176 Mich. 278 | Mich. | 1913
This is an action for damages brought by the wife of an alleged habitual drunkard against four saloon keepers and the surety upon their several bonds.
Many errors are assigned by defendants, which may be grouped under two heads: (1) In the admission of certain testimony; (2) in erroneously charging the jury.
The court permitted Spencer, over objection, to
“Some testimony has been received here in regard to the pain he has suffered, the suffering he has experienced. She is not to be remunerated for that, but it was received for the purpose of bearing upon his earning ability or power to work and bearing upon his condition. What has been his condition since the injury? What is his condition now? What is the probability about its continuing? So that his condition, suffering, pain, and weakness has been laid before you for the purpose of aiding you in determining the extent of his injury, the extent to which she has been deprived of her support, the extent to which she has suffered any loss of property that would otherwise belong to her and be retained by her had it not been for the sacrifice she would have to make owing to this injury received by her husband.”
We are satisfied that the admission of this testimony was prejudicial error. The question of Spencer’s physical condition after the injury as bearing upon his ability to perform labor was one entirely proper for inquiry, but it could, and should, have been ascertained without a history of his pain and suffering which afforded no basis for plaintiff’s recovery, and which could scarcely fail to influence the verdict of the jury.
Evidence was admitted that Spencer, after the injury, had sold his cow, horse, and his equity in a 10-acre farm, had borrowed several hundred dollars, and had used this money, together with the avails of his sales, toward the support of his family, including plaintiff. Evidence also was admitted that the doctor’s bill, amounting to $484, was unpaid. It is strenuously urged upon the part of defendants that all this testimony was inadmissible. We think the testimony relative to the sale of his property was
Evidence was admitted of the value of plaintiff’s services in assisting to nurse Spencer while he was in the hospital. This testimony was admissible under the authority of Thomas v. Dansby, 74 Mich. 398 (41 N. W. 1088). Upon the question of the measure of damages the court charged:
“Sixth. In arriving at your verdict as to the amount of plaintiff’s damages, in case you find she is entitled to recover, it is your duty to take into consideration the amount of money which the said Spencer is shown to have been able to earn prior to March 9, .1910, and the amount of money which he is shown to have contributed prior to that date for the support and maintenance of said plaintiff, and the amount which he has been able to contribute since that time for her support and maintenance; also the*283 amount of the charges of the physician for his services in the care and treatment of said Spencer and the expense of nursing said Spencer, including the extra services required of said plaintiff in caring for and nursing him at the hospital, also .the hospital bill and charges for supplies in his treatment; also the property that has been sold and the proceeds thereof used in the support of the plaintiff and family since that injury and the amounts of money borrowed by said plaintiff and said Spencer, and which is still owing and unpaid, not as fixing absolutely the amount which she has already been damaged, but as bearing upon the question as to the amount that she has been injured in her property and in her support up to the present time. Also you have the right, and it is your duty, to ascertain and determine how much damage she will suffer in the future by reason of injury to her property and means of support by reason of any effects of said injury to said Spencer that you may find was occasioned by his said intoxication and for such time in the future as you may determine that he will suffer from and be disabled by such injury.”
That portion of the foregoing excerpt beginning with the words “also the amount,” etc., and ending with “up to the present time” is in our opinion subject to just criticism. The value of plaintiff’s services in nursing her husband was a proper element to be considered by the jury.
As the evidence of the sale of his property by Spencer and the use of the money thus obtained to support his family was improperly admitted, it follows that the jury should not have been permitted to consider those facts. And consideration of the fact that he was indebted to the doctor and for borrowed money should have been permitted only so far as it bore upon the length of time plaintiff would probably be deprived of her support.
Defendants urge that the last paragraph of the instruction quoted supra is erroneous because of the
It is urged that the court erroneously submitted the' question of exemplary damages to the jury. It is true' that in delivering his charge the court read the statute which provides for the recovery of such damages. When instructing the jury upon the measure of damages, however, no mention was made of “exemplary” damages. It .is, we think, clear that such damages were not allowed by the jury.
Much argument is devoted by counsel for defendants to the question of alleged improper comment to the jury on the part of plaintiff’s counsel in his closing argument. It appears that the argument was made in the absence of the court and stenographer, and therefore no ruling or exception thereon is included in the record. Of course, we can pay no attention to the point except again to emphasize what we have so frequently reiterated — that counsel should present their claims to juries fairly and .without appeals to passion or prejudice. This record, however, presents a situation which we believe calls for comment. Without determining that it is reversible error for the presiding judge to absent himself from the bench during argument of counsel, we have no hesi
The judgment is reversed, and a new trial ordered.