Friend v. Dunks
| Decision Date | 21 November 1878 |
| Citation | 39 Mich. 733 |
| Court | Michigan Supreme Court |
| Parties | William Friend v. Helen M. Dunks |
Submitted October 31, 1878
Error to Lenawee.
Trespass on the case under the Civil Damage Law to recover money paid out for liquors by plaintiff's husband, and damages to plaintiff. Defendant brings error.
Judgment reversed with costs and a new trial granted.
Stacy & Underwood for plaintiff in error.
Walker & Weaver and Bean & Hadley for defendant in error.
This case is the same which came before us on a former trial and exceptions therein, reported in 37 Mich. 25. After that decision, in which we held the declaration included a cause of action which was not admissible, an amendment was made which it is now insisted obviated the difficulty. The objection to the original declaration was that while the action was case to recover damages on account of injuries to a wife by the defendant's contributing to her husband's intoxication, it also included a claim for money paid to defendant for intoxicating liquor, which under the statute was recoverable in assumpsit for money had and received.
The declaration originally contained a double termination in damages, viz: $ 5000 for the money paid for liquors, and $ 5000 in addition for damages suffered. The amendment consists in changing the ad damnum clause so as to make it read "wherefore plaintiff claims to recover of the said defendant for the damages as aforesaid suffered, the sum of five thousand dollars." The causes of action set forth in the body of the declaration remain unchanged.
We can see no change in the legal effect of the declaration. There can be but one award of damages on one declaration, and the ad damnum clause must be construed as referring to all the grievances set forth. Our former decision was not based on the form of the ad damnum clause, but on the incongruity of the separate grievances and causes of action set forth in its body. We do not therefore deem it necessary to go over the same ground again. This declaration seeks to recover in case in addition to personal damages, a money demand which could only be sued in assumpsit, and no testimony should have been received under it when its duplicity was pointed out.
For the same reason we do not think it necessary to discuss the impropriety of receiving evidence of the amount of money spent at the defendant's saloon. It formed no element in the lawful...
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Johnson v. Grondin
...of Rouse v. Melsheimer, 82 Mich. 173, 46 N. W. 372. This is not an action to recover back money as was the case of Friend v. Dunks, 39 Mich. 733, cited by defendant's counsel under a former statute. [4] 3. It is urged that the court erred in overruling defendants' objection to the question ......
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Strong v. Schaffer
...man. The court says that the wife cannot claim damage for “the loss of a sober husband when she has only a drunken one.” Friend v. Dunks, 39 Mich. 733. Therefore it was held that the jury should consider that, before the defendant made the sales, the plaintiff's husband was already an habit......
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Lockard v. Van Alstyne
...upon the plaintiff's damages, as she was not entitled to recover for the money spent by her husband, citing the case of Friend v. Dunks, 39 Mich. 733. The circuit judge in the present case charged the jury in response to defendant's request: ‘You are further instructed, if the plaintiff is ......
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Strong v. Schaffer
...a sober man. The court says that the wife cannot claim damage for "the loss of a sober husband when she has only a drunken one." Friend v. Dunks, 39 Mich. 733. it was held that the jury should consider that, before the defendant made the sales, the plaintiff's husband was already an habitua......