Swank v. Croff

• Decision Date: 28 March 1929
• Docket Number: No. 32.,32.
• Parties: SWANK v. CROFF et al.
• Court: Michigan Supreme Court

245 Mich. 657

224 N.W. 393

SWANK

v.CROFF et al.

No. 32.

Supreme Court of Michigan.

March 28, 1929.

Error to Circuit Court, Kent County; Wm. B. Brown, Judge.

Action by Hazel Swank against Jhial Croff and David Moote. Judgment was rendered for plaintiff against defendant Croff, and in favor of defendant Moote, and plaintiff brings error. Affirmed.

Argued before the Entire Bench.Peter J. Danhof and Irving H. Smith, both of Grand Rapids, for appellant.

William J. Branstrom, of Fremont, for appellee Moote.

TOTTER, J.

Plaintiff sued defendants for malicious prosecution and false imprisonment. There was judgment for plaintiff against defendant Croff, and judgment for defendant Moote. Plaintiff brings error.

Defendant Croff, at the time the cause of action is said to have arisen, operated a dance hall in the vicinity of Ensley Center, Newaygo county. There had been disturbance there by reason of intoxication of frequenters of the place. On the night in question, when plaintiff was there, a deputy sheriff of Newaygo county was in attendance. On account of parties being drunk and disorderly, the deputy called defendant Moote, sheriff, who, with another deputy, visited the place. Some arrests were made. Defendant Moote made inquiry as to who had caused the disturbance. He told Croff, unless he cleaned up the place, he (the sheriff) would. It is claimed reference was made to people living in different localities, as the ‘Grand Rapids bunch’ and others.

Plaintiff called defendant Moote, as well as defendant Croff, for cross-examination under the statute (section 12554, Comp. Laws 1915). Such witnesses were thereby made witnesses of plaintiff, and plaintiff is bound by their testimony, except in so far as such testimony is disputed. Under the statute the plaintiff is not estopped from disputing the testimony of the opposite party, called on cross-examination, by reason of having called him and made him a witness for himself; but, in the consideration of the testimpny of the opposite party, she cannot select isolated portions of that testimony, and claim a force and effect for it which the whole testimony of the witness does not warrant. Jones v. Pere Marquette Railway Co., 168 Mich. 1, 133 N. W. 993; Cook v. Michigan Central R. R. Co., 189 Mich. 456, 155 N. W. 541;Steele v. City of Ionia, 209 Mich. 595, 177 N. W. 259;O'Dell v. Day, 214 Mich. 566, 183 N. W. 17;Waller v. Sloan, 225 Mich. 600, 196 N. W. 347.

Defendant Moote testified he did not, prior to receiving a warrant for plaintiff's arrest, know anything about her, and did not know she existed, and gave no directions to defendant Croff to make a complaint against her, but told him he should make a complaint against the parties who had been intoxicated at the dance hall and made the disturbance. Defendant Croff made inquiry as to who the persons were who had made the disturbance, and went to White Cloud, the county seat of Newaygo county, and in the absence of defendant Moote, and without his knowledge, laid the facts before the prosecuting attorney of the county, who, with a justice of the peace, looked after making the complaints and issuing the warrants. These warrants were placed in the hands of defendant Moote. He made inquiry as to where defendants named therein lived, and subsequently they were brought to White Cloud; an investigation was made by defendant Moote; some of the parties arrested pleaded guilty; others were convicted upon trial in justice's court, and after appeal in the circuit court. Plaintiff was dismissed without trial. Croff's testimony is relied upon as being contradictory of that of defendant Moote. Croff testified:

‘I told him there had been different ones coming there, and kind of causing a little disturbance, and stated the case to him that I wanted to get the place cleaned up.

‘Q. You didn't mention any names, did you? A. No, sir.

‘Q. All right; what did he tell you? A. Well, he told me to find out the names, and come over there and swear the warrants out, and he would look after it and take care of it.

‘Q. He told you that he could not carrest anybody without a warrant? A. He said I would have to make a complaint in the case.

‘Q. He told you you would have to come over to White Cloud and make complaint of the parties that were disturbing the peace over there? A. Yes, sir.

‘Q. You didn't know who the parties were at that time, did you? A. No, sir.

‘Q. And he told you that, unless you cleaned out that place over there, he would go before the town board and see that your license was revoked? A. Yes, sir.

‘Or did he...