270 N.W. 777 | Mich. | 1936
In action for personal injuries the court held the cause of action proved as a matter of law and submitted to the jury only the matter of damages. Plaintiff had judgment for $7,448. This review involves questions of probate practice and claimed errors on the trial.
It is plaintiff's case that he, Hosking and Mayotte were riding in an automobile owned and driven by Emil Tonn, since deceased; they approached a car going in the same direction and which could be seen a quarter of a mile away; Tonn drove at a speed of 40 to 50 miles per hour at and within 10 feet of the car ahead; plaintiff warned him of the car; Tonn turned sharply to the left, ran partly off the pavement, then back and forth on the road, and his car turned over; he evidently lost control of the car when he turned sharply to the left; the occupants were injured and Tonn died shortly thereafter.
Plaintiff's claim, sustained by the testimony of Hosking and of Alfred Lerza, son-in-law of plaintiff, was that Tonn gave the parties a ride for the purpose of demonstrating the car to plaintiff, on prospect of sale to him. No claim is made that the guest act* applies under such circumstances. The testimony is all undisputed except as to the usual slight and inconsequential variations of time, distance, etc. Tonn's negligence and plaintiff's freedom from contributory negligence are apparent.
Defendant contends plaintiff's action should have been dismissed for insufficiency of the claim filed in probate court, the statement of which read:
"For injuries suffered on April 7, 1935, on account of the negligence, gross negligence, wilful and wanton misconduct of said Emil Tonn in the operation *538 of an automobile between Iron Mountain, Michigan, and Randville, Michigan, resulting in injuries to the feet, legs, back, arms, head, spine, nervous system, heart, lungs, abdomen, kidneys and bladder of said Nick Pietrantonio ............... $15,000."
The record shows that the estate filed an answer in probate court denying the allegations of the claim and setting up that plaintiff was a guest passenger but the text of the answer does not appear in the record.
The probate court, acting as commissioner on claims, disallowed plaintiff's claim and on the same day entered an order denying defendant's motion for bill of particulars. The motion is not in the record.
Plaintiff appealed to circuit court. Defendant filed an answer denying the allegations set up in plaintiff's claim, stating it would be shown in defense that plaintiff was a guest passenger and Tonn was not guilty of gross negligence and wilful and wanton misconduct and that the claim did not survive against the estate. Plaintiff filed reply denying all the allegations in the answer.
When the case came on for trial, defendant orally moved to dismiss on the ground that the claim as filed in probate court did not set up a cause of action, was not specific enough in its details, was too uncertain and indefinite and did not comply with the probate rules.
The court held that the claim as filed in probate court was not sufficient but denied the motion to dismiss on plaintiff's filing a bill of particulars and granted defendant a continuance. In the bill of particulars filed by plaintiff he alleged that Tonn was demonstrating the car to him. *539
While a claim in probate court need not have the nicety of allegation of a declaration, "The true subject of dispute should clearly appear." Comstock v. Smith,
However, it does not appear that defendant was misled by the statement of claim. Without objection to it, after formal answer, and without waiting for a bill of particulars, the claim was heard in probate court. In circuit court also defendant pleaded to the merits. Ordinarily a plea to the merits waives demurrer to the pleadings. Genack v. Gorman,
It is contended that plaintiff changed the issue in circuit court by the claim in his bill of particulars *540
that he was not a guest passenger but that the car was being demonstrated to him. The record contains no showing of the issue as presented to, heard and decided by the judge of probate, as might have been made. Raub v. Nisbett,
Defendant urges that the testimony, as to the ride being for the purpose of demonstration of the car, was incompetent under the rule barring testimony within the equal knowledge of the deceased.* The only disqualification attributed to Lerza is that he was plaintiff's son-in-law. It has been held by this court many times that family relationship to a party without financial interest in the action does not bar testimony under the rule. Reichert v. Negaunee State Bank,
Plaintiff was grievously injured, has suffered, and will suffer, pain, is probably permanently incapacitated from work, wholly or partially, and is still required to wear a mechanical device. He is 60 years of age, with expectancy of 14 years, and was earning about $100 per month. We cannot say the verdict was so grossly excessive as not to represent *541 the fair judgment of a jury, to whom the question was properly committed.
Plaintiff raises other points which, however, the record shows are plainly untenable and need no discussion.
Affirmed, with costs.
NORTH, C.J., and WIEST, BUTZEL, BUSHNELL, SHARPE and TOY, JJ., concurred. POTTER, J., did not sit.
