143 Mich. 48 | Mich. | 1906
{after stating the facts).
“ The question of whether the plaintiff was 21 years of age at the time of the settlement was fully and fairly submitted to the jury, and the jury found that she was not 21 years of age.”
The learned circuit judge did not discuss the evidence as to her age, or determine except indirectly where the great preponderance lay. Plaintiff testified that she ran away from home when she was 14 years of age. Under
“ Q. How many times did you give your age in Detroit to the police officers ?
“A. I don’t remember that now. I remember giving my age once; but I don’t remember of giving it to anybody else.
“ Q. Didn’t you give your age to the officers in Detroit on October 14, 1896 ?
“A. I don’t remember what date it was.
“ Q. And didn’t you give it on April 19, 1897 ?
“A. I don’t remember.
“ Q. And on November 28, 1897 ?
“A. I don’t remember; not that I remember of.
“ Q. Were you not asked your age every time you was arrested in Detroit by the officers F
“A. Yes, sir; I guess I was.
“ Q. You were, every time ?
“A. Yes, sir.
“ Q. How many times ?
“A. I don’t remember that. I don’t remember how many times I was arrested in Detroit, or what age I gave at any time.
“ Q. Do you remember whether you gave the same age each time, or did you give a different age ?
“A. That I don’t remember.
“ Q. Each time you were arrested in Toledo were you> asked your age by the officers ?
“ A. Certainly.
“ Q. They always did ?
“A. I guess they did.
*55 “ Q. Didn’t they have a book there and mark down what you told them ?
“A. Yes, sir; they marked down something.
“ Q. How many times did they do that in Toledo ?
“ A. I don’t remember that.”
She admitted having lived in Detroit and Toledo under two aliases. She wrote a letter to .her father, dated September 4, 1896, in which she said:
“ I have been trying to think what to send Mablé for a birthday present, as her birthday is the 30th of this month, and mine is the 24th. Almost 19 years old, or is it 18 , years ?”
The police officers in Detroit and Toledo testified as to her arrests, and produced their record of the age she then gave. On these occasions she gave her age as 19, and she does not deny that she .so told the officers. Under these statements, she was more than 21 years of age at the time of the settlement. Upon this point the preponderance of the evidence is so overwhelming in favor of the defendant that we think the court should have granted a new trial. It would seem that a jur-y must, in some manner, have been prejudiced in finding that she was not 21 years of age at the time of the settlement.
“ I presume it would not be fraud upon the part of your company to settle with a girl 19 years old, and that they had no right to — ”
The court warned the attorney to confine himself in his statement to what he expected to prove by competent evidence. The counsel still proceeded to charge fraud, and stated that when plaintiff arrived in Detroit from Toledo, in response to directions from her attorneys, she met Mr. Look and an agent or attorney of the defendant, that they
“ When John H. Macomb [her father] made any statement to you, was he under oath ? ”
Upon this being ruled out, counsel again stated:
“We wish to show that an attorney of the defendant' was present at this time and asked this man, and obtained this information acting for the defendant.”
The incompetency of the testimony offered is too clear to require argument. To hold that plaintiff’s attorneys did not know it was incompetent would reflect upon their knowledge of the law. The damaging effect of such a course before a jury is apparent, and, it is fair to presume, accounts for the verdict. The sole question under the pleadings was the age of the plaintiff. There .was no evidence and no attempt on the part of the plaintiff to produce any to show that the defendant was guilty of any fraudulent conduct. The relations between her and her attorneys, the representations they or either of them made
Judgment reversed, and new trial ordered.