160 Mich. 309 | Mich. | 1910
This proceeding originated in a claim which was presented by Dell Bennett as claimant against the estate of Henry B. Miller, deceased, which was being ad
After claimant appealed to the circuit court, and by stipulation and agreement, a declaration was filed in behalf of the claimant, to which the representative of the estate pleaded the general issue, and gave notice of special matter. Upon the trial of the case, and before the claimant rested her case, the declaration was amended so as to broaden it on the matter of the alleged agreement between the claimant and her brothers at the time she went to live with them. By this amendment the claimant averred
We shall first consider the alleged errors discussed by defendant’s counsel upon the oral argument in this court.
“ Defendant’s counsel then offered to concede that plaintiff notified defendant of its claim that defendant was infringing upon its rights upon the day when such infringement took place. Notwithstanding this concession, the court permitted the evidence to be introduced. The court committed no error in this regard. The plaintiff not only had a right to show that it notified the defendant at the beginning of the injury, which it claimed was caused by defendant’s conduct and management of its dam, but what its notice contained, not as substantive proof of the facts stated, but as notice of what it claimed the facts were as bearing upon the defendant’s negligence in not remedying them, if the jury should find that they were facts.”
Counsel for defendant argues that the effect of the evidence complained of was to inflame the passions of the jury, and was introduced for that purpose. We hardly think that this claim is warranted by the -record. No complaint is made of the argument of counsel for the claimant on this branch of the case, nor does the size of the verdict indicate that the jury were led astray. On this point the court on defendant’s request charged the jury as follows:
*314 “ I instruct you in this case, if you find the claimant entitled to recover anything whatsoever, that you cannot allow anything whatever because of the manner in which these boys were killed, or on account of the way their bodies were injured. This suit is only for actual damages, and not for anything else, not for mental suffering, shame, mortification, or anything else but actual money loss under the contract alleged in this declaration or claim of the plaintiff in this case. How much has she lost in her means of support under this contract, if you find one existed ?”
We think there was no error in this regard.
“If, under the evidence, you find that the claimant is entitled to a verdict, she will be entitled to recover such actual damages as by the evidence it appears she is suffering by reason of the death and loss of her brothers, resulting, if it did, in her loss of support, and no other damages whatever. In estimating these damages you should consider simply the amount of loss of her means of support, and award to the claimant such sum as you find will fairly compensate for her loss in that regard from the time of their death and for such length of time thereafter as you may find her expectancy of life to be, taking into consideration the amount these boys would earn during her expectancy, and their expectancy, and have furnished, under the proofs in this case, considering the chances of the boys’ death and possible loss of work, and everything else relating thereto.”
The ages of the brothers, as well as the age of the claimant, were in evidence. The brothers were 41 and claimant 45 years old, and the mortality tables had been offered, and the jury had been instructed thereon. It was the claim of the claimant that she was to have been supported by her brothers during her life. She was the older person. They would not be presumed to support her beyond the period of her life, nor beyond the period of their lives, or expectancy. We do not think that the court erred in calling attention to the expectancy of the lives of the brothers. There was evidence in the case tending to show their manner of life — that they were persons in the habit of becoming intoxicated. The jury may have believed that the expectancy of their lives would thus be affected. The fact that the jury awarded a verdict of $704 may be some proof that they believed from the evidence that the brothers were shortlived men, and would not have lived to support the claimant many years.
*316 ‘ ‘ These laws, men, are good laws. They are good laws, and they regulate the evil as much as it could be regulated, and as much as it is possible to regulate a thing of that kind. They regulate it so far as it is possible. Now, if you don’t enforce the liquor laws—
“ Mr. Adams: I think I will take an exception to that argument, your honor. This is a case which we contend is based upon a contract, and it is not a question, so far as the jury is concerned, or the court, whether the liquor law is enforced or whether it is not.
“ The Court: No; I do not think so.
“ Mr. Adams: I don’t think it is proper argument for a jury.
“ The Court: The question whether the law was enforced or not is not the question in this case, but the question is whether the proof under these pleadings is sufficient to entitle the plaintiff to recover.
“ Mr. Howard: If I establish the fact that there was a contract, I am entitled then to ask, if they find that fact, to enforce that law, am I not ?
“ The Court: Yes; but they would have to enforce the law, because that is clear under the statute under which the pleadings are drawn.
“ Mr. Howard: Then that is what I meant by my argument, and I will disclaim anything else. I am not trying to appeal to anything else except to enforce the law in this case.
“ The Court: No; there ought not to be.”
The objection to .the argument was not made until counsel had said: “ Now, if you don’t enforce the liquor laws —” This is probably the objectionable language complained of. We think that this was not very extravagant language, but whatever of error there was in it was cured by the court. The court stated in the presence of the jury that there was no question about the law, but the only question was whether, under the pleadings and evidence, the claimant was entitled to recover. Counsel for claimant disclaimed any intention of violating the rules of court, and the result does not show that the passions of the jury had' been inflamed by the argument. This court has recently reviewed the cases in this court upon the subject of the arguments of counsel, and we must say here, as there,
‘c The learned counsel for the defendant insists that there can be no recovery in such cases without proof that the defendant knew that the person was in the habit of becoming intoxicated. The statute does not predicate the right of recovery upon such knowledge on the part of those selling intoxicating liquors. It gives an absolute right of action against those who have caused or contributed to the intoxication which results in injury.”
In Radley v. Seider, 99 Mich. 433 (58 N. W. 366), this language was used;
“ There was abundant evidence that the husband was an habitual drunkard, and it was unnecessary to show that the defendant knew it.”
We have examined the other assignments of error as well as the record, including the charge of the court. We find no reversible error, and the judgment of the circuit court is affirmed.