author: Ostrander, J. Grant, J.

text:
    PEOPLE v. COLLINS.
    1. Criminal Law — Trial — Reception oe Evidence — Oeeer oe Immaterial Matter — Prejudice.
    Where, on a trial for murder, respondent on cross-examination denies having stolen certain goods from a store and after-wards paying for them when presented with a bill for them, it is prejudicial for the prosecuting attorney to produce the merchant with his books to contradict her and argue the admissibility of the contradiction before the jury, though the evidence is not admitted.
    2. Homicide — Evidence—Other Homicide — Admissibility.
    /On a trial for murder by poisoning with arsenic, it is preju- " dicial error to admit evidence to show the presence of arsenic in the body of another member of respondent’s household who died some months before the person alleged to have been murdered, it being expressly disclaimed that there was a common scheme or plan embracing the killing of both persons, and the jury being instructed that the only purpose of the evidence was to show the presence of arsenic in the' house. /

    Grant and Montgomery, JJ., dissenting.
    Error to Shiawassee; Smith, J.
    Submitted November 16, 1905.
    (Docket No. 236.)
    Decided May 24, 1906.
    Carrie Collins was convicted of murder in the first degree and sentenced to imprisonment for life in the State prison at Jackson.
    Reversed, and new trial ordered.

      John T. McCurdy, for appellant.

      Charles M. Hamper, Prosecuting Attorney, for the people.
   Ostrander, J.

It was not supposed that Leachman, whom it is charged respondent murdered, died from other than natural causes. He was attended by a physician from October 14th until October 23d, when he died. A post-mortem examination was had, not because it was suspected that he had been poisoned, but to learn the extent of certain bodily injuries received by him at the hands of other men shortly before he became ill. Both the antemortem and the post-mortem evidence indicated death from pneumonia. His attending physician, who assisted at the autopsy, certified that the cause of his death was double pneumonia. He so testified at the preliminary examination in this case, although at that time he knew it was claimed that the chemist had found arsenic in the organs sent him for examination. At the trial, upon, cross-examination, he gave the following testimony:

“I also testified at the preliminary examination, the Same as I have here, that there was nothing in Leach-man’s general appearance, from my clinical knowledge or history of the case, during the time I was treating him, from the 16th day of October up until the time of his death, that caused me to treat him for arsenical poisoning. I also testified that from the time the first indication of pneumonia appeared there was no evidence of arsenical poisoning, and I didn’t treat him for any. And I say so now. I think; if pneumonia hadn’t set in, Leachman 'would have recovered.”

Five other physicians, one of whom had been attending Leachman and was present at the autopsy, called “by the prosecution, gave testimony supporting the views and conclusions of the attending physician and affirming that if no arsenic had been found in the stomach of Leachman by the chemist, death must be attributed to pneumonia and gastritis. The post-mortem discovered three-fourths of both lungs in a state of red hepatization and engorged, the posterior and base quite solid;' impossible for oxygen to circulate; no condition of any of the organs which might not be attributed, properly, to gastritis and pneumonia; the heart, kidneys, and liver normal. The attending physician gave, also, this testimony :

Q. Wouldn’t all of his ante-mortem symptoms and port-mortem conditions be consistent with death caused by pneumonia and gastritis complications ?

“A. Yes, sir.”

The stomach and contents were removed at the postmortem, and the body embalmed and buried. Later the body was exhumed, and the liver, kidneys, spleen, and bladder removed, and, with the stomach, sent to a chemist at Ann Arbor. His testimony is to the effect that he tested a portion of the stomach and contents for arsenic, found some, and by a calculation determined that the entire of the stomach and contents contained between one-fifth and one-sixth of a grain. The liver contained, by test and calculation, one-eighth of a grain of arsenic. A similar test and calculation resulted, he says, in showing the other organs to contain between one-ninth and one-tenth of a grain of white arsenic; the total amount at highest estimated figures being considerably less than half a grain. ■ A fatal -dose of arsenic is from two to three grains. The ordinary commercial subnitrate of bismuth, a considerable quantity of which was administered to Leachman, contains arsenic. Whether the embalming fluid contained arsenic was in dispute. Assuming the presence of the arsenic in the remains, and that it was administered to Leachman in his lifetime, it was the opinion of the medical men sworn for the prosecution that the cause of his death was arsenical poisoning.. Two groups of errors are discussed.

1. During the cross-examination of respondent, she was asked, in substance, if she had not stolen a muff, a quantity of. dress goods, and some neckties from the store of a certain merchant, if they had not been charged to her, and if she had, upon demand, settled for them. She denied the various alleged thefts. In debating the objections which were interposed to the cross-examination which was conducted, the prosecuting officer, among other things, said:

“A person might commit the crime of larceny and never be convicted of it. He might have settled it up upon demand. Suppose, for instance, a party goes into a man’s store and takes goods to the value of $7, without asking for them, without being in any way connected with the store, without the knowledge of any clerk or agent in the store, and carries them away without their knowledge. Afterward they are discovered and a warrant is issued, and the goods are found in the party’s possession, and they settle for them. Would not that situation be competent ? ”

In rebuttal the people called the merchant, who testified that he was a druggist and clothing merchant, and he was asked:

‘ ‘ Q. Have you got your books of account in your store, covering the year 1901, with you, or any of them ?

A. I have.

Q. Please open the package.

“A. There is the daybook, contains the 1901 accounts.”

Witness testified that he was acquainted with Mrs. Collins, and had been for about 20 years; that he had seen her in New Lothrop with George Leachman.

Q. What do you know in 1901 or 1902 of Mrs. Collins coming to the store with George Leachman and picking out clothing for him, with him ?”

Upon objection being made, the following occurred:

“Mr. Chapman: I contend it is not a collateral matter, but that it bears upon the relation that the defendant sustained to the deceased, and, being upon that proposition, it is not a collateral matter.

“ Mr. McCurdy:. Then if that was true, it was a part of their main case, and not a part of the surrebuttal.”

The court sustained the objection.

“Q. Mr. Synder, do you remember the transaction as to a muff, in 1901, thatthe defendant got from your store ? ”

Objection to this wás sustained.

“ Q. Mr. Snyder, on the 22d day of December, 1901, being the same day that defendant got the muff, you may state to the jury whether or not she got some goods there on that same occasion and had them charged in your books ?

The Court: I think that covers exactly the same-condition.

Mr. Chapman: This would be recorded evidence, would it not F * * * Suppose the witness knows of it and entered in his general books a charge for other goods upon that occasion, would not the fact of what the books show be competent evidence ?

“ The Court: I think the muff question and these goods are out of the cáse; being collateral matter, it is out of the case.”

It is said in the brief for the people:

Even if it were error to call Washington Snyder, which is by no means conceded, he was not permitted by the court to give any testimony which contradicted respondent upon this matter. He was allowed to answer a few preliminary questions, but nothing which would in any wise impeach the respondent.”

To produce the merchant with his books, to proceed to the point of impeachment, to argue, in the presence of the jury, the right to impeach and to use in the argument alleged hypothetical statements covering the very facts claimed, by insinuation and by inference, to exist, is likely to have all of the effect obtainable from open contradiction and impeachment. This court will assume, in this case, that the offer to prove was as prejudicial as the evidence would have been if the court had permitted the fullest impeachment. '

2. Ira Wright, a boy nearly 14 years of age, was the nephew of respondent. His mother is living, but he had as a baby been taken by and had lived with respondent as a member of her family. The testimony, not disputed, is to the effect that respondent treated him like a son, kept him clean, sent him to school, and appeared to love him. He had reached an age when his services may be supposed to have been of value to respondent. He died some four months before Leachman’s death. Dr. Bruce began to treat him early in June, 1903. He had known him for 6 or 7 years. He described his symptoms and his treatment. He was brought to his office by respondent. There was no attempt on her part to keep the doctor from making as complete and thorough an examination and diagnosis as he saw fit. He asked her questions in the presence of the boy, and also asked the boy questions. He again saw the boy at the office and afterwards at Mrs. Collins’ home, and examined him, and made inquiries of both Mrs. Collins and the boy in regard to his condition, and continued to treat him until the 13th or 14th of June, when he went away for a week, returning June 20th. Dr..Shoemaker, by whom he was treated during the absence of Dr. Bruce, made his first call on him on the 15th of June. Dr. Shoemaker described the symptoms as he found them. He saw no symptoms during his treatment of Wright that he recognized as indicating arsenical poisoning. On redirect examination, he was asked this question:

“Q. Doctor, looking back over the case now and the symptoms that you have described, what do you say as to whether or not they are the symptoms of arsenical poisoning ? * * *

“A. Taking in connection with the finding of the ■chemist. * * *

*“Q. Looking back over the case now, doctor, you may state whether, in your opinion, those symptoms that you ■saw Ira Wright suffering from are somé of the symptoms ■of arsenical poisoning. * * *

“A. They áre.

"Q. State to the jury whether or not, in your opinion, they are all consistent with the arsenical poisoning. * * * “A. They are.”

On recross-examination, he testified that the fact -claimed by the chemist to be true, namely, that he had found some arsenic in the organs of Ira Wright, was one ■of the things which caused him to believe or to think that possibly the symptoms or some of them might be ■due to arsenical poisoning; that, if. the chemist had not found traces of arsenic, he would not recognize the ■symptoms or attribute them to arsenical poisoning; that the symptoms were consistent with some other disease. The body of this boy was exhumed and found to be somewhat decomposed, the stomach and other organs sent to Ann Arbor, and there examined by the chemist. The chemist found, he says, in the stomach, liver, kidneys, ■ spleen, and bladder, about one-tenth of a grain of arsenic. The prosecution was permitted to lay before the jury the ■ evidence of the death of this child, respondent’s care of him, the discovery of the arsenic in the remains, with ■ other details. It is not cláimed — is expressly disclaimed —that there was a common scheme or plan embracing the killing of both Wright and Leachman. "It is further expressly conceded that no possible common motive was shown or intimated. Whether it should be found that respondent administered arsenic to Wright and to Leach-man, or to either, depended upon inferences which the .jury might draw from the evidence admitted. In admitting the testimony, the trial judge stated:

“ I will say to the jury now, in the outset, that the only purpose for which this testimony can be received is for the purpose’ of showing the presence of arsenic in the house. That is all it is received for. No other purpose, and you will disregard every other purpose • at this time unless further instructed.”

In the charge, the jury were told to consider the evidence only for the purpose of determining whether there was or was not arsenic there at the residence of respondent prior to and at the time of the sickness and death of George Leachman.” The presence of arsenic in the remains of Wright had no legitimate tendency to prove that respondent had arsenic in her possession during the illness of Leachman. Undoubtedly, the giving of a wrong reason for admitting testimony is not prejudicial error, if the testimony is for any reason admissible and the jury is properly instructed concerning the use to be made of it. It is claimed here that this evidence was admissible to prove (1) intent; (3) absence of mistake or accident; and (3) identity of the person charged. If it was, for any of these purposes, admissible — questions which we do not consider — the error committed was not, for that reason, cured, and was clearly prejudicial. The record does not contain all of the evidence, for which reason, the singular circumstances of the case, and the positions assumed by counsel, it is deemed to be unwise to attempt to lay down any controlling rules respecting the use, if any, to be made of this testimony if it shall again be tendered. /A.uthorities will be found collected in 1 Wigmore on Evidence, § 363, note 10. See, also, People v. Thacker, 108 Mich. 652.

The conviction isfset aside!, a new trial granted, and the respondent remanded to t¿e custody of the sheriff of Shiawassee county, to be dealt with according to law.

Carpenter, C. J., and McAlvay, Blair, Hooker, and Moore, JJ., concurred with Ostrander, J.

Grant, J.

(dissenting). 'Respondent was convicted of the murder of her hired man, one Leachman, by administering arsenic. Errors are assigned upon the admission and exclusion of testimony, improper conduct of the prosecuting officers, and the charge of the court. The questions involved are not new, and are familiar to the profession. It would serve no good purpose to discuss each assignment of error arising during the trial upon the testimony. It is sufficient to say that we find no prejudicial error in any of these rulings. The trial was eminently fair so far as the record shows, and the instruction of the court fully covered the case. The charge of improper conduct on part of the prosecuting officers, we think, is without foundation. Respondent was a witness in her own behalf, stated the story of her life, and gave an account of her relations with Leachman and Wright. On cross-examination, for the purpose of impeaching her veracity, counsel for the prosecution asked her whether she had not been charged with the larceny of certain goods, and whether she had not stolen a muff ,and had subsequently paid for it. It was strenuously urged in behalf of the prosecution that the testimony was competent, and was argued at length before the court.' Certain questions were admitted and others were excluded. When the prosecution in rebuttal produced the merchant as a witness, with the books of account, offering to show certain" charges upon them, they were promptly ruled out. This occurred at the very close of the case, and the court, in ruling upon it, said: “ I think the muff question and these goods are out of the case. Being a collateral matter, it is out of the case.” During the argument upon the admissibility of this testimony, the court expressly instructed the jury .that the arguments made were not for their consideration, and to pay no attention to them. The arguments cover several pages of the record, and when read as a whole I do not think there is anything in them which can be held to have prejudiced the jury in a case of this character.

Error is assigned upon the introduction of evidence showing that one Ira Wright, a nephew of the respondent, a boy about 14 years of age, who had lived with her from infancy, had died from the effects of arsenic at her home about four months previous to Leachman’s death. The respondent took care of the boy, prepared his food, and administered medicine as she did, also, in the case of Leachman. There was strong evidence showing that both the boy and Leachman were affected by the same symptoms. After the death of Leachman the body of the boy was exhumed, his stomach and intestines subjected to a chemical examination, and arsenic found therein. The purpose of this testimony as claimed by the prosecution was to show intent, absence of mistake or accident, and identity of the person charged with the crime. Counsel for respondent insists that this testimony, tending to establish another crime, was-inadmissible under People v. Jenness, 5 Mich. 305; Lightfoot v. People, 16 Mich. 507; People v. Molineaux, 168 N. Y. 264 (62 L. R. A. 193). Counsel states his position thus:

“The alleged murdering of Ira Wright does not come within any of the exceptions of the rule of exclusion of testimony of other distinct crimes. It was certainly not a part of the res gestae; having occurred some four months previous, there was no possible common motive shown or intimated. * * * Leachman’s death was not claimed to be due to mistake or accident; no common scheme or plan, embracing or requiring the commission of both crimes, was established, or even suggested; and in no way does the poisoning of Ira Wright, if he was poisoned, tend to identify the respondent as the one who poisoned Leachman, if he was poisoned. The admission of testimony concerning the death of Ira Wright was clearly prejudicial error, requiring her to acquit herself of two crimes instead of one charged in the information.”

Upon this subject the court instructed the jury as follows:

“I now particularly call your attention to the testimony that has been introduced relative to Ira Wright, his physical condition and symptoms before death, and the claim of the prosecution that arsenic was found in his remains after his death, and the bearing which such testimony may or may not have upon the principal issue in this case. Bear in mind, gentlemen, that this defendant is here upon trial only for the murder of George Leachman by means of arsenic, which, it is claimed by the prosecution, defend■ant administered to him, causing his death, and that this ■defendant is not on trial here for the murder of Ira Wright, nor for any other crime or offense except for the murder of George Leachman by the means above mentioned.

‘ ‘ The rule of law is that other crimes or offenses cannot be proved for the purpose of showing that the defendant was more likely to have committed the crime for which she is on-trial, nor as corroborating the testimony relating to the crime or offense for which she is on trial; but this rule is not infringed upon where such evidence or testimony tends to show some essential fact relative to the ■guilt of the accused of the crime charged, and for which the accused is on trial, merely because it may also tend to show the commission of another crime or offense for which the accused is not upon trial, and the great danger of the admission and use of such testimony lies in the fact that jurors, through misapprehension, lack of care, discrimination, and the like, may give to such testimony improper and unwarranted bearing, force, or effect. Be careful and cautious in your consideration of these matters, remembering all the time that you should not, and must not, consider such testimony for the purpose of establishing whether this defendant, in fact, administered poison to George Leachman. Again I repeat that. Be careful and cautious in your consideration of those matters, remembering all the time that you should not, and must not, consider such testimony for the purpose of establishing whether this defendant, in fact, administered poison to George Leachman.

“Before we can give such testimony any consideration whatever as bearing upon the question of the guilt of this defendant of the murder of George Leachman, you must be satisfied from the evidence, and beyond a reasonable ■doubt, first, that arsenic was in the remains of Ira Wright at the time of his death; second, that such arsenic did not get into his remains by or through the use of embalming fluid or through any means other than by passing into his body while he was living, and, if the evidence relative to such matters fails to establish either of ¡such facts beyond reasonable doubt in your minds, you should not further consider any testimony which has been introduced here relative to the death of Ira Wright, or what was found in his remains after his death. These .facts must be first established.

“But, on the other hand, if you find from the evidence, and beyond reasonable doubt, that, as a matter of fact, arsenic was in the remains o&Ira Wright at the time of his death, and also that such arsenic did not get into his remains by or through the use of embalming fluid, or through any means other than by passing into his body while he was living, you may then, and not until then, consider such facts so found by you, together with the other evidence in the case bearing upon the question, in determining whether there was or was not white arsenic there at the residence of this defendant prior to and at the time of the sickness and death of George Leachman; for, unless there was arsenic present there at the residence of defendant in some form, such poison could not by any possibility have been administered to George Leachman by this defendant or any one else.

“There is no evidence showing or tending to show that any poison was administered anywhere else to George Leachman by the defendant, so that confines it to the residence of this defendant.

“You may also, if you find that, in fact, arsenic was there present at the residence of the defendant in any form prior to and at the time of the last sickness and death of George Leachman, consider such fact, and in connection with all the other evidence in the case bearing upon the question in determining whether this defendant did or did not have knowledge that such arsenic in some form was there present at her residence during the last sickness of George Leachman.

“I have now stated to you the only bearing that the testimony which has been introduced here relative to the manner of the death, symptoms before death, and as to what they claim to be found in the remains after death of Ira Wright, can have in determining the issue in this case, and you are not to give such matters any consideration, bearing, or weight, in any manner or for any other purpose than as I have stated to you.”

It is a general rule, both in England and in the United States, that proof of other crimes is not competent for the jury to consider in determining whether a respondent is guilty of the specific crime charged. To this general rule there are many exceptions.

‘ ‘ Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends. to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.” People v. Molineaux, 168 N. Y. 293.

Wharton on Criminal Evidence (9th Ed.), § 48. Chief Justice Parker, in his dissenting opinion in that case, at page 341, cites a long list of cases which are exceptions to the general rule. It is unnecessary to here cite the cases, or to determine whether the present case comes within the exceptions as above stated and as recognized by this court. People v. Seaman, 107 Mich. 348, and authorities cited, /this testimony was admitted for only one purpose, and that was to show the existence of arsenic in the respondent’s house and its use by her shortly before the death " " ere is no doubt of its admiscompetent to show that arsenic was found in her house at the time or shortly before the illness and death of Leach-man, or that she had it for any purpose whatever. If she had used arsenic in poisoning animals, it would clearly have been competent to show that the organs of the dead animals contained the arsenic, for the purpose of showing not only that she had it, but that she knew its effect. This evidence was none the less competent because it was. found in the stomach and other organs of the boy Wright, if it were also established beyond a reasonable doubt that she administered the poison to him. Her possession and use of the poison at the time of the illness of Wright were competent, because they tended to show that she kept the poison in her house and was familiar with its us^N would certainly have been

We deem it unimportant to discuss the errors assigned upon the instruction of the court. The instructions, as a whole, submitted the case to the jury with the utmost fairness. After describing the crime with which the defendant was charged, the court said:

“That is the offense for which this defendant is upon trial; for no other offense. Before you can rightfully and lawfully convict this defendant of the crime here charged against her, you must be able to find, and find from the evidence in this case, and beyond reasonable doubt:

First, that said George Leachman is dead and came to his death by means of a deadly poison known as arsenic.

‘ ‘ Second, that such poison was administered to said George Leachman in his lifetime and by this defendant.

Third, that this defendant here so administered such poison to the deceased, George Leachman, willfully,, knowingly, and with the intent upon her part of depriving him, said George Leachman, of his life.

Fourth, that the said George Leachman died as the result of the administration to him of such poison, or, in other words, that such poison so administered by the respondent killed said Leachman, and that he did not die from any other cause or disease.”

In order to emphasize it he repeated it to the jury. There is no part of his instructions inconsistent with that above.

The conviction should be affirmed.

Montgomery, J., concurred with Grant, J.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    COUNTY OF MONTMORENCY v. PUTNAM.
    1. Judgment — Rendition—Non Obstante Veredicto.
    A verdict for plaintiff for less than the amount claimed, and less than the evidence shows plaintiff entitled to, cannot be set aside and judgment for the proper amount rendered non obstante veredicto, since a judgment for plaintiff cannot be rendered without a supporting verdict.
    2. New Trial — Insufficiency of Evidence.
    A motion for a new trial should be granted where the verdict is clearly against the weight of the evidence.
    Error to Bay; Shepard, J.
    Submitted November 9, 1905.
    (Docket No. 109.)
    Decided May 24, 1906.
    Assumpsit by the county of Montmorency against Edward J. Putnam, principal, and Lewis Jenson and others, sureties, on a county treasurer’s bond. There was judgment for plaintiff for less than the amount claimed, and it brings error.
    Reversed.

      O'Brien & Francis, for appellant.

      T. A. E. & J. O. Weadock, for appellees.
   McAlvay, J.

The county of Montmorency brought suit in assumpsit against Edward J. Putnam as principal, and the other defendants as sureties, on a county treasurer’s bond, to recover a balance not accounted for by Putnam as county treasurer. This case has been before this court and passed upon three times. 122 Mich. 581, 127 Mich. 36, 135 Mich. 111. A reference to these cases will disclose the controversy between these parties, and any further statement of facts at this time is unnecessary.

The last trial had in the court below resulted in a verdict and judgment in favor of plaintiff for the sum of $1,236. Plaintiff moved the court to set aside the verdict, and to enter the judgment for $5,195.34, the full amount claimed, or to grant a new trial, for the reason that the verdict was contrary to the undisputed evidence in the case, and also for the reason that a verdict should have been instructed for plaintiff for the full amount claimed, as requested. This motion was denied. Errors are assigned upon the refusal to grant this motion and to give the requests referred to, and also upon the admission of certain testimony introduced by defendants upon the trial. The law governing the case has been settled by the former decisions above quoted. The principal questions now raised in the case are whether the court, notwithstanding the verdict, should have set it aside, and entered a judgment for the full amount claimed; in other words, ■should have instructed such a verdict for plaintiff, or should have set aside the verdict rendered, as against the evidence, and granted a new trial.

From the record we are entitled to say that the total amount charged against defendant county treasurer, $68,991.33, was not disputed. Plaintiff admitted that the defendant was entitled to credit for the sum of $63,795.99. The difference between these charges of debit and credit, $5,195.34, with interest, is the amount plaintiff claims it should have recovered, from the undisputed evidence in the case. An examination of the record before us does not disclose any material difference, as far as the evidence is concerned, from the record before the court at the last time. 135 Mich. 111. In the decision of the case at that time Justice Carpenter, speaking for the court, said:

“ The first trial resulted in a judgment for plaintiff for over $4,000. This judgment was reversed because defendants’ counsel was not permitted to argue to the jury that the settlements hereafter referred to between the parties to this suit afforded prima facie evidence of the true condition of the account. The second trial resulted in a verdict in favor of the plaintiff for $1,044. Plaintiff sued out a writ of error, and this court reversed the judgment on the ground that, according to the weight of the testimony, plaintiff was entitled to a larger verdict. The case has been tried the third time, and resulted in a verdict for defendants of no cause of action. Plaintiff asks a reversal of that judgment on the ground that, under the undisputed testimony, it was entitled to a verdict, and, if not, that the verdict should be set aside as against the weight of the evidence.”

The opinion then discusses the testimony at length and determines that the undisputed evidence in the case proves that defendant should be charged with receipts amounting to $68,991.33. Defendant Putnam’s testimony is also referred to more at length than in the former opinion, and it is stated:

“ It appears from the uncontradicted testimony that defendant Putnam is justly chargeable with an item of $824 for the sale of lands at a private sale to one E. O. Avery, and that this money never came into his hands. He is responsible for this amount, because he sold these lands to Avery on credit, and Avery never paid for them. {It was this amount, with interest, which constituted the $1,044 for which the treasurer was held liable on the last trial. See 127 Mich. 36).”

The court held that, under the undisputed testimony in the case, plaintiff was entitled to a verdict for this amount with interest. Following this decision, the case was sent back for a new trial, and, notwithstanding the charge of the court properly given under this decision, another jury rendered a verdict of no cause of action. This was promptly set aside on motion of plaintiff and a new trial granted. The result of that trial is now before us for consideration.

The verdict was for the amount of the Avery purchase, and interest. As already stated, the evidence is the same as in the record last before the court. The situation is identical with that presented when this case was here the second time. 127 Mich. 36. The judgment set aside in that case was the amount of the sale to Avery, with interest. The question before the court was “whether the verdict was so clearly against the weight of the testimony as to call for a vacation of the verdict and the granting of a new trial.” Montgomery, C. J., speaking for this court, said:

“ It also appears, practically beyond dispute, that certain funds coming into the hands of the treasurer from the auditor general were not charged upon the county clerk’s books to the treasurer. Now, as against these statements is the general denial of defendant Putnam that he has appropriated any moneys belonging to the county; his claim being that he kept the funds separate from his own, and that he has not appropriated any money. While we by no means hold that this testimony is not admissible for what it is worth, yet, in weighing the question as a question of fact, we are constrained to say that, to our minds, this testimony is in no way convincing.”

The judgment was set aside as against the weight of evidence, and a new trial ordered. The difference between the amounts referred to by the learned Chief Justice, including other amounts equally undisputed, and the amounts credited to the treasurer in his settlements with the supervisors, from the record before us, is $6,875.89. It also appears that he had not credited himself -with $1,582.32, auditor general receipts credited in settlement. These items are taken from the records of the State and county offices. The testimony of defendant is the same as on the former trials'. After a careful examination of this testimony we repeat the statement of a former decision, already quoted:

“ In weighing the question as a question of fact, we are constrained to say that, to our minds, this testimony is in no way convincing.”

It appearing to us that this verdict was against the weight of evidence, the judgment based upon it must be set aside. The court was not in error in refusing to enter a judgment for the plaintiff for the full amount claimed non obstante veredicto, nor can this court do so for obvious reasons pointed out by Justice Carpenter when the case was last before us. We find no errors in the charge of the court, or in rulings upon the admission of testimony. The motion for a new trial should have been granted, for the reason above stated.

The judgment is reversed, and a new trial ordered.

Montgomery, Ostrander, Hooker, and Moore, JJ.y concurred.


text:
    SMITH v. SMITH.
    1. Appeal and Error — Review—Findings of Fact.
    The findings of the trial judge, on conflicting evidence in a, case tried without a jury, are conclusive on this court.
    2. Judgment — Chancery Decree — Conclusiveness — Collateral Attack.
    A divorce decree, by which the wife was awarded certain land, cannot be attacked in summary proceedings by her against her divorced husband and another as her tenants to regain possession.
    3. Landlord and Tenant — Lease—Parties—Guarantor.
    Land decreed to the wife in divorce proceedings, being in possession of the husband and a minor son by a former marriage, they retained possession by the son’s accepting a lease from the wife, the performance of which his father guaranteed in writing thereon. On their refusal to surrender, on the expiration of the term, the wife brought summary proceedings. Held, that the father was estopped to deny that he was holding under the lease, and that he stood in the same- relation to' complainant.as to his holding as his son.
    4. Same — Summary Proceedings — Notice to Quit.
    Tenants holding over after expiration of their term are not entitled to notice to quit before bringing summary proceedings under the statute to dispossess them.
    5. Evidence — Admission—Trial to Court — Error.
    The admission of incompetent evidence, afterward stricken out and disregarded, is immaterial in a case tried without a jury.

      Error to Montcalm; Dodds, J., presiding.
    Submitted November 10, 1905.
    (Docket No. 115.)
    Decided May 24, 1906.
    Summary proceedings by Mary A. Smith against C. Newton Smith and Charles N. Smith for the possession of certain real estate. There was judgment for complainant, and defendants bring error.
    Affirmed.

      V. H. & L. W. Smith, for appellants.

      N. O. Griswold, for appellee.
   McAlvay, J.

An action was begun by complainant against defendants, under the statute providing for summary proceedings to obtain possession of lands, before a circuit court commissioner of Montcalm county, wherein defendants were charged with unlawfully holding over said premises after the time for which they were demised or let to them. Defendants pleaded the general issue. The case was tried before the commissioner and complainant appealed to the circuit court. It was heard before the court without a jury, Hon. Peter E. Dodds, circuit judge of the twenty-first circuit, presiding. Upon the facts and conclusions of law found by him, in writing, a judgment was rendered for complainant for possession. Defendants proposed many amendments to these findings and they were afterwards amended by the court in certain respects without changing the result. Errors are assigned upon exceptions to the rulings of the court upon the evidence during the trial, and upon exceptions to the findings of fact and conclusions of law.

Complainant claimed in this case that defendants were her tenants under a written lease which by its terms expired October 10, 1903. She was the divorced wife of defendant C. Newton Smith, and by the decree which granted her a divorce these premises had been given to her. Charles N. Smith is the son of the other defendant by a former marriage. At the time the lease was made and executed by him he was a minor; arriving of full age during its term, he continued in possession, and the rent was all paid from month to month. Both defendants were in possession of the land at the time the lease was made and resided thereon. The sheriff had a writ of assistance against him, in favor of complainant, to give her possession under her decree above mentioned. The lease was the result of an adjustment of the matter between the parties, and the writ was not executed. The body of the lease is in the usual form, naming N. O. Griswold attorney for Mary A. Smith as party of the first part, and defendant Charles N. Smith as party of the second part. Below the signatures of these parties is the following:

“ I approve of the above lease, and guarantee the faithful performance thereof by the said Chas. N. Smith.

“O. N. Smith.”

There was dispute in the testimony as to the execution of this lease and as to the authority of Griswold as agent of complainant. These questions are foreclosed by the findings of the court, and will not be reviewed in this court, nor will this court consider the question of the title of complainant. The chancery decree could not be collaterally attacked, nor could defendants, if they were tenants in fact, dispute the landlord’s title.

The principal question in the case is whether the son and father can both be considered as tenants' under this lease. Under the facts of this case we think the court was justified in finding that the writing of his approval and guaranty upon the lease by defendant C. Newton Smith estops him from denying that he is holding under it; that he cannot hold contrary to its terms, and stands in the same relation to complainant, as to his holding, as Charles N. Smith. No notice to quit was necessary under the statute upon which these proceedings were brought.

It is claimed that the court erred in holding that it was not necessary for complainant to prove its execution unless denied under oath. It will not be necessary to pass upon this objection for the reason that the court found “that the execution of the lease was properly proved by the testimony introduced.” Objection was made to the introduction of certain letters of defendant C. Newton Smith to his attorney, and also to testimony of attorney Griswold as to talk with persons not in defendants’ presence. The court found that these were incompetent because privileged, and that the conversation should be excluded. They consequently were not considered by him. This case was tried without a jury, and defendants were not prejudiced because the court did not at once strike out this testimony.

No other material questions are raised. We find no error in the case. The judgment is affirmed, with costs.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    BRADLEY-WATKINS CO. v. KALAMAZOO CIRCUIT JUDGE.
    1. Venue — Change—Motion—-Denial—Review.
    This court will not interfere to control the judicial discretion of a trial judge in refusing a change of venue, applied for on the ground of convenience of the parties and their witnesses, where there is evidence to support the decision.

      2. Same — Assumpsit—Waiver op Tort — Trespass on Land.
    Where a landowner, by authority of section 11207, 3 Comp. Laws, waives the tort and brings assumpsit for cutting timber, the cause of action is transitory, like other actions of assumpsit, and not local, within sections 10216 and 10217, fixing the venue in actions for trespass on lands.
    Mandamus by the Bradley-Watkins Company and the Cedar River Land Company to compel John W. Adams, circuit judge of Kalamazoo county, to vacate an order denying a motion for a change of venue.
    Submitted October 31, 1905.
    (Calendar No. 21,338.)
    Writ denied May 24, 1906.
    O. W. Dunton, for relators.

      William P. Belden, for respondent.
   McAlvay, J.

Relators have been sued in the circuit •court for Kalamazoo county by a resident plaintiff in an action of assumpsit brought under section 11207 of the •Compiled Laws of 1897, which provides:

In all cases where a party has a right of action for the taking of timber or other trespass on lands, or for any injury to lands, whether direct or consequential, it shall be lawful for the party having such right of action to waive the tort and bring assumpsit therefor.”

The declaration alleges that the action arises on account •of trespass to lands of plaintiff in Luce county, by defendants, in cutting and removing from said lands certain cedar timber, and selling and disposing of the same, and thereby greatly injuring and damaging said premises, whereby a cause of action accrued to plaintiff who elects and does avail himself of the provisions of section 11207, 3 Comp. Laws, to waive the tort and bring suit in assumpsit, to recover therefor. Otherwise said declaration proceeds as is usual in an action in assumpsit upon the common counts.

Defendants appeared and demanded a bill of particulars, which was furnished, showing that plaintiff claimed:

1. The value of 2,000 cedar trees, and 2,500 cedar posts, wrongfully cut by defendants and removed from plaintiff’s land, sold and disposed of by defendants, and the proceeds retained by them, $2,000.

2. To damages to plaintiff through the depreciation ■of the premises, and the value of the timber left thereon by the wrongful removal of said timber, $1,000.

Defendants then made a motion for a change of venue from Kalamazoo county to Luce county on the grounds:

1. The convenience of the parties and witnesses.

2. The law contemplates the action should b9 tried in. Luce county.

3. The law directs that under the showing made the cause shall be transferred.

The affidavit supporting the motion contained among other things the allegations required by section 10217, 3 Comp. Laws, as amended by Act No. 247, Pub. Acts 1903, relative to change of venue in trespass cases. Counter affidavits were filed, and the motion was heard and denied, the court, as to the convenience of the parties and witnesses under the showing made, holding upon the issue of fact against defendants, and also holding that the statute invoked did not apply to the case at bar.

Application is made for a writ of mandamus directing the court to transfer said cause for trial to Luce county. The reasons urged before the circuit court and in this court why such change of venue should be ordered are:

1. For the convenience of said parties and their witnesses. Upon this question an issue of fact was made by the affidavits presented. The court in the exercise of his judicial discretion found against defendants. The record shows that the court did not act arbitrarily, but that his decision was supported by evidence. This court has. always held that it will not interfere to control the judicial discretion of a trial judge.

2. The other reasons present a question of law and may be considered together. In this case the plaintiff, under section 11207, 3 Comp. Laws, has waived the tort and brought his suit in assumpsit. The act of which this section is a part is entitled ‘ ‘ An act to facilitate the collection of damages for trespass on or other injuries to lands,” and provides as follows:

“ In all cases where a party has a right of action for the taking of timber or other trespass on lands, or for any injury to lands, whether direct or consequential, it shall be lawful for the party having such right of action to waive the tort and bring assumpsit therefor.” Act No. 211, Pub. Acts 1881.

The next section provides that when the tort is waived the plaintiff may commence his suit by attachment as in other cases. Defendants do not dispute but that this statute gave the right to the plaintiff to waive the tort and sue in assumpsit, but' claim that the statute does not thereby make this statutory assumpsit a transitory action. That under section 10216, 3 Comp. Laws, actions for trespass on lands, and trespass on the case for injuries to real estate, shall be tried in the county where the subject of the action shall be situated, and that section 10217, which provides that when the defendant was not a resident of the county where the land was situated such actions may be commenced in any county where the defendant may be found, reserved by its proviso the right in the defendant to have the cause transferred to the county where the 'land was situated.

The material question before us is whether the election, of the plaintiff to take his remedy by an action of assumpsit brought the case within the rules of practice which in this State apply to actions of assumpsit. It-is not denied but that a recovery may be had in assumpsit if the proofs should warrant it. The construction of the statute (sections 11207,11208, 3 Comp. Laws), authorizing the waiver of the tort and bringing assumpsit is involved, and the precise question is for the first time before this court. No authorities are cited or found where the exact question has been passed upon. Section 1 of this statute provides that in all cases of the kind the tort may be waived and assumpsit brought, and section 2 provides that where the tort is waived the plaintiff may commence his suit by attachment as in other cases and the fact that the damages are unliquidated shall not prevent the bringing and maintaining such writ. In the case of Lockwood v. Boom Co., 42 Mich. 536, where this statute was discussed, Justice Campbell, who wrote the opinion, said:

“ This statute is very broad in its language. * * * But it does not purport to make contracts in fact or to allow anything to be sued for except as damages sustained by the trespass. It simply operated to provide that, when a trespass has been committed whereby damages accrue, the duty to pay those damages may be treated as a debt •or implied agreement.”

This statute then, creates a fiction, implying an indebtedness or promise to pay.

In Nield v. Burton, 49 Mich. 53, this court held that a party who had waived the tort and brought assumpsit against the trespasser who had cut*and carried away timber, amounted to an election to regard defendant as the owner of the property converted, and estopped plaintiff from afterwards bringing trover against defendant’s vendee, although the first suit had failed for want of jurisdiction. In the opinion, referring to the right to an attachment provided for in the statute, Justice Campbell said:

“The statute which allowed the action gave with it the right of suing out an attachment, and thus securing the claim. . * * * The waiver was not made as a mere election of equivalent remedies but as a means of getting an advantage of considerable importance, as the inducement to waive the tort.”

It is not contended that a plaintiff cannot commence such an action by attachment as in other cases, and it is admitted that under the attachment statute the action .might be brought in the county where either plaintiff or ■defendant resided, or in any county in the State where defendant may have property. It is urged that to this extent alone is plaintiff given a benefit by bringing assumpsit instead of trespass. The statute must be construed as a whole and with reference to existing statutes. We do not think it will bear the construction claimed. The statute gives the right to waive the tort and sue in assumpsit. It does not create a contract, but implies one. Our construction of the statute is that the legislative intent in giving the right to bring assumpsit was to make the action in such cases transitory as in other cases of assumpsit. Both statutes above cited, sections 10216, 10217, 3 Comp. Laws, were in force at the time this statute was enacted. This act is entitled: ‘ ‘ .An act to facilitate the collection of damages for trespass on or other injuries to lands.” The statute was for the benefit of the injured party whose lands had been trespassed upon and otherwise damaged. To avail himself of the advantages of bringing his action in assumpsit he must waive the tort, thereby foregoing the right to recover treble damages. If the contention of defendants is to be sustained as the legislative intent in enacting this law, then instead of gaining any advantage by bringing his suit in assumpsit a plaintiff is put to disadvantage and positive loss. Instead of facilitating the collection of damages for trespass on, and other injuries to, lands, such construction of the statute would have a directly opposite effect. The question involved is one of practice. It relates to the method of applying a remedy and not to the substantive law. The statute provides a remedy in this case by an action of assumpsit. The rules governing assumpsit, and not those governing actions of trespass, must apply.

The writ is denied, with costs.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    CLARKE v. CASE.
    1. Evidence — Opinions—Surveyors—Admissibility.
    The opinion, of a surveyor as to a supposed monument found by him while surveying a particular tract is a mere conclusion and is not admissible.
    2. Appeal and Error — Questions Considered — Sufficiency of Evidence.
    An assignment of error, on the ground that the verdict is not supported by the evidence, cannot be considered, in the absence of a motion for a new trial on that ground.
    3; Boundaries — Location—Burden of Proof.
    Wh'ere in trespass the issue is as to the location of the line of a plat, and whether a certain ancient fence was built upon that line", as claimed by plaintiff, and there is no question of boundary by acquiescence, agreement, or adverse possession in the case, the burden is upon the plaintiff to prove by a preponderance of the evidence where the true line is, and that the trespass was committed upon land owned by him.
    Error to Emmet; Shepherd, J.
    Submitted December 5, 1905.
    (Docket No. 95.)
    Decided May 24, 1906.
    Trespass quare clausum fregit by William J. Clarke against John S. Case. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      C. J. Pailthorp and A. L. Deuel, for appellant.

      Wade B. Smith and Halstead & Halstead, for appellee.
   McAlvay, J.

This is an action for trespass quare clausum I’-egit, brought by plaintiff in justice’s court in Em me' -unty, and upon plea of title by defendant was cr ’ d under the statute to the circuit court. The ■, es in dispute as claimed by defendant are a £ uncultiv d about 70 feet in width extending along the north end and a part of lots 3 and 4, block 3, of Whicher’s plat of the village of Little Traverse,” made as early as September, 1851. Plaintiff claims that this strip of land belongs to him and is located on the south part of lot 7 of “ Glenn’s plat of land around Whicher’s plat of Little Traverse,” made in 1859. This territory was formerly part of Mackinac county. From an examination of the records of both Mackinac and Em-met counties no record of the Whicher plat can be found. The original is lost, and the only evidence of what it contained is what purports to be a copy made by an Indian, probably in 1855. The Glenn plat was duly recorded. All the lands included in both these plats and surveys were purchased from the United States by an Indian chief, Alexander Nesawaquot for himself and other Indians, all having contributed to the purchase price. The title was conveyed to the chief Nesawaquot. For the purpose of dividing the lands among these Indians according to their several interests these plats and surveys were made. The Whicher plat included the land on the flat on the north shore of Little Traverse Bay, and between the shore and a high bluff on the north. The Glenn plat completely surrounded the Whicher plat except the water front on the south, and was intended to include all remaining Indian lands. The south boundary line of the Glenn plat is the south line of plaintiff’s premises. By stipulation it is conceded that plaintiff is the owner of part of lot 7 of Glenn’s plat lying north of lots 3 and 4, and adjoining the •same, and that defendant owns the north part of said lots 3 and 4 of block 3 of the Whicher plat. The question in the case is the location of this south line of Glenn’s plat which depends upon the location of the north line of Whicher’s plat. The Glenn plat upon its face shows that it is a plat of all those lands around the village of Little Traverse and upon it these lines are coincident.

We are asked to reverse a judgment recovered by plaintiff for several reasons. Error is assigned to the admission of the testimony of plaintiff’s witness Swift, relative to his survey of Whicher’s plat, in which he expressed his opinion as to a certain supposed monument found by him. This testimony was a conclusion of the witness. This court has frequently held that surveyors should be confined to statements of facts, and not to express conclusions or presumptions. The court was in error in not applying this rule.

Error is also assigned on the ground that the verdict is not supported by the evidence. The proper practice is to give the trial court an opportunity on a motion for a new trial to pass upon the question raised. As the record does not show that this was done, we cannot consider it.

The remaining assignments of error necessary to consider are upon the charge of the court. Defendant alleges that the following portion of the charge of the court was erroneous:

“ Ybu are instructed that as the defendant John Case is seeking to locate the north boundary line of lots 3 and 4 of block 3 of Whicher’s plat a certain distance north of where the former owners of said lots for a period of 15 years and more considered said line to be, the burden of the proof is upon him to show that’ said accepted line is not the true boundary line of said lots. And while as I stated before, it is correct and true that the plaintiff is bound to prove his case by a preponderance of the testimony, yet, sometimes, that burden of proof shifts to the defendant; and in this case, if you find that Mr. Clarke was in the peaceable possession of this strip of land in question at the time Mr. Case went upon it, then the burden of the proof shifts from Mr. Clarke to Mr. Case to show that, and it becomes necessary for Mr.. Case then to show that he was the owner and not Mr. Clarke. In other words, if you find that Mr. Clarke was in possession of that land clear up to the line of the old stockade fence before Mr. Case went on there, then you will find for Mr. Clarke, unless Mr. Case’s evidence is stronger than Mr. Clarke’s that the land belongs to Mr. Case.”

The question as to where the north line of the Whicher plat was located was in dispute, .as was also the question as to whether a certain old fen.ce was on said line. Plaintiff claimed this line was where the old fence had been built. Defendant claimed that it was 70 feet north of that fence. The record does not warrant the statement that defendant was seeking to locate this line a certain distance north of where the former owners of lots 3 and 4 for more than 15 years had considered it to be. The question of a line established by acquiescence was not in the case; nor of a line by agreement between the parties; nor of adverse possession by plaintiff, if in fact this disputed strip was part of lots 3 and 4. In this case the burden of proof was upon the plaintiff to establish the fact that the trespass charged was committed upon that part of lot 7 of Glenn’s plat owned by him, by a preponderance of proof. The court was in error in instructing the jury that by reason of defendant’s claim that the old fence was south of the disputed line the burden of proof was upon him to show, where the true line was. This charge has the further fault of assuming a disputed fact as established. This was a question for the jury, and not for the court, to determine.

These are all the questions we find it necessary to consider.

The judgment of the circuit court is reversed, and a new trial ordered.

Grant, Blair, Hooker, and Moore, JJ., concurred.


text:
    HERING v. MOSHER.
    Judgment — Matters Concluded — Appointment of Guardian— Domicile.
    A judgment confirming the appointment of a guardian of an infant in a certain county is not conclusive, in subsequent proceedings to probate the will of his father, of the question whether the father was a resident of that county at the time of his death, where the infant had previously, by consent of his father, been in the custody of the person appointed guardian, since the father, under such circumstances, might fix the domicile of his child at a place different from his own.
    Error to Wayne; Hosmer, J.
    Submitted December 8, 1905.
    (Docket No. 184.)
    Decided May 24, 1906.
    Herbert Hering petitioned for the probate of the last will and testament of Charles F. Jaeserich, deceased. The hearing was dismissed and transferred To the county of Hillsdale, and petitioner appealed to the circuit court. There was judgment at the circuit for petitioner, and George W. Mosher, guardian of Carl S. Jaeserich, brings error.
    Affirmed.

      Frankhauser & Cornell ( W. G. Fitzpatrick, of counsel), for appellant.

      Wilkinson & Younglove, for appellee.
   McAlvay, J.

The question in this case arose in the probate court of Wayne county, in the matter of the estate of Charles F. Jaeserich, deceased. Plaintiff Hering is the executor named in the last will and testament of the deceased, who died in the city of Detroit. Defendant Mosher is the guardian of Carl S. Jaeserich, of the age of seven years (son and only child of the deceased), duly appointed by the probate court of Hillsdale county, April 7, 1903. He is also the maternal grandfather of said minor child. After the appointment of Mosher as such guardian, Hering appealed to the circuit court of Hills-dale county, where, after a trial, judgment was entered confirming the appointment. From this judgment no appeal had been taken.

On April 7, 1903, being the same date Mosher was appointed guardian of the minor child by the said probate court," Hering filed a sworn petition for probate of a will in the probate court of Wayne county, in the matter of the estate of Charles F. Jaeserich, deceased, alleging, among other things, that said deceased had died April 2, 1903, naming petitioner, executor; that deceased was a resident of Detroit and left an estate in Wayne county of the value of $500 and upwards; leaving as his heir Carl S. Jaeserich, a son aged seven, residing at Hillsdale, Mich. Upon the hearing, June 5, 1903, the probate court found that deceased at the time of his death was not a resident of Wayne county, but was a resident of Hillsdale county, ordered the proceedings dismissed, and the will- transferred to the judge of probate of Hillsdale county. From this order Hering appealed to the circuit court of Wayne county, where, upon trial, a jury found that Jaeserich, at the time of his death, was a resident of Wayne county, and judgment was entered reversing the order of the probate court.

The contention of the appellant is that the judgment of the circuit court of Hillsdale county is res adjudicata of the question of the domicile of Charles F. Jaeserich, that question being necessarily involved and determined in that suit, and that the trial judge erred in not so holding and instructing a yerdict for appellant.

In order to understand the situation it will be necessary to state the facts, briefly, relative to the child and his care and custody. The mother of this child died in May, 1898, when he was about two years old. He was then placed by his father in the care and custody of his grandparents, Mosher and wife, in Hillsdale, to be cared for and reared by them. All of these parties had their domicile at that place for several years. It was the domicile of the child’s origin and continued to be the domicile of the father, at least until he, failing in health, went to Detroit a few months before his death, in April, 1903, the child remaining with the grandparents in whose custody he was at the time of the father’s death.

Both parties to this controversy insist that the determination of the circuit court of Hillsdale county in confirming the appointment of the grandfather Mosher as the child’s guardian was a proper one. The appellant, because that was the domicile of the father at the time of his death, and the appellee, for the reason that the grandparent, having lawful custody of the child at the time of its father’s death, had the power to fix and change the domicile of the infant after such death although at the time of his death the father’s domicile was in Wayne county. There is no question of any property rights of the infant involved in this case.

We accept the doctrine, as a general proposition, that the domicile of a child is that of its origin, or of its last surviving parent. There may be circumstances, however, where it would not remain so, if rights are exercised by other parties for the benefit of the child. A grandparent may lawfully have the care 'and custody of a grandchild whose parents are deceased. We know of no rule of law which would prevent such an bne from fixing and changing the child’s domicile to his own, no question of property rights being involved. In Re Benton, 92 Iowa, 202, the court says:

“Guardians by nature have the right to change the domicile of their wards if done in good faith. And while the next of kin may not change it, so as to affect the rights of succession or of property, yet if the change is made in good faith a new domicile may be acquired, which will give a probate court jurisdiction to appoint a guardian at law for them. In this case the grandfather is living with, and is a member of, the petitioner’s family, and he signed the petition for the appointment of David M. Benton as guardian in the Wisconsin county court. The children, or one of them, were taken by David Benton to Wisconsin at the request of the grandfather; and the paternal grandfather, petitioner, and the children all live together in one family. These facts distinguish the present case from Jenkins v. Clark, 71 Iowa, 552, and In re Johnson, 87 Iowa, 130, and sustain the jurisdiction of the Wisconsin court.”

This was a case of a change of domicile to.another State. See, also, Lamar v. Micou, 114 U. S. 218.

Courts do not look with disfavor upon a change of municipal domicile.

“A change of national or quasi national domicil involves, as we have seen, consequences of a very serious character. But with municipal domicil, it is different. The question of a change of the latter is generally raised for the purpose of determining the place of the exercise of rights, and the performance of duties which may or must be exercised somewhere within the State. * * * As might be expected, therefore, the courts lean strongly in favor of allowing the freest change of municipal domicil, and frequently hold such changes to have been accomplished upon very slight circumstances.” Jacobs on Domicil, § 180.

In the case at bar the grandfather had the custody of this child for years with the father’s express consent and desire, in the domicile of the child’s origin. The father went to Wayne county, and died in three months. If he gained a domicile there, conceding the general rule to apply, it became in law the domicile of this child. The grandfather lawfully continuing such custody changed such.-legal domicile of the child to his own domicile in Hillsdale county, made application in that jurisdiction, and was appointed guardian. We think he had a right to do so. In determining whether the question of the last place of residence of • Jaeserich, deceased, was necessarily involved in the determination of the case before the Hills-dale circuit court, we may further consider the acts and conduct of the deceased father, which involves the question whether a parent may not fix the domicile of his infant child at a place different from his own domicile. In this case the circuit judge of Hillsdale county found that before the mother died it was agreed between the parents that the child should be placed with the grandparents to be cared for and reared; that the father fulfilled this agreement; that the child remained there during all the years since that time; that Jaeserich, failing iñ health, being afflicted with consumption, went to Detroit for treatment and died shortly after. Whether Jaeserich changed his domicile or not is a question of fact not proper for us to determine. He left the child where it had been placed by him to be reared, with its nearest of kin, and those alone except himself who had any affection for or attachment to it, thereby clearly indicating that he fixed its domicile with them. A parent may give his child domicile different from his own by consenting to its adoption; that he may do so by less formal proceedings we consider equally permissible. Upon either view of the case the question of the domicile of the father at the time of his death was not a necessary and determining one involved in the case before the Hillsdale circuit court. That judgment was, therefore, not res adjudicata of that fact. It will not be necessary, therefore, to consider the capacities in which Hering appeared in these suits.

The judgment and determination of the Hillsdale circuit court is res adjudicata as to the appointment of Mosher as guardian of the minor child, Carl S. Jaeserich, that court having obtained jurisdiction of the subject-matter and the parties to that suit. That a fact not material and decisive of the issue was found by the court does not militate against the validity of that judgment. The Wayne circuit judge did not err in holding that the record, proceedings, and judgment of the circuit court for Hillsdale were not res adj udicata of the question of the domicile of Charles F. Jaeserich at the time of his death, and properly left such question as one of fact in this case to be determined by the jury.

The judgment is affirmed.

Grant, Blair, Hooker, and Moore, JJ., concurred.


author: Moore, J.

text:
    HERBECK v. GERMAIN.
    1. Evidencie — Experts—Hypothetical Questions — Assumption op Facts.
    Where, in a personal injury case, there is testimony tending to show that plaintiff, though she had been ill before the accident; had fully recovered, a hypothetical question, put to a physician, which assumes that she was in good health, is not objectionable as not based on the evidence, though that fact is disputed.
    2. Witnesses — Cross-Examination — Imputation op Untruthpulness.
    Questions asked of a defendant on cross-examination are not prejudicial because imputing untruthfulness to him, where his testimony and that of plaintiff are so opposed that both cannot be true.
    3. Same — Discretion op Court.
    A large discretion is given the trial judge in controlling the cross-examination of witnesses, and unless his rulings amount to an abuse of discretion, they will not be cause for reversal.
    4. Trial — Instructions—Assumption op Disputed Facts.
    Where there is testimony from which the jury might find that plaintiff had fully recovered her health at the time of the accident, an instruction that she was suffering from neurasthenia at the time is properly refused. ' ■
    5. Same — Evidence.
    Where defendant’s wife has testified to the circumstances of a collision between her husband’s team and plaintiff’s, remarks made by her directly inconsistent with her version of the accident are admissible, though made in her husband’s absence, and an instruction that the jury should disregard her- remarks, because she could not thus bind her husband, is properly refused because too broad.
    Error to Saginaw; Snow, J.
    Submitted January 4, 1906.
    (Docket No. 4.)
    Decided May 24, 1906.
    Case by Margaret Herbeck against Edward Germain for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Weadock, Purcell & Weadock, for appellant.

      F. F. Fmerick,' for appellee.
   Moore, J.

The plaintiff, a married woman, brought suit against the defendant to recover damages which she claims to have sustained through the negligence of defendant, while seated with her husband and mother in a Concord buggy, drawn by one horse and going in a southerly direction on Washington avenue in the city of Saginaw, and for medical attendance for which she claims to have paid from her own money. She contends the defendant negligently drove his team into the buggy in which she was riding, frightening her husband’s horse, breaking down the wheels of the buggy, and that she received personal injuries and suffered from fright and shock, so she became affected with neurasthenia. The declaration contained two counts, one charging the defendant’s negligence was gross, wanton, and willful, and brought on neurasthenia, and the other alleged the same injury, but charged plaintiff was suffering with a slight affection of the nerves at the time of the accident, which was aggravated by the injury. The defendant pleaded the general issue, and claimed he was not in fault for the injury; but, if any was received, it was the result of the carelessness of plaintiff’s husband, who suddenly turned his horse in front of the team of defendant, thus causing the accident. The plaintiff recovered a judgment for $1,000. The case is brought here by writ of error.

It is said the court erred in permitting an answer to the following question:

Q. I want to ask you one more question based upon Mr. Herbeck’s testimony and her own, Mrs. Herbeck’s testimony, in this case. I want to- ask you ;now, assuming that the woman was in a state of normal good health, good, fair, normal health, when this fright and shock occurred ; will you state whether the condition in which you found her would naturally and pathologically follow from the fright and shock she received.? ”

The objection was that it was a hypothetical question, based on the claim that the plaintiff was a well woman at the time of the injury, when in fact she was a sick woman. The above question came after the following colloquy:

“Q. Now, doctor, assuming the fact to be that on the very day that she received this shock and injury, on that Sunday afternoon, and keeping in mind the explanation of shock and fright that I have given you and also counsel here, that you understand the whole situation and that at that time she was in a condition where all the symptoms of neurasthenia had disappeared. There was no insomnia, no pain of any kind, no bladder or liver or stomach trouble, that she improved, ate well, and was in that physical, mental and nervous condition, that her color had improved, and appetite, and strength. Assuming that now to be the condition, doctor, then I ask you whether the condition in which you found her at your examination could be accounted for or ascribed to the effect of the fright and shock which she received that day, the 12th of June ?

“Mr. Weadock: I object to that, because it does not state the fact and assumes a condition that does not exist. (Reads from Dr. Cowles’ testimony.) Dr. Cowles’ testimony shows the wpman was not a well woman, and they cannot escape it, and no expert questioning based upon the fact she was a well woman can stand under the facts of this case.

Mr. Emerick: I have not said she was a perfectly well woman. I am willing to incorporate what counsel read in the question, and then ask what fright or shock was necessary at that time to produce the condition at the end of seven months. (Question read. Further objection, and reading from Dr. Cowles’ testimony.)

The Court: I think the question assumes it was not entirely removed.

“Mr. Emerick: Put that in.

Q. Assuming, doctor, that the symptoms had all disappeared, but that there was some disease yet, or some effect yet of neurasthenia, that the woman was in a slightly nervous condition, but that the stomach — she could eat and sleep — and then take her condition when you examined her at the end of seven months; I ask you if the fright and shock she received would cause and account for the condition in which you found her when you examined her last week ?

“ A. I would say it might.”

Then came the question upon which error is assigned.

It was the claim of plaintiff that, though she had been ill before the accident, she had fully recovered and had been housecleaning all the week before the injury, and she so testified. Her mother testified she was perfectly well before the accident. Her sister, Mrs. Leyman, where she took dinner shortly before she was hurt, so testified. Her physician testified she was apparently well. In 2 Jones on Evidence, § 373, it is said:

“ If there is no testimony in the case tending to prove the facts assumed in the hypothetical question, such question is improper. The facts must be proved or offered to be proved; and if there is no evidence to prove such facts, or if the facts assumed in the interrogatory are wholly irrelevant to the issue, the question should be excluded. The question is not necessarily to be rejected by the court although the facts assumed by counsel to be true are not proved, or although the question does not state the facts as they actually exist. The facts are generally in dispute; and it is sufficient if the question fairly states such facts as the proof of the examiner tends to establish, and fairly presents his claim or theory. It cannot be expected that the interrogatory will include the proofs or theory of the adversary, since this would require a party to assume the truth of that -which he generally denies. A question should not be rejected because it does not include all the facts, unless it thereby fails to present the case fairly.”

We think there was testimony upon which to base the question. What we have said of this assignment applies to the second assignment of error.

The fourth assignment of error relates to the putting of a question, on cross-examination, to Dr. Sample, a witness for defendant. This question was framed by incorporating in it the reading of three or four pages of testimony. It is now said the question is incoherent, that it does not assume a state of facts on any theory supported by any evidence, that it should have been reduced to writing,' citing Jones v. Village of Portland, 88 Mich. 613 (16 L. R. A. 437), Mayo v. Wright, 63 Mich. 32, and was of too great length to be retained by human memory. It may be said of the last two suggestions that they were not made in the court below. The length of the question can be accounted for in part by the fact that while counsel was framing it, the counsel for defendant continued to object to it, because it was omitting something. We think there was testimony upon which to base the question.

A group of assignments relate to questions which, counsel say, resulted in an attempt to get before the jury the contents of medical works or illustrations from them. Whatever may have been the purpose of counsel, it did not result in getting before the jury the contents of any medical work, and while the cross-examination was very long it was invited by the attitude and the answers of the witnesses..

Error is assigned to the following questions on cross-examination of defendant:

“Q. And didn’t you discover early in the case that if they didn’t turn to one side or to the other, but they drove straight along, and you drove into them, you were guilty, as a matter of law ? ”

It is said this question was unjust, unfair, and unwarranted, and an imputation on the witness, and if for no other reason the case should be reversed. The other question reads:

“Q. What would you call a washwoman that came to your house?”

Counsel say:

‘ ‘ This is another question of the same nature as the one last complained of, only more vicious, if anything, in the prejudice it had a tendency to arouse. * * * There was no washwoman in the case, none heard of or connected with the transaction at all. Mr. Germain had spoken of no washwoman.”

Oóunsel is quite right in saying the first question was an imputation on the witness. It is difficult to see how the case could be tried without imputing a want of truthfulness to either the defendant or the plaintiff and her witnesses. They saw the accident, but their accounts of it are as wide apart as could well be. If the occurrence was as stated by plaintiff it was not as stated by defendant. He, too, had, prior to this question, changed his testimony in relation to how far he was behind the plaintiff when her husband turned his horse, so as to make the collision inevitable according to the version of defendant.

As to the other question counsel is in error in saying Mr. Germain had spoken of no washwoman. On the direct examination defendant testified, among other things, as follows:

“And when I got there, where the old buggy stood, Mr. and Mrs. Herbeck and the old lady were standing and looking at the buggy. We looked it over to see to what extent the buggy was broken. Mr. Herbeck asked me if I would buy him a new buggy, and I said, ‘ No, I will not buy you a new buggy.’ I says, ‘You are a farmer, ain’t you ? ’ and he said, ‘Yes, I own 20 acres of land and there is a mortgage on it.’ * * * I made the remark that the buggy 'was a very old buggy, and not suitable for one to ride in; it was criminal to permit— that’s the remark I made, and I think I have a right to answer — that it was criminal to endanger the life of anyone, especially an old person, in a buggy of that class. * * * On the way home Mr. Herbeck led his horse, followed us all the way home, and when I got to our driveway, which is north of the house, on the north side of the house, addressing Mr. Herbeck as ‘John,’ which is a name I have for any one I don’t know — I call any one ‘John ’ whom I don’t know — I says, ‘ John, turn in here,’ and he did. * * * Then I came back, and sat on the porch until Mr. Herbeck drove up with the horse. When he drove up with the buggy to our porch, the ladies were still — we were still — sitting on the porch, and then the ladies got up, and I helped the ladies in the carriage, which I do with any one that comes to our place, regardless of who they are, sick or well, the washwoman, or any one else.”

While the manner of the cross-examination is not to be commended, there was testimony on the direct examination well calculated to invite it. A large discretion is given the trial judge, who not only hears what the witness says, but observes the manner of saying it. -We cannot say this discretion was so abused in permitting this cross-examination as to call for a reversal of the case.

Error is assigned upon the court’s refusal to give defendant’s seventeenth request. In that l’equest the court was asked to charge the jury that the plaintiff, at the time of the injury, was suffering from neurasthenia. What we have already said will cover this objection.

It is said the court erred in refusing to give the following:

“ I charge you as a matter of law that Mrs. Germain, the wife of the defendant, could not bind him by any statement she made as to the cause of the injury, and I instruct you to disregard all evidence in the case tending to show what Mrs. Germain said about the collision -in the absence of Mr. Germain.”

Mrs. Germain was a witness in the case. There was testimony tending to show that very soon after the accident, before the parties separated, Mrs. Germain said in substance she was thankful they were not all killed, and did not see what defendant was thinking of to drive that way. This statement, if made, was inconsistent with Mrs. Germain’s version given when she was a witness, and was competent to show that inconsistency if for no other reason. The request asked too much, and was properly refused.

Complaint is made of the charge of the court as given. If two or three sentences are separated from the connection in which they were used, they would be subject to criticism ; but, when read in connection with the rest of the charge, the criticism is disarmed. The jury were charged, among other things:

“ The burden of proof is upon the plaintiff, not only to show negligence and misconduct on the part of the defendant, but also ordinary care and diligence upon the part of her husband and herself at the time of receiving ■the injury. The plaintiff’s husband was not bound,_ under the law, in driving his horse ahead of the defendant, to turn either to the right or left, to permit the defendant to pass, and the defendant had a right to rely upon the plaintiff’s husband continuing straight ahead as he was driving, without turning to the right of left.

“I charge you, as a matter of law, further, that the defendant had a right to pass the carriage in which the plaintiff was riding, either to the right or left of him as he saw fit, so long as he used ordinary care and prudence in doing so; and the defendant had a legal right to travel upon any part of the highway he saw fit, unless he was to meet and pass another vehicle going in the opposite direction, in which case he must seasonably turn to the right of the middle of the traveled part of the road.

The statute requiring teams meeting and passing each other, when going in opposite directions, to turn out and give half the traveled roadbed to the passing team, does not apply in this case, and must not be considered by you in connection with this case at all.

“ If, from the evidence in the case, you find the plaintiff’s husband, upon hearing the approach of defendant’s horses, suddenly turned to the left and brought the carriage in which plaintiff was riding immediately in front of the defendant’s horses, as they were turned to the left in attempting to pass the carriage in which she was riding, and the collision followed, resulting in injury to the plaintiff, then plaintiff cannot recover, because, if there was injury resulting from the collision under such circumstances, the result of the negligence of the plaintiff’s husband in such a case would be imputed to her, and would bar her recovery for any injury which she may have sustained, for the reason that the plaintiff in riding with her husband assumed the risk from lack of skill and. want of care in driving; and if the plaintiff’s husband, from lack of skill or want of care in any degree, however slight, contributed to the receiving of the injury for which plaintiff claims, she cannot recover.”

The record is a very long one. There are other assignments of error than those discussed. We have considered them, but do not deem it necessary to refer to them further.

Judgment is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    COVEY v. LESLIE.
    1. Guardian and Ward — Authority of Guardian — Mortgages —Priority.
    Where a guardian, holding a mortgage belonging to his wards, negotiates a loan as agent for a third person to the mortgagors for the purpose of making a payment on the mortgage, and takes as security another mortgage on the same premises, he has no authority to postpone his wards’ mortgage in favor of the second one.
    3. Mortgages — Priority—Effect of Foreclosure.
    Statutory foreclosure is not adapted to cases where there are conflicting equities and cannot operate to reverse priorities between mortgages.
    Case made from Kent; Wolcott, J.
    Submitted January 5, 1906.
    (Docket No. 19.)
    Decided May 24, 1906.
    Bill by Edward S. Covey and Grace Covey against James B. Leslie, Mary Uptegrove, and others, to foreclose a mortgage. From a decree for complainants, defendant Uptegrove appeals.
    Affirmed.
    November 28, 1890, Henry Watson, as guardian of complainants, then minors, took from defendants Leslie a note for $465, due five years after date, and a real-estate mortgage to secure payment of the same, and the mortgage was duly recorded. George R. Slawson succeeded Watson as guardian, and to him the said mortgage was assigned. The amount due on this mortgage September 14, 1895, was about $600, which was about the value of the land. The guardian was at that time acting as agent for defendant Uptegrove in lending money, and he arranged with the Leslies to lend them $300, to be applied on his guardian’s mortgage; they to give to Mrs. Uptegrove a mortgage on the same property to secure payment of said $300. The arrangement was carried out, and the money was applied on the guardian’s mortgage and expended for the benefit of the infant wards. In the Uptegrove mortgage no reference was made to the guardian’s mortgage. There is testimony tending to show that Slaw-son represented to Mrs. Uptegrove that her mortgage was a first mortgage on the premises, and that he had no authority to lend her money except upon first mortgage. Mr. Slawson, in 1898, caused the guardian’s mortgage to be foreclosed by advertisement, and as guardian bid in the premises for $400.28, subject to the Uptegrove mortgage. In 1901 Mrs. Uptegrove foreclosed her mortgage by advertisement, and at the sale in December, 1901, bid in the said premises and now holds them. The guardian died in February, 1901, and the infants attained majority April 9, 1902. They settled with the administrator of the Slawson estate and took an assignment of the guardian’s mortgage. The bill in this cause is filed to foreclose said mortgage, crediting upon it the amount of the Uptegrove loan, and, as ancillary relief, to set aside the original foreclosure of the mortgage and the sheriff’s deed executed pursuant thereto; and it is averred that this mortgage is prior to the Uptegrove mortgage, and that Mrs. Uptegrove is chargeable with notice of such priority. The Leslies are not financially responsible. From a decree granting the relief prayed for, defendant Uptegrove has appealed.

      E. J. Bowman (8. W. Barker, of counsel), for appellees.

      G. L. & O. B. Barden, for appellant.
   Ostrander, J.

(after stating the facts). The record presents a case of strong general equities in favor of defendant Uptegrove, opposed to the application, and the result thereof, of rules of strict right favorable to complainants. The evidence does not permit us to find that the wards have affirmed the action of their guardian, which defendant relies on to give to her security priority over the guardian’s mortgage. They have affirmed the mortgage, and the acceptance of a partial payment thereof. The guardian had neither express nor implied authority to postpone his security to the Uptegrove mortgage, a fact Mrs. Uptegrove was bound to know. Neither could the statutory foreclosures of the mortgages, -respectively, operate to reverse priorities. Repeatedly it has been held that such proceedings are not adapted to cases in which there are conflicting equities. By their terms and by the record the guardian’s mortgage is prior to the Uptegrove mortgage.

The decree recognizes, the prior right, and must be affirmed, with costs.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    BRANCH v. BRANCH.
    Divorce — Cruelty—Evidence—Sufficiency.
    On a bill for divorce, evidence examined, and held, not to support a decree on the ground that defendant’s penuriousness made life with him unbearable.
    Appeal from Shiawassee; Smith, J.
    Submitted January 10, 1906.
    (Docket No. 51.)
    Decided May 24, 1906.
    Bill, by Sarah M. Branch against Dwight C. Branch for divorce. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      Watson & Chapman, for complainant.

      Q. A. Smith and O. J. Hood, for defendant.
   Montgomery, J.

This is an appeal from a decree of the circuit court for the county of Shiawassee, in chancery, granting a decree of divorce to complainant on the ground of extreme cruelty. Each of the parties had been married before, and each was divorced. , The complainant had two children by a former marriage. The defendant had none living at home. At the time of the marriage between these parties complainant was 29 and defendant 4? years of age. The complainant’s two children were aged, respectively, ? and 12 years. Defendant owned a farm of 80 acres in Locke township, Ingham county, subject to a mortgage of $600. The understanding appears to have been that the complainant’s children should be provided a home with defendant. One child was born to the parties, Bessie, now about 8 years of age. The complaints made by complainant are that the children were not well provided with clothing and food, that they were ill treated by defendant, that defendant was penurious and selfish, and that he was unreasonable in his demands for sexual indulgence.

It is unquestionably true that the defendant was frugal to a degree, and that the clothing furnished the children and complainant was not of the finest quality; but it appears to have been substantially of the same quality that the neighbors had. It appears that in the nine years the parties lived together the defendant lived economically, dressed modestly, had no expensive habits, and that all the balance of his income from the farm was expended upon the family excepting an amount sufficient to pay off the mortgage and a further sum of $240 in cash, which complainant took away when she left him surreptitiously in June, 1903. We cannot, in view of these facts, say that defendant was so penurious in his family as to make life with him unbearable. As to the disagreements with the children, they were quite as common between complainant and her children as between the children and defendant. The testimony relating to the charge of excessive sexual indulgence has been considered. There may have been some foundation for this charge at one time, but the complainant by returning to live with defendant after a previous separation condoned any cruelty of this nature. We are not satisfied that any just ground for complaint exists on this score arising since her return. This case is a most unfortunate one. We are convinced that- the parties can and should live together in comfort and peace; that the best good of their young child demands it.

The decree is reversed, and the bill dismissed.

McAlvay, Grant, Blair, and Ostrander, JJ., concurred.


text:
    ROLFE v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Carriers — Goods—Injury—Connecting Carriers.
    Where goods are transported by successive carriers, and an action is brought against the terminal carrier for damage to the goods, it is not enough to show that the goods were delivered to the initial carrier in good condition, but it is incumbent upon the plaintiff to show that they were in good order when received by the defendant.
    2. Same — Sufficiency of Evidence.
    In an action against a terminal carrier for injuries to an automobile in transit, evidence examined, and held, insufficient to show that the automobile was delivered to the defendant in good order. ■
    Error to Lenawee; Chester, J.
    Submitted January 11, 1906.
    (Docket No. 46.)
    Decided May 24, 1906.
    Case by Charles A. Rolfe against the Lake Shore & Michigan Southern Railway Company for damages to personal property. There was judgment for plaintiff, and. defendant brings error.
    Reversed.

      Weaver, Morgan & Priddy, for appellant.

      Bird & Sampson, for appellee.
   Montgomery, J.

The plaintiff’s consignor delivered, to the Chicago, Burlington & Quincy Railway, at Denver, for shipment to plaintiff at Adrian, Mich., an automobile of the value of $1,600, in good condition. The car was shipped by the Chicago, Burlington & Quincy Railway in B. & A. car No. 11,601. ' It was accepted by defendant in the same car in Chicago, and was forwarded in that car to Adrian. On opening the car at Adrian it was found that the automobile had never been braced in the car, and that its motion back and forth on the floor of the car jmd been guarded against in no other way than by nailing across the car in front of the front wheels and back of the rear wheels a 2 by 4 strip; that the automobile had been jolted over these strips, so that any jolting of the car would cause the vehicle to run back and forth on the car floor; that this had resulted in serious damage. The plaintiff recovered for the entire damage, and defendant brings error.

The questions discussed were saved by appropriate exceptions, and proper assignments of error were duly filed. The important question is whether a case was made meeting the requirements laid down in the two cases of Marquette, etc., R. Co. v. Langton, 32 Mich. 251, and Marquette, etc., R. Co. v. Kirkwood, 45 Mich. 51. These two cases establish the rule for this State that where goods are transported by successive carriers, and an action is brought against the terminal carrier for damage to the goods, it is not enough to show that the goods were delivered to the initial carrier in good condition, but it is incumbent upon the plaintiff to show that they were in good order when received by the defendant. We feel bound to adhere to this rule, which has prevailed in this State for more than 30 years.

The plaintiff’s counsel does not ask us to depart from the rule of these case's, but insists that he has brought his case within it. The plaintiff’s brief assumes that the machine was reloaded by defendant at Chicago. Of this we discover no evidence whatever. On the contrary, the inference is entirely the other way, as the machine came through from Denver to Adrian in the same. car. Can it be assumed that the damages to this car were caused by defendant, rather than the initial road ? Certainly there is no proof of the fact. There is no testimony tending to show that this car was subjected to any unusual jolting by defendant while under its control. If the inference be that the automobile was jolted from its insecure position by the ordinary action of a freight train, it should be noted that the car was transported by the initial road a much greater distance than the defendant hauled it, and was subject to the same vicissitudes. The inference is therefore as strong, if not stronger, that the damage was caused by the initial carrier as that it was caused by defendant. It must be held that the proofs failed to fix the responsibility upon defendant.

Judgment reversed, and a new trial ordered.

McAlvay, Grant, Blair, and Ostrander, JJ., concurred.