190 Mich. 11 | Mich. | 1916
Plaintiff was the owner of a large four-story building at Hart, which it used as a warehouse, for the storage of machinery, grains, and seeds. A side track on the north side of the warehouse connected it with defendant’s line. Plaintiff requested defendant to place a car on the siding for the purpose of loading. On August 14, 1912, in complying with the request, the defendant’s switch engine ran the car onto the siding and passed the warehouse door on to a slag pile, which was used as a bumper at the end of the siding. Its inability to stop the car at the warehouse door was said to be due to the fact that the track was downgrade and was slippery; owing to the grass which had grown over the rail. Two freight cars were then placed ahead of the switch engine to give it the proper amount of slack in starting, and the car was re-railed, but not without considerable effort. Soon after the switching crew had left, the northeast corner of the roof of the warehouse was observed to be oh fire. By reason of its height and inadequate fire protection at. Hart, the warehouse and contents were destroyed. The case was tried upon the theory that the fire occurred by reason of defendant’s negligence, in that it failed and neglected to have the machinery, smokestack, and fire box of its engine properly equipped and in good repair, and, further, because the engine was not properly operated and managed. In reply to a special question the jury found that the engine, machinery, smokestack, and fire box were properly equipped and in good working order, but that the engine was improperly and negligently operated and managed. The jury returned a verdict for the plaintiff.
“Do you know anything about an insurance company that insures canning factories, named the Canner’s Exchange, or the Canner’s Inter Insurance Bureau?”
“I possibly ought to state that we claim that that is the party in interest in this case, really, the real party in interest. We claim the right to examine the juror as to his acquaintance with any such concern.”
The trial court adhered to his ruling, and defendant’s counsel excepted. This ruling is relied on as error. No further or other question was propounded to the juror, save the one quoted, but the juror was later excused for cause without objection when it was learned that he was in the employ of one of plaintiff’s counsel. Counsel argue that the question was proper and should have been answered, in order that they might—
“ascertain whether the proposed juror was interested in the insurance company, or had relatives or friends connected with it.”
Assuming that the question is properly before us, we think the question was one which was within the discretion of the trial court. It was not very material whether he was acquainted with any such insurance company. Undoubtedly counsel had the right to inquire whether he was interested in the insurance company, or whether he' had any relatives connected therewith, but neither one of these questions was asked. The question asked was, “if he was, acquainted with such company.” We are not prepared to hold that the exclusion of an answer to the question under the circumstances was reversible error. We are further of the opinion that 'the question is not properly before us. Had this juror sat in. the case, or had the circumstances driven defendant’s counsel to exhaust its peremptory challenges, the record would have been
“entitled to recover from the defendants as damages such as will fairly compensate it for its loss by reason of said fire, which sum is measured by the fair cash value at said time and place of said property which was destroyed by said fire, and the diminution in value of property injured and not destroyed, caused by said fire, not exceeding the amount claimed by the plaintiff. * % *
“There has been evidence here as to the price paid by the plaintiff for the real property — and by that it means the building' or the land on which the building stood — and evidence of repairs and remodeling of the interior of such building, and there has been evidence as to the amount of material in the construction of the building at the time of the said fire and the worth and value of the material, if new, and evidence as to the labor and material required to replace such a building, and also evidence as to the fair cash market value of the building. All these matters have been received as bearing on the one question of its fair cash value at the time and place of the fire.”
They were further instructed, in substance, that, if the building had no market value in Hart, then they should determine what its real cash value was at the time and place.
It is insisted that the true measure of damages was the market value, and that it was error to admit testimony bearing upon its cost and the value of the materials that went into it. It was said in the analogous case of Close v. Railway, 169 Mich. 392 (135 N. W. 346), that:
“Where property destroyed had no market value, the real or ordinary value, based upon all facts connected with such property, such as its cost, its uses to which it has been put, its age, its condition, location,*17 and the like should be determined. 3 Elliott on Railroads, § 1239.” '
The plaintiff offered testimony that a building, the character of the one which was destroyed, had no market value in Hart, and, relying upon this showing, the plaintiff proceeded to show that it had a true cash value, and introduced testimony of .its size, location, the materials with which it was built, its age, for the purpose of enabling the jury to determine what the actual cash value was. The instructions appear to be in accord with the general rule applicable to such cases.
We find no reversible error in the remaining assignments. The judgment will be affirmed.