Greene v. Richer, 130

• Decision Date: 08 December 1936
• Docket Number: No. 130,October term, 1936.,130
• Parties: GREENE v. RICHER.
• Court: Michigan Supreme Court

278 Mich. 1

270 N.W. 194

GREENE

v.RICHER.

No. 130, October term, 1936.

Supreme Court of Michigan.

Dec. 8, 1936.

Action by Leland J. Greene, administrator of the estate of Edward Dubord, deceased, against Walter Richer and Walter Richer, sole owner, doing business under the assumed name of the Delta County Bottling Works. From a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from Circuit Court, Delta County; Frank A. Bell, Judge.

Argued before the Entire Bench except POTTER, J.

T. J. Rushton, of Escanaba, for appellant.

McGinn & Kueber, of Escanaba, for appellee.

BUTZEL, Justice.

Plaintiff, as administrator of the estate of Edward Dubord, deceased, brought suit against Walter Richer, doing business as the Delta County Bottling Works, at Escanaba, Mich. On October 10, 1935, a customer of defendant required a quarter barrel of beer. Vincent Corcoran, who had previously done some work for defendant, was present at the latter's establishment. As no beer was on hand at the time, Corcoran went to the Johnson Tavern and obtained a temporary loan of the beer. Later in the afternoon, after a quantity of beer had been delivered to defendant's place of business, Corcoran undertook to return the quarter barrel to the Johnson Tavern. He left defendant's place of business about 6 o'clock in the evening. He used defendant's old motorcar which had defective brakes and no headlights although it had parking lights. While driving at the rate of about 30 miles an hour along Stephenson avenue, which had a width of a little over 56 feet, Corcoran, in order to pass a car in front of him, drove to the left of the center of the street. It had become very dark at this particular point and the car run into Edward Dubord and inflicted such severe injuries as to cause his death two days later.

Defendant offered testimony showing that at the time of the accident Corcoran was not in his employ; that he had no right or business to take the car; that, at most, he was an interloper; and that the car was not only driven without defendant's consent, but contrary to his express orders. There was testimony, however, that in a written statement made immediately after the accident, Corcoran stated he was working for defendant, also that defendant had acknowledged that Corcoran was working for him at the time of the accident and had permission to use the car. The question was properly one for the jury.

It is claimed that plaintiff's decedent was guilty of contributory negligence; that he was addicted to the excessive use of liquor; that twice he had been confined to an institution on that account and that an unopened bottle of liquor was found on his person at the time of the accident; that the odor of liquor was detected on his breath when he was brought to the hospital; that he was intoxicated on the day of the accident. Other testimony indicated that there was no evidence of intoxication immediately after the accident. There were no eyewitnesses of the accident except the driver and even if decedent had been under the influence of liquor, there was no showing, that such intoxication was a contributing cause of the accident. At the time of the accident, decedent was not working, but he expected to go to work the following day. He had been working quite regularly when work was to be had and earned $75 a month and sometimes slightly more as a common laborer. The question of contributory negligence was left to the jury under a very fair charge. Plaintiff recovered a verdict and judgment of $3,600.

Appellant contends that the verdict should be set aside because the attorney for plaintiff referred to the children of plaintiff's decedent after the court had expressly excluded such a reference. It was further claimed on a motion for a new trial that plaintiff's attorney placed four children of plaintiff's decedent together with three other children borrowed from neighbors behind the rail of the courtroom and in the closing argument to the jury, referred to them as wards of the state of Michigan, thereby bringing to the jury's attention indirectly what it is claimed he had attempted to do directly. The parties agree that under the...