Grenawalt v. Nyhuis

335 Mich. 76 (1952)

55 N.W.2d 736

GRENAWALT v. NYHUIS.

Docket No. 68, Calendar No. 45,566.

Supreme Court of Michigan.

Decided December 9, 1952.

Rehearing denied January 15, 1953.

Balgooyen, Parmeter & Forsythe, for plaintiff.

Alexis J. Rogoski and Robert Bunker Rogoski, for defendant.

CARR, J.

Plaintiff, a resident of the county of Muskegon, brought suit in the circuit court of said county to recover damages claimed to have resulted from the negligence of an employee of defendants. The declaration alleged that on the 24th of September, 1949, the defendants Nyhuis and Parent were operating a beauty shop in the city of Muskegon, that they had in their employ an operator named Betty Mertz, and that in giving plaintiff a machineless permanent wave the said employee failed to use reasonable care, as a result of which plaintiff's head was severely burned. Plaintiff alleged further that because of said injury she suffered great physical pain, became extremely nervous, was unable to sleep, and lost time from her employment in a store in Muskegon. She further claimed that her hair had *80 turned completely gray when she was 17 years of age, and that thereafter for a period of approximately 20 years it had been her practice to dye it, but that as a result of the injury claimed to have been caused by the negligence of Betty Mertz in giving her the permanent she could not with safety continue such practice, which situation resulted in causing her great humiliation and embarrassment. At the time of the trial in January, 1951, plaintiff was 38 years of age.

Betty Mertz, who was, the record indicates, a resident of Muskegon county, was joined in the action as a party defendant. No appearance was entered in her behalf, and the case was dismissed as to her on January 5, 1951, shortly prior to trial. Defendants Nyhuis and Parent admitted in their answer that on September 24, 1949, Betty Mertz was employed by them as an operator in their beauty shop, but alleged that she was not so acting in rendering to plaintiff the service in question. In consequence defendants denied that if Betty Mertz was negligent there was any liability on their part for damages resulting from her conduct.

On the trial of the case defendants moved for a directed verdict at the conclusion of plaintiff's proofs, claiming that under the evidence submitted she had not established her right to recover damages. The motion was denied. It was renewed at the conclusion of defendants' testimony and again denied. The jury returned a verdict for plaintiff in the sum of $2,000, and judgment was entered thereon. Motion for a new trial was made and denied. Defendants have appealed, alleging various errors on the part of the trial court.

Plaintiff's action was instituted by summons which was served on Betty Mertz in Grand Traverse county where she was at the time an inmate of the Traverse City State Hospital. The return showing *81 such service was duly filed. Thereafter defendants Nyhuis and Parent were served with process in Kent county where they resided. A motion was made in their behalf to set aside the service on the ground that it was invalid for the reason that defendant Mertz had not been served in Muskegon county. The motion was denied, and appellants assign error thereon. Court Rule No 18, § 4 (1945). Their claim is based on the language of CL 1948, § 613.27 (Stat Ann § 27.757) which reads in part as follows:

"All civil process issued from any court of record may be served anywhere within the State where the party upon whom service is to be made may be found, in the following cases: * * *

"2. When the process is issued out of a court at law, when the suit is brought in the county where the defendant, or 1 of the defendants if there be more than 1, resides; * * *

"4. In any suit brought upon any bond required by law to be filed in any probate court. When a personal transitory action at law is commenced in the county where the plaintiff resides, against a defendant or defendants residing without the county, service of process must be had in the county where the suit is commenced. If such service is had upon 1 defendant within such county, the remainder of the defendants may be served anywhere in the State: Provided, That nothing in this section contained shall be construed to abrogate or repeal any provisions of section 17 of Act No 82 of the Public Acts of 1873, the same being section 7282 of the Compiled Laws of 1897, relating to suits by receivers of mutual fire insurance companies for assessments levied by them."

No claim is made that the service on Betty Mertz in Grand Traverse county was invalid, but it is appellants' position that under the specific language of the statute, above quoted, service could not be had on them other than in the county of Muskegon prior *82 to the filing of proof of service on their codefendant in that county. We do not think that the suggested interpretation of the statute is consistent with the actual purpose of the legislature in its enactment. If accepted, the conclusion would follow that in a case of this character an actual appearance entered by a defendant residing in the county of venue without service of process, or an acknowledgment of service filed in the case, would be insufficient to permit service on other joint defendants without the county. The purpose of process is merely a means to an end, that is, the acquiring of jurisdiction over the person of a defendant. The actual service must be completed by the return of the writ, whereupon "the defendant shall be considered in court." CL 1948, § 613.21 (Stat Ann § 27.751). The language of the section of the statute specifically relied on by appellants must be read in the light of the purpose to be accomplished thereby, and in connection with other provisions relating to the subject matter. When so read, the statute, as applied to the facts of the instant case, made proof that the court had acquired jurisdiction over the person of Betty Mertz, with the consequent right to proceed as to her, a condition prerequisite to service on the other defendants in Kent county.

In considering the contention of appellants, the language of Court Rule No 8, § 8 (1945), is significant. Such rule provides, in substance, that a signed written acknowledgment of service of any process when filed in a cause shall have the same effect "as a return or other legal proof of service." See, also, Court Rule No 15, § 1 (1945). As before suggested, appellants' claim that jurisdiction over the codefendant could have been acquired only by personal service of process within the county as a condition precedent to service on other nonresident defendants outside the county of venue appears to *83 ignore the Court Rules, and likewise the effect of a general appearance entered by a home defendant under circumstances of the character involved in this case.

In discussing the requirements of an earlier statute of the State (CL 1871, § 5748) analogous to the section on which appellants rely, the Court said in Denison v. Smith, 33 Mich 155, 158:

"A defendant has the right to know from the record whether he is subject to the jurisdiction; and where it depends on a previous service on someone else, that can only be shown by the return of service, or by appearance."

The above language was quoted with approval in Allison v. Circuit Judge, 104 Mich 141, 146. In 72 CJS, p 1037, in discussing statutory requirements of the character here involved, it is said:

"A nonresident defendant can be served in the county of his residence only by making someone a party defendant who is jointly liable and over whom the court issuing the summons has jurisdiction."

See, also, New York Life Insurance Company v. Cherry, 185 Ark 984, 989 (50 SW2d 584). In the instant case the circuit court of Muskegon county unquestionably acquired jurisdiction over the person of defendant Mertz. Such being the case service of process on the defendants in Kent county was permissible, and the motion to set aside such service was properly denied.

Following the discontinuance of the case as to Betty Mertz, counsel for defendants Nyhuis and Parent filed a motion to dismiss on the ground that by such action the court had been ousted of jurisdiction, and that Betty Mertz had been joined as a party defendant in bad faith in order to confer jurisdiction on the court and to deprive defendants of "the advantage and benefit of being sued in the jurisdiction *84 in which they reside." The trial court refused to grant the motion. The claim of error was raised on defendants' motion for a new trial and rejected, the circuit judge indicating in his opinion that there was no showing of fraud on the part of the plaintiff. The record before us does not show what proofs were offered, if any, in support of the assertion that plaintiff acted in bad faith in joining Betty Mertz as a party defendant. Neither does it appear that the discontinuance as to her was actuated by any improper motive. Having acquired jurisdiction over the persons of the defendants, who had been served with process and had filed their answer prior to the making of the motion, we think that the court properly retained such jurisdiction. There was in consequence no error in the refusal to grant defendants' request to dismiss the action.

Appellants claim that their motion for a directed verdict should have been granted. It is argued that in giving the permanent to plaintiff, Betty Mertz was acting solely in her own behalf, and not as an employee of the beauty parlor. The proofs in the case indicate that, prior to entering the employ of the defendants Nyhuis and Parent, Betty Mertz had worked as a beauty operator for another employer, that she had rendered services to plaintiff that were not satisfactory, and that she undertook to give plaintiff a permanent on September 24, 1949, without charge, for the purpose of satisfying her. She discussed the matter with the manager in charge of the beauty parlor of defendants Nyhuis and Parent and obtained permission to carry out the agreement. Prior to her arrivel at the beauty parlor on the occasion in question, the manager had cut plaintiff's hair. It further appears that no statements were made to plaintiff that Betty Mertz was acting solely in her own behalf in giving the permanent. The manager testified that she advised as to the manner *85 in which the service should be rendered, but that her directions were not followed. It is obvious that permission to render the service, either for hire or gratuitously, might have been refused. Under the facts in the case plaintiff was fully justified in regarding Betty Mertz as the employee of defendants Nyhuis and Parent at the time of the alleged negligent conduct. Defendants' motions for directed verdicts in their favor were properly denied. The status of Betty Mertz on the occasion in question was a matter for the jury to determine.

On the trial of the case plaintiff called as a witness in her behalf a physician, a specialist in dermatology, who had treated her following the occurrence on which her cause of action is based. The witness testified that plaintiff had, when first examined on November 18, 1949, a dermatitis venenata behind the left ear, and that such ailment is an inflammatory condition of the skin resulting, as a rule, from contact. The witness further expressed the opinion that "there might be a causal effect or relationship" between the burn and the dermatitis. The question was then asked by plaintiff's counsel whether it would be safe for plaintiff, in view of the scalp condition, to use dye and tints upon her hair. To this question defendants objected. The objection was overruled, and the witness gave a negative answer to the question. It is the claim of the appellants that the testimony was improperly admitted for the reason that plaintiff's inability to dye her hair was not a proper element of damages. The testimony indicates that plaintiff had followed such practice for approximately 20 years. That she had the right to do so is not open to question. It was her claim that because of the negligence of Betty Mertz she was prevented from exercising such right, and that she was embarrassed and humiliated in her employment because *86 her hair was white. Appellants' claim that the ruling of the court was erroneous is not tenable.

Complaint is made that the trial judge committed prejudicial error by interrupting the argument of counsel to the jury. Our examination of the record brings us to the conclusion that the action of the judge was not improper, nor were the statements made by him of such nature as to be prejudicial. It is scarcely conceivable that what occurred during the argument was of such nature as to incline the jury in favor of the plaintiff.

Counsel for defendants requested the court to charge the jury as follows:

"If you find that the manager of the Nyhuis Beauty Salon on or about September 24, 1949, authorized Betty Mertz to give to the plaintiff a machineless permanent wave without cost to the plaintiff as an accommodation to Betty Mertz because of the plaintiff's dissatisfaction with a permanent wave which had been given to her by Betty Mertz while the latter was employed at another beauty salon, then I charge you that the plaintiff cannot recover in this case."

The requested charge was not given and error is assigned on the refusal. It was the position of the trial judge, as indicated in his opinion denying the motion for a new trial, that the evidence did not warrant the instruction. We are in accord with this conclusion. It clearly appears that the service was rendered to plaintiff by Betty Mertz because of express authority to that end granted by defendants' manager. Plaintiff was not advised at the time she went to defendants' beauty parlor to have her hair cut and to receive the permanent that Betty Mertz would render the latter service as a mere accommodation and solely on her own responsibility. Whether the relation of employer and employee existed at the *87 time, with reference to the permanent given to plaintiff, was properly submitted to the jury.

Defendants requested the court to charge that plaintiff was not entitled to recover damages for annoyance, discomfiture and humiliation suffered by her as the result of her inability to have her hair dyed or tinted. What is said above with reference to the admission of testimony to which counsel for defendants objected is applicable here. It was the right and privilege of plaintiff to dye her hair if she so desired, and if she was prevented from doing so as a result of the negligence of defendants' employee the question as to the extent of damage thereby sustained was for the jury to determine. The request was properly refused.

Appellants also claim prejudicial error because of the failure of the trial judge to give other requests in the form in which they were presented. We find, however, that some of such requests were substantially covered in the general charge, and that defendants' rights were fully protected thereby. Other requests were properly refused because not warranted by the evidence in the case. The charge of the trial judge fully and fairly presented to the jury the claims of the parties. Without going into the matter in greater detail, we find that appellants were not prejudiced by the failure of the court in not charging in accordance with the requests referred to in the assignments of error.

Defendants' motion for a new trial was based on alleged errors committed in the course of the trial and in the disposition of preliminary matters, and also on the ground of newly-discovered evidence. In support of such motion they submitted an affidavit by one of the appellants' employees, who worked in their beauty parlor from March, 1948, until the latter part of September, 1950. The affiant was again employed by defendants in January, 1951. It was *88 set forth in the affidavit that defendants' manager, shortly prior to September 24, 1949, called affiant's attention to the fact that plaintiff had a skin eruption behind her left car. The substance of the conversation between affiant and the manager was stated. Had affiant been called as a witness and been questioned concerning this conversation, an objection to its competency would doubtless have been interposed. Without reference thereto, however, it must be said that the motion for a new trial and the supporting affidavit failed to show that the testimony of Ruby A. Sharp could not, by the exercise of reasonable diligence, have been made available on the trial. The matters to which she referred in her affidavit must have been equally within the knowledge of defendants' manager who was a witness on the trial, but who was not questioned with reference to the claimed skin eruption on plaintiff's head. The trial court was not in error in denying the motion. Brackins v. Olympia, Inc., 316 Mich 275 (168 ALR 890); Beardsley v. Beardsley, 316 Mich 303; Cadillac State Bank v. Bishop, 331 Mich 174.

It is urged that the verdict of the jury was against the great weight of the evidence, and that the verdict was excessive. Our examination of the record brings us to the conclusion that neither claim is well founded. There is nothing to indicate that any attempt was made during the course of the trial to arouse the sympathy of the jury or to create any feeling whatsoever of bias or prejudice. Other matters referred to in the briefs of counsel do not require specific discussion.

The judgment is affirmed, with costs to plaintiff.

ADAMS, C.J., and DETHMERS, BUTZEL, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.