Logan v. Agricultural Society

Grant, J. {after' stating the facts). There are 57 assignments of error, which are referred to, and some argued, in the defendant’s brief under 22 heads. We will discuss and determine those which we deem of sufficient importance. 1. Does the declaration state a cause of action ? Counsel insist that it does not state, with accuracy and certainty, any duty defendant owed to the plaintiff. While the pleader might have alleged the duty, and the neglect of duty, more accurately and specifically, yet, in the ab — 541 — sence of a demurrer, and in the presence of a plea of the general issue, we think the declaration stated a case. It alleges the duty to exercise proper care in construction. It alleges the defects. It alleges its duty to inspect. It sets forth the facts from which the violation of this duty may be properly inferred. An allegation that the defendant would have seen the defect if it had performed its duty of inspection clearly implies that the duty was neglected. 2. The defendant is not a charitable or eleemosynary institution. While its apparent purpose is the advancement of agriculture, and it is not designed to make money for its stockholders, its purpose is to make money for carrying on its business; and, when it invites the public to seats upon platforms which it has constructed to enable its patrons to witness games, sports, and races, it is under the same obligation to exercise due care in the erection and maintenance of such places as though it were a private corporation. The case does, not fall within the rule of Downes v. Harper Hospital, 101 Mich. 555 (25 L. R. A. 602), and Pepke v. Grace Hospital, 130 Mich. 493, but within Scott v. University Athletic Ass’n, 152 Mich. 684 (17 L. R. A. [N. S.] 234), and Dunn v. Agricultural Society, 46 Ohio St. 93 (1 L. R. A. 754). 3. Error is assigned upon the refusal of the court to order an examination of the plaintiff by the defendant’s physicians. Plaintiff claimed an injury to her spine and sexual organs. A notice was given to take the deposition of the plaintiff at her home, on the ground that she was unable to attend the trial. After that notice was served, defendant filed a petition asking for an order that two physicians named be permitted to examine the plaintiff. In reply to this petition, the affidavit of her physician was produced to the effect that she was confined to her bed as a result of the injury, that she was weak and extremely nervous, and that in his judgment the physical examination prayed for in the petition would be disastrous, and would have a tendency to greatly increase her nerv-1 — 542 — ous disorder and prevent her recovery. The court filed an opinion denying the application on the strength of the affidavit of her physician. These examinations rest in the sound discretion of the trial court. Graves v. City of Battle Creek, 95 Mich. 266 (19 L. R. A. 641); Strudgeon v. Village of Band Beach, 107 Mich. 496; 14 Cyc. p. 365. We do not think the court abused his discretion, especially in view of the fact that a physician, on behalf of the defendant, was present when her deposition was taken, and testified upon the trial, and that defendant’s other physician examined her at the time of the injury. All the circumstances connected with the refusal were in evidence, and the court, upon this point, instructed the jury as follows: “If you find that the defendant’s doctors were not given a fair and reasonable opportunity, both or one of them, to examine or see plaintiff, and to make a modest and reasonable investigation for the purpose — and in good faith — of making an examination for the purpose of ascertaining her condition of health and the character and extent of her injuries, if any, then you should take this as against the plaintiff, and have the right to infer that such investigation would not be favorable to her claim in this case. * * * Furthermore, you should consider carefully all the testimony in the case upon that subject, and say whether she has refused at all times or not, and whether those refusals have been reasonable or not. And if not, you have a right to consider it as a circumstance against her to that extent; but, if her reasons seem to be good and adequate in your judgment for doing as she has done under the circumstances, then, of course, it would not be considered by you as of any force or effect against her. You may consider all of the evidence upon that subject in determining what the real situation is.” We see no occasion to disturb the ruling of the court. 4. It was not error to permit plaintiff’s physician to testify that in his opinion the plaintiff’s injury was attributable to the fall. 5. It is insisted that the defendant had performed its duty in regard to inspection. That it employed compe — 543 — tent men to inspect these bleachers before the opening of the fair is established, and the court so instructed the jury. The patrons of the defendant did not assume a careless and negligent inspection by a competent inspector. There is no question here of fellow-servants. The defendant’s duty toward the plaintiff, who was invited upon its premises, and had - paid a consideration for admission and a seat, was not only to employ a competent inspector, but to see that the competent inspector did his duty. These inspectors testified to what they did; one that he walked under the seats looking at the structure to see if he could detect defects, the other that he walked up- and down on the seats between the risers, testing them by jumping up and down upon them. Opposed to this is the fact that the seat broke with a person sitting on it weighing only 143 pounds; that the ends were so rotten that they pulled out of the nails, and that the rottenness, according to the plaintiff’s witnesses, was apparent on the underside of the plank. The question of a sufficiently careful inspection was properly submitted to the jury. 6. It was not error to refuse to permit the defendant’s president to testify that the people managing the defendant association were farmers. There is not one degree of care required by farmers erecting bleachers and grandstands for their patrons, and another for merchants and mechanics, or any other class of persons. The same degree of care is required of all. 7. John 0. Zabel, one of the attorneys for the plaintiff, volunteered as a witness in her behalf, and was asked to relate a conversation he had with Mr. Smith, the attorney trying the case for defendant, in reference to a physical examination of plaintiff by a physician. The conversation referred to occurred before suit was brought. The witness was asked whether Mr. Smith in th'at conversation said that he was acting in behalf of the defendant. Of course agency cannot be proved by the declaration of the agent. Objection was made, which the court sustained, the court suggesting that plaintiff could have Mr. — 544 — Smith sworn to ascertain whether he was representing the company at that time. Plaintiff’s attorney then called Mr. Smith as a witness, against his objection and protest. Mr. Smith testified that he called at Mr. Zabel’s office in Toledo in response to a letter written to the defendant in regard to the claim of Mrs. Logan for damages, that he was asked to go there by the president of the defendant, and that it was not at that time contemplated that they were going to have a lawsuit, and that he (Smith) went to see what the claim was. Mr. Smith was then also asked to state the conversation about an examination. He testified that he asked Mr. Zabel if he would have any objection to a physician, representing the company, examining Mrs. Logan, and that Zabel replied that he “didn’t know whether he would or not.” The court then asked Mr. Smith if he desired to cross-examine the witness. Mr. Smith again objected to the proceeding, saying that it was embarassing and very improper practice. The court said it was proper. To this Mr. Smith took an exception, and the court remarked: “I cannot indulge any criticism on the ruling.” To this remark defendant excepted. Mr. Zabel then took the stand, and testified that he told Mr. Smith there would be no objection to an examination of the plaintiff by a physician for the defendant, provided that plaintiff’s physician was present at the time, and that he told Mr. Smith to make arrangements for such examination and notify Dr. McDonald so that he could be present. This proceeding on the part of the court and counsel for plaintiff is alleged as prejudicial error. In calling Mr. Smith, plaintiff made him her own witness. If it was necessary to show that Mr. Smith was then acting as the attorney for the defendant, it was entirely proper to call Mr. Smith to prove the fact. Counsel went beyond the suggestion of the court, and asked what the conversation was. He then took the stand to impeach Mr. Smith by denying Mr. Smith’s statement and giving his own version of it. The objection made by Mr. Smith upon the trial, and also here, is that the proceeding tended to make — 545 — him appear ridiculous before the jury, and weaken his standing and argument before them. We can hardly concur in this view. The case was being tried in a community where Mr. Smith was well known, and where his reputation was good. We think that such proceeding would tend to injure the standing of the attorney who caused it, rather than the standing of the attorney forced into the proceeding by the order of the court. The remark of the court appears to have been uncalled for. We do not, however, think that the entire proceeding was of sufficient importance to justify a reversal of the case. Judgment affirmed. Grant, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.