Harrison Granite Co. v. Pennsylvania Railroad

145 Mich. 712 | Mich. | 1906

Ostrander, J.

(after stating the facts). The points argued in the brief for appellant will be considered in the order in which they are presented. The first is that, where service is obtained by garnishment or garnishment and attachment, if the garnishee defendant is not liable to the principal defendant, the court has no jurisdiction to render judgment against the principal defendant. It is predicated upon the recital, in the brief, that the garnishee defendant in its disclosure and in answer to interrogatories denied all liability to the principal defendant. We find neither the writs, the disclosure, nor the answers of the garnishee defendant incorporated in the record. Even in proceedings in which jurisdiction of the trial court must be made affirmatively to appear, this court will not consider exceptions to a ruling sustaining jurisdiction without the evidence upon which the ruling was made.

Objection was made to the reception of certain testimony given by witnesses for plaintiff. The grounds of objection are:

(a) That conversations, related, were by telephone, and the identity of the person talked with was not established; (b) that it was improperly assumed that certain persons were officials of the Pennsylvania Railroad Company; (c) that statements made to and by the representative of the firm of attorneys referred to were immaterial; (d) that incompetent and immaterial testimony of the financial responsibility of the said chapter was received.

The testimony leaves no doubt concerning the identity of the persons communicating by telephone and the official character of those who were assuming to speak for the defendant. The connection between the firm of attorneys and the said chapter and, as to the particular issue, the defendant, is also made out. None of the statements made by the attorneys is used to bind the defendant. Their authority to speak for the said chapter with respect to the particular matter was recognized by both the chapter and the railroad officials. The fact that the arrangement for the special service was made and the money consideration for it paid is not disputed.

It was essential to a recovery by plaintiff to show that it had sustained damage by reason of the alleged wrongful intermeddling of defendant. The president of plaintiff company was asked:

“ Did this branch of the Daughters of the Confederacy have any financial responsibility ?

“ A. No, sir.

“ Mr. Weaver: That is objected to as immaterial.

“ Q. Or property ?

“ Mr. Weaver : Incompetent.

“The Court: He may answer.

“ Mr. Weaver: Give us an exception.

“A. No.”

The argument made is that it does not appear that the witness had any knowledge of the facts to which he testified, or had made any inquiry to satisfy himself upon that point, and if he had knowledge the fact proven was immaterial. The answers of the witness import knowledge. He was not asked for an opinion. The fact was, upon plaintiff’s theory, material. As to the admission in evidence of certain letters, two, dated respectively October 23, 1902, and January 3, 1903, written by plaintiff, and one, dated January 15, 1903, written by defendant, no exceptions are found in the record.

The declaration consists of four counts, and it is insisted that the evidence makes no case within the declaration. No objection was taken to the joinder of counts or of causes of action. The first count is trover, for conversion. The second count avers that defendant without authority possessed itself of the monument and delivered it to said chapter, which was irresponsible, and received from said chapter money of the plaintiff which it refuses to pay over. The third count avers the knowledge of defendant that said chapter had collected and had in its possession $1,500 to be paid to plaintiff as the price of a monument to be delivered at Richmond, and that for the purpose of making such delivery and getting a part of said money defendant wrongfully possessed itself of the monument and delivered it to said chapter without the payment to plaintiff of said sum of $1,500. In a fourth count, added to the declaration at the hearing, the alleged facts are set •out, with scienter, in detail, with the averment that defendant, to obtain for itself $700 which otherwise would have been paid to plaintiff, knowing that said sum would thereby be wholly lost to plaintiff, wrongfully took possession of and forwarded the monument upon its contract made with strangers, thus losing such sum to plaintiff. The jury might have found, from the evidence, that the •defendant, with knowledge of all the facts, refused its regular service to the plaintiff, thus preventing plaintiff from performing, as it would otherwise have done; its contract with said chapter; that the special service, rendered over the protest of plaintiff, was unnecessary, and resulted, and was bound to result, in diverting to the defendant $700 which otherwise would have been paid to plaintiff and which has, in consequence, been wholly lost to plaintiff. These facts support the declaration. Found to have existed, they warrant a recovery by plaintiff, because they establish a breach of the duty of defendant and a wrongful interference with the rights of plaintiff to its damage and to defendant’s profit. The fact that defendant transported the property of plaintiff, as it was bound to do, from Jersey City to Eichmond, and there delivered . it to the consignee, in good order, does not afford a compíete answer to plaintiff’s claim, because to defendant’s knowledge, upon the above assumption of facts, regular transportation, which was refused, would have cost plaintiff a very few dollars, whereas the service actually rendered was bound to cost, and defendant knew would cost, plaintiff |700, which sum the defendant, instead of plaintiff, would receive. The supposed facts are not found, but, upon an idea of the import of the evidence not in harmony with that here advanced, the court directed a verdict.

For defendant it is contended that a verdict should have been directed in its favor. We are satisfied that a directed verdict for defendant would have been wrong, and that defendant’s requests to charge were properly refused. We cannot, however, say that but one conclusion may be or should be reached upon the facts. As presented, it is a case in which inference and deduction perform no inconsiderable offices. We think that there were questions for the jury, and that the case should have gone to the jury with instructions.

The judgment is reversed, and a new trial ordered.

Grant, Blair, Montgomery, and Moore, JJ., concurred.