Jones v. Pendleton ( 1910 )

McAlvay, J.

No general statement of facts or of the history of this case is necessary. Both may be found in the former opinions handed down when it has been before us for consideration. To these decisions reference is had: Jones v. Pendleton, 134 Mich. 460 (96 N. W. 574); Jones v. Wayne Circuit Judge, 141 Mich. 408 (104 N. W. 692); Jones v. Pendleton, 148 Mich. 544 (112 N. W. 1140); Jones v. Pendleton, 151 Mich. 442 (115 N. W. 468). Plaintiff, Jones, died soon after the first trial of the cause in which an issue was joined upon the original declaration. The cause was revived and subsequent proceedings have been conducted in his name. Upon this first trial plaintiff was produced as a witness and his testimony was taken. The suit was brought upon a claim for certain commissions claimed to be due from defendant upon a sale of real estate. A judgment for plaintiff was reversed because of a modification appearing to have been made in the original contract, and which was not counted upon in the declaration. It was held by this court that an amendment of the declaration was permissible, and the court said:

“ Here the plaintiff has but one cause of action. He failed to properly describe it. The question here is whether the court has power to permit'plaintiff to amend his declaration so that he may recover on the precise cause of action for which he brought suit, but which he failed to properly describe in his declaration. We think it is clear that he [it] has that power — [citing authorities].” Jones v. Pendleton, 151 Mich. 444 (115 N. W. 469).

A new trial was granted. Upon such new trial, plaintiff, in order to sustain his contention, offered in evidence the testimony of his decedent given as a witness upon the first trial of the case; that being the only testimony he could produce. Defendant objected upon the ground that the issue before the court was a different issue from that before the court under the original declaration, that the amended declaration set forth a different cause of action, and the testimony was therefore incompetent and not admissible. The court so held, and, upon motion by defendant, directed a verdict in his favor. Exceptions were taken and errors assigned upon such ruling and the direction of a verdict. The case upon a writ of error presents this question alone.

The holding of the court in this case, as last above cited, turned upon the question that this was “the precise cause of action for which suit was brought;” but that it had not been properly pleaded, and upon that ground alone an amendment was allowed. In that case counsel for defendant contended for that doctrine, insisting that the amendment asked was not the precise cause of action for which suit was brought, and, although the court held that it was, it is insisted again upon this argument that it was not. This argument is based upon certain language of the court used in that opinion. That language was used with reference to what was stated in the pleading, not as to the determination of the court upon the crucial question in the case. Defendant relies upon the authority of Schindler v. Railway Co., 87 Mich. 414 (49 N. W. 670). There had been three trials in that case. The witness whose testimony was sought to be introduced on the third trial of the case by defendant had testified upon two trials; on the first, and also on the second trial after an amendment had been allowed to the declaration, charging that the negligence of the defendant’s servants was gross and wanton. Defendant offered the testimony taken upon the first trial. Plaintiff objected, claiming that the testimony taken on the second trial was admissible, but that taken on the first trial was not. The trial court so held, and the testimony taken on the second trial was read in evidence. This court held that this was not error, and stated that the issue made by the amended declaration was quite different, and further speaks of full cross-examination. But that was not the controlling reason for the holding. The court said:

“We have looked into the record here containing the testimony of Luke Sweet on the first trial, and are satisfied that the defendant was not prejudiced by the court ruling it out. The testimony given by him on the second trial was as favorable to the defendant as that given on the first trial. In fact, it is substantially the same.”

The case is distinguishable from the case under consideration. The refusal to admit this testimony was highly prejudicial. Under the holding of the court that this was the precise cause of action for which suit was brought, it follows that the testimony should have been admitted.

The court was therefore in error in excluding it. The judgment is reversed and a new trial ordered.

Blair and Stone, JJ., concurred with McAlvay, J.