Alexander v. Pacholek, 23.

• Decision Date: 22 March 1923
• Docket Number: No. 23.,23.
• Citation: 222 Mich. 157,192 N.W. 652
• Parties: ALEXANDER v. PACHOLEK.
• Court: Michigan Supreme Court

222 Mich. 157

192 N.W. 652

ALEXANDER

v.PACHOLEK.

No. 23.

Supreme Court of Michigan.

March 22, 1923.

Error to Circuit Court, Wayne County; Samuel G. Houghton, Judge.

Action by Mildred Alexander against Stanley J. Pacholek. Judgment for plaintiff, and defendant brings error. Reversed, with no new trial.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Walter Phillips, of Hamtramck, for appellant.

Routier & Nichols, of Detroit, for appellee.

BIRD, J.

Defendant conducts an undertaking business in the city of Detroit. On the morning of April 5, 1920, defendant was called by plaintiff, or some one in her household, and advised that an infant had died in her house during the preceding night, and he was requested to come and take charge of and bury it. Defendant's assistant at once repaired to plaintiff's home, and found that the baby belonged to a Mrs. Lago, a married woman, who had been a guest for several weeks at plaintiff's home. The baby had prematurely arrived, and was slightly deformed in its forehead. Mrs. Lago made arrangements with the assistant to take the baby to the funeral parlors, prepare it for burial, and inter it. The mother did not care to have a funeral at plaintiff's house. The price agreed upon for defendant's services was $39. Mrs. Lago accompanied defendant to the parlors, where the death certificate and other details were arranged. When she left she advised defendant she would pay him the following morning. She did not do so, and between the hours of 11 and 12 in the forenoon, defendant's assistant placed the body in the car and went to plaintiff's house, and inquired for Mrs. Lago. He was advised that she was not in. He then inquired who was going to pay for the burial. Plaintiff replied she did not know; she was not. Defendant then said to her that he would have to have his pay or would be obliged to leave the body. The assistant then went to the car, and took the container in which the body had been placed, went into the house, opened it and laid the clothing on the davenport from which he had taken the body the morning before. When plaintiff saw that he was preparing to leave the body she yielded and gave him his money, whereupon defendant replaced the clothes in the container and left plaintiff's premises, and afterward buried it in accordance with the agreement.

It is plaintiff's claim that she was so horrified and frightened over the threat of defendant to leave the body of the deformed child that she fainted after defendant left her house, and that 10 days later she suffered a miscarriage by reason thereof, and was made sick for several days thereafter. At the conclusion of the proofs defendant requested a directed verdict, but the trial court overruled the motion, and submitted the question to the jury. After considering the question for a time, they awarded plaintiff damages in the sum of $500.

Counsel for plaintiff make the argument that defendant was a trespasser when he went back into the house the second time to return the body, because he went in without knocking. We have serious doubt whether this is a material fact. If he were a trespasser he was a trespasser on the real estate, and did not inflict any damage upon plaintiff's person. But, in any event, we do not think he was a trespasser on the premises. In the first instance he was invited to come on the premises by Mrs. Lago, a guest of plaintiff, and with plaintiff's consent. He was still engaged in the business for which he was invited to come onto the premises. On this visit he knocked at the door and was admitted. After he had talked with plaintiff and learned he was not going to be paid, he went out to the car to get the body to return it to the place from which he had taken it the day before. When he returned with the body he would not be expected to knock before entering, any more than a peddler would who had been regularly admitted and returned to his wagon to get some goods to exhibit. Defendant had an implied, if not an express, license to go upon the premises as he did. 25 Cyc. 642.

It is asserted, but not argued, by plaintiff's counsel that when defendant made this visit and returned the body, he was guilty of an assault. There is nothing in the record that has been called to our attention which would support this assertion. It is not shown that defendant offered any physical violence, or that he threatened her, or that any such thing was contemplated by defendant. Unless there was a threat or offer on the part of defendant to do plaintiff physical injury, there was no assault, within the law. 3 Cyc. 1066.

The questions of trespass and assault being eliminated, the case is so similar to Nelson v. Crawford, 122 Mich. 467, 81 N. W. 335,80 Am. St. Rep. 577, that it must be ruled by that case. In that case the defendant dressed himself in women's clothing, put on a woman's hat and veil, and with a parasol started for plaintiff's house. When he arrived he tapped the floor or walk with his parasol. It attracted the attention of the plaintiff, and she spoke to him, but he made no answer. She was very much frightened, and ran to the bedroom, where her husband was, and defendant followed her. The husband picked up a stick of wood and ordered him out, whereupon defendant spoke and made himself...