Rich v. Daily Creamery Co.

• Citation: 6 N.W.2d 539,303 Mich. 344
• Decision Date: 24 November 1942
• Docket Number: No. 24.,24.
• Parties: RICH v. DAILY CREAMERY CO. et al.
• Court: Supreme Court of Michigan

303 Mich. 344

6 N.W.2d 539

RICH

v.DAILY CREAMERY CO. et al.

No. 24.

Supreme Court of Michigan.

Nov. 24, 1942.

Action in trespass on the case by Peter Rich against the Daily Creamery Company and others for conspiracy to deprive plaintiff of business property and good will by wrongfully evicting him from his place of business on defendants' premises. Judgment for plaintiff, and defendant creamery company and certain other defendants appeal.

Affirmed. Appeal from Circuit Court, Wayne County; Vincent M. Brennan, Judge.

Before the Entire Bench, except BUSHNELL, J.

Sempliner, Dewey, Stanton & Honigman, Louis Starfield Cohane and Regene Freund Cohane, all of Detroit, for defendants-appellants Daily Creamery Co., American Surety Co., Frank Ledwon and Anthony Cwiek.

Max Kahn, of Detroit, for plaintiff-appellee.

CHANDLER, Chief Justice.

This is the second time this case has been before this court on appeal by defendants from verdicts rendered by juries and judgments entered thereon in favor of plaintiff, the former appeal being reported in 296 Mich. 270, 296 N.W. 253, 260, 134 A.L.R. 232.

A recital of the factual issues involved would be a mere repetition of what we said in the first appeal, when we determined that plaintiff, under the pleadings and proofs, had clearly established a cause of action against defendants, warranting a recovery of damages for the tortious acts of said defendants, but that the trial court had erred in his charge to the jury in permitting them to go too far into the realm of speculation in arriving at the amount of damages sustained. This necessitated ‘ a reversal and the granting of a new trial for the assessment of damages, only, under the rules of law applicable to the measurement of damages sustained by plaintiff for the wrongs complained of, and established by him in this action.’

It will be noted that upon the first trial the jury returned a verdict in plaintiff's favor and against all of the defendants, except defendant Gornick, for the sum of $15,162.50, which on motion for a new trial was reduced by the court to $8,500 and judgment was entered for this sum. In the instant case, a verdict was rendered and judgment entered for the sum of $8,233.78.

The record in the former appeal, as well as in the instant one, discloses that on the issues of fact submitted to the jury, the testimony was highly conflicting, and the verdicts rendered in both instances clearly indicate that both juries, the triers of the facts, relied upon the testimony of plaintiff on the disputed issues of fact submitted to them for consideration. By such findings in the instant case, both the trial and this court are bound, unless the verdict was against the clear weight of the evidence, or error in the trial and proceedings was committed by the trial court.

After verdict and prior to entry of judgment, defendants filed simultaneously the following motions: (1) to amend the verdict; (2) for a decision by the court ‘of defendants' motions for a directed verdict; to dismiss and discharge the jury and declare a mis-trial and grant a new trial on all issues; to have the court submit to this jury the question of liability as well as all other questions involved’; and (3) for judgment non obstante veredicto, all of which motions were denied.

We find from the record before us that defendants, subsequent to verdict, filed no motion for a new trial, in which case both the trial and appellate court are precluded from passing upon the question as to whether the verdict of the jury was against the weight of the evidence. However, inasmuch as it might be claimed by defendants that the trial court treated the motion designated as (2), above, as a motion for a new trial, we will quote from his opinion in the denial of all of said motions and here announce our approval of his determination of the questions raised thereby.

The court said:

‘This motion is denied. This case was before the Supreme Court in Rich v. Daily Creamery Company, 296 Mich. 270, 296 N.W. 253, [260],134 A.L.R. 232. In that case the Supreme Court said: ‘The judgment is reversed and the case remanded for the assessment of plaintiff's damages under the rules of law applicable thereto.’

‘The court held, in substance, that plaintiff had proven violation of contract and resultant liability upon the part of the defendants. As I read the decision, that issue, or those issues, were res adjudicata. The only question which I was permitted to submit to this jury was the question of the amount which should be awarded to the plaintiff. That was thoroughly discussed by court and counsel before the beginning of this second trial, and we agreed to a procedure which apparently was agreeable to both sides, by which each lawyer, at the opening of the case, outlined his theory, and also admitted that the subject of liability was foreclosed by previous court ruling that the only question was the amount of damages. The case was then tried upon the theory.

‘Now the chief arguments raised by counsel for the defendants upon this motion, it seems to me, have to do with the credibility of witnesses, and also with the proposition that if we had known as much at the first trial as we know now, the jury in the first case might not have brought in a verdict against the defendants.

‘Personally I do not agree with that contention. I feel that the question of liability is a clear one, and that the proposition of serving the ultimatum, followed by the pulling of the switch, positively fixed liability upon the part of the defendants; so I can well understand how the Supreme Court determined that it would be a waste of time to go into that question any further, because any jury, whether they liked the plaintiff or not, would almost necessarily have to bring in a verdict in his favor.

‘The question of damages is fundamentally a question for a jury to pass upon. The jury in our case heard the alleged contradictions of the plaintiff and the supposed perjury. It was gone into very carefully by counsel for the various defendants; the case was elaborately tried, and very vehemently argued. No detail of testimony was left untouched. It seems to me that if this jury felt that Mr. Rich was a liar, they would have reflected that finding in their verdict. Possibly they did. They did disallow him certain items which he claimed. For instance, the amounts unpaid on various installment contracts; but I think that this jury probably recognized that, in almost every lawsuit, witnesses disagree, and it is not always necessarily perjury. Sometimes witnesses forget; particularly, interested witnesses are prone to give testimony favorable to their side which is mistaken-maybe an honest mistake. But I feel that this jury very carefully weighed the testimony, and, under the special questions submitted, they figured out the amounts to the penny which they found the plaintiff was entitled to, and I would think that it would be presumptuous on my part, and wholly unwarranted, to grant the motion which I have referred to. That motion is therefore denied.

‘The last motion urged today is defendants' motion to amend the verdict by reducing the same, particularly by disallowing certain items which the jury allowed. That motion is denied.

‘The jury's verdict totals $8233.78. On the original trial the verdict was in excess of $15,000. This court reduced that verdict to $8500.00. Upon the second trial, as I have already noted, the defendants' case was much more thoroughly and effectively presented. More detailed evidence was received regarding the items of damages, and then the court, instead of asking the jury to bring in a general verdict, submitted five special questions, one of which had two subdivisions, so we really had six special questions. The jury went into these various items very carefully and fixed the amount awarded to the penny. Mr. Cohane has produced an affidavit of the foreman of the jury, who I understand is a bookkeeper.

‘Mr. Cohane: He is a teacher of bookkeeping in the Business Institute.

‘The Court: And he gave to Mr. Cohane the original memorandum used by the jury in reaching its verdict. I am not passing upon the admissibility of this memorandum at this time. However, I have looked at it, and I do not feel that, even if it is admissible, its contents should operate in favor of the defendants, because it is my impression that the jury has scaled down the claims of the plaintiff and allowed him practically a minimum of what he claimed, and disallowed practically all questioned items. There are a few, particularly the Burgess Ice Machine Company account, where there was a conflict of testimony, and the jury has allowed certain items which the plaintiff claimed and which the defendant denied, but, generally speaking, the verdict, I would say, is quite a conservative one.

‘While the presentation in this case was much more careful, for the defendants, than it was in the preceding case, nevertheless the result reached, by coincidence or otherwise, is practically the same. This court, on the first trial, as I say, reduced the verdict to $8500.00. The jury in this case fixed the verdict at $8,233.78. In both cases the plaintiff sued for $50,000.00. The jury, as I have said, has itemized the various particulars of the plaintiff's case, and it is quite striking to me that their verdict comes within $300.00 of my determination of what was fair upon the first trial.

‘There is ample testimony in the record, in my opinion, to justify the answer to question number 1, specifying the amount representing actual cash expended by the plaintiff in his plant and equipment. The jury, according to the foreman, itemized these various particulars and allowed the plaintiff what would be practically a minimum of his claim.

‘There is no dispute that there was sufficient testimony in the record to justify the second item of loss of ice cream at $400.00.

‘With regard to the next two items, loss of salary, which the jury...