Cawood v. Earl Paige & Co.

• Decision Date: 24 June 1927
• Docket Number: No. 155.,155.
• Citation: 214 N.W. 402,239 Mich. 485
• Parties: CAWOOD v. EARL PAIGE & CO.
• Court: Michigan Supreme Court

239 Mich. 485

214 N.W. 402

CAWOOD

v.EARL PAIGE & CO.

No. 155.

Supreme Court of Michigan.

June 24, 1927.

Error to Circuit Court, St. Clair County; Harvey Tappan, Judge.

Action by John Cawood against Earl Paige & Co. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before SHARPE, C. J., and BIRD, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.

Wiest and Fellows, JJ., dissenting in part.Fred L. Vandeveer and Leroy G. Vandeveer, both of Detroit, for appellant.

Walsh, Walsh & O'Sullivan, of Port Huron, for appellee.

SHARPE, C. J.

On July 11, 1926, plaintiff was secretary-treasurer and general manager of the Cawood Sales Company, a corporation engaged in the sale and distribution of automobiles. As an incident to the business it maintained a garage, did repair work, and sold oil and gas. Its building was located on the corner of Michigan and Grand River streets in the city of Port Huron. The corner of the building was, as counsel express it, ‘sheared off,’ leaving the usual triangular-shaped piece for a filling station. On the day above stated, plaintiff came out of a door leading into this space, and had taken but a few steps when he was struck from behind by an automobile owned by the defendant and driven by one of its employees, and severely injured. This action is brought to recover the damages he sustained thereby. The trial resulted in a verdict and judgment in his favor for $22,000, which defendant here reviews by writ of error.

While error is assigned on the court's denial of defendant's motion for a directed verdict, based on the insufficiency of proof of defendant's negligence and the claim that plaintiff was guilty of contributory negligence, we appreciate the fairness of counsel in not discussing it in their brief or oral agrument, as it is apparent that the testimony presented an issue on both questions for the consideration of the jury.

On their motion for a new trial, which was denied, and in their brief and oral argument, counsel urge that the verdict is excessive and that the amount of it can be accounted for only by a prejudice on the part of the jury, due to the admission of testimony, objected to, the conduct of the trial, and the improper argument of counsel. The amount of the verdict justifies a careful consideration of this claim.

During the cross-examination of plaintiff by defendant's counsel, he stated that the Cawood Sales Company was under the Workmen's Compensation Act (Comp. Laws 1915, §§ 5423-5495). This answer was followed by:

‘Q. In other words, you were subject to the Compensation Act of the state? A. Just what do you mean?

‘Q. We have a law in this state that provides for compensation to persons injured while in the service of another, and you elect to come under that act, and you post a notice in your shop to that effect so that in the event of an employee, for instance, of the corporation receiving injury he shall be paid certain compensation such as is provided for by the terms and provisions of the act? A. Yes; our company has a policy with the Travelers, with you company.

‘Q. So you never got any benefits of the Compensation Act as yet? A. I did not elect to come under that in this case.

‘Q. You didn't? A. No, sir.

‘Q. The Travelers' Insurance Company is the same one you carry your personal accident insurance with too, is it not? A. No; it is not.

‘Q. Are you positive of that?'

One of plaintiff's counsel here interrupted, saying:

‘We object to that as immaterial. Your Travelers' Company may be doing a big business, but this is not the place to advertise it.'

To which defendant's counsel replied:

‘I object to that; it is highly improper.'

The court then said:

‘The question of his personal insurance with this company or any other company has no business in this case; and the objection is sustained.'

Defendant's counsel had no right to inquire whether plaintiff was carrying accident insurance. The remark of plaintiff's counsel might well have been omitted, but we do not think defendant can predicate error or prejudice on what occurred.

Plaintiff was permitted to testify, over objection, that at the time of his injury he had developed and was in charge of the business of two companies which did a business of approximately $600,000 a year; that he owned a third interest in them, and was paid a salary of $500 per month. Plaintiff was permanently injured. The trial court carefully instructed the jury as to any allowance by them for loss of earnings. While the amount received by him as salary was not disputed, we are impressed that he had a right to show that the business handled by him justified its payment.

The other claims in this respect have been examined. They do not merit discussion. There was nothing that occurred on the trial to which objection was taken which justifies a reversal.

The meritorious question is presented by the amount of the verdict. Defendant's counsel have collected many cases in which verdicts as large as that here rendered have been set aside or reduced, in which seemingly as serious injuries were sustained as that suffered by plaintiff. Plaintiff's permanent injury is in one of his knees. Dr. Brock E. Brush, who examined...