Labar v. Crane

• Decision Date: 06 May 1885
• Citation: 23 N.W. 323,56 Mich. 585
• Court: Michigan Supreme Court
• Parties: LABAR v. CRANE.

23 N.W. 323

56 Mich. 585

LABAR v. CRANE.

Supreme Court of Michigan

May 6, 1885

Error to Kalamazoo.

CAMPBELL J., dissenting.

Geo. M. Buck, for plaintiff.

Howard & Roos, for defendant and appellant.

COOLEY C.J.

This case was once before in this court, and the decision is reported in 49 Mich. 561; S.C. 14 N.W. 495. On a retrial the plaintiff recovered judgment for $500 against the defendant Crane, and the other defendants were acquitted. Crane brings error.

1. The action was brought to recover damages for malicious prosecution. At the time of the trial one Allen, who as justice had issued the warrant by which the prosecution was begun, was beyond the jurisdiction of the court, and the plaintiff offered to put in evidence his testimony given on the first trial. For this purpose he called the stenographer who took the testimony, and he testified that he had it present with him, and that it was correctly taken. The plaintiff then offering to read it, the defendant objected on the ground that he had since that trial taken the deposition of Allen in the case, by consent of the plaintiff, and had it then present in court. The fact was conceded by the plaintiff, but he insisted upon his offer of the former testimony, and the court received it.

Whether the deposition of Allen taken by the defendant covered the whole ground of his former testimony, or was restricted to some one part or branch of it, and whether the plaintiff appeared on the taking of it to cross-examine him do not appear in the case. It may be that the deposition was only supplementary and complemental to the former testimony, or was taken to bring out on the part of the defense some one point not sufficiently presented or explained before. In such a case it would be clear that the deposition would not exclude the reading of the former testimony. But we are not satisfied that it should be excluded if the deposition had been shown to cover the whole case. The plaintiff had examined the witnesses in open court, with full liberty of cross-examination, and if the defendant on his own part had examined him with equal fullness afterwards, there would seem to be no good reason why each party should not be at liberty to put in evidence the testimony he had taken. It may be said that the deposition would be most likely to be taken down with accuracy, and this would be fair matter of argument if the two were found to differ; but we do not think the defendant could exclude the plaintiff's right to put the evidence he had taken before the jury by subsequently retaking it on his own behalf.

2. The plaintiff, in order to show that he was damnified by the arrest and imprisonment on the criminal charge, testified that he had employment offered, which he did not accept because of being detained. As evidence of this he produced a letter which he testified he received from his son, who was at the time general freight agent of the Chicago, Saginaw & Canada Railroad Company. The letter speaks of one of the employes of the road talking of retiring; says, "if you want the position, please come to St. Louis so as to commence on the twenty-fifth inst.; will hold it open until then." And it inclosed a pass over the road for him. The defendant objected to the reception of the letter in evidence, but it was received; and this is relied upon as error. No proof was given in the case that the son was empowered by the company to offer the plaintiff the employment.

The defendant requested of the court no instruction in respect to this letter, or as to the use which the jury might make of it, but relied upon its being inadmissible for any purpose. It certainly did not prove, or tend to prove that the plaintiff had lost an opportunity for employment. But we cannot say that there was any error in receiving it in...