Hilliker v. Jewel Ole & Gas Co., 50.
| Citation | 270 N.W. 158,277 Mich. 615 |
| Decision Date | 08 December 1936 |
| Docket Number | No. 50.,50. |
| Parties | HILLIKER v. JEWEL OLE & GAS CO. et al. |
| Court | Michigan Supreme Court |
On rehearing.
Former opinion 268 N.W. 285,277 Mich. 96, adhered to.
Appeal from Circuit Court, Muskegon County; John Vanderwerp, judge.
Argued before the Entire Bench, except POTTER, J.
George H. Cross, of Muskegon, for appellants Frank J. Marxer and H. Bruce March.
Irving H. Smith, of Grand Rapids, for appellee.
We granted rehearing and requested counsel for briefs on the following involved question not discussed in our original opinion, namely:
Whether on appeal, in a case tried without a jury, where motion for directed verdict had been made by defendant at close of plaintiff's proofs, this court, as a matter of practice, should pass decision on status of the case as when motion for directed verdict was made, or should we pass decision, as did trial court, on entire testimony and condition of pleadings at close of entire case.
If the former, the judgment will stand reversed; if the latter, then we must reverse our former decision and affirm the judgment below. This situation is extant, because, as we indicated in our first opinion, the testimony at the close of plaintiff's case did not make out an action of fraud; while the testimony at the close of proofs on both sides and the amendment of plaintiff's declaration then effected, did make an issue of fraud for determination.
3 Comp.Laws 1929, § 14265, provides (in part):
‘Actions at law tried by the court without a jury shall be tried and disposed of in the same manner, as near as may be, as are actions tried with a jury.’
It was the evident purpose of the Legislature in its enactment of the foregoing statute to in no way change the orderly practice then existent and to ‘as near as may be’ require nonjury cases to be ‘tried’ and ‘disposed of’ in the same manner as a jury case.
A motion for directed verdict or demurrer to the evidence is and has been a practice in jury trials.
By virtue of section 14265, supra, such practice becomes applicable to cases tried without jury.
But, argues appellee, there is no jury to direct. True, but strictly speaking, the motion for directed verdict is in effect a demurrer to the evidence (see § 14307, 3 Comp.Laws 1929). The court in directing a verdict makes a determination of questions of law.
In a trial without jury, the trial judge sits in a dual capacity. He occupies the same relation to the facts in the case as would a...
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Mitcham v. City of Detroit
...as suggested in the holding in Snyder v. Johnson has been recognized in numerous subsequent cases, including Hilliker v. Jewel Oil & Gas Co., 277 Mich. 615, 270 N.W. 158; Conant v. Bosworth, 332 Mich. 51, 50 N.W.2d 842; Manning v. Bishop of Marquette, 345 Mich. 130, 76 N.W.2d 75; Taylor v. ......
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Meier v. Holt
...N.W.2d 217. The situation in that regard is no different when the judge sits without a jury as trier of the facts. Hilliker v. Jewel Oil & Gas Co., 277 Mich. 615, 270 N.W. 158; Reedy v. Goodin, 285 Mich. 614, 281 N.W. The trial court here found that the second tortfeasor was guilty of negli......
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Turner v. Schmidt Brewing Co.
...of review on the record made at the close of plaintiff's case. In this connection, see decision on rehearing of Hilliker v. Jewel Oil & Gas Co., 277 Mich. 615, 270 N.W. 158 (decision Dec. 8, 1936). Judgment entered in the circuit court is reversed, with costs to appellant.FEAD, WIEST, BUTZE......
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