Gordon v. Samson

• Citation: 294 Mich. 294,293 N.W. 654
• Decision Date: 06 September 1940
• Docket Number: April Term, 1940.,No. 19,19
• Parties: GORDON v. SAMSON et al. (WOLVERINE INS. CO., Garnishee).
• Court: Supreme Court of Michigan

294 Mich. 294

293 N.W. 654

GORDON

v.SAMSON et al. (WOLVERINE INS. CO., Garnishee).

No. 19, April Term, 1940.

Supreme Court of Michigan.

Sept. 6, 1940.

Action by Manuel Gordon against Fish Samson, and another, principal defendants, to recover money expended by plaintiff because of injuries sustained by plaintiff's wife in an automobile accident, wherein, after plaintiff obtained a default judgment against the principal defendants, plaintiff secured a writ of garnishment against defendant Wolverine Insurance Company. From an adverse judgment, plaintiff appeals, opposed by Wolverine Insurance Company.

Affirmed.

Appeal from Circuit Court, Allegan County; Fred T. Miles, judge.

Argued before the Entire Bench.

Clare E. Hoffman, of Allegan, for appellant.

Kelley, Sessions, Warner & Eger, of Lansing, for appellee.

BUSHNELL, Chief Justice.

Plaintiff obtained a default judgment against the principal defendants in the sum of $988.25. This judgment was for moneys expended by him because of injuries to his wife after she was struck by an automobile, claimed to be owned by one of the principal defendants and driven by the other. Plaintiff then secured a writ of garnishment against defendant insurance company, who filed a disclosure denying liability. Plaintiff appeals from a judgment entered upon the jury's verdict of no cause of action.

Appellant claims that the examination of witnesses by defendants' counsel and his argument were of such a prejudicial nature as to be reflected in a verdict which is contrary to the evidence. He also contends that the action of the court in requiring the jury to give further consideration to the case after the foreman had announced that agreement was impossible, resulted in a verdict which is contrary to the evidence. The testimony produced at the trial was directed to the single issue of whether Mrs. Gordon was struck by a Willys-Knight automobile, which was insured by the garnishee defendant, or an Oldsmobile, which was not covered by the policy.

The case was submitted to the jury at 4:55 p. m. After supper the foreman informed the court at 7:15 p. m. that the members of the jury were unable to agree. The court explained the importance of arriving at a just verdict and the need for further deliberation and said that, because of the warm weather, he would not keep the jury in but would ask them to return in the morning to see if a verdict could be reached. At 11:30 a. m. the next day the jury again reported their inability to agree and the court inquired into the possibility of agreement. The foreman informed the court that the jury then stood four and eight, having stood five and seven the opposite way the night before. After some discussion the court said: ‘Well, don't you think you would be willing to do this: Go in and argue this over for a few minutes more, and at dinner time the officer will take you to dinner, come back after dinner and vote once more; if you can't get together then I will discharge you. Don't you think there might be something to that? If you knew how hard it is for me to discharge the jury without a decision, I think you would understand why I suggest that. Now it may be it won't do any good, but you are here anyway, you are here for the half day, and I won't keep you after dinner; if you will go back then and discuss it fifteen minutes and vote on it then, knowing the importance of getting together. It is only 25 minutes to twelve, and gentlemen, listen to each other's arguments with an open mind, and willing to be...