Welch v. Ware

• Citation: 32 Mich. 77
• Court: Supreme Court of Michigan
• Decision Date: 27 April 1875
• Parties: Charles M. Welch v. George Ware

32 Mich. 77

Charles M. Welch v. George Ware

Supreme Court of Michigan

April 27, 1875

Heard April 23, 1875

Error to Superior Court of Detroit.

Judgment affirmed, with costs.

Moore & Griffin and Hoyt Post, for plaintiff in error.

Van Dyke & Brownson, for defendant in error.

OPINION

Campbell, J

Ware recovered judgment for damages against Welch for an assault and battery committed Febuary 16, 1874. The declaration, besides setting out various immediate items of injury and suffering and expenses, averred a hindrance in his affairs and business, and a loss of profits which he would have derived from his occupation and business as a theatrical performer.

There was considerable conflict as to the exact incidents of the assault, upon which several witnesses appear to have been examined,--no important testimony on that head, however, being inserted in the bill of exceptions, except that of plaintiff and defendant.

Welch is owner of a theater in Detroit, and plaintiff and his wife had concluded an engagement on the 14th of Febuary, which was Saturday. During the week before the assault, a charge seems to have been made against another actor, of a felonious assault upon a young child, performing in the theater, for which he was arrested. The child, although in his charge and bearing his name, appears not to have been his own. There is evidence of various transactions bearing on alleged attempts or measures to get this man out of the country, in which there was conflicting testimony concerning the complicity of both parties to this suit, and similar conflicting testimony concerning their attempting to get the child out of the way to prevent the prosecution.

On Monday, Febuary 16, Welch appears, or is claimed to have got a suspicion that Ware had been engaged in stirring up the difficulty for the purpose of getting the child, who was an attractive performer, away from Welch's theater, and not in good faith. That evening he sent for Ware to come over to a saloon near the theater, and on his arrival an altercation followed, on which the testimony clashes. As the case was put to the jury upon the differing claims of the parties, they must have found that Welch made an assault upon Ware without adequate provocation, whereby the latter received serious injuries, and was for a time disabled from following his business. It appears that Ware and his wife have been in the habit of performing in joint engagements. Some of the questions upon damages grew out of this.

Objections were made upon the reception of testimony, and upon the charges of the court. Upon some of the questions the points can be disposed of together; and upon some of the rulings the previous decisions of this court will render extended comments unnecessary.

Upon the loss of time and professional gains, the objections to testimony apply to proof of the sum he was paying per week for the board of himself and family, and of the value of the joint services of himself and wife, and of the proportion which his services were worth. Objection was also made to the estimate of witnesses, as not local, and as indefinite, and to the charge of the court, leaving indefinite testimony to the jury. Also to proof of actual engagements, and the amounts earned under them.

We think the objection that such proof was not within the declaration, if otherwise competent, cannot be maintained. This subject was very fully discussed in Chandler v. Allison, 10 Mich. 460, and Allison v. Chandler, 11 Mich. 542. where the admissibility of a great variety of circumstances was upheld, as explaining the various ways in which profits had been diminished. It is necessary to inform the jury as thoroughly as possible concerning all the circumstances and business surroundings of the plaintiff. Unless they know his expenses and value of his earnings, they will lose information of the first importance concerning the extent of his pecuniary damage. It was held in those cases that inability to compute these with accuracy, is no reason why the jury should not get such information as may be had; and that a wrong-doer must bear the risk, if there is any, of not reaching an exact result, because it is not the plaintiff's fault that the inquiry has become necessary. Where no better means can be had, the jury must use their best judgment, and it is to be presumed that counsel will urge before them all considerations which will aid them in avoiding injustice.

So far as this joint engagement is concerned, the charge of the court confined the right of recovery to Ware's own share of the earnings. This was favorable enough. There is no rule which would necessarily determine that the husband is to enjoy no more than such a proportion, and it would not be strange or unreasonable if a wife should abstain from any engagements away from her husband. The defendant below was not damnified by any of these rulings.

Evidence of the actual gains and engagements of a plaintiff, in actions of tort, is held admissible, as one means of reaching his probable profits and losses, in the cases before cited. And inasmuch as this actor's business was not local, but extended generally over the country, the opinions and proof of value could not be confined to Detroit or any other locality.

Upon the question of allowing damages from loss of probable gains, and the means of estimating them, see also Gilbert v, Kennedy, 22 Mich. 117; Burrell v. N. Y. & Saginaw Solar Salt Co., 14 Mich. 34. And for limitations on this subject see Allison v. Chandler, supra, and Warren v. Cole, 15 Mich. 265.

For the construction applicable to allegations of damages, see the cases before cited, and Johnson v. McKee, 27 Mich. 471.

Objection was made to allowing Ware to explain why he tried to get the child away. The assault grew out of this very subject, and Ware had sworn to various measures which he claimed to have taken at Welch's request, or in concert with him. This testimony was relevant as explaining the surrounding circumstances, and as bearing upon the alleged provocation to the assault. If the parties had been doing as Ware says they did, it would have indicated not only that Ware had not injured Welch, but also that Welch had no sufficient cause for supposing he had. The force of all this evidence was for the jury to measure.

In this connection complaint is made of two charges given at the request of counsel for plaintiff below, as follows:

"3d, That in determining whether Welch heard that plaintiff was endeavoring to abduct Baby McDonald, and believed he was so endeavoring, the jury ought to regard the circumstances that Ware wrote, and went with Welch to send a telegram to the child's mother; that Welch and Ware understood that the child had been placed in the Home of the Friendless; that Welch admits that he advised McDonald, if guilty, to flee, and that he admits that a few hours after that advice he gave Ware thirty dollars for McDonald;

"4th, That it was not Welch's duty to protect Baby McDonald; and the fact that he admits that he did not know where she was from Friday, the day of her father's arrest, until after the assault upon Ware, is a circumstance which the jury ought to consider in determining whether his assault upon Ware was prompted by solicitude for the welfare of the child."

It had been shown by a witness that the child was at the Home of the Friendless from February 14 till February 20. Although this was objected to, we cannot conceive any reason for excluding it. The whole claim in mitigation of damages turned upon this child, and what had been done, or intended to be done about her custody and removal. The fact that she was taken to the Home of the Friendless was drawn out first by the questions of defendant's counsel in cross-examining Ware. The bill indicating that no objection was made at the time, that these charges were not based on undisputed facts, and that the exception was general, and the absence of the testimony of all the witnesses but the parties depriving us of any means of determining the truth, we cannot assume the allegations were unwarranted. The line of defense tends to show the contrary, as far as it bears on the question of probabilities.

It is claimed the charges are inconsistent. But we think not. It is quite possible that Welch supposed the child was at the Home of the Friendless, and that he actually knew nothing about it. The fourth charge is based on the argument, that if he had the solicitude which he claimed, he would have seen for himself and known her whereabouts, and should have had knowledge beyond information.

We think the...