Pelton v. Schmidt

• Citation: 104 Mich. 345,62 N.W. 552
• Parties: PELTON v. SCHMIDT ET AL.
• Decision Date: 19 March 1895
• Court: Supreme Court of Michigan

104 Mich. 345
62 N.W. 552

PELTON
v.
SCHMIDT ET AL.

Supreme Court of Michigan.

March 19, 1895.

Error to circuit court, Kent county; William E. Grove, Judge.

Action by James H. Pelton against Charles Schmidt and others to recover for personal injuries. From a judgment for plaintiff, defendants bring error. Reversed.

For former opinion, see 56 N. W. 689.

[62 N.W. 552]

Henry J. Felker (Albert Crane, of counsel), for appellants.

McGarry, McKnight & Judkins, for appellee.

HOOKER, J.

A statement of the principal facts in this case will be found in the opinion filed upon a former review of the case, reported in 97 Mich. 231, 56 N. W. 689. Upon a second trial the plaintiff testified that he had been in the habit of going through defendants' store from the back door to the desk, or other places in the store, to get his book receipted, after delivery of goods at the rear of the store, where he had been directed to leave them at all times. One or more other truckmen gave similar testimony. His counsel now claim that this evidence brings the case within the rule stated in the former opinion. Upon the first trial there was no evidence tending to show any express or implied invitation to enter the store from the rear. The plaintiff testified that he had never been in the store from that way before the occasion of his injury, and it appeared from other testimony that it was the intention of the defendants to have the goods inspected and receipted for at the back door, when delivered. Defendants' counsel contend that the plaintiff is concluded by his former testimony, and that he should not be allowed to recover by reason of evidence flatly contradictory of his former testimony. Decisions of this court in cases brought here by writ of error are conclusive upon the parties, so far as the law is concerned, whenever the same state of facts is presented; but upon different facts other principles may apply. If parties change their testimony, the jury may properly consider the fact; but it is not for this court to say that a party must stand or fall by his former testimony, where there is any legitimate opportunity for a

[62 N.W. 553]

change in the testimony. It may, perhaps, be said that there was no such opportunity here, but by ordering a new trial this court relegated the subject to the jury. The important question is whether the trial court should have held that the evidence conclusively showed that the plaintiff was a trespasser, or at most a mere licensee. The record shows that...