Bilakos v. Kelley

Brooke, J. (after stating the facts). The assignments of error are ten in number. 1. The first is based upon alleged error of the court in denying defendants’ motion for a directed verdict. We are of opinion that this motion was properly denied and that the issue raised by plaintiff’s testimony upon the controlling facts was properly one for the determination of the jury. 2. Error is assigned upon the denial of the motion for a new trial. With reference to this the court said: “The proposed newly discovered evidence is simply and solely cumulative and is upon a question that is not seriously disputed and is not of any great force in the case. With the testimony in, there is not any reason why the verdict should be any different.” With this conclusion we agree. 3. 4, 5. These assignments are based upon the refusal of the court to give the first, second and third [130] requests to charge preferred by the defendants. Each request if given would have amounted to the direction of a verdict for defendant and as we have seen they were all properly refused. 6. Error is assigned upon the court’s refusal to give defendants’ eighth request: ‘T further charge you that you are (not) to take into consideration the financial condition of the plaintiff, or the financial condition of the .defendants, William Kelley and Socrates Kelley, during your deliberations or in arriving at your verdict.” This request was properly refused for the reason, inter alia, that the record is absolutely barren of any evidence upon the question. 7. Error is assigned with reference to the charge of the court upon the weight to be given to the mortality table which had been introduced by plaintiff. Upon this point it is urged that the mortality tables Were inadmissible in the case for any purpose. There can be no question that the loss of two fingers amounts to a permanent injury; in some measure, at least, impairing plaintiff’s earning capacity. In such cases the tables, are admissible. Mott v. Railway Co., 120 Mich. 127; Sax v. Railway Co., 125 Mich. 252; Foster v. Village of Bellaire, 127 Mich. 13. 8. 9. These assignments of error are based upon alleged improper admission of testimony. They are not argued and will therefore receive no consideration. 10. The admission of exhibits 5, 6 and 7, the Detroit city directories for 1911, 1912, and 1913, is assigned as reversible error. We are of the opinion that these directories were not competent to prove who constituted the copartnership known as the Olympia Baking Company, in May, 1913, when plaintiff received his injury. Tichenor v. Newman, 186 Ill. 264; Whiton v. Insurance Co., 109 Mass. 24; Spalding v. Hodges, 2 Pa. St. 240. We have examined this record with [131] care and can find no testimony (if said exhibits are excepted) tending to show that William Kelley was interested in the copartnership owning and operating the Olympia Baking Company at the time of the accident. On the contrary, the evidence of both defendants, Socrates Kelley and William Kelley, as well as the bill of sale introduced in evidence, proves most convincingly that William Kelley did not acquire his interest in the partnership, Olympia Baking Company, until October 31, 1914. Under these circumstances, the learned trial judge should have directed a verdict, in favor of defendant William Kelley, as he was requested to do at the close of the testimony. The judgment is reversed as to defendant William Kelley, who will recover his costs against plaintiff, and affirmed as to the other defendants, against whom plaintiff will recover costs. Osteandee, C. J., and Bied, Moore, Steeee, Fellows, Stone, and Kuhn, JJ., concurred.