Bergmeier, 91 Minn. 513, 98 N. W. 648-au- | 2. New trial 168-Verdict must be unmisthorities relied upon by the plaintiff. [2] In the case at bar, however, there was no tenancy, not even a tenancy at will, because tenancy implies an estate in the real property for the time being an ownership pro hac vice. Nothing of the sort existed here. The defendant had no estate in the premises. There was no contract for the hiring and letting of real estate. The defendant was a mere licensee, with permission to occupy with his hay two bins in a barn, the possession of which still remained in the plaintiff. The exceptions precisely so state: "This is an action of assumpsit on an account annexed brought to recover the sum of $118 for storage of hay in a barn in possession of the plaintiff," are the significant words in the bill of exceptions. The action is for storage, not for use and occupation, and it is properly so brought. The defendant was storing his hay in two bins under the same conditions as if he were storing carriages or farming implements on the floor of the barn. The racts of the case bring it in line with simi lar cases in which it is held that no tenancy exists. Thus, in case of a lodger occupying rooms in a boarding house with his family, White v. Maynard, 111 Mass. 250, 15 Am. Rep. 28; Peaks v. Cobb, 197 Mass. 554, 83 N. E. 1106; or a party occupying with horses stalls in a stable, Congregation Beth Israel v. O'Connell, 187 Mass. 236, 72 N. E. 1011; or a music dealer using certain designated space in a department store, R. H. White Co. v. Remick, 198 Mass. 41, 84 N. E. 113; or an advertiser occupying certain space on a roof, Jones v. Donnelly, 221 Mass. 213, 108 N. E. 1063. In all this class of cases the occupant is held to be a licensee and not a tenant. Such were the rights of the defendant here, and the rules applicable to landlord and tenant are therefore not pertinent in this case. The plaintiff's rights rest in contract. is rights under an implied contract for reasonable compensation are established, but his claims under his specific demands are not proven as a matter of law. The question of acceptance under all the circumstances should at least have been left to the jury. Excel fons sustained. (121 Me. 568) GUILBAULT v. MARCOUX. takably wrong to warrant new trial. To warrant new trial after verdict for defendant, plaintiff, moving in Supreme Judicial Court, must sustain the burden of proving that the verdict is unmistakably wrong. 3. New trial 168-Newly discovered evidence should be such as to probably change result. A motion for new trial in Supreme Judicial will not be granted, unless the new evidence Court on ground of newly discovered evidence will probably change the result. 4. Husband and wife 342-Condonation not bar to action for criminal conversation and alienation of affections. Condonation and continued cohabitation is not a bar to an action for criminal conversation and alienation of wife's affections. On Motion from Supreme Judicial Court, York County, at Law. Action by Willie Guilbault against Joseph Marcoux. Verdict for defendant, and plaintiff moves for new trial. Motion overruled. Argued before CORNISH, C. J., and SPEAR, DUNN, MORRILL, and DEASY, JJ. Louis B. Lausier, of Biddeford, and Willard & Ford, of Sanford, for plaintiff. Emery, Waterhouse & Paquin, of Biddeford, for defendant. PER CURIAM. Action for criminal conversation and alienation of wife's affections, before the law court upon general motion, and motion for new trial on ground of newly discovered evidence, filed by the plaintiff. [1, 2] The general motion must be overruled. The only evidence tending to show criminal relations was the testimony of one Arthur Newn, a hotel keeper in Sherbrooke, province of Quebec, who identified the defendant and Mrs. Guilbault as persons who registered at his hotel as "Robert Blouin and wife, Laconia, New Hampshire," and occupied a room there together on the night of July 26, 1920. The probative force of this testimony depends entirely upon the certainty of the identification, It is apparent that the jury discredited the testimony of Newn and refused to accept his identification of the parties. The court will not reverse this finding, based on the weight to be given to Newn's testimony, in the light of the testimony of both alleged participants. It cannot be said to be unmistakably wrong. Upon the entire record the plaintiff fails to sustain the burden of proof of showing that (Supreme Judicial Court of Maine. Dec. 16, the verdict is wrong. Harvey v. Donnell, 1921.) 1. Husband and wife 348-Verdict for defendant in action for criminal conversation not unwarranted by evidence. A verdict for defendant, in an action for criminal conversation and alienation of wife's affections, held not unsupported by evidence. 107 Me. 541, 81 Atl. 865. [3] To the evidence claimed to be newly discovered, taken in support of the motion for a new trial, we must apply the rule stated in Parsons v. L. B. & B. St. Ry., 96 Me. 503, 507, 52 Atl. 1006, and since consistently followed. Mitchell v. Emmons, 104 (115 A.) 2. Assault and battery 39 Court may make allowances in mitigation of exemplary damages. Me. 76, 71 Atl. 321; Drew v. Shannon, 105 emplary damages where he did not allege in his Me. 562, 75 Atl. 122; Higgins v. Portland complaint any wanton or malicious misconR. R. Co., 106 Me. 39, 75 Atl. 289. Having duct of the defendant, or negligence tantain mind that the evidence of criminal rela- mount to such misconduct. tions depends entirely upon identification made by Newn, the hotel keeper at Sherbrooke, it does not seem to the court probable that on a new trial, with the additional evidence, the result would be changed. The testimony of Belanger as to the time table of trains between St. Henry, Sherbrooke, and Boston, if material, was available at the trial. He was present and had the knowledge at that time, to which he In action for damages for assault and battery, where defendant pleads in justification of his conduct, and evidence shows circumstances which may be considered as an excuse, court may make allowance in mitigation tion of damages may be allowed if exemplary of exemplary damages, but nothing in mitigadamages are not given. 3. Appeal and error 1011(1) Appellate court will not review conflicting evidence. The Supreme Court will not, on appeal, the trial court should have reached other conexamine conflicting evidence and decide that later testified. This evidence could not have Appeal from Court of Common Pleas, [4] In our opinion the fact that in his writ dated August 5, 1920, the plaintiff charged criminal relations between his wife and Marcoux, without any evidence, known to him at that time, so far as this record shows, to support such a charge, and the admitted fact shown in the record that he continued to cohabit with her, occupying the same bed, until the day of the trial, outweighs even the possibility of a different result, if a new trial is granted. Such condonation and continued cohabitation is not a bar to the action. Sanborn v. Neilson, 4 N. H. 501; Shannon v. Swanson, 208 Ill. 52, 69 N. E. 869. But it confirms us in the belief, upon reading the whole record, that no injustice has been done (Woodis v. Jordan, 62 Me. 490), or is likely to be done if a new trial is re fused. Motion overruled. (96 Conn. 693) KILLIAN v. BOLSTER. 1. Assault and battery 24 (1)-Ground for Action by Stanley J. Killian against Robert Bolster to recover damages for an assault and battery, brought to the court of common pleas in Fairfield county and tried to the court. Facts found and judgment rendered for the plaintiff for $200, and plaintiff appeals. No error. Edward J. McManus, of Bridgeport, for appellant. Charles A. Hopwood, of Bridgeport, for appellee. PER CURIAM. [1] One of the reasons of appeal is that "the court erred in failing to allow the plaintiff exemplary damages." Concerning this, it is enough to say that the plaintiff did not allege in his complaint any wanton or malicious misconduct of the defendant or negligence tantamount to such misconduct. Further, no facts have been found from which could be reached a reasonable conclusion that the acts of the defendant were of such a kind. Keane v. Main, 83 Conn. 200, 76 Atl. 269; Maisenbacker v. Society Concordia, 71 Conn. 369, 371, 42 Atl. 67, 71 Am. St. Rep. 213. There is no basis for a claim for exemplary damages. [2] In another assignment of error the plaintiff asserts that the court erred in mitjustification of his conduct, and the finding igating damages. The defendant pleaded in of facts discloses circumstances which might well have been considered as an excuse for the defendant, and therefore in mitigation of exemplary damages. Burke v. Melvin, 45 Conn. 243; 11 L. R. A. (N. S.) 674, note. Moreover, the record does not make it appear that the court allowed anything in mitigation of damages. If exemplary damages were not given, nothing in mitigation of damages could be allowed. Bartram v. Stone, 31 Conn. 159, 162; 5 Corpus Juris, 676; Robiehaud v. Maheux, 104 Me. 524-526, [ 3. Death 72 Atl. 334. In another assignment the appellant claims that the court failed "to take into consideration the present depreciated value of the dollar." There is nothing in the record to support this claim. [3] Each of the other nine reasons of ap peal raises only the question whether the court erred in finding or failing to find certain facts. For instance, finding that the plaintiff was able to return to work on a certain day, and failing to find that he was then suffering from a permanent injury. And the plaintiff has caused all the evidence in the case to be printed in the record. That is, he invites this court to retry the case and decide that the trial court should have reached upon conflicting evidence the conclusions of fact which the counsel for the plaintiff thinks it should have reached. This court will not do this. The powers of the lower courts in finding facts and making conclusions and inferences, and the province of this court on appeal, have been so often and clearly defined that they should be familiar to and respectfully regarded by every lawyer competent to prepare a proper application for relief by this court. Russell Electric Co. v. Bassett, 79 Conn. 709, 713, 66 Atl. 531; Bell v. Strong, 96 Conn. 12, 112 Atl. 645. It is rare indeed that facts appear to have been found by the trial court without evidence, or that its conclusions of fact were drawn unreasonably or illegally. Hence it is rare that such an appeal as this will effect anything but expense for the appellant. The only errors we find in this appeal appear in the assigning of such errors. In the decision of the trial court we find no error. (Conn. ~104(6)—Instruction on damages held not misleading. An instruction that the measure of damages for a wife's wrongful death was the loss to decedent's estate, and not the value of her life to herself, held not misleading when considered with the context. 4. Death 103(4)-Damages held for jury. In an action for the death of a wife, the loss suffered by her estate held, under the evidence, properly left to the jury. 5. Death 99(4)-Damages for wife's death held not excessive. In an action for the death of a wife 34 years old, a verdict of $5,291.66 as damages to her estate held not excessive. Appeal from Superior Court, Fairfield County; George E. Hinman, Judge. Action by Joseph Demonde, administrator, against Edwin Targett, to recover damages for negligently running into and killing the plaintiff's intestate. Verdict and judgment for the plaintiff to recover $5,291.66, and defendant appeals. No error. pellant. lee. first place that under the evidence presented CURTIS, J. The defendant claims in the the jury could not reasonably have found the issues for the plaintiff, and that therefore the court erred in not granting his motion to set aside the verdict. daytime by a collision with an automobile The plaintiff's intestate was killed in the owned and driven by the defendant, upon the easterly side of a highway in Danbury known as the Sugar Hollow road, while the defendant was driving northerly toward Danbury. It was not controverted that the plaintiff's intestate and three companions crossed a stone wall into this highway on its easterly side shortly before the defendant drove over the brow of a hill in the road 400 feet south of the place of crossing. The defendant saw this group of people in the highway 400 feet away, and thereafter the group of people were within sight from the roadway traversed by the defendant. Under the evidence the jury could reasonably have found that the defendant, after the group of people came within the range of his vision and he approached them, negligently failed to sound a warning, negligently drove his car at such time, place, and use of the highway and such speed as to be unreasonable considering the as to prevent him in the use of reasonable care from controlling his automobile so as to avoid a collision with one or more of the group of people in the highway; and negligently drove his car into the deceased who (115 A.) was then standing close to or upon the easterly side of the wrought part of the highway, facing the east, and bending over to pick up a wooden box at the side of the wrought road, and that the deceased was free from neligence which was a proximate cause of the collision. This ground of error is there fore untenable. [1] The court, deeming the case under the evidence as one where it should instruct the jury under the doctrine of the last clear chance, instructed them in an unexceptionable way as to the relation of this doctrine to the case. The defendant claims that under the evidence the situation presented was not one where a charge as to the doctrine of last clear chance was applicable. A case where a driver of an automobile on a highway approaches a group of people within his sight for 400 feet and comes into collision with and kills one of them presented a case where this doctrine was peculiarly applicable. The fourth and fifth grounds of error, in the additional reasons of appeal relating to the last clear chance doctrine, are there fore not tenable. The first reason of appeal relating to the charge claims that the court erred in the first sentence of the following instruction: "As to the matter of sounding of a horn or other warning, due care requires that when the operator of a motor vehicle sees a pedestrian in or about to enter his course he shall sound his horn or otherwise give warning of his approach. You will inquire, first, whether under the conditions existing due care required the defendant to give such warning of his approach, and, if you determine that such warning was required, you will decide whether such warning was given by him as reasonable care required. In this connection I am requested to charge you, and do, that the mere sounding of a horn or signal is not in itself sufficient to give immunity from liability, but the operator must also operate his car under such a degree of control as reasonable care requires." There was testimony from two witnesses who were approaching the place of the collision from the south in an automobile, to the effect that when some distance away they saw the deceased hurrying into the wrought roadway toward the middle of the road be fore she was struck. This testimony was not in accord with that of the plaintiff's witnesses, nor with that of the defendant and those with him in his car. The defendant testified that after he passed five people of the group, who were standing easterly of the wrought roadway, he "saw a black object right within five feet of 'him,' right in front." He "could not see the head of the person at all as it was bending over, but it was dressed in black, lifting a heavy she appeared in front of his machine, and did not know where she came from." It is apparent that the court in the instruction as to blowing the horn had in mind in the first sentence of the instruction now complained of the testimony of the two witnesses to the effect that the deceased was hurrying into the wrought roadway as she was struck. The remaining portion of the charge as to the blowing of the horn related to the situation, which the plaintiff claimed and the defendant testified to, that the deceased was on or near the easterly edge of the wrought way bending over in order to pick up a box when struck. This latter portion of the charge was unexceptionable in relation to the situation as testified to by the defendant in regard to the situation of the deceased at the time of the collision. It is apparent from the defendant's testimony as to where the deceased was when struck that the attention of the jury would be confined to his claim that the deceased appeared in front of the car on the easterly edge of the wrought way, stooping to pick up a box. The instruction that related to that situation was unexceptionable. Let us assume that the jury disregarded the defendant's testimony in relation to the situation of the deceased at the time of the collision, and relied upon that of the two witnesses as stated above, who testified in effect that the deceased stepped from the side of the road several steps toward the middle of the road in front of the defendant's car before she was struck, and consider the portion of the charge objected to in the light of that assumption. The court instructed the jury as follows: "As to the matter of sounding of a horn or other warning, due care required that when the operator of a motor vehicle sees a pedestrian in or about to enter his course, he shall sound his horn or otherwise give warning of his approach." [2] The defendant objects to this instruction because it states, in the situation defined, what due care required, instead of instructing the jury that in such a situation it is for the jury to say what due care required, because there is no statutory rule of conduct requiring the sounding of a horn or giving of other warning in the situation defined. That there are certain definite situations constantly recurring where the court may properly say that a certain definite standard of duty rests upon a person could hardly be questioned. The court is not compelled to leave the standard of duty always to the jury under the ordinary instruction as to due care. Holmes' Common Law, p. 123. "The reasonableness of a particular precaution against danger, arising from conditions well defined and con Murphy v. Derby Street R. Co., 73 Conn. 253, 47 Atl. 120; Bunnell v. Berlin Iron Bridge Co., 66 Conn. 34, 33 Atl. 533. Can it be questioned that if the driver of a motor vehicle sees a pedestrian in his course, or about to enter his course, under the circumstances assumed due care requires him to give warning of his approach? For the reasons stated we think this claim of error is not tenable. The sixth and seventh reasons of appeal claim that the court erred in instructing the jury as in the following excerpts: "(1) If your verdict be for the plaintiff, you will consider and fix the amount of damage to be awarded. The rule of damages in a case of this kind is the loss which Annie Demonde's estate has sustained by reason of her death, the value of her life to her estate. 'It is not the value of her life to herself. her death, but for the economic loss which her estate sustained by reason of her death and consequent cutting off of her earning power, thereby depriving her estate of the benefit to live the ordinary expectation of human life, reasonably to be expected if she had continued not exceeding, of course, the amount of damages claimed in the complaint." [3] This context removes any confusion that could reasonably be claimed to arise from the sentence objected to appearing in the first excerpt. [4] The objection to the second excerpt is that there was no sufficient basis for this instruction in the evidence. There was evidence of the decedent's age, history, and activities in her household and in her husband's business, together with her expectancy of life in accord with the expectancy tables. Under this evidence the question of the loss suffered by her estate was properly left to the jury. "(2) You are to take into consideration her age, testified to as 34 years; her expectancy of life, in this case it being agreed that the average expectancy shown by mortality tables [5] The claim that the court erred in not for a woman of her years is 34 years; such evidence as you have of her condition of health granting the defendant's motion to set aside and strength, the probable future occupation the verdict as excessive is not tenable for and earnings of the deceased had she lived, the reasons just stated in discussing the sevit being proper also to consider the probabili-enth reason of appeal. ties of accidents or sickness, or other happenings which might intervene to affect or terminate her earning capacity; and estimate, as best you can, the pecuniary loss to her estate which arises from her death." The context accompanying the first excerpt was as follows: The remaining reasons of appeal are so obviously untenable or harmless as not to justify discussion. There is no error. (96 Conn. 661) DIXON v. LEWIS et al. "If your verdict be for the plaintiff, you will consider and fix the amount of damage to be awarded. The rule of damages in a case of this kind is the loss which Annie Demonde's estate has sustained by reason of her death- (Supreme Court of Errors of Connecticut. the value of her life to her estate. It is not the value of her life to herself. Neither is it the loss which has been sustained, by reason of her death. by her family or relatives; this has no legitimate bearing on the matter at all, and is not to be considered in determining the damage. Her administrator, as her representative, sues to recover for her estate, not for the sentimental loss or loss to others occasioned by her death, but for the economic loss which her estate sustained by reason of her death and the consequent cutting off of her earning power, thereby depriving her estate of the benefit reasonably to be expected if she had continued to live the ordinary expectation of human life, not exceeding, of course, the amount of damages claimed in the complaint." The defendant urges that the last sentence in the first excerpt reading, "It is not the value of her life to herself," renders the charge confusing and misleading. In the context accompanying the excerpt complained of, the court instructed the jury as follows: "Her administrator, as her representative, sues to recover for her estate, not for the sentimental loss or loss to others occasioned by Nov. 30, 1921.) Appeal and error 1010(1)-Reasonable findings not disturbed on appeal. Findings of the trial court which could have reasonably been found or inferred will not be disturbed on appeal. Appeal from Superior Court, Windham County; William M. Maltbie, Judge. Action by Alva J. Dixon against Byron M. Lewis and others, to recover damages for the destruction of growing crops and herbage on the plaintiff's land, insufficiently fenced, by the trespass thereon of the defendants' cattle, alleged to be due to the defendants' negligence, brought by appeal from a judgment of a justice of the peace to, and tried by, the superior court. Facts found and judgment rendered for the defendants, and appeal by the plaintiff. No error. Harry E. Back, of Danielson, and Charles E. Searls, of Putnam, for appellant. William F. Woodward, of Danielson, and Charles L. Torrey and Mahlon H. Geissler, both of Putnam, for appellees. |