| Mich. | Oct 10, 1890
This case was before us at the June term, 1889, and will be found reported in 76 Mich. 139" court="Mich." date_filed="1889-07-11" href="https://app.midpage.ai/document/johnson-v-spear-7934183?utm_source=webapp" opinion_id="7934183">76 Mich. 139. We see no reason why the law of the case as there laid down should not be adhered to. The circuit judge, therefore, was right in holding the law of the case to be as declared
There are two minor allegations of error based upon the admission of the testimony of one John Miller. Miller testified on a former trial, and his testimony was read on the last trial. In his evidence appeared the following:
“1 heard the testimony of Johnson [the plaintiff] as to where his bucket was placed under the hatch. I should consider that was the proper place for the bucket to-stand.’’
This was objected to on the ground that the testimony of Johnson to which he referred was not the testimony given on this trial, but on a previous trial. The objection was overruled. It is not claimed that Johnson’s testimony on the last trial as to where he placed the bucket differed materially from his evidence on the other trial, to which Miller’s testimony referred, but it is argued that, the jury had no means of knowing what the testimony was that Miller referred to, and it was therefore error to-admit it, as it stood in the case solely as Miller’s judgment, without giving -the jury the facts upon which such judgment was based. There is, however, a sufficient showing in this record from the examination and cross-examination of Johnson that his testimony as to the location of his bucket was identical on both trials. This-answers the argument that there was error committed, as the jury did have the facts upon which Miller’s opinion, was based.
“I heard the testimony of Napoleon Berry that the chain used at the time Johnson was hurt was the same chain they had in 1886.”
It is claimed that upon the last trial Berzy testified, as he did, that he could not remember whether the chain that broke and injured Johnson was the chain used in 1886 or not, and therefore it would not have been competent for Miller, if present, to testify to what evidence Berzy gave for the plaintiff as to this chain being used in 1886; that the reading of his former testimony, therefore, was also incompetent. But, as Berry on the last trial himself testified that he gave such evidence on the former trial, we fail to see how the defendant could have been damaged by the reading of the same thing from Miller’s testimony.
The objection that the facts proven do not support the allegation that the relation of master and servant existed between the plaintiff and defendant comes too late to be ■of any avail to'the defendant. It was expressly held by this Court upon the same state of facts that the relation of master and servant did not exist between the parties; and the relations of the parties, the duty of the defendant, and the grounds upon which the plaintiff was entitled to recover, were plainly pointed out by this Court when the case was here before. If the plaintiff had asked to ¿amend his declaration, as he shouldjiave done, the request ••would have been granted as a znatter of course, and the '•trial proceeded without adjournment, as such amendment ■could not have been any surprise to the defezidant. The plaintiff, however, failing to do this, it was the duty of the defendant to object to the declaration- as it stood, .either by way of demurrer or by objecting to any evidence being received under it. This the defendant did
The judgment is affirmed, with costs.