the intoxication of her husband, during which an acci dent occurred and an injury was received, argument of plaintiff's counsel that the defendants who were in this kind of business unfurled a black flag, saying: "We prefer the dollar to the life of the human being; we prefer the dollar to the feelings of the wife and mother; we prefer the dollar to the poverty and penury it causes;" while intemperate, was sufficiently corrected by the court's interposing and advising the jury that the statement should not be considered; and a new trial was not rendered necessary by reason of the misconduct of counsel.

5. APPEAL AND ERROR-EXCEPTIONS-ARGUMENT.

Unless a ruling upon an improper remark of plaintiff's counsel is requested by defendants' attorney, and an exception taken to the ruling, the alleged misconduct will not be reviewed upon error.

6. SAME.

Nor was prejudicial error committed by plaintiff's counsel in referring to the suffering which her husband endured as a result of his accident when it appeared from the record that the court again interposed and instructed the jury not to consider any suffering which he underwent.

Error to Montcalm; McDonald, J., presiding. Submitted January 18, 1915. (Docket No. 122.) Decided March 18, 1915.

Case by Myrtle Spencer against Peter L. Johnson and others for injuries to her property and rights by unlawful sales of intoxicating liquors to her husband. Judgment for plaintiff. Defendants bring error. Affirmed.

Charles L. Rarden, N. O. Griswold, and A. F. Bunting, for appellants.

R. A. Hawley, for appellee.

KUHN, J. The facts in this case were sufficiently stated in the opinion of this court when the case was here before, reported in 176 Michigan, page 278 (142

N. W. 582). On a retrial, the jury rendered a verdict in favor of the plaintiff in the sum of $3,000. Judgment being duly rendered thereupon, the case is again brought here by writ of error.

On this trial the plaintiff introduced testimony showing that on the night of the accident, March 9, 1910, she went to the bedside of her husband at the hospital in Greenville, Mich., and remained with him there approximately five weeks, during which time she assisted in caring for and nursing him. Her testimony further showed that since leaving the hospital she had been compelled to care for him occasionally up to the time of the trial. She testified that her services while at the hospital were worth $2 a day. With reference to this service, the court, in charging as to the measure of damages, said to the jury:

"There has also been evidence of services performed by the plaintiff in nursing her husband after his injury. If she is entitled to recover in this case, and you find that she has performed such services, you should allow her what the evidence shows such services to be reasonably worth."

The statute under which this action is brought provides that:

"Every wife, child, parent, guardian, husband, or other person, who shall be injured in person or property, or means of support or otherwise, by any intoxicated person, or by reason of the intoxication of any person, or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented, or malt liquors, to any person, shall have a right of action in his or her own name," etc. Section 5398, 2 Comp. Laws; 2 How. Stat. (2d Ed.) § 5074.

Counsel for appellee contends that the charge of the court was justified by the opinion of this court in Spencer v. Johnson, supra, in which case Mr. Justice BROOKE, speaking for the court, said:

"Evidence was admitted of the value of plaintiff's

services in assisting to nurse Spencer while he was in the hospital. This testimony was admissible under the authority of Thomas v. Dansby, 74 Mich. 398 (41 N. W. 1088)."

And later:

"The value of plaintiff's services in nursing her husband was a proper element to be considered by the jury."

Counsel for appellants, in their briefs, have in a well-prepared argument sought to demonstrate that it was not the intent of this court by this opinion to hold that the wife can recover the full value of her services in nursing her husband as a substantive part of her damages, and that the value of the wife's services in nursing should be treated in the same way as the earnings of the husband and the doctor's bill, and that the court meant that the evidence with reference to the nursing was admissible only as bearing upon the length of time the plaintiff might be deprived of her customary support.

We cannot, however, agree with this contention of counsel, as it was the opinion of the court when the case was here before-and the language of the opinion, we believe, so holds-that by virtue of the statute above quoted, the wife is entitled, in an action of this kind, to recover for the value of her services in nursing such an amount as the jury would find they were reasonably worth. It is clear that she was compelled to do labor which she would not otherwise have been compelled to do, and in our opinion the legislature, in using the word "otherwise" in the statute, intended to provide compensation for this very kind of service. In the case of Thomas v. Dansby, supra, this court said:

"The additional care in nursing the plaintiff was compelled to bestow upon her husband by reason of the injury is one of the elements of damages which she is entitled to recover."

In the case of Radley v. Seider, 99 Mich. 431, 433 (58 N. W. 366), it was held that the expression "or otherwise" in the statute was broad enough to permit the wife to recover for injury to her feelings. Friend v. Dunks, 37 Mich. 25; McNetton v. Herb, 158 Mich. 525, 529 (123 N. W. 17).

In support of a motion for a new trial, it was shown by affidavits that the case was submitted to the jury under charge of the court in the afternoon of January 29, 1914, and that after the jury had retired to the jury room in charge of an officer, at about the hour of 10 o'clock in the evening of that day, one of the jurors became seriously ill, and by order of the court was removed by the officer in charge of the jury to a room called the circuit judge's room, where there was a couch. He remained there for several hours, separate from the other jurors, and was visited by a physician, who attended him in the presence of the judge. After midnight the juror was again returned to the jury room, where the other jurors were, and remained there about two hours. He was then again taken by the officer to the judge's room, where he remained apart from the other members of the jury until about an hour before the jury was taken to breakfast, on the morning of the 30th of January, and while the other jurors were at breakfast he was locked up in the jury room. It is urged that by reason of this separation the trial judge should have granted a new trial, because the defendants in this case had the right to have every member of the jury participate in the deliberation and the discussion of the facts and circumstances of the case, and that as the juror in question was separate and apart from the other jurors several hours during the night, they did not have the benefit of his participation in the discussion and argument which took place during that time; also that they are entitled to have 12 jurors deliberate upon the case who are in a physical con

dition to perform every duty as a juror. The facts with reference to the separation of the jurors were shown to the court by affidavits of the juror who was ill, other members of the jury, the officer in charge, the physician, and one of the counsel for defendants.

It is the universal rule that the verdict of the jury cannot be impeached by the affidavits of jurors showing misconduct in the jury room. In re Merriman's Appeal, 108 Mich. 454, 463 (66 N. W. 372), holds that as to the question whether any influence is exerted by one of the jurors unduly upon his fellows, or whether his conduct indicates bias, public policy forbids the proof of such claim by the affidavits of fellow jurors, and that the same rule extends with equal force to facts known only to the jurors, which occur during the trial, whether they occur in or out of the jury room. Wixom v. Bixby, 127 Mich. 479 (86 N. W. 1001); City of Battle Creek v. Haak, 139 Mich. 514, 527 (102 N. W. 1005); People v. Swift, 172 Mich. 473, 491 (138 N. W. 662). It is not stated in the affidavits, nor claimed in the motion or otherwise, that any of the jurors were subjected to improper influence. It must be admitted, however, that the situation here presented is not without some difficulty.

The general rule with reference to the separation of jurors after the submission of a case is thus stated in 17 Am. & Eng. Enc. of Law (2d Ed.), pp. 1227, 1228:

"It has been held that after the submission of the cause to the jury, the jurors should not be permitted to separate without the consent of the parties. In some cases, however, it is considered proper to allow a separation during the deliberation; and if the counsel do not object to the order of court to that effect, consent to the order will be implied. Though it is cause for a new trial if the separation is such as to furnish a ready opportunity for communication with other persons, a new trial will not be granted if it appears that there is no probability of prejudice.