Runnells v. Village of Pentwater

• Decision Date: 26 May 1896
• Citation: 109 Mich. 512,67 N.W. 558
• Court: Michigan Supreme Court
• Parties: RUNNELLS v. VILLAGE OF PENTWATER.

67 N.W. 558

109 Mich. 512

RUNNELLS v. VILLAGE OF PENTWATER.

Supreme Court of Michigan

May 26, 1896

Error to circuit court, Oceana county; Fred J. Russell, Judge.

Suit by Henry Runnells against the village of Pentwater. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Hartwick & Foote, for appellant.

Evans &amp Gale, for appellee.

GRANT J. (after stating the facts).

1. Error is assigned upon the introduction of a receipt for $43.75, dated May 4, 1895, and signed by the village clerk and accompanied with an application for a license to run a ferry. It also certified that, at the time of receiving the money and application from plaintiff, the common council had not drawn any contract setting forth the rules governing the running of the ferry, or designating the amount of the bond to be given by the applicant. It is urged that this receipt did not tend to establish the right in which he claimed to be disturbed, since he claimed no license. Counsel for the plaintiff stated that their object in introducing it was to show that the common council had not provided any bond or contract to rule and govern the operation of the ferry. Limited to this purpose, we do not see how its admission could have prejudiced the defendant.

2. Plaintiff gave testimony as to the location of the ferry slips, and testified that he knew the location, "because he had Mr. Grant survey it, and saw him drive a stake, and Mr. Mears and Mr. Russell showed him where the corner of the block was." This testimony was received without objection, and afterwards the defendant's counsel made a motion to strike it out, which was refused. No reason was given for the motion, and it cannot, therefore, now be considered, under the rule in Rivard v. Rivard (Mich.) 66 N.W. 681 and authorities there cited.

3. The court instructed the jury that "damages will not be mitigated or lessened by proof that the owner of the scow after it was willfully unfastened and cast adrift, had neglected to take any such measures as were in his power to recover and secure it." It is claimed that there is nothing in the record to show that the scow was willfully unfastened and cast adrift, and the case of Montgomery v. Booming Co., 88 Mich. 644, 50 N.W. 729, is cited to support the contention. In that case nothing was done with the evident purpose of accomplishing the result which followed. In this case the act was done deliberately and...