341 Mich. 677 | Mich. | 1955
Plaintiff brought this action in circuit court to recover damages for injuries to her property, her business, and her health, alleged to have
The defendant Cemetery Association now owns the property on 3 sides of plaintiff’s lot. The property to the rear was acquired prior to 1945, the 2 lots adjacent on the north in 1945, and 3 lots adjacent on the south in September, 1951. Plaintiff alleged in her declaration, and claimed on the trial, that during the summer of 1948, and thereafter, defendant Association carried on extensive filling operations on its property west of plaintiff’s lot, that the natural flow of surface waters was interfered with, and that, because thereof and due to. natural percolation, more than the normal amount of water was precipitated on her property. Plaintiff claimed that her lot and the buildings thereon were materially damaged, her business partially destroyed, expenditures for repairs necessitated, and her health impaired. Defendants by their answer to the declaration denied any improper conduct on their part, admitting, however, that for some years past the Association had engaged in extensive filling operations on its property. The case was started December 8, 1952. Defendant Eldridge, the general manager and the principal stockholder in the Cemetery Association, was joined as a party defendant. The declaration alleged, in addition to claims of trespass and negligence on the part of both defendants, a conspiracy
Some of plaintiff’s claims were disputed by defendants, who denied that she had been damaged because of any wrongful conduct on their part. However, the testimony was such as to raise disputed questions of fact for the determination of the jury. It may be noted in this regard that appellants have not assigned error on any specific instruction to the
It is further argued that plaintiff did not establish liability on the part of defendant Eldridge, and that the court was in error in submitting the question of his liability to the jury. As before noted, Mr. Eldridge was the general manager of the defendant association, as well as its principal stockholder. He was called for cross-examination by plaintiff’s counsel, and testified, in part, as follows:
“I am actively interested in the Roseland Park Cemetery Association. I am general manager of the Roseland Park Cemetery and president. Indirectly any work done in the cemetery is done under my direction through my superintendent or supervisor. I am the principal stockholder in that corporation. Together with the board of directors I dictate the policy of the corporation.”
He further testified as to instructions given by him for acquiring, if possible, additional property for the use of the cemetery. Included in the property so acquired was lot 163, which was purchased by defendant Eldridge subject to the option in the lease to plaintiff, which option she subsequently enforced. In view of his statements, made on his cross-examination as a part of plaintiff’s case, the trial court was correct in not granting a dismissal as to him. He supervised and directed the operations of
Appellants’ claim that plaintiff failed to introduce proof of damages is not well founded. Her testimony, and the testimony of other witnesses, set forth the conditions existing which, as she claimed, resulted from the excess water thrown on her lot because of the conduct of the defendants. She also offered the testimony of a witness who had been engaged in the building business for many years, and who had examined the property in question here. He described the condition of such property, stating as his opinion that if the water caused the damage a fair appraisal of the resulting depreciation would be between $4,000 and $5,000. As before noted, the jury viewed the premises and, hence, was in a better position to weigh the testimony relating to the damages sustained by plaintiff than would otherwise have been the case. Gutov v. Clark, 190 Mich 381, 387.
After the jury had deliberated for some time it returned to the courtroom where the foreman announced a verdict for the plaintiff in the sum of $3,500. Said verdict as stated did not specify that it was against both defendants, and thereupon the trial court directed the jury to retire, consider the matter further, and then specify whether the verdict was against one or both of the defendants. Apparently the members of the jury construed such direction as requiring the amount of damages awarded to be apportioned and undertook to return a verdict accordingly, specifying that the said amount of $3,-500 should be divided equally between the 2 defendants. The trial court again sent the jury to its room, with the result that it undertook to return the sum of $1,750 against defendant Eldridge and a like amount against the association. The court then went
Appellants claim that the attempts to obtain a verdict in proper form constituted error. We think it is obvious that the jury in the first instance undertook to return its verdict against both defendants, and that what was done subsequently was due to a misunderstanding as to the directions of the trial judge. Obviously the case was not one in which the damages could he apportioned as between the defendants. Rodgers v. Canfield, 272 Mich 562, is not in point. It is clear that the jury intended to find both liable. It does not appear that defendants, or either of them, were prejudiced because of the failure of the jury to return its verdict in the first instance in the form deemed proper by the trial judge.
We find no reversible error in the record, and the judgment is affirmed. Plaintiff may have costs.