Malkowski v. Olfs

161 Mich. 303 | Mich. | 1910

Stone, J.

{after stating the facts). This declaration was not demurred to. The logic of the verdict of the jury was that the defendant, without notice or warning to the plaintiff, let go his hold upon the box, and precipitated the entire weight upon the plaintiff, and that the box fell upon the plaintiff and injured him, and that the defendant did not order the truck driver to move the truck forward while the box was being unloaded. If the court was correct in that part of the charge quoted, and we think it was, the jury might find the defendant liable, even although he did not order the driver to move the truck forward. Where proof of a portion of the facts alleged will support a recovery, a failure of proof as to the rest is immaterial. Marquet v. La Duke, 96 Mich. 596 (55 N. W. 1006). Evidence introduced without restriction is available on any issue which it tends to prove, and which is within the pleadings. 17 Cyc. p. 820.

The allegation that the defendant, without notice or warning to the plaintiff, released his hold upon the box, and thus precipitated it upon the plaintiff, and injuring him, stated a substantive cause of action, and, if proved, would entitle the plaintiff to recover, although the jury found that the defendant did not order the driver to move the truck. If this is so, the special question was not controlling, and the answer in the negative was not inconsistent with the general verdict for the plaintiff. Pigott v. Engle, 60 Mich. 221 (27 N. W. 3); Banner Tobacco Co. v. Jenison, 48 Mich. 459 (12 N. W. 655); Cousins v. Railway Co., 96 Mich. 386 (56 N. W. 14); Central Savings Bank v. O'Connor, 132 Mich. 578 (94 N. W. 11, 102 Am. St. Rep. 433); Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524); Ward v. Campau, ante, 85 (125 N. W. 734). We think that the question was inconclusive, and in no sense controlling of the general verdict. For the error pointed out, the judgment of the circuit court will be reversed.

While we might direct the circuit court to enter a judgment in accordance with the general verdict, owing to the course which the trial took, we have concluded to order a new trial, and the same is ordered accordingly.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.