Graeger v. Hager

• Decision Date: 06 April 1936
• Docket Number: No. 77.,77.
• Citation: 266 N.W. 382,275 Mich. 363
• Parties: GRAEGER v. HAGER.
• Court: Michigan Supreme Court

275 Mich. 363

266 N.W. 382

GRAEGER

v.HAGER.

No. 77.

Supreme Court of Michigan.

April 6, 1936.

Action by Minnie A. Graeger against Nicholas E. Hager. Judgment for defendant, and plaintiff appeals.

Affirmed.

Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Argued before the Entire Bench.

Dale Souter, of Grand Rapids, and Walter M. Nelson, of Detroit, for appellant.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for appellee.

TOY, Justice.

About 10 p. m. on September 16, 1934, the plaintiff and one Metta Miller were crossing Plainfield avenue, in the city of Grand Rapids. When they reached a point between the street car tracks, about in the center of the street, they stopped to observe traffic, and, when plaintiff stepped forward to complete the crossing, she was struck by the Buick automobile of defendant. Plaintiff claims to have suffered injuries as a result of the accident, and brought this action to recover damages therefor. Jury trial was had and a verdict returned for defendant of no cause of action. Plaintiff moved for new trial, but her motion was denied. She appeals to this court.

Three contentions are here presented by the appellant: (1) That the verdict was against the great and overwhelming weight of the evidence; (2) that the trial court failed to properly and fully instruct the jury; (3) that the trial court was in error in its denial of plaintiff's motion for new trial.

We will consider these claims in order.

1. After a careful review of the record, we cannot say that the verdict is against the great and overwhelming weight of the evidence. Both parties testified; they both produced witnesses to the accident; and, as is usual in this type of case, neither party nor the witnesses produced by them were in accord, but, on the contrary, their testimony was in direct conflict. We have many times held that, where such conflict of testimony exists, we will not grant a new trial on the ground that the verdict is against the great and overwhelming weight of the evidence. Ward v. Village of Birmingham, 262 Mich. 466, 247 N.W. 718;Barnum v. Berk, 256 Mich. 363, 239 N.W. 329;Fabbro v. Soderstrom, 252 Mich. 455, 233 N.W. 378;Marsh v. Barnard, 236 Mich. 471, 210 N.W. 478;Downing v. Underwood, 216 Mich. 401, 185 N.W. 777;Gleason v. Stone, 200 Mich. 187, 166 N.W. 861.

2. We find no error in the instructions given by the court to the jury. The charge of the court covered the issues fairly and completely, without needless repetition or reiteration. Counsel for plaintiff complain that the court erred in failing to give requests to charge submitted by them. The record does not contain the alleged requests to charge; therefore we cannot consider this complaint.

3. Miss Metta Miller, who was with the plaintiff when the accident occurred, was sworn as a witness for plaintiff, and, while testifying, on direct examination, to details immediately preceding the accident, the following occurred:

‘Q. You saw that car stop there? A. Yes. (Witness sobbing.)

‘Mr. Nelson: Perhaps we better withdraw the witness for the time being.

‘Mr. Linsey: Is there any reason why she can't go on?

‘Mr. Nelson: Nothing that you can see probably. I will try.

‘Q. Miss Miller, are you feeling well enough to proceed? Are you ill yourself? A. Yes, sir.

‘Q. You are ill with-- A. With arthritis.

‘Q. You tell us if you feel able to go ahead; if you don't we will not try. A. May I be excused?

‘Mr. Nelson: Yes. (Witness here left the stand.)’

At the close of plaintiff's case the following colloquy occurred:

‘Mr. Nelson: * * * The only thing I can say about Miss Miller is, she is not here. I do not desire to take any advantage of that situation one way or the other; otherwise the plaintiff rests.

‘Mr. Linsey: I believe in view of the doctors' testimony that the testimony of Miss Miller ought to be stricken out. We can't cross-examine her very well.

‘Mr. Nelson: On the whole record, whatever the court rules, in regard to Miss Miller's testimony, will be satisfactory. We realize she is not able to go ahead, and we realize equally that our brother is in a difficult position to cross examine. We do not desire to take any advantage of the situation.

‘The Court: Then her testimony may be stricken.’

The verdict, against the plaintiff, was rendered on April 23, 1935. On May 10, 1935, she made a motion for new trial, and attached thereto the affidavit of one Dr. Byers, relative to the condition of Miss Miller, which in part stated: ‘That said Metta Miller, with deponent's knowledge and approval, has gone into the country to rest and recuperate, and so far as possible regain her health and strength, and that it is the opinion of deponent that said Metta Miller, in the event a new trial is granted in the above entitled cause, will be able to give her testimony as to the facts and circumstances surrounding the accident referred to in plaintiff's declaration in said cause, either by way of deposition or, possibly, by her personal appearance in court.’

The trial judge, in denying the motion for a new trial, stated: ‘From this record, it will be seen that no objection was made at the time, to the striking out of Miss Miller's testimony. She had testified in part, and there were other eye-witnesses who testified in behalf of the plaintiff as to the manner in which the accident occurred.’

A motion for rehearing on the motion for new trial was filed by plaintiff on June 14, 1935, based upon the deposition of Miss Miller, taken on June 3, 1935, in the office of one of plaintiff's counsel, in the Grand Rapids Trust Building, in Grand Rapids. Attached to the notice of taking such deposition was another affidavit of Dr. Byers, dated May 24th, in which he stated: ‘That said Metta Miller is sick and suffering from a nervous disorder, and said Metta Miller is not now and in affiant's opinion will not be physically able to appear in court as a witness in the trial of any lawsuit and, further, that her nervous condition is such that it would jeopardize her health and, possibly, her life, for her to appear in court as a witness.’

The deposition of Miss Miller covers more than 20 pages of the record, and sets forth, in the main, her version of the accident. The deposition ends with the...