AMERICAN HOTELS CORP. v. SCHMIDT, 314 Mich. 15 (1946)

22 N.W.2d 54

AMERICAN HOTELS CORP. v. SCHMIDT.

Docket No. 22, Calendar No. 43,248.Supreme Court of Michigan.
Decided March 4, 1946. Rehearing denied May 13, 1946.

Appeal from Wayne; Brennan (Vincent M.), J. Submitted January 17, 1946. (Docket No. 22, Calendar No. 43,248.) Decided March 4, 1946. Rehearing denied May 13, 1946.

Summary proceedings before circuit court commissioner by American Hotels Corporation against

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Joe Schmidt to obtain possession of hotel room. Judgment for plaintiff. Defendant appealed to circuit court. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.

Perlman Cohen, for plaintiff.

Meyer Weisenfeld, for defendant.

BUSHNELL, J.

Defendant Joe Schmidt had occupied a room in the Briggs Hotel, on a weekly basis, for approximately 28 months. Plaintiff American Hotels Corporation, which operated this hotel, instituted proceedings on April 30, 1945, before a circuit court commissioner for the termination of Schmidt’s tenancy. After a hearing, judgment was entered by the commissioner in favor of plaintiff. An appeal was taken to the Wayne circuit court, where a jury found Schmidt guilty of withholding possession of the room.

On appeal to this court, Schmidt urges that the judgment entered on the jury’s verdict should be vacated, because the opening statement, the actions throughout the trial, and the argument of appellee’s counsel were improper, prejudicial, and inflammatory, and therefore constitute reversible error. He also argues that plaintiff, having demanded and received payment of rent in advance, both before and during the pendency of the action against him, together with locking him out of his room, vitiated the notice of termination of the tenancy and entitled him to a verdict of “not guilty.”

A recital of the circumstances which led to the termination of the tenancy, which were alluded to with elaboration by plaintiff’s counsel, would be of no benefit to the profession. Both the opening statement and argument of plaintiff’s counsel have been examined and, while they were somewhat verbose

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and far-reaching, do not as a matter of law constitute reversible error. See Peters v. Wurzburg, 267 Mich. 45.

While the jury was out of the court room, defendant’s attorney suggested that he had a legal defense in that “after service of the notice of termination of tenancy, plaintiff accepted rent; in fact demanded rent for the premises; that, as a matter of law, demand and acceptance of such rent vitiated the notice and the entire proceedings.”

In the ensuing colloquy it developed that plaintiff contended that such rent was received without prejudice, and so noted on the file of the circuit court commissioner. As a result of a dispute on this subject between counsel it was agreed that each of them would take the stand without the jury being present and testify as to what took place before the circuit court commissioner with respect to this payment, and that the court should determine “whether they are questions of fact or of law, without submitting them to the jury.” At the conclusion of this testimony the trial judge took the matter under advisement in connection with defendant’s request for a directed verdict, and later for a judgment non obstante veredicto.

The court in a statement upon the record found as a fact that the attorneys had agreed that the rent in question should be paid without prejudice to plaintiff’s rights. An examination of this testimony requires the conclusion that the court’s denial of a judgment notwithstanding the verdict was correct. Further, that determination should not be set aside unless “the evidence clearly preponderates in the opposite direction.” Hazen v Rockefeller, 303 Mich. 536, 549. The jury’s verdict of guilty is supported by competent testimony, and should be affirmed.

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The judgment is affirmed, with costs to appellee.

BUTZEL, C.J., and CARR, SHARPE, BOYLES, REID, NORTH, and STARR, JJ., concurred.