
    Frazier v. Semoff et al. Frazier v. Ford et al.
    
      Motor vehicles — Prohibition enforcement officers seeking rum runners, place automobile across highway — Plaintiff and truck injured by collision therewith — Charge to jury— Unnecessary to charge that motive was to wreck automobile as alleged, when — Measure of damage — Market value of truck before and after collision — Evidence— Unnecessary to establish damage to each specific automobile part, when.
    
    
      1. Where petition charged automobile was placed across highway for purpose of wrecking plaintiff’s truck, instructions authorizing recovery on finding that defendants acted maliciously, purposely, and without justification, but not requiring finding of motive as alleged, held not reversible error.
    2. Measure of damage to truck from collision is market value immediately before and immediately afterwards.
    3. Although allegation of damage to truck enumerated parts injured, plaintiff held not required to prove damage to each such specific part.
    (Decided January 18, 1926.)
    Error: Court of Appeals for Lucas county.
    
      Mr. Wm. H. McLellan, Jr., for plaintiff in error.
    
      Mr. 8. 8. Burtsfield and Mr. W. H. Wagers, for defendants in error.
   Richards, J.

These two cases have been argued together, and will be disposed of in one opinion.

The first case, No. 1593, was an action brought by Semoff to recover for personal injuries, and No. 1594 was an action brought by Ford to recover for damage to his auto truck caused in the same collision. The action to recover for personal injuries resulted in a verdict and judgment for $90 in favor of the plaintiff, and in the other case there was a verdict and judgment in the sum of $800 for the plaintiff Ford.

In each of these cases the plaintiff in error relies for a reversal of the judgment on the charge of the court, and, in No. 1594, on the additional ground that the court erred in admitting evidence of damages not charged in the petition. The plaintiff in error does not rely in either case for a reversal of the judgment on a claim that the verdict and judgment are contrary to the weight of the evidence and not sustained thereby.

William Frazier was the constable of Washington township, Lucas county, and called to his aid the other defendants in the original cases, Henning, Gray, and Shelby, to assist him on the occasion under investigation in the enforcement of the prohibition laws. On the evening of December 19, 1923, they were stationed along the Jackman road in Washington township about a mile south of the Michigan line, watching for so-called rum runners from the north. They claimed to have had information that a quantity of intoxicating liquor was to be transported along that road on the night in question. The constable and his assistants had two automobiles in their service, the one which was used by the constable not being on the highway, and the one used by Henning being located along the margin of the highway. The constable was stationed farthest north, and while they were thus stationed Ford approached from the north, driving an auto truck, the plaintiff Semoff riding in the front seat with him. They had been attending a parent-teachers’ meeting at a schoolhouse a short distance away, and, as is said, had driven from the schoolhouse to the residence of Ford for the purpose of banking the fire, and, after having accomplished that task, were returning to the schoolhouse, the meeting not yet having adjourned. As they approached Frazier he signalled with a red flashlight for them to stop, and they testified that as he did so several shots were fired, and that they did not know the men were officers, but believed that it was an attempted holdup. Ford, acting, as he says, in that belief, speeded up his car to a rate of 30 or 35 miles an hour, and in so doing ran by other signals to stop from assistant constables. Henning was sitting in his car, and, seeing the Ford truck rapidly approaching, drove • his car into the highway so far that there was not room for the approaching truck to get by, and it crashed into the Henning automobile, badly damaging the truck driven by Ford and injuring the passenger, Semoff. Ford and Semoff lived in that neighborhood, had no intoxicating liquor in their car, and were not rum runners, but the constable and his assistants testify that they believed them to be engaged in that unlawful business.

The petition in the Ford case charges that the defendants were conspiring together with intent unlawfully to injure the plaintiff and his automobile by placing another automobile upon and across the Jackman road directly in front of his car and so as to completely obstruct the highway. He further charges that they saw him approaching with his automobile, and unlawfully, purposely, and maliciously placed their automobile across the highway for the purpose of wrecking his automobile and doing harm and injury to him. It will be noticed that the charge in the petition is not one of negligence, but of unlawful, intentional, and malicious conduct, resulting in one case in personal injury to Semoff, and in the other case in injury to Ford’s automobile, and it is urged on behalf of the plaintiff in error that the cases were not tried as ones for unlawful and malicious injury, but as if they were actions based on negligence. A careful examination of the charge of the court in each case fails to disclose that the trial judges submitted the cases as if they were brought to recover for negligent conduct, but they were submitted as actions to recover for unlawful and malicious acts. In case No. 1593 the trial judge gave before argument two propositions requested by counsel for Frazier, which specifically forbid a recovery unless the jury should find that the damages resulted from the unlawful, purposeful, and malicious conduct of the defendants, and several times during the general charge the court again referred to the instructions given before argument and re-stated the propositions contained therein.

In case No. 1594 the trial judge instructed the jury before argument, on request of counsel for Frazier, that if Frazier had probable cause to believe that Ford’s motor vehicle was carrying intoxicating liquor in violation of law he was authorized to stop and search the same and might lawfully adopt such methods as were reasonably necessary to enable him to do so, and that even if injury resulted to plaintiff as a result of such efforts the plaintiff could not recover.

The trial judge instructed the jury on the subject of conspiracy to the effect that if the evidence disclosed that the defendants were conspiring together to damage plaintiff’s truck, then the act of one would be the act of the other or others conspiring with him for such purpose, but that if any one of the defendants did not so conspire with the others, then the plaintiff would not be entitled to a verdict against such defendant unless he unlawfully, intentionally, and maliciously committed the act causing the damage.

The trial judge in that case further instructed the jury that there was no evidence of express malice in the case, but that malice might be inferred if a wrongful act was done intentionally and purposely and without legal justification or excuse, and the case was submitted to the jury under proper instructions to ascertain from the evidence whether the conduct of the defendants was such that malice could fairly and reasonably be implied therefrom.

It is true that the petition charges that the automobile was placed across the highway for the specific purpose of wrecking Ford’s automobile, and, while the charge does not instruct the jury that they must be able to find that this was the motive which caused the placing of the automobile across the highway, yet it does require that before the plaintiffs could recover it must appear that the defendants were acting maliciously in what they did, and purposely and without legal justification or excuse. We find no reversible error in the charge of the court.

In case No. 1594 the petition avers that the plaintiff’s automobile was damaged by breaking the windshield, smashing the cab, breaking the fender, the running board, the lights, and radiator, and wrecking the frame of the chassis, all to plaintiff’s damage in the sum of $1,000. The damage was proved by showing the market value of the truck just before it hit the car standing in the road and the market value of it immediately thereafter. We think this was entirely proper,- and that the plaintiff would not be required to prove his damages by showing the damage to each specific part of the automobile truck or any appliance thereon. The averment as to damages amounted to no more than describing and characterizing the damages to the automobile.

Finding no prejudicial error, the judgment in each case will be affirmed.

Judgments affirmed.

Williams and Young, JJ., concur.  