156 Mich. 537 | Mich. | 1909
{after' stating the facts). There are 57 assignments of error, which are referred to, and some argued, in the defendant’s brief under 22 heads. We will discuss and determine those which we deem of sufficient importance.
1. Does the declaration state a cause of action ? Counsel insist that it does not state, with accuracy and certainty, any duty defendant owed to the plaintiff. While the pleader might have alleged the duty, and the neglect of duty, more accurately and specifically, yet, in the ab
2. The defendant is not a charitable or eleemosynary institution. While its apparent purpose is the advancement of agriculture, and it is not designed to make money for its stockholders, its purpose is to make money for carrying on its business; and, when it invites the public to seats upon platforms which it has constructed to enable its patrons to witness games, sports, and races, it is under the same obligation to exercise due care in the erection and maintenance of such places as though it were a private corporation. The case does, not fall within the rule of Downes v. Harper Hospital, 101 Mich. 555 (25 L. R. A. 602), and Pepke v. Grace Hospital, 130 Mich. 493, but within Scott v. University Athletic Ass’n, 152 Mich. 684 (17 L. R. A. [N. S.] 234), and Dunn v. Agricultural Society, 46 Ohio St. 93 (1 L. R. A. 754).
3. Error is assigned upon the refusal of the court to order an examination of the plaintiff by the defendant’s physicians. Plaintiff claimed an injury to her spine and sexual organs. A notice was given to take the deposition of the plaintiff at her home, on the ground that she was unable to attend the trial. After that notice was served, defendant filed a petition asking for an order that two physicians named be permitted to examine the plaintiff. In reply to this petition, the affidavit of her physician was produced to the effect that she was confined to her bed as a result of the injury, that she was weak and extremely nervous, and that in his judgment the physical examination prayed for in the petition would be disastrous, and would have a tendency to greatly increase her nerv-1
“If you find that the defendant’s doctors were not given a fair and reasonable opportunity, both or one of them, to examine or see plaintiff, and to make a modest and reasonable investigation for the purpose — and in good faith — of making an examination for the purpose of ascertaining her condition of health and the character and extent of her injuries, if any, then you should take this as against the plaintiff, and have the right to infer that such investigation would not be favorable to her claim in this case. * * * Furthermore, you should consider carefully all the testimony in the case upon that subject, and say whether she has refused at all times or not, and whether those refusals have been reasonable or not. And if not, you have a right to consider it as a circumstance against her to that extent; but, if her reasons seem to be good and adequate in your judgment for doing as she has done under the circumstances, then, of course, it would not be considered by you as of any force or effect against her. You may consider all of the evidence upon that subject in determining what the real situation is.”
We see no occasion to disturb the ruling of the court.
4. It was not error to permit plaintiff’s physician to testify that in his opinion the plaintiff’s injury was attributable to the fall.
5. It is insisted that the defendant had performed its duty in regard to inspection. That it employed compe
6. It was not error to refuse to permit the defendant’s president to testify that the people managing the defendant association were farmers. There is not one degree of care required by farmers erecting bleachers and grandstands for their patrons, and another for merchants and mechanics, or any other class of persons. The same degree of care is required of all.
7. John 0. Zabel, one of the attorneys for the plaintiff, volunteered as a witness in her behalf, and was asked to relate a conversation he had with Mr. Smith, the attorney trying the case for defendant, in reference to a physical examination of plaintiff by a physician. The conversation referred to occurred before suit was brought. The witness was asked whether Mr. Smith in th'at conversation said that he was acting in behalf of the defendant. Of course agency cannot be proved by the declaration of the agent. Objection was made, which the court sustained, the court suggesting that plaintiff could have Mr.
Judgment affirmed.