188 Mich. 561 | Mich. | 1915
Lead Opinion
Plaintiff filed a suit in ejectment to recover the possession of a portion of lot 6, block 23,
It was conceded that John Thomas, Sr., owned the premises in fee, and that in May, 1863, he conveyed them to his wife, Katherine I. Thomas, who died intestate in August, 1885, leaving two children, a son and a daughter. The interests of these children were acquired by plaintiff, and are the basis of her claim in this suit. Defendant Addie Wright was in possession of the premises, and claimed the right to retain them by virtue of a life lease which she claims was executed and delivered to her by John Thomas, Sr., a short time prior to his death in August, 1901. She was unable, however, to produce the life lease upon the trial by reason of its having been mislaid or lost, but, instead, offered parol proof of its contents. For the purpose of showing the strength of the life lease, it was the claim of the defendants that John Thomas, Sr., had himself occupied said premises as his home and business place for many years, and that he acquired title thereto by adverse possession during the 16 years which elapsed between his wife’s death and his own. It was conceded that plaintiff had the record title. For a further history of the litigation, see 164 Mich. 606 (130 N. W. 205) ; Id. 171 Mich. 579 (137 N. W. 212). The issues in the trial court were two: Did John Thomas, Sr., acquire title to the premises by adverse possession? Did John Thomas, Sr., execute a life lease to defendant Addie Wright?
1. The first assignment of error relates to the refusal of the trial court to submit five special questions tendered by defendants. The two about which the most complaint is made are:
(a) “Was John Thomas, Sr., from the death of his
(6) “Did John Thomas, Sr., prior to his death, make and deliver a life lease of the premises mentioned in plaintiff’s declaration to Addie Wright?”
Had question (a) been submitted and answered in the affirmative, it would not have been inconsistent with the general verdict, because the inference would have been that the jury concluded that the life lease was not made and delivered to Addie Wright. Had question (5) been submitted and answered in the affirmative, no inconsistency would have followed, because the inference would then have arisen that the jury concluded that John Thomas, Sr., did not acquire title by adverse possession. Neither question, standing by itself, calls for an answer which would have been controlling. Under the statute which allows the submission of special questions they must be so framed as to call for an answer which may be controlling of the main issue. Balch v. Railroad Co., 78 Mich. 654 (44 N. W. 151) ; Cousins v. Railway Co., 96 Mich. 386, and note (56 N. W. 14) ; Wells v. Railway Co., 184 Mich. 289 (151 N. W. 630).
As the other questions tendered. were subject to the same infirmity, they need not be considered. We conclude that the refusal of the trial court to submit the questions tendered was not error.
2. The admission in evidence of a deed of these premises from Katherine I. Thomas to her daughter, Katherine Sullivan, in December, 1880, is the basis for an assignment of error. After her mother’s death Mrs. Sullivan claimed title to these premises by virtue of this deed which it was claimed had been delivered to her father, with instructions from her mother to deliver it to her. Her brother contested her claim, and was successful in defeating it in this court, on
Plaintiff’s counsel offered this deed, and it was admitted against defendants’ objection, together with certain statements made by John Thomas, Sr., concerning the deed. The objection to its admission was based upon the invalidity of the deed, it having been so determined by this court, and that therefore it was res adjudieata, and could not be again litigated. At the time the deed was offered counsel for the plaintiff stated that it was offered for the purpose of showing the mental attitude of John Thomas, Sr., and not for any other purpose. The trial court, in submitting the case to the jury, guarded it with this instruction:
“At the expense of repetition I may again call your attention to.a certain bit of testimony which was admitted and which I will charge you concerning, that concerning the deed, which is argued pro and con, was offered and relied upon, and finally annulled by the Supreme Court. It matters not to you as to whether the .Supreme Court nullified and set at naught that deed. The circumstances of the bringing together of the witnesses, and the discussion in the presence of John Thomas, Sr., and by him, of the deed itself, was allowed to show the mental attitude of John Thomas, Sr., with reference to the title of that land. Now, it was offered for that purpose, and no other. * * * For the purpose of giving you the opportunity of weighing his mental attitude so far as shown by that circumstance that evidence was offered and was admitted, and for no other purpose.”
If the purpose of offering it had been to retry the old issue, undoubtedly counsel’s objection would have been well taken. But it was not offered for that purpose. It was offered for the purpose of showing that what John Thomas, Sr., said with reference to the deed at that time was inconsistent with the claim that the defendant was making for him that he claimed to
3. Exception is taken to that part of the charge in which the trial court said to the jury that it was the duty of the defendants to convince them by a fair preponderance of the evidence that John Thomas, Sr., acquired title to the premises by adverse possession. It is argued that, by qualifying the word “preponderance” by the adjective “fair,” the jury were given to understand that something more than a preponderance of the evidence was necessary. The propriety of qualifying the word “preponderance” when used in a charge has been many times considered by this court. In Elliott v. Van Buren, 33 Mich. 49 (20 Am. Rep. 668), the language of the trial court complained of was that “the proof must be clear and conclusive.” In Monaghan v. Insurance Co., 53 Mich. 238 (18 N. W. 797), the court instructed the jury that “perhaps they ought to be well satisfied of the truth of the charge.” In Hoffman v. Loud, 111 Mich. 156 (69 N. W. 231), the language complained of was “a clear preponderance of evidence.” In Worden Lumber, etc., Co. v. Railway Co., 168 Mich. 74 (133 N. W. 949), the jury were told that “plaintiff must establish by a preponderance of evidence clear and well defined.” In Silverstone v. Assurance Corporation, 176 Mich. 525 (142 N. W. 776), the objectionable language was “proof which clearly convinces.” In all of these cases the language was held to be objectionable, on the ground that the jury might have been misled into believing that it required something more than a preponderance of the evidence to establish the fact. It is carrying the refinement too far, we think, to say that the jury in this case were misled into a similar belief by the use of the word “fair.” While it is true that there is a slight shade of difference between “preponderance” and a “fair preponderance,” the qualification is so slight that
We find nothing in the remaining assignments which calls for a further consideration of the case.
The judgment of the trial court is affirmed.
Rehearing
On Rehearing.
Upon the rehearing in this case, counsel for defendants questioned the rule laid down by this court for the submission of special questions to the jury. In holding that the trial court was not in error in refusing to submit the proffered questions, it was said in the opinion:
“Neither question, standing by itself, calls for an answer which would have been controlling. Under the statute which allows the submission of special questions they must be so framed as to call for an answer which may be controlling of the main issue.”
We were persuaded by the discussion had upon the rehearing that this construction given the statute (3 Comp. Laws, § 10237) was rather too restricted. While no express construction of this phase of the statute appears to have been made by this court, we are of the opinion that if the questions proposed, taken singly or as a whole, call for findings which might be controlling of the main issue, they should be submitted by the trial court. The questions in controversy, which are set out in the opinion, taken together, come
Inasmuch as the case must go back for retrial, another question will be adverted to. The files and judgment entry of a former judgment in ejectment between the same parties with reference to the same premises were received in evidence and read to the jury, over defendants’ objection. Their admission was urged upon the ground that they showed the bad faith of the defendant Wright in claiming that her grantor had . title by adverse possession, because she had not made that claim on the former trial, and for the further reason that it was a link in the chain of plaintiff’s title. As bearing upon the good faith of the defendant, we see no objection to plaintiff showing by the pleadings or by the cross-examination of defendant that she did not make that claim on the former trial, but we doubt the propriety of permitting the judgment to be read to the jury. The jury should not be advised what the outcome of a former trial was, unless some good reason exists therefor, and,none is apparent here. The record of the judgment was not competent on the other ground assigned, because a single judgment in ejectment is not necessarily final. Rice v. Auditor General, 30 Mich. 12.
Defendants will recover their costs in this court.
