Slattery v. Tillman

Brooke, J. (after stating the facts). Defendants, reviewing the case in this court, rely upon the following errors: “First. Error committed by the court in permitting plaintiff to show previous earnings of his car as a basis for damages, and refusal to strike out such testimony on motion. “Second. Error committed by the court in permitting plaintiff to offer evidence as to the custom of defendants’ garage. “Third. Error committed by the court in receiving testimony as to what was said by defendant Tillman concerning the careless and reckless driving of his son. “Fourth. Error committed in the charge of the court. Error committed by the court in not directing a verdict for the defendants.” First. As- a basis for recovering damages for the unlawful detention of the machine, plaintiff’s son was permitted to testify, over objection, to the fact that the car in question had been in use up to the day it was delivered to the defendants for repairs, and that it had earned in said month over $300, or an average of over $10 per day. Books of account were produced to verify the testimony of the plaintiff in this regard. It is the contention of defendants that this testimony was improperly admitted, and that it was an improper basis for the assessment of damages, because wholly speculative and conjectural, citing Aber v. Bratton, 60 Mich. 357 (27 N. W. 564); Dowagiac Manfg. Co. v. Corbit, 127 Mich. 473 (86 N. W. 954, 87 N. W. 886); Truman v. Machine Co., 169 Mich. 153 (135 N. W. 89). We are of opinion that the case at bar is readily distinguishable from those cited, and that it falls [355] rather within the reasoning of Allison v. Chandler, 11 Mich. 542, and Eitzen v. Hilbert, 165 Mich. 650 (131 N. W. 449). Second. Claud Roach, one of defendants’ employees and the man who was in the machine at the time of the accident, was permitted to give the following testimony over objection: “Q. What was the custom of Mr. Tillman’s garage for the time you had been working there as to trying out cars after they had been brought there for repairs ? “A. Usually if a clutch or anything of that kind, any vital part, is put in the car, it is tried out on the road to find out whether they were right or not. In order to test a clutch you have to have a rough or hilly road to find out whether it is transmitting the power. You would have to climb a hill or give it hard going.” There was no prejudicial error in the admission of this testimony. Third. We are unable to discover any objection or exception covering the eighth assignment of error. Fourth. It was and is the claim of defendants that they were entitled to a lien upon the car for the value of the labor and material expended in and about its repair after the accident, upon the theory that the defendant’s son in running the car up and down the hill for the purpose of testing the clutch was acting as the agent of plaintiff, through the request of plaintiff’s son and employee. We think it conclusively appears from this record that at the time of the accident the car was in the possession of the defendants, and that a request by plaintiff’s agent for a demonstration of the thoroughness and value of the repairs contracted for was a reasonable one. It seems to us clear that in acceding to the request for this demonstration, defendant’s son was acting within the scope of his employment, even though he was not specifically directed to perform said act by his masters, the defendants. The [356] jury by their verdict have found that there was no contract, either express or implied, between the parties by the terms of which the plaintiff either ordered or agreed to pay for the repairs in question, and under the conceded facts in the case we do not see how they could have well reached a different conclusion. It is the contention of the defendants that, the facts being conceded, the court should have directed a verdict in their favor as a matter of law. With this contention we are unable to agree. Inasmuch as the jury reached a proper conclusion under the charge submitting the question to them, it is unnecessary to determine that the plaintiff was entitled to the direction of a verdict upon all questions except as to the measure of damages. The judgment is affirmed. Kuhn, C. J., and Stone, Bird, Moore, Steere, and Fellows, JJ., concurred. Ostrander, J., did not sit.