This action was brought to recover damages. for personal injuries sustained by the plaintiff when an automobile in which he was a passenger tipped over into a ditch at the end of a bridge spanning the “Bisbee Drain,” so-called, which crossed the highway on the township line between the townships of Leighton and Dorr in Allegan county. The defendant had charge of the part of the highway where the injury occurred. There was a jury trial. Upon the trial it was the contention of the defendant that plaintiff could not recover for the reason that the driver of the automobile was guilty of contributory negligence, which negligence was imputable to the plaintiff. At the close of the plaintiffs case, and again at the close of all the testimony, defendant’s counsel moved for a directed verdict in its favor. The trial court reserved its decision, and announced that it would submit the case to the jury under the Empson act, so-called (Act No. 217, Pub. Acts 1915 [3 Comp. Laws 1915, § 14568 et seq.1). The case was submitted to the jury under a lengthy charge. The jury retired about three o’clock in the afternoon, and after remaining out until about five o’clock on the day following, were dismissed by the court without having reached an agreement; and thereupon the following order was entered upon the journal of the court on January 3, 1919:

(Omitting title of court and cause.)

“In this cause the jury returned into court that they are unable to agree upon a verdict. Thereupon it was ordered by the court now here that the jury be excused from further consideration of this cause, and that the said cause be continued, for trial at the next term of this court.”

Thereafter, and on January 8, 1919, the attorneys for the defendant entered a motion, and noticed the same for hearing,—

“for a decision of the motion made and entered by the attorneys for the defendant in said cause at the close of the testimony and before the case was submitted to the jury, requesting the court for a directed verdict in its favor. And, requesting the court to enter judgment in said cause in favor of the defendant, for the reason that under the undisputed evidence in the case, the plaintiff, and Roy Stephenson, the driver of the automobile, were guilty of contributory negligence, and for the reason that the plaintiff being guilty of contributory negligence under the undisputed facts, is not entitled to recover.”

Plaintiff appeared in opposition to said motion, and objected to the granting of the same for the following reasons:

“1. Because in case of a disagreement of a jury, it is the duty of the court under section 12625, 3 Comp. Laws 1915, to order the case tried before another jury.
“2. Because under the Empson law, so-called, the same being Act No. 217 of the Public Acts of 1915, this court has no jurisdiction to direct a verdict after the jury is dismissed.
“3. Because under the Empson law the power of the court is limited to the entering of a judgment, notwithstanding the verdict; and where there is no verdict upon which to act, as in the case at bar, the court has no authority to enter any judgment, but must order the case retried before another jury.”

Thereafter, and on January 18, 1919, the said motion and objections were argued before the trial judge. On April 9, 1919, the learned trial judge filed his decision of the motion in which, after alluding to the motion for a directed verdict, he said :

“Decision upon th,e motion was reserved, and the case submitted to the jury. The jury were unable to agree upon a verdict, and the motion was renewed. From the testimony it appears that the driver of the automobile was guilty of contributory negligence, and that plaintiff cannot recover because of such contributory negligence. It is therefore ordered that the motion of said defendant be granted, and a judgment of no cause of action be entered.”

And on June 30, 1919, a formal judgment was entered for the defendant.

Plaintiff has brought error, and by his assignments of error, numbers 26 to 32 inclusive, he raises the same questions as were presented in his objections to the motion for judgment. The question is here squarely presented whether, in a case where the jury have disagreed and been discharged, and the case continued over the term, the circuit judge can afterwards enter a judgment on the motion for a directed verdict made upon the trial.

If it can be done, authority for such practice must be found in the Empson act, so-called. Section 1 of that act is as follows:

“Hereafter in all civil actions at law, in courts of record, if either party shall at the close of the testimony, and before thei case is submitted to the jury, request the court for a directed verdict in his favor, the court may reserve his decision thereon, and submit the case to the jury under proper instructions as to the law applicable to such case. After the case is thus submitted to the jury, or after receiving and recording the verdict of the jury and before judgment is entered in said case, the court may hear arguments of counsel for and against said request, but in all such cases shall receive and record the verdict of the jury as rendered. If the court shall then decide as a matter of law, that the party requesting the directed verdict was entitled thereto, and if the verdict of the jury is adverse to the party making such request,-the court shall enter its decision on the record and order judgment in accordance with such decision notwithstanding the verdict entered, and the party against whom such judgment is entered shall have an exception to such action of the court as a matter of course. If such request is denied an exception in favor of the party making such request shall follow as a matter of course.”

We have no doubt that at any time before the jury are discharged from consideration of the case the trial court may direct a verdict and judgment. But after the jury have disagreed and have been discharged, we think that the circuit judge has no power to enter a judgment in the case. Section 12625, 3 Comp. Laws 1915 (being a part of the judicature act and approved later than was the Empson act), provides that if the jury cannot agree, after being kept together for such a time as shall be deemed reasonable, they shall be discharged, and another jury drawn; “and the same proceedings shall be had before such new jury as might have been had before the jury so discharged.” When the jury were discharged, that trial was'ended, — was nugatory and futile. And the plaintiff was entitled to another jury trial.

A judgment non obstante veredicto is a judgment entered by order of the court for one party, although there has been a verdict for the other party. And the motion for the judgment can be made only by the party against whom the verdict goes. 23 Cyc. p. 778. See also Black’s Law Dictionary — title “Non Obstante Veredicto.”

Section 1 of the Empson act, above quoted, requires that “in all such cases (the court) shall receive and record the verdict of the jury as rendered.” Manifestly, this could not be done where, as here, there was no verdict to receive and record. It is also provided that if the court shall then decide, as matter of law, that the party requesting the directed verdict was entitled thereto,—

“and if the verdict of the jury is adverse to the party making such request, the court shall enter its decision on the record and order judgment in accordance with such decision notwithstanding the verdict entered.”

It certainly cannot be said here that “the verdict of the jury” was adverse to the moving party, because there was no verdict. It must be held that unless a verdict was returned by the jury there cannot be, under the Empson act, a judgment non obstante veredicto.

We also think that upon this record the court had, by its order of continuance, lost jurisdiction to enter a judgment at that term of the court. We are of the opinion that the judgment appealed from was void, and should be reversed and vacated, with costs to plaintiff, and the cáse remanded to the jurisdiction of the trial court for trial. It is so ordered.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Fellows, and Kühn, JJ., concurred.


text:
    MEREDITH v. McCORMICK.
    1. Landlord and Tenant — Lease—Description of Premises by Street Number.
    The lease of a house by street number included so much of the lot on which the building stood as was necessary to the complete enjoyment of the building for the purpose for which it was let, and nothing more.
    2. Evidence — Parol Evidence — Varying Terms of Written Lease.
    The intent of the parties to a written lease is to be found by an examination of the lease, and parol evidence of the understanding of the parties is inadmissible to vary its terms.

    3. Landlord and Tenant — Use of Back Yard.
    The lessee of a building for a rooming house could lawfully use a portion of the back yard for the purpose of piling wood to be seasoned for use, this being necessary to the complete enjoyment of the building for the purpose for which it was let.

      4. Same — Right to Use of Walk to Rear Alley.
    The lessee was also entitled to the unobstructed use of a cement walk extending from the rear of the building to the alley for the purposes' of ingress and egress, removal of garbage, and other like uses, and the building of a garage over the cement walk, thus interfering with access to the alley, would he an encroachment upon the lessee’s rights.
    5. Same — Peaceable Possession — Injunctive Relief.
    The lessee is entitled to an injunction restraining the lessor’s successor from interfering with lessee’s right to pile wood in the back yard, and from building a proposed garage obstructing the cement walk; the latter to be dissolved when a walk shall he built upon the south and west sides of the proposed garage.
    Appeal from Wayne; Chester (Guy M.), J., presiding.
    Submitted October 9, 1919.
    (Docket No. 19.)
    Decided December 23, 1919.
    Bill by Eph Meredith against William H. McCormick to enjoin the building of a garage. From a' decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered.

      Benjamin & Betzoldt, for plaintiff.

      Lodge & Brown, for defendant.

      On the general rule that parol evidence not admissible to vary, add to, or alter a written contract, see note in 17 L. R. A. 270.

   Stone, J.

The bill of complaint herein was filed to obtain an injunction restraining the defendant from building a garage upon the rear of certain premises, alleged to be leased to the plaintiff; also to restrain defendant from interfering with, molesting or removing any wood or other materials that plaintiff might put on the premises involved, for his own personal use, that would not interfere with the use of said premises by other tenants. The plaintiff is the tenant and occupant of the house and premises known as 145 Harper avenue, Detroit, under and by virtue of a written lease for five years from the first day of April, 1916, wnerein Walter W. Smith, was the lessor and the plaintiff was lessee. The defendant has succeeded to the rights of Smith in the premises. The written lease contains the following by way of description of the premises:

“The following described premises situated and being in the city of Detroit, county of Wayne, and State of Michigan, to wit: House No. 145 Harper avenue * * * for the term of five years from and after the first day of April, 1916, on the terms and conditions hereinafter mentioned, to be occupied for a rooming house.”

The 8th and 9th paragraphs of the bill of complaint are as follows:

“8. Your petitioner further shows that for the purpose of his home and in order to supply fuel for next winter, he has caused certain green wood to be piled up temporarily, to dry, along the easterly line of said premises, and east of the cement walk which your petitioner has, to go to and from said alley, and that said William H. McCormick, the present owner, defendant herein, now claims that your petitioner has no right to leave said wood there, or to use the back yard of said premises, and has removed some of the wood of your petitioner from off the rear end of said lot, or court.
“9. Your petitioner further shows that the said William H. McCormick, in derogation of your petitioner’s rights as a tenant, has torn down the easterly and rear fence, has cut down certain shade trees, and against the express objection and protests of your petitioner, is proceeding to build a large garage on the rear of said lot, which will occupy more than four hundred (400) square feet, and will thereby deprive your petitioner of the use of four hundred (400) square feet of said small back yard or court, which now exists, and that if the said William H. McCormick is permitted to build said garage, it will interfere with the quiet and peaceful possession of your petitioner, and will cut off the enjoyment of a large portion of the present back yard, to which he is lawfully entitled, which loss cannot be fully compensated in damages, and which would be irreparable.”

The defendant, by his answer, virtually admits the acts above charged, but claims that the same were not in derogation of any of plaintiff’s rights, and denies that plaintiff has acquired any rights by reason of said acts.

The testimony was taken in open court and the bill of complaint was dismissed, the decree stating that the defendant have power and authority to proceed with the erection of the structure in said bill of complaint mentioned, allowing plaintiff access to the alley tn the rear of said premises by the four-foot way mentioned in said proofs.

A diagram of the premises, known as Exhibit 2,

hereto appended, will aid in an understanding of the situation.

The house leased and occupied by plaintiff is on the easterly end of a terrace of houses situated on the corner of Brush street and Harper avenue, and there are three separate and distinct houses of the terrace facing on Harper avenue and one facing on Brush street. The width of the house, No. 145, is 30 feet. The other three houses in the terrace are occupied by the defendant for rooming house purposes, and in the rear of No. 145 there is a cement walk that goes direct from the kitchen door to the alley on the north. This sidewalk is used exclusively by the plaintiff and the occupants of his house. There is another cement walk on Brush street that comes around the rear for the accommodation of the other three houses, including the one on Brush street. The other tenants in the terrace do not use any portion of the lot in the rear of the terrace east of the line, if it were extended 24 feet from the east line of the lot. Plaintiff has used exclusively the entire east 24 feet of the lot in the rear of No. 145 Harper avenue. He does not use the other portion of this lot west of the 24-foot line. Plaintiff’s business is that of a cement paving contractor, and he had been in the habit of storing, for a short time, wheelbarrows, etc., on the rear of the lot, in what he claimed was his portion thereof. He also piled green wood on the rear end of the lot between the sidewalk and fence on the east line, and would leave it there until it got dry, and then would put it in the basement of No. 145. Referring to the wood, plaintiff testified as follows:

“This spring I had some wood piled on the rear end of this lot, between the sidewalk and the fence, a space of about four feet east of the sidewalk. It was green wood sawed in two-foot lengths for the grate. I put it there until it got dry, and then I put it in the basement. While that wood was there Dr. McCormick asked me to remove it. I did not remove it and the doctor started some proceedings in the circuit court commissioner’s court, and from that court it has been appealed to the circuit court.”

He further testified that the defendant interfered with, and removed some of the- wood which the plaintiff had piled there. The full width of the rear end of the lot on the alley on the north is 24 feet. The defendant tore down the fence upon the alley and upon the east side near the northeast corner of the premises, and had brought material and had taken steps to erect a garage 20x20, intending to set it back some 8 or 10 feet from the alley line, and directly over the cement walk used by the plaintiff in carrying garbage to his garbage can, which was kept in the alley in the rear of the premises. As soon as the plaintiff found that the defendant had tom down the fence and put some building material upon the premises, preparatory to building the garage, this bill was filed and a temporary injunction was obtained.

The defendant testified as follows:

“My plans contemplate a garage 20x20 in the northeast corner of the lot. That will leave four feet up to my line on the west side of the garage. It is vacant beyond that to the side for 85 feet. Then I will have to set in a little from the alley because it is a narrow alley. I plan to deflect this cement walk where it comes to the garage, and build it around the front of the garage, and then at the side, so that the tenant in 145 will have access to the alley the same as before. The distance from the front of the garage to the back end of the house is 42 feet; that would leave the plaintiff still 42 feet of back yard for clothes lines.”

He estimated that setting the garage back 8 feet from the alley would make the space occupied 28x20, or 560 square feet. The defendant testified that that would leave ample room between the garage and the back end of No. 145.

The plaintiff has appealed, and it is claimed that, both as to the interference with the wood which he had piled east of the cement walk; and with reference to the garage proposed to be built over the walk, he is entitled to injunctive relief, and that the court erred in dismissing the bill of complaint. Counsel upon both sides of the case have cited numerous authorities from other jurisdictions. We are of the opinion that the law of the case is substantially settled by the recent case of Kuschinsky v. Flanigan, 170 Mich. 245 (41 L. R. A. [N. S.] 430, Ann. Cas. 1914A, 1228). That was a case of leasing by the street number, and it was held that it included so much of the lot upon which the building was situate as was necessary to the complete enjoyment of the building for the purpose for which it was let, and nothing more. Citing 24 Cyc. p. 1044. Upon the subject of description of premises, see, also, Nowicki v. Kopelczak, 195 Mich. 678.

It is the contention of the defendant that the plaintiff, having leased 145 Harper avenue, he did not lease the building and its appurtenances, but only the house. He contends:

“He therefore had no right to anything but the house, and he has not been denied any right in the occupancy of the house.”

We think this is too narrow a view of the matter. There was testimony offered and received tending to show the understanding of the parties independent of the written lease. We think evidence could not be introduced to vary the terms of the lease. The intent of the parties is to be found by; an examination of the lease. There ought not to be much question about the law that should govern this case, for defendant’s counsel say:

“We accept counsel’s statement of the law applicable to this case. ‘The general rule is that a description of premises in a lease of the building by the street number, includes so much of the lot upon which the building is situated, as is necessary to the complete enjoyment of the building for the purpose for which it was let, and nothing more/ ”

Defendant’s counsel contend, however, that a different rule should be applied to a rooming house from that of a dwelling house. It is very apparent that a rooming house in Michigan climate must be heated, as well as a dwelling house. We think the use of the portion of the back yard between the cement walk and the east line of the premises might lawfully be used by the plaintiff for the purpose of piling wood to be seasoned for use. That was, in our opinion, necessary to the complete enjoyment of the building for the purpose for which it was let.

We think that plaintiff was also entitled to the unobstructed use of the cement walk extending from the rear of No. 145 to the alley, for the purposes of ingress and egress, and for the purpose of removing garbage, and other like uses; and when the defendant proposed to build a garage over the cement walk, thus interfering with access to the alley, he encroached upon the plaintiff’s rights as a tenant.

It is true that the defendant testified that he planned to deflect this cement walk where it comes to the garage and build it around the front of the garage and then at the side, so that the tenant would have access to the alley the same as before. There is no claim by defendant that this has been done. We are of the opinion that the plaintiff will have no just cause to complain of the garage when such proposed cement walk is built around the south and west sides of the garage to the alley. Until that is done the plaintiff has a right to have the defendant restrained. We think the decree below should be reversed, and instead of dismissing the bill, we think the plaintiff is entitled to an injunction restraining the defendant from interfering with, or molesting or moving any wood that the plaintiff may put on the east side of the cement walk for the purposes described; and that such piling does not in any manner interfere with the use of said back yard or court by the other tenants in the terrace.

We are also of the opinion that the plaintiff is entitled to an injunction restraining the defendant from erecting the garage at the place mentioned, until such time as he shall have built upon the south and west sides of the proposed garage a walk to the alley. When that is done so that the plaintiff has access to the alley over the cement walk, we think the injunction as to the garage should be dissolved, as the same would not materially interfere with the covenant for peaceable possession contained in the lease.

The decree below will be reversed and a decree prepared in accordance with this opinion, with costs of both courts to the plaintiff.

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


text:
    ROY v. KIRN.
    1. Release — Repudiation — Impeachment — Evidence ■— Admissibility — Return of Money.
    Where plaintiff, in an action for personal injuries, denied ever knowingly or understandingly signing a release, or receiving any money therefor, defendant’s claim that evidence impeaching the release was inadmissible because plaintiff had not offered to return the money claimed to have been paid cannot be sustained.
    2. Motor Vehicles — Evidence—Negligence—Question fob Jury.
    Evidence as to rate of speed at which defendant was driving his automobile, and as to his intoxication, at the time of the accident, held, sufficient to carry the case to the jury.
    3. Same — Negligence—Duty to Guest.
    Where an owner Is gratuitously carrying a guest in his automobile he must he mindful of the life and limb of his guest, and shall not unreasonably expose him to an additional peril, a guest only assuming the risks ordinarily .arising from riding in an automobile when the machine is controlled and managed by a reasonably prudent man who will not, by his own want of due care, increase his danger or subject the guest to a newly-created danger.
    4. New Tbial — Weight of Evidence.
    It cannot be said that the verdict was overwhelmingly against the weight of the evidence so as to call upon this court to interfere with it.
    5. Same — Newly-Discoveked Evidence — Absent Witness.
    The trial court was not in error in denying a motion for a new trial on the ground of newly-discovered evidence, where the record shows that the case had been at issue for more than a year, and in less than a month after the trial the whereabouts of the absent witness was discovered.
    6. Same — Not Favored.
    Motions for new trials on the ground of newly-discovered evidence are not favored by the courts.
    7. Same — Affidavits—Conclusions.
    An affidavit for a new trial, alleging that affiant made diligent search for an absent witness, without setting forth the efforts made, states but a mere conclusion.
    8. Motor Vehicles — Negligence—Motor Vehicle Law — Duty to Guest.
    The provisions of the motor vehicle law (1 Comp. Laws 1915, § 4825), providing that the owner of a motor vehicle shall he liable for any injury occasioned by the negligent operation thereof, whether such negligence consists in the violation of the provisions of the statutes of the State or in failing to observe such ordinary care in such operation as the rules of the common law require, apply as between the owner of a car driving the same and an occupant thereof riding gratuitously as a guest.

    Error to Wayne; Webster (Clyde I.), J.
    Submitted October 30, 1919.
    (Docket No. 76.)
    Decided December 23, 1919.
    Case by James M. Roy against Alfred Kirn and another for personal injuries. Judgment for plaintiff. Defendant Kirn brings error.
    Affirmed.

      William J. Bane, for appellant.

      Henry C. L. Forler, for appellee.

      On question of liability of owner or operator of automobile for injury to guest, see notes in -50 L. R. A. (N. S.) 1100; L. R. A. 1916E, 1190, L. R. A. 1918C, 276.

   Stone, J.

This case was originally begun against Alfred Kirn and Henrietta M. Glazier, there being two counts in the declaration. The first count alleged negligence of the defendant Kim, and the second count alleged negligence of defendant Glazier. Upon the trial, and at the close of the plaintiff’s evidence, the court directed a verdict and judgment for the last named defendant, and the trial proceeded against defendant Kim, resulting in a verdict and judgment for the plaintiff in the sum of $2,000 damages and costs.

The first count of the declaration alleges that on March 3, 1916, defendant owned and had in his possession an automobile, and that on that date, at the special instance and request of the said defendant, the plaintiff became and was a passenger in, and an occupant of said automobile, while being driven by said defendant in a northerly direction on Woodward avenue in the city of -Detroit and the village of Highland Park; that said defendant, in violation of his duty and of the statute," and of the ordinances of the village of Highland Park, drove the said automobile at a high rate of speed, contrary to the statute of the State, and in violation of said ordinances; that at the intersection of Grand avenue and Woodward avenue in the village of Highland Park the said defendant, while driving the said automobile at a high and reckless rate of speed, ran into and collided with the automobile belonging to the defendant Henrietta M. Glazier, which latter automobile was then and there crossing Woodward avenue at the intersection of Grand avenue; that the automobile of the said defendant ran into the said automobile of Henrietta M. Glazier with such force and violence that the plaintiff was thrown out of the car upon the pavement, suffering serious and permanent injuries, as follows: That when thrown from the said automobile to the pavement, as aforesaid, plaintiff struck on his head, fractured his skull and was otherwise injured in and about the body, arms and legs,; that the injury to his skull then and there sustained was permanent and incurable, and as a result thereof his eyesight has been affected and his health permanently impaired; that he suffers as a result of the said injuries severe and painful headaches, spasms and convulsions; and because of said injuries' his health is destroyed.

The plea of the general issue of the defendant Kim was filed on June 7, 1917. At the opening of the trial, which occurred June .25, 1918, the said defendant moved to amend his plea of the general issue by giving notice of a compromise and settlement, with release, which motion was granted. Without detailing the evidence here, it is sufficient to say that there was. a sharp conflict in the evidence as to the rate of speed of the car of the defendant immediately before the collision, the rate of speed varying by the testimony from 15 to 40 miles an hour; and there was evidence of the intoxication of the defendant, which was denied. A reading of the evidence satisfies us that it was sufficient upon the subject of the negligence of the defendant to carry the case to the jury, and to sustain the verdict and judgment.

At the close of the plaintiff’s testimony counsel for said defendant moved for a directed verdict in his favor, on the grounds that defendant owed no duty to an occupant of his car, who was not a passenger for hire, to maintain such a slow rate of speed that he might have avoided the accident when he saw the danger; that there was no evidence of a willful, malicious increasing of the danger, or the creation of a new danger. Said motion was denied and exceptions duly taken, and the defendant introduced the testimony of numerous witnesses in the case. In his defense the defendant offered in evidence two papers reading as follows:

“Detroit, Mich., October 19, 1917.
“To whom it may concern: In the auto accident that occurred on March 11, 1916, I hold no blame whatever to Mr. Al. Kirn, and am bringing suit against Mr. Glazier, and am bringing suit only against Mr. Glazier, Mr. Kirn was at no blame whatsoever for accident.
(Signed) “James Roy.”
Also the following:
“October 19, 1917. Received of Alfred Kirn $85 for full settlement of all claims against him on account of an accident that occurred at Grand avenue and Woodward avenue, on March 8, 1916.
(Signed) “James Roy.
“Witnesses:
“W. K. Knipprath,
“John Darby.”

The defendant testified that he paid the plaintiff $35 for a release of his said claim, and that plaintiff signed the release and receipt and delivered them to him.

The plaintiff testified and offered proof to show that he had no knowledge or recollection of having signed said papers, although he thought the signatures were his; that if he did sign them it was on an occasion, detailed by him, when he was so intoxicated that he did not know what he was doing. He also testified that he had not knowingly received any money in settlement. This testimony of the plaintiff was objected to by defendant’s counsel because no offer had been made to return the $35 to the defendant, the language of counsel being as follows:

“X object to his impeaching this release for the reason that Mr. Roy has not returned the $35, and he cannot object to the contract and retain the money he has received.”

This objection was overruled, and the testimony pro and con with reference to said papers and payment was received in evidence and submitted to the jury. Upon that subject the court charged the jury as follows:

“20. If this receipt or release that has been introduced in evidence was entered into by him knowingly,, that is, understandingly, knowing what it was, then he cannot recover in this action, even though he -had a right of action; and you are also not concerned with the amount or the size of that release, the $35, because no matter how good an action he had, or how much money he would be entitled to recover, if he knowingly releases that right of action for $35, he has got a right to do that, and the defendant has — and the defendant is entitled to the protection of it and the plaintiff is bound by it. On the other hand, if he has a right of action against the defendant and the defendant secures the release from him through any means of fraud or because the plaintiff was intoxicated, or for any condition of the plaintiff he did not understand what he was doing, or did not know what he was doing, why then of course the release would have no binding force or effect upon him. So that you must determine that proposition in this case, as well as the other. If he knowing and understandingly executed this release he cannot recover in this action, no matter how good a claim he has got, and your verdict should be no cause of action. On the other hand, if you believe that the release was secured from him while he was in a condition not to understand what he was doing, then he is not bound by the release and you may bring in a verdict for the plaintiff.
“21. Now, that leaves the one further — and I charge you in that regard on behalf of the defendant that a release understandingly made for a consideration is a bar to an action for the injury for which same is given. The amount paid does not affect the validity of a release.”

Upon the main questions in the case the court charged the jury, in part, as follows:

“4. As to the defendant: Did the defendant do what an ordinarily prudent person would do under similar circumstances? Or, did he fail to do what an ordinarily prudent person would under similar circumstances? That is a good test. Because, if he did, then he is not liable and your verdict should be no cause of action. And if he did not do, as he approached this corner in driving this car, if he did not do or act as an ordinarily prudent person would under similar circumstances, then he is guilty of an act of negligence and the plaintiff may be entitled to recover, providing you also find the other elements that I will explain to you.
“5. Now, in this particular case, the rule, as I say, is somewhat different than in the ordinary case, because this plaintiff was either a guest or a licensee, and as I view the law, the rule is no different whether he is a guest or a licensee, so you will not have to struggle over that problem. The testimony is conflicting on that point. He says he was invited to ride. That would make him a guest. The defendant says that he invited himself. That would make him a licensee. So, of course, it is for you to determine whether he was invited to take this ride by the defendant, or whether he invited himself. One way he would be a guest and the other way a licensee. But, as I say, I do not think you need bother about which way that is, because the rule is about the same anyway. In other words, the rule is, as to a guest or a licensee, that the defendant, to be liable, must do some act that either increased the danger, or created a new danger, for, if you are invited to ride in a car by a man, or if you invite yourself, either way, you assume the risks, that would naturally attach to riding in such a vehicle; that is, you know that there are certain dangers that are incident to an automobile and to riding in an automobile, and if you accept an invitation to ride, or you invite yourself, either way, you assume those ordinary risks and if an accident happens in that way then the driver is not liable to you. But if he does some act that increases those ordinary dangers, or creates a new danger entirely, then he is liable.
“6. And so as to that point in this case you have to determine that. Did the defendant Kirn do any act that increased the danger of riding in an automobile, or that created a new danger? If he did he is liable, and if he did not he is not liable.
“7. Now, if you believe the testimony of the plaintiff’s witnesses, that at the time that Glazier stopped his car, and you believe that he did stop his car, on the northwest corner of Grand and Woodward to let out this man and the time he started up from there to cross the street ■— Woodward avenue — if you believe that the defendant Kirn in his automobile was a block away and was coming as testified to by some of the plaintiff’s witnesses, from 35 to 40 miles per hour, and that when Glazier in his car had got across the street car tracks into the space on Woodward between the car tracks and the curb, that the defendant Kim in his car had reached a point about the safety zone, or about 10 feet therefrom, and still coming at 35 or 40 miles per hour, and at that point he applied his brakes, or started to put on his brakes, and skidded 50 or 60 feet and hit this Glazier machine, and driving them both 25 or 30 feet beyond that after striking him — I say, if you believe all those facts you can find from that evidence, that the defendant Kim did an act which increased the danger of riding in an automobile and from that you could find him liable.”
“10. This rule in regard to the guest or licensee may be stated in this way: that anyone knowing that there is always some danger in traveling in an automobile, who accepts an invitation to ride, as the guest of the driver, assumes the risk of the ordinary dangers of which he is aware and cannot hold the driver of the car responsible in damages for an accident, if there was no fault or negligence or imprudence on the driver’s part. The driver’s duty and responsibility is merely to be.careful and avoid committing any act of negligence or imprudence that might add to or increase the ordinary danger of the occupation.
“11. In other words, Kirn’s duty in reference to the plaintiff was to use ordinary care and not to increase the danger of his riding with him, or to create any new danger. One who invites another to ride is not bound to furnish a safe vehicle, or a safe horse, or a safe automobile, but if the driver fails to use ordinary care in driving the automobile, he thereby creates a new danger for which he is liable.”
“23. Mr. Forler calls my attention to the fact that I stated that if he was going 15 miles per hour and did all that he could to avoid the accident that he would not be liable. I did not state the opposite of that, which, of course, would follow and be true, that if he was going 15 miles per hour and saw the car and did not do all that he should have done, all that an ordinarily prudent person would do, to avoid the accident, then, of course, he would be liable.
“24. I give the request handed to me by Mr. Forler: If Kim was driving 15 miles and saw the other car in sufficient time to stop, it was his duty to do so, and his failure would be negligence. That is, if the other car was crossing when the Kirn car was a long distance away, it became the duty of Kirn to stop, even though he was only driving at 15 miles an hour.”

There was a motion for a new trial, alleging, among other things, newly-discovered evidence then in the possession of the defendant, and which, even through the exercise of diligence, he was unable to obtain for use in said trial; that the verdict ivas wholly unsupported by the evidence; that the verdict and judgment were contrary to the law governing the case; and that the court erred in refusing to grant the motion of defendant for a direction of verdict in his favor.

In support of the motion for a new trial on the ground of newly-discovered evidence, the defendant offered his own affidavit of the facts which he expected to prove by one Russell J. James, concluding as follows:

“Deponent further says that such evidence has been discovered by him since the said trial, and was not previously known by this deponent to exist, and the same is material to this deponent in said cause as he is advised by his counsel. That he made diligent search for said witness but was unable to locate him.”

The affidavit of Russell J. James was offered in support of said motion, which affidavit states as follows:

“I was riding south on Woodward avenue at time of collision in question; that I was about 50 feet in the rear of automobile going south; that I did not see southbound car stop on Woodward avenue; the southbound car was going at between 14 and 15 miles per hour and turned across Woodward to go east on Grand avenue; that it did not stop in crossing, but made a circular turn; that when I first saw the northbound automobile it was just about 30 feet south of Grand avenue and was skidding sideways, with front end facing across Woodward in a northwesterly direction; when I first saw the northbound automobile, the automobile crossing Woodward was on the street car track; that northbound car skidded in all about 35 feet; that when two automobiles came together they did not skid along together, but bounded apart a distance of about 10 feet and were standing that way when I walked over near them; the two cars were standing about midway between east car rail and east curb of Woodward and about the middle of Grand avenue; the driver of the northbound car did not stagger; I did not smell liquor on his breath; he was not intoxicated; there was a light snow falling; the street was slippery.”

The motion for a new trial was denied, and defendant excepted. The defendant, Kirn, has brought the case here by writ of error. The only error assigned relating to the admission of testimony was that with reference to the release and receipt. It is also claimed that the verdict was contrary to the weight of the evidence, and that the evidence was wholly insufficient to prove: (a) Speed at which the car of defendant Kirn was driven; (6) Intoxication of Kirn; (c) Reckless driving of Kirn; {cl) Willful and wanton acts by defendant Kim. Error is also assigned upon each of the foregoing paragraphs of the charge, 4, 5, 6, 7, 10, 11, 23, and 24. Error is also assigned that the court erred in overruling the motion for a new trial.

1. The assignments of error are argued by appellant’s counsel and the first one is, that there being no repudiation by the plaintiff of the settlement made, evidence to impeach the release was inadmissible. We are not impressed that there is any merit in this claim. The papers were received in evidence, and the question was submitted to the jury by the trial court in its charge in a very full and explicit manner, and the jury were instructed that if the plaintiff knowingly and understandingly signed the receipt and release, he could not recover in the action. It cannot be said that there was no repudiation by the plaintiff of the settlement. He gave positive testimony that he had never knowingly and understandingly signed any such papers, or entered into any such agreement. It seems illogical to claim that he should have offered to return the $35 when he denied ever having knowingly or understandingly received the money, or any part thereof. We find no error in this branch of the case.

2. It is next urged that the evidence was insufficient to submit to the jury the question of the rate of speed at which the defendant was driving his automobile, and as to his intoxication. It is sufficient to say that there was testimony of a number of witnesses tending to show that they were so situated that they could speak with knowledge with reference to both the subject of a high rate of speed and of intoxication; and we cannot say that the evidence was insufficient to carry the case to the jury.

3. The interesting and meritorious question in the case is as to the rule of conduct with which the defendant should be charged, it being the position of appellant that the carriage of the plaintiff was a gratuitous and social undertaking, and that, therefore, the duty owing by defendant was simply to refrain from intentional injury. Counsel for defendant has a very learned and comprehensive brief upon this subject, in which he reviews many cases, both English and American, and urges that the rule which should be applied is that, in order to hold the defendant liable in this case, it must appear that he was guilty of gross negligence. We have spent considerable time upon this question, and have reached the conclusion that the court properly submitted the case to the jury, and gave the correct rule upon the question of negligence. The question may be said to be a new one in this State. An examination of numerous cases has led us to the conclusion that the rule adopted by the Maine supreme judicial court in the case of Avery v. Thompson, 117 Me. 120 (103 Atl. 4, L. R. A. 1918D, 205, Ann. Cas. 1918E, 1122), decided February 21, 1918, is a reasonable and sane rule, and one which should be adopted by this court. After reviewing a score of cases that court said:

“The foregoing decisions give expression in varying forms to substantially the same fundamental principle and lead to the same essential inquiry, viz., Did the defendant exercise toward his invited guest that degree of care and diligence which would seem reasonable and proper from the character of the thing undertaken? The thing undertaken was the transportation of the guest in the defendant’s automobile. The act itself involved some danger, because the instrumentality is commonly known to be a machine of tremendous power, high speed, and quick action. _ All these elements may be supposed to have been within the contemplation of the guest when she accepted the invitation. In a sense she may be said to have assumed the risks ordinarily arising from thése elements, provided the machine is controlled and managed by a reasonably prudent man who will not by his own want of due care increase their danger, or subject the guest to a newly-created danger. In other words, we conceive the true rule to be that the gratuitous undertaker shall be mindful of the life and limb of his guest, and shall not unreasonably expose her to additional peril. This would seem to be a sane, sound, and workable rule; one consistent with established legal principles and just to both parties. It leaves the determination of the issue to the jury as a question of fact.”

In reaching that conclusion the court made an exhaustive review of the authorities, and among the cases cited the following are particularly in point: Pigeon v. Lane, 80 Conn. 237 (67 Atl. 886, 11 Ann. Cas. 371); Beard v. Klusmeier, 158 Ky. 153 (164 S. W. 319, 50 L. R. A. [N. S.] 1100, Ann. Cas. 1915D, 342); Fitzjarrell v. Boyd, 123 Md. 497 (91 Atl. 547); Perkins v. Galloway, 194 Ala. 265 (69 South. 875, L. R. A. 1916E, 1190); Mayberry v. Sivey, 18 Kan. 291; Patnode v. Foote, 153 App. Div. 494 (138 N. Y. Supp. 221); Siegrist v. Arnot, 10 Mo. App. 197.

It is contended that the contrary rule was laid down by the Massachusetts court in the case of Massaletti v. Fitzroy, 228 Mass. 487 (118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088); and in discussing the conclusion reached in that case the Maine court said:

“Notwithstanding these antagonistic statements as to definition, we doubt not that the two courts, from a given state of facts, would be apt to reach the same conclusion as to liability. The difference is more verbal than real.”

Our attention has been called by defendant’s counsel to the case of Jacobs v. Jacobs, a case decided by the Louisiana supreme court, March 12, 1917, and reported in L. R. A. 1917F, at page 258 (141 La. 272, 74 South. 992), in which case it was held that the defendant was not guilty of any negligence, but the proper rule of liability was stated as fohows:

“We agree with the learned counsel for the plaintiff, that one who invites another to ride with him as his guest in an automobile is not absolved from responsibility for negligence or imprudence, merely because he is performing a gratuitous service- dr favor to his guest.
“We agree with the doctrine recognized by the court of appeals of Kentucky in Beard v. Klusmeier, 158 Ky. 153, and approved by the court of appeals of Maryland in Fitzjarrell v. Boyd, 123 Md. 497, that a guest in an automobile is entitled to demand that his host shall exercise ordinary care for safety in driving the car, and that the latter’s liability is not confined to acts of gross, negligence or willful recklessness.”

We, therefore, find no error in the charge of the court upon this branch of the case.

4. There is no claim here that any negligence of the defendant would be imputable to the plaintiff. This is not an action against third parties, but against the driver of the automobile. The authorities, already cited upon the other branch of the case, fully cover this question, especially the Maine and Louisiana cases.

5. It is urged that the verdict was eontrary to the weight of the evidence. Conceding but not deciding that that question is properly here, we are not satisfied that the court erred in denying the motion for a new trial upon this ground. It cannot be said that the verdict was overwhelmingly against the weight of the evidence so as to sail upon this court to interfere with it.

6. Upon the question of motion for a new trial upon the ground of newly-discovered evidence, we think there was no error in denying the motion upon that ground, for numerous reasons. The record shows that this case had been at issue for more than one year before the trial took place. It seems that in less than a month after the trial the defendant was able to discover the whereabouts of this absent witness. It is true defendant states in his affidavit that he made diligent search for said witness, but was unable to locate him. This is a mere conclusion. The efforts made by him are not set forth, and the affidavit is far from being satisfactory upon that subject. Had a little of the diligence used after the trial been exercised during the pendency of the case for a period of one year, it would probably have resulted in finding this witness. Motions for new trials upon this ground are not favored by the courts. Canfield v. City of Jackson, 112 Mich. 120. We have set forth the substance of the affidavit of the newly-discovered witness James. Some of it is merely negative, to wit: that portion in which he says he did not see the southbound car stop on Woodward avenue. The fact that he did not see the car stop would not be very controlling or convincing as to the fact. The remainder of his affidavit relates to matters that would be purely cumulative, and we doubt if the result would have been different had the evidence been produced upon the trial.

7. It is urged by appellant that the automobile statute does not apply as between the driver of a car and an occupant thereof, but only as between the driver, or his principal, and the public. We cannot agree with this claim. Section 4825, 1 Comp. Laws 1915, reads in part as follows:

“The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle, whether such negligence consists in violation of the provisions of the statutes of this State, or in failure to observe such, ordinary care in such operation as the rules of common law require.”

Upon the whole record, and after considering all the points raised and urged by appellant, we find no reversible error, and the judgment below is affirmed.

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