text:
    BOEHM v. CITY OF DETROIT.
    1. Negligence — Injuries to Child — Imputed Negligence.
    Where a child, is injured by falling into a hole in a defective sidewalk while being led by the hand by his father, the negligence of the father in taking him over the walk is not imputable to the child and will not bar recovery by him.

    2. Evidence — Opinions—Harmless Error.
    Where the exclamation, acts, and demeanor of a child fally es-’ tablish the fact that he suffered great pain, the admission in evidence of the opinions and conclusions of witnesses that he suffered, if error, is not sufficiently harmful to work a reversal.
    3. Same — Experts—Conclusions.
    An objection to the attending physician’s testimony that plaintiff suffers from contraction of tissues “yet,” as a result of the injury complained of, sustained some months before, is disposed of by subsequent testimony by the physician that he examined plaintiff two weeks prior to the trial.
    4. Appeal and Error — Assignments—Theory Below.
    Assignments of error based on grounds not presented by the objections below will not be considered.
    5. Evidence — Experts — Examination — Hypothetical Question.
    An objection that a hypothetical question is not based upon the testimony is unavailing where the answer is not based upon the question, but upon the physician’s examination of plaintiff.
    6. Same — Opinion.
    In an action for injuries to a child by falling on'a defective sidewalk, his attending physician may properly be permitted to testify that from his experience it is his opinion that the injury from which he found plaintiff to be suffering could be produced by stepping into a hole in a sidewalk and straining his leg.

      7. Same — Opinion—Cause op Injury.
    Where there is evidence that plaintiff was a healthy, robust child, with perfectly sound legs, immediately prior to the injury in question, and that an abscess formed after the injury, it is proper to show how the abscess might have been caused.
    Error to Wayne; Hosmer, J.
    Submitted June 20, 1905.
    (Docket No. 37.)
    Decided September 19, 1905.
    Case by Gordon E. J. Boehm, by next friend, against the city of Detroit for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    P. J. M. Hally (Timothy E. Tarsney, of counsel), for appellant.

      Wesley L. Nutten, for appellee.

       For contributory negligence of parent or custodian as bar to an action by child for negligent injuries, see note to Chicago City R. Co. v. Wilcox (Ill.), 21 L. R. A. 76.

   Blair, J.

The plaintiff, an infant, brought suit, by his next friend, against the city of Detroit for injuries alleged to have been received on the night of August 14, 1901, through a defective sidewalk. At the time of the accident the plaintiff was a little over four years old, and was walking over the sidewalk in question between his father and mother; his father holding him by the left hand. As they were going along, the child stepped into a hole in the sidewalk and fell with considerable force against his father. Plaintiff alleges in his declaration that by reason of this fall—

“ The muscles, tendons, nerves, and ligaments of his right‘leg at or near the groin thereof were greatly and permanently injured, sprained, bruised, and wrenched, and the femur bone of said leg near the hip joint was bruised and permanently injured, and said leg was sore and lame, and so remained for a long time, to wit, from thence hitherto, and as a result of said injuries an abscess formed near the groin of said leg, which caused plaintiff great suffering, and said abscess was lanced, and the bone where the same had formed was scraped, and plaintiff is advised by his physician that abscesses are liable to recur at said point. That said injuries have impaired the use of said leg, and caused plaintiff to favor the same, and plaintiff fears that his said leg is permanently disabled. That in consequence of said injuries plaintiff has suffered much pain, and his nervous system has been greatly shocked, permanently injured, and he has been obliged to undergo medical and surgical treatment at an expense of about seventy-five dollars.”

It was conceded by counsel for the city that defendant was negligent, but it was insisted that no injury had come to plaintiff through such negligence; that there was no causal connection between the child’s fall and the abscess. The trial resulted in a verdict for plaintiff, and defendant has brought the record to this court for review upon writ of error.

Defendant’s counsel presented 20 assignments of errors, but have discussed in their brief and argument in this court only assignments numbered 1, 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16, which are as follows:

“1. The court erred in refusing to strike out that portion of witness Boehm’s testimony wherein he said: ‘ He was in awful pain and agony.’
“2. The court erred in refusing to strike out that portion of the testimony of witness Boehm where he said: ‘ We could not hardly touch his leg.’ * * *
“ 6. The court erred in refusing to strike out that portion of witness Shields’ testimony wherein he said: ‘ There is evidently contraction of these tissues yet.’
“7. The court erred in permitting witness Shields to give an answer to the hypothetical question on page 27 of the record.
“8. The court erred in remarking: ‘It seems to me that two ounces of pus would show an injury of some kind.’
“9. The court erred in using the following language: ‘ In the absence of any other cause for that, would you attribute it to stepping into the sidewalk, or would stepping through a hole in a sidewalk be likely to' produce injuries such as you found the child suffering with ? ’
“10. The court erred in using the following language: ‘ All he can say is whether such a fall would be natural to contribute to the injury in question. I don’t suppose a child would contract scarlet fever by falling through a sidewalk. You may show that stepping through the sidewalk was the probable cause of this injury.’
“11. The court erred in refusing to strike out that portion of witness Shields’ testimony wherein he said: ‘And straining his leg.’
“ 12. The court erred in denying defendant’s request to direct a verdict for the defendant on the ground that ‘ the negligence of the parents must be attributed to the child' under the facts of this case.’
“13. The court erred in refusing to permit counsel for defendant to argue to the jury the negligence of the parents, so that the jury might pass upon the intent of the parents considering the premises.
“14. The court erred in permitting witness Weber to answer the hypothetical question on page 32 of the record.
“15. The court erred in permitting witness Weber to answer the question in reference to Dr. Shields: ‘ He is a
reputable physician.’
“16. The court erred in charging the jury as follows:
“ ‘Gentlemen of the jury, there is another feature which is com. mon to cases of this description, which is eliminated from this case. That is the case of contributory negligence. I charge you, gentlemen of the jury, that no negligence on the part of the parents of the boy in taking him over the walk in question can be imputed to the boy, and that, therefore, no negligence of the father would bar his right of action, as it would bar another if he was guilty of such conduct as contributed to the injury. I also charge you that a boy of that age, four years and three months, who is being led by his father, cannot be guilty of contributory negligence.’”

Defendant’s counsel admit that several of the above assignments of error would be trivial in an ordinary case, but insist that, since the sole question of fact for the jury was whether the fall of the child was the cause of the abscess, the rulings of the court permitting improper statements of opinions and conclusions of witnesses were materially prejudicial to the defense.

No requests to charge were presented by defendant’s counsel, the issue of fact was clearly and fairly stated to the jury, and the charge is not questioned, save as to the instruction that the negligence of the father could not be imputed to the child, in which respect the charge correctly stated the law. Shippy v. Village of Au Sable, 85 Mich. 292; Mullen v. City of Owosso, 100 Mich. 105 (23 L R. A. 693). The fact that in this case the father had hold of the child’s hand at the time of his fall does not affect the principle involved.

The child’s father testified regarding his injuries as follows:

“ As we were going home there, I had the little fellow, holding him by the hand, and he stepped into the hole. He fell with such force as to throw him against me and injure his leg so that he started to cry, something that is unusual for him to do. As we were going home he cried all the rest of the way, and when we got in the house he was crying, and we considered him hurt. I was on the outside going south. The mother was on the inside going the same. way. This place is about 270 feet from Berlin street. I didn’t see him the next morning. I saw him at noon. I saw his leg at that time. It seemed swollen tome, and red. Well, he was around the house• he was lying down on the couch. The hole he stepped into was, I should judge, about 6 inches. The second day after the accident I saw him. He couldn’t use his leg. It was so painful he couldn’t use it. I know it was painful by his actions. He had a very high fever, and the doctor said he had a very bad fever.
‘ ‘ Q. State what you know yourself about it.
A. There was a swelling there, and he was lying on the couch. It was a hot day, and we brought him down stairs. He was in awful pain and agony.
11 Mr. Hally: I ask that the answer be stricken out. The last part of the answer, where he says he was in awful pain and agony.
“ The Court: He can’t testify to that, but he can testify as to what he did and how he looked.
Q. What was his appearance ?
“A. Well, he had a very bad appearance.
Mr. Hally: I ask that the answer be stricken out.
Mr. Nutten: I consent that it be stricken out.
“ Mr. Hally: Do you consent, also, to the other Mr. Nutten ?
‘ ‘ Mr. Nutten: I consent to that one.
Mr, Hally: Did your honor rule upon that?
The Court: I think he may testify to the other. It seems to me that he can describe indications of pain.
“ Mr. Hally: It seems to me that it is entirely inadmissible to have his conclusion go into the case.
The Court: That is true, but upon the part of the child, if he was crying or if his features were drawn up, so as to indicate that he was suffering, I think he would naturally form a conclusion that he was in pain.
Mr. Hally: That is for the jury. If he can draw such a picture as that to this jury, we will not object to it.
The Court: It is difficult to describe the distortions of the features, but yet, at the same time, I think we can all tell if a child has something the matter with it or not. We may look over a child and find that the child has pain.
“Mr. Hally: Yes, but children cry when there is nothing the matter with them.
The Court: If we look at a pin sticking into a child, we conclude it has a pain. I think you may testify in this case that, you examined the child and found the redness that you spoke of.
“Mr. Hally: Note an exception.
"Q. Mr. Boehm, what was the boy’s appearance at that time ?
“A. His appearance was that he was all in a fever and pain.
“ Q. Why do you say pain ?
“A. On account of the swelling there, and he was always holding his hand on there. In general, I took him, as a father would take a child, to be in very bad pain.
“Mr. Hally: I ask the answer be stricken out as incom. petent.
The Court: I will let it stand, and give you the benefit of an exception.
“A. I saw him three days after the accident. There was quite a swelling there then. Quite a swelling and all red. He was confined to his bed. I saw him every day, from day to day, up to the time of the operation. He was growing worse right along. The swelling was getting larger, and he seemed in more pain every day. .
Q. State his appearance. Not how he suffered pain, but how he appeared to you. You can’t tell whether he suffered pain in his own mind, but what appearance did he have ?
“A. He looked all drawn up, and was crying as if being in pain. Certainly he would not move. We could not hardly touch his leg. It was so painful.
Mr. Hally: We object to that, and ask that his answer be stricken out. It is outside of his knowledge whether the child could do such a thing or not.
“A. I touched the child’s leg, and he screamed just as soon as I touched him. After he was confined to his bed, he stayed in bed all the time.
“ The Court: I think you may testify to the child’s manner when you touched his leg.
Mr. Hally: That is not what I take an exception to. It was his opinion that the child could not do certain things. He could not get out of bed. He could not touch his leg. He could not move. He could not hardly touch his foot. Those things I object to. It is entirely without the knowledge of the witness.
The Court: Note an exception.
“ Before this accident, the boy was never known to be sick a day outside of cutting two large teeth, and was always healthy, robust, and little full, fat, red cheeks. We never knew what a sick day, a restless night, was with him.
“ Q. What was his condition subsequent to the accident ?
11 A. Well, he has had middling poor health.
‘ ‘ Mr. Hally: I think that this is carrying the opinion of the witness too far. I object to the answer, and ask that it be stricken out upon the ground that this witness is, in the first place, not competent to judge of the child’s ■condition, and, in the second place, he is not competent to say that his present condition is the result of any injuries or alleged injuries that he received.
The Court: Answer the question. Note an exception.
“A. Well, since he has been up, he has got to be pale, and his leg is not right as it used to be. He is thinner, and looks more haggard than what he did, and he limps on that leg after running around and playing or skating, and he can’t walk no distance at all without tiring out; that is, he drags his leg. He can’t do anything like that. Before the accident we never noticed him dragging his foot or limping.”

The child’s mother testified:

“He stepped into this hole, and he commenced to cry, and said it hurt him, and he kept kind of whimpering and crying until he got home, and he was restless during the night, and in the morning he complained of it hurting him. It was then inflamed and swollen up a little, and it continued to swell, and we put hot plates on until about the fifth or sixth, and the operation was performed. I think it was the next morning when we called the doctor. It was the right leg, a little below the groin. He was confined to his bed about six weeks. Before the accident there was nothing the matter with his leg at all, and he was always a healthy child. We never knew what it was to be up with him, except two times Mr. Boehm spoke of. Since the accident, at night he has been very nervous, and said that his leg pained him. He put his hand there, and said it hurt him, and he cries. The next morning after the accident it was inflamed, swollen up a little, and it continued to swell, and we put hot plates on untM about the fifth or sixth, and the operation was performed. It was very painful from day to day. Every time we touched it or moved his leg any way, he would cry and scream with pain. We called a doctor, I think, the next morning. After he got off his bed, at any time he would walk any distance, he would always say that leg hurt him, and put his hand there, and say it hurt him.
“The Court: The remark of the child may be stricken out.
“A. The appearance of that leg is just the same. You don’t notice it at all, but he says it hurts him, and you can see he favors that leg. Before the accident, he had a very large face, and always had red cheeks, but since that he looks pale and delicate. He has no appetite. I saw the boy’s leg the morning of the accident. Before he went away I gave him a bath.”

Dr. Samuel Shields, sworn for the plaintiff, testified as follows:

“ I am a practicing physician, and have been for 14 years, in Detroit. I was called to treat the plaintiff in August, 1901. I think the 15th.
Q. What was the condition of his leg, doctor, up to the time of the operation after you were first called ?
“A. Why, the condition of his leg, at least, my attention was drawn to the condition of the leg from the fact that he complained of that condition; complained of pain, and was very tender there. There was a palpitation. It was tender. You could not touch him. The child had considerable fever, a rapid pulse rate, and the condition increased until there was a marked swelling, a distention of the leg, just below the groin. Five or six days after I saw him the first time, I concluded that pus had formed in this leg, and I also concluded it was necessary to remove that pus before there was extensive destruction. I think five or six days after I saw the child the first time, I removed the pus and tissues that were broken down, by making an incision over the swelling and dissection down until I got to the pus. I washed out the abscess, and packed that with iodoform gauze, and dressed the leg. I found about two ounces of pus, I should judge, in this abscess.
“Q . Was the periosteum affected ?
“A. Yes, sir.
“Q. What was the condition of the muscles there after this operation ?
A. There was a contraction of the muscles and tissues in that part of the leg after he had partially recovered from his troubles; that is, in September or October.
Q. What do you think,, doctor, about the permanency of these injuries you have related ?
“A. I think some of those in juries are permanent. * * *
Q. What are the parts of the leg involved, either by the inflammation or your operation ?
“A. Well, the swelling there was apparently Poapart’s ligament, and in the center anterior portion of the leg, and the incision was made in that place, and the destruction of tissue was in that place, extending down towards the bone. There was contraction of those tissues, and there evidently is contraction of those tissues yet.
“Mr. Hally: I ask that that answer be stricken out, that there is evidently contraction of the tissues yet. It is not in evidence when this physician saw this boy last and examimed him.
“ Mr. Nutten: We will connect it. (Exception.)
Q. Doctor, the evidence shows that the plaintiff in this case, Gordon Boehm, a boy of about four years and three months old, was on August 14,1901, at about 9:25 p. m. of that day, walking along Concord avenue in this city; that it was a dark night, and he was in company with his father and mother; that he had hold of his father’s right hand; that the plaintiff was between his father and mother ; that he had hold of his father’s right hand, and when they arrived at a point about 270 feet from Berlin street that plaintiff stepped into a hole in the sidewalk about six inches in depth; that he at once commenced crying, and put his hand on the right leg near the groin, and said it hurt him there; that he cried after he reached the house, which is about 240 feet distant, and again complained of this leg hurting him there; that through that night he was sleepless; that the next morning his right leg near the groin was swollen and inflamed; that he complained of considerable pain in that region; that immediately prior to his stepping into this hole there was nothing the trouble with his right leg, so far as his mother knew; that his health immediately prior to the accident was good. If the testimony in this case is true, doctor, to what would you attribute the condition of his leg when you saw it on the 15th of August ?
“Mr. Hally. I object to the question, because it contains facts that have not been produced here on this trial. They may be known to the doctor, but they have not certainly appeared in the evidence here.
“Mr. Nutten: I would like those facts. State them, and I will eliminate them. What are the elements of which you complain ?
“Mr. Hally: The evidence in the first place is that he did not begin to cry, simply he whimpered and complained some. There is no evidence that next day there was any swelling at all. There was some redness there. This question says that there was swelling next day. There is no evidence at all in this particular case that this boy put his hand any place. The evidence is that he fell up against his father; that he never left his father’s hand; the father never let go of him. There are plenty of facts that are in this case here that are not included in that hypothetical question.
The Court: There is no question but his father testified, when he went in the hole, he had hold of his hand, and he fell up against him. I suppose that that might be compatible with his holding on the hand at that time. Note an exception. Let the question be answered.
“A. My opinion is that his injury dates from the time that he stepped into the hole.
“Dr. Lane: If he was injured, there is no question but it would date from that time. The only question is whether such a condition would arise from that injury. The question is, Was this the result of the injury — this condition complained, of by the boy ? We don’t concede it was injured at all.
Mr. JSfutten: The doctor says he saw him every day from five or six days after the injury.
‘ ‘ The Court: It seems to me that two ounces of pus would show an injury of some kind.
Mr. Hally: I take an exception to the remarks of the court.
Q. On the 15th of August, up to the time of the operation, would there be any question in your mind but what the injury you have detailed followed as a natural result from the injury, or from his stepping into the sidewalk ?
Mr. Hally: I object to that as not covered by the testimony, and as asking for a conclusion not based upon anything, nor th.e facts that have been produced here. It asks the doctor for an opinion which can be based either upon facts that the doctor knows that are not evidence, or anything at all that the doctor has a mind to consider as evidence to justify the conclusion.
Mr. Nutten: I will add to my question, then, assuming that the child’s leg was all right prior to the time he stepped into the hole on the night of the 14th of August ?
Mr. Hally: Same objection, and the same reason following the objection, to the addition to the question.
The Court: In the absence of any other cause for that, would you attribute it to stepping into the sidewalk, or would stepping through a hole in a sidewalk be likely to produce injuries such as you found the child suffering ?
Mr. Hally: I object to the doctor giving any testimony based upon a likelihood. I don’t think anybody is allowed to testify to what is likely to happen.
The Court: All he can say is whether such a fall would be natural to contribute to the injury in question. I don’t suppose a child would contract scarlet fever by falling through a sidewalk. You may show that stepping through the sidewalk was the probable cause of this injury.
“A. From my experience, I would say that the injury that I found Gordon Boehm suffering from could be produced by stepping into a hole in a sidewalk and straining his leg.
11 Mr. Hally: I ask that the answer be stricken out, because it includes in this answer testimony that is not in this case.
“ The Court: What is it ?
“Mr. Hally: Straining of the leg.
The Court: Note an exception then.
“ I examined the boy to see whether he did limp, about six months after the injury. I saw him walk across the floor. He walked with a limp.
Q. When did you examine this boy last ?
“A. I examined him somewhere about two weeks ago.”

Dr. Nathaniel W. Weber, a witness sworn for the defendant, testified as follows:

“I have been a physician of medicine and surgery in this city for 35 years. I am a specialist in diseases of women. I made an examination of this little boy for a supposed injury to a limb. I found in a straight line transversely with the thighs scarcely perceptible — I mistook some other condition about the thigh for what I was looking for, not knowing exactly what to find. I found a straight cicatrix or scar transversely across the upper part of the thigh. That I had to look for with considerable care to see. I found some difficulty in finding that scar.
“ Q. Was the place pointed out to you where that scar was; that is, the region ?
“A. They put their finger down. I think I discovered it about the same time. I would say that they showed it to me and I discovered it about the same time. I didn’t find any abnormal condition. Both thighs were about the same size, no loss of tissue, and the slight scar that I saw indicated possibly suppuration beneath sometime.
Q. Did you find any other condition of the boy ?
“A. I found an enlarged gland in the groin, in both groins, and in the neck.
Q. From your examination of the boy, if there was any abscess there at any particular time, what do you think was the cause of that abscess ?
‘LA. Under such conditions as I found, an abscess is liable to form without any injury at times. Glands suppurate and are destroyed by simply the child’s health becoming impaired, and sometimes they break down without any particular cause,”

On cross-examination he testified:

“ Q. You say you can’t conceive of any such condition would result in a healthy child. Do you mean to tell me, doctor, do you mean to tell this jury, that if the cjiild was perfectly robust and healthy on the night of August 14, 1901, that his health was excellent, if he steps into a hole six inches deep, that he immediately commences to cry, that he cries from that time until he gets into the house, 240 feet away, that he cries after he gets into the house, puts his hand upon his groin and says it hurts him there, that in the morning there was a swelling, and inflammation there and pain, do you mean to say, doctor, that, these facts taken into consideration, the fact that the leg was perfectly well immediately previous to the accident, if it would not be referable to the fact of his stepping into that hole, if this condition would not be referable to the fact of hfe stepping into that hole the way he did ?
“A. Well, putting it that way, of course, you have got to take the symptoms as they occur to you and the previous history and all that.
Mr. Hally: I desire an objection to that, and now ask the answer be stricken out, unless the portion of the testimony is eliminated that the boy put his hand on the groin. There is absolutely nothing to warrant that in this case.
The Court: I have forgotten about that. I will give you an exception.
££ Q. Do you know Dr. Shields ?
“A. Yes.
Q- He is a reputable physician ?
“Mr. Hally: I object to that. Nobody has questioned that.
£ ‘A. He is a graduate. He has my name to his diploma.
“Q. He is a reputable physician here ?
“A. Yes.
“Mr. Hally: I object to that. He can’t bolster up a man that is put upon the stand, when the truth of it has not been questioned. I ask it be stricken out.
££ The Court: I don’t think there is any particular harm done. You don’t question his reputation.
“Dr. Lane: His testimony stands for what it is worth upon the witness stand.”

The testimony above quoted comprises all of the testimony in the record concerning the child’s suffering as a result of the injury and the connection between the fall and the abscess. It is manifest that, if the jury gave any credence to the undisputed testimony of the parents and the attending physician, they must have found that the plaintiff suffered great pain, independent of the expression of opinions or conclusions to that effect. The exclamations, acts, and demeanor of the child, which were undoubtedly competent, fully establish the fact that he suffered great pain, and the admission of the opinions complained of, if error, was, under the circumstances, not sufficiently prejudicial to call for a reversal of the case.

The sixth assignment of error was disposed of by the testimony, put in after the objection was made, that the doctor had examined the child two weeks prior to the trial.

The seventh and fourteenth assignments of error are not well founded. The point of the objections made to the trial judge was not, as in the brief in this court, that there was no evidence in the case that the child “ at once” put his hand on his groin, but that “there is no evidence at all in this particular case that this boy put his hand any place.” There was abundant evidence that the boy frequently put his hand upon his groin; in fact, his father said, “ he was always holding his hand on there.” Furthermore, the answer of Dr. Shields shows that he did not base it upon the hypothetical question at all, but upon his examination of the child.

“ From my experience, I would say that the injury that I found Gordon Boehm suffering from could be produced by stepping into a hole in a sidewalk and straining his leg.”

We think, also, that the question was substantially based upon the testimony and was properly allowed.

The answer of Dr. Shields above referred to also disposes of the ninth and tenth assignments of error. Whether the question permitted by the court was proper or not, what was actually testified to by the doctor was admissible. Bush v. Railway Co., 113 Mich. 513. There was evidence in the case from which the jury could properly find that the child was a healthy:, robust child, with perfectly sound legs, immediately prior to his injury, and that an abscess formed after the injury, which might have been caused by straining his leg. But, if there was no evidence of the straining of the leg, this did not render the doctor’s testimony incompetent. It was proper to show how the abscess might have been caused. Whether the proofs at the close of the testimony justified the submission of the case upon that theory would present another question.

We find no errors in the record justifying a reversal of the judgment, and the judgment is affirmed.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    SCHMID v. VILLAGE OF FRANKFORT.
    1. Municipal Bonds — Illegal Issue — Bona Fide Holders — Right to Question Title.
    Where, in a suit against a village on illegal municipal bonds, plaintiff claims as a bona fide holder through purchase from an agent of the owner, the village cannot question the validity of plaintiff’s purchase unless the owner could.
    2. Principal and Agent — Unauthorized Sale by Agent — Ratification-Estoppel.
    Where a principal receives the proceeds of an unauthorized sale of bonds by his agent he is estopped to deny the purchaser’s title to the bonds.

      Z. Municipal Bonds — Right op Action — Bona Fides.
    In an action on village bonds given in aid of a private enterprise it is incumbent on plaintiff to show a bona fide purchase for value.
    4. Same — Question por Jury.
    In an action on certain village bonds admitted to be invalid, evidence examined, and held, to require submission to the jury of the question whether plaintiff was a bona fide purchaser for value.

      5. Same — Evidence—Admissibility.
    Where plaintiff claimed to be a bona fide purchaser of certain invalid municipal bonds, evidence of a former owner of them that prior to the sale thereof he informed plaintiff that the bonds were bonus bonds given for building a factory, by a letter properly addressed and mailed, was admissible, plaintiff having denied receiving any such letter.
    6. Same — Question for Jury.
    Where, in an action on municipal bonds, plaintiff denied receiving a letter from a former owner of the bonds informing him that they were bonus bonds issued for building a factory, whether such denial overcame the presumption arising from the mailing of the letter was for the jury.
    Error to Benzie; Chittenden, J.
    Submitted June 21, 1905.
    (Docket No. 41.)
    Decided September 19, 1905.
    Assumpsit by Frederick Schmid, surviving partner of the firm of Mack & Schmid, against the village of Frankfort, upon municipal bonds. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      B. M. Thompson, for appellant.

      D. 6r. F. Warner and Thomas Smurthwaite, for appellee.
   Hooker, J.

The plaintiff was defeated a third time in his action upon certain bonus bonds given by the defendant in aid of a private enterprise. The cause is here for the third time, both former judgments having been reversed on error. See 131 Mich. 197, 134 Mich. 619. Plaintiff’s right to recover depends upon the bona fides of the purchase of the bonds from Chandler, who negotiated them for Seeley.

It is contended that Chandler was not authorized to sell these bonds for Seeley, and Seeley is said to have so testified upon the last trial; but it clearly appears from his own testimony that he received $2,400 of the proceeds of the sale to the plaintiff and his copartner and the defendant cannot question the validity of this purchase, unless Seeley could. He is clearly estopped from denying plaintiff’s title. It was therefore error to instruct the jury that:

“There is one other matter to which I desire to call your attention. The testimony of Mr. Seeley is to the effect that the bonds were never delivered to him, that he never had them in his possession, and never authorized Chandler or any one else to sell these bonds, and at the time the bonds were purchased by the plaintiff in this suit he (Seeley) was not entitled to the possession of the bonds; the same not having yet been earned by him. I charge you that if you find that these bonds were never delivered to Howard Seeley by the Chandlers, and that Seeley never authorized the Chandlers nor any one else to sell them, and that they were sold without his (Seeley’s) knowledge or consent, then there was no delivery of these bonds, and the plaintiff cannot recover.”

—And to refuse plaintiff’s ninth request, viz.:

“If the jury find that the bonds in question were sold to the plaintiff without authority from Howard Seeley, and that afterwards such sale was ratified by Mr. Seeley, such ratification would make the sale valid.”

The invalidity of these bonds is conceded. It was therefore incumbent upon plaintiff to show a bona fide purchase for value.

The plaintiff contends that the bonds were purchased on June 5th, and several witnesses testified to the transaction. It is undisputed that plaintiff and his copartner paid $400 of the purchase price upon that day, and two days later gave their checks for other sums, and that the remainder, $500, was paid on June 22d, making $2,700 in all. The defendant disputes this version, claiming that the purchase was not made on June 5th, but on June 22d. This contention is based upon the following testimony, viz.: The last payment of $500 was made by check delivered at Ann Arbor to Chandler on June 22d, at which time he executed a writing guaranteeing the payment of these bonds. A certificate bearing date June 18th was appended to certain copies of the proceedings; the same being delivered to the plaintiffs after June 5th, and probably after June 18th, if not on June 22d.

Seeley testified that about the middle or latter part of June, probably from 12th to 20th, he received a letter from Mack & Schmid, asking if he had, or expected to have, any Frankfort bonds to sell; that he at once answered that he would have some, that they were bonus bonds, for building a factory; and that he properly addressed and mailed the same. Upon his statement that the former letter was lost, and plaintiff’s denial that they ever had such correspondence, he was permitted to give oral testimony of the substance of such letters. Plaintiff offered proof that the guaranty was agreed upon on the 5th but not executed until the 22d, and that the perfection of the papers was also promised them. It is contended that this testimony tends to contradict or discredit plaintiff’s proof that the bonds were bought on the 5th, and makes that and the bona fides of the transaction questions for the jury, while plaintiff insists that, if this evidence were all true, it is not inconsistent with the purchase in good faith on June 5th, as stated, and that the question should not have been left to the jury. The question of bona fides is to be determined in the light of all the circumstances, and is one peculiarly of fact. Were we to decide it ourselves, we should be obliged to inquire whether the taking of the guaranty and the correspondence testified to shook our confidence in plaintiff’s claim. They might not do so, but we should have to admit that we were determining a question of fact. Hence we may say that it was proper to leave it to the jury.

We are also of the opinion that the testimony of Seeley in relation to the correspondence was competent, and that it was for the jury to say whether the denial of the receipt of Seeley’s letter overcame the presumption arising from the mailing, provided the jury should find that the mailing was proven by a preponderance of proof.

There are other assignments of error but we think it unnecessary to discuss them.

The judgment is reversed, and a new trial ordered.

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


author: Per Curiam.

text:
    ATWOOD v. MAYOR AND COMMON COUNCIL OF SAULT STE. MARIE.
    1. Elections — Canvass—Recount—Return—Conclusiveness.
    The board of canvassers, on return of the report of a recount committee appointed under Act No. 267, Pub. Acts 1897, are under no duty to correct errors of the committee not shown on the face of their report.
    2. Courts — Decisions—Stare Decisis.
    A former decision of this court is not binding as a precedent as to a point which, though involved in the decision of the case, was not brought to the attention of the court, nor considered by it.
    Certiorari to Chippewa,; Steere, J.
    Submitted July 21, 1905.
    (Calendar No. 21,192.)
    Decided September 19, 1905.
    Mandamus by Frank B. Atwood to compel the mayor and common council of the city of Sault Ste. Marie to issue a certificate of election. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      Oren, Webster & Oarleton, for relator.

      M. F. McDonald, for respondents.
   Per Curiam.

Relator and one Jacob I. Deadman were opposing candidates for the office of treasurer of the city of Sault Ste. Marie at the election held April 3, 1905. On the face of the original returns relator was elected by a majority of seven votes. When the returns were being canvassed "by respondents, who constituted the board of canvassers, said Deadman filed a petition under Act No. 267 of the Public Acts of 1897, praying for a recount of said votes. In accordance with the provision of the said statute said recount was made by a committee of said board of canvassers, who thereafter reported to said board that said recount disclosed that said Deadman was elected by a majority of five votes. Before respondents took action upon this report, relator commenced these proceedings by filing a petition in which he specified various errors made by the committee in counting the ballots, errors which, if corrected, would elect relator, and he prayed for a mandamus compelling said respondents to issue to him, instead of to said Deadman, a certificate of election. The answer of said respondents denied any error in counting said ballots. Relator thereupon asked findings of fact respecting these disputed ballots. The trial judge refused this request, and denied the application for á mandamus. A writ of certiorari brings the proceedings before this court for review.

The writ of mandamus cannot be issued in this case, unless there is a duty on the part of canvassers to correct errors of the recount committee not shown on the face of their report. Is there any such duty imposed upon the board of canvassers ? The statute answers that question in these words:

“ Said board of canvassers, upon receiving the report of said committee, shall accept the same as correct, anything in the previous declaration, certificate or returns * * * to the contrary notwithstanding.”

This language, which requires the board of canvassers to accept the return as correct, clearly forbids the board from treating it as incorrect. Relator relies upon the case of Christopherson v. Common Council of Manistee, 117 Mich. 185. In that case the election depended upon the validity of a certain ballot, particularly described in the return of the board of canvassers to this court, but not doscribed in the report of the recount committee. That ballot had been counted by the recount committee against relator. This court held that the ballot was void, and should not have been counted, and therefore issued the mandamus asked for. It must be conceded that there was involved in that case, as in this, the question of the authority of the board of canvassers to correct errors made by the recount committee and not shown on the face of the committee’s report, and that the issuance of the mandamus implied the existence of such authority. This question was not, however, brought to the attention of the court, and was not considered by it. Points decided in this manner are not binding as precedents. In Molony v. Dows, 8 Abb. Prac. (N. Y.), at page 331, it is said:

“ If a point is essential to the decision rendered, it will be presumed that it was duly considered, and that all that could be urged for or against it was presented to the court, but, if it appears from the report of the case that it was not taken or inquired into at all, there is no ground for this presumption, and the authority of the case is proportionately weakened. ”

. We are not, therefore, bound to follow Christopher son v. Common Council of Manistee as a precedent. ' Notwithstanding that decision, we are at liberty to place, and do place, upon the statute the construction — the obvious •construction — heretofore indicated.

The trial court very properly refused the mandamus, and his order should be affirmed.


text:
    WARREN v. CITY ELECTRIC RAILWAY CO.
    1. Electricity — Injuries—Inspection—Reasonableness.
    The reasonableness of the inspection of live electric wires is a question for the jury, depending as it does upon the condition of the line, and the nature of the dang,er to be feared.

      2. Evidence — Judicial Notice — Dangerous Qualities of Electricity.
    The court will take judicial notice of the fact that electricity is dangerous and so generally recognized.
    3. Electricity — Care Required — Instructions—Prejudice.
    In an action for injuries caused by a live electric wire, an instruction requiring of defendant the exercise of such care as ordinarily careful and prudent persons would exercise in dealing with electricity under similar circumstances was sufficiently favorable to it.

    4. Same — Time for Repairs — Question for Jury.
    Plaintiff was injured by coming in contact with a telephone wire, charged with a dangerous current, which it received from a trolley span wire belonging to defendant, through being pressed down upon the span wire by the limb of a tree, which was broken by a storm the previous evening at a considerable distance from the point where the wire parted and fell and where plaintiff was injured. There was evidence that the span wires were not properly insulated and were not protected from contact with other wires Held, that whether defendant was guilty of negligence in these respects was for the jury, notwithstanding the short time that elapsed between the breaking of the wire and the accident in which to discover and make repairs.
    5. Same — Proximate Cause.
    Where plaintiff was injured by coming in contact with a telephone wire, charged with a dangerous current from being pressed down upon an improperly, insulated trolley span wire by the limb of a tree, which was broken by a severe storm the previous evening, the failure to guard the span wire and the want of insulation were concurring causes establishing a liability, and the breaking of the tree was not the proximate cause of the injury.
    6. Evidence — Expert Testimony — Competency op Witness.
    In an action for injuries caused by a live electric wire, witnesses who were experienced in the use of certain alleged defective insulators used were entitled to testify as to their experience in their use, and to give their opinion as to their effectiveness, as well as their tendency to fall into disuse in places where formerly used.
    7. Same — Demonstrative Evidence.
    In an action for injuries caused by a live electric wire, it was proper to introduce in evidence an insulator or hanger which was alleged to be defective and insufficient.
    8. Same — Appeal—Review—Harmless Error.
    In an action for injuries by a live electric wire, defendant was not prejudiced by a question, asked of its foreman on cross-examination, as to whether it was not common knowledge among defendant’s employés that defendant’s span wires were charged, where it did not appear that the witness admitted such fact.
    9. Eleot'rioity — Personal Injuries — Actions—Evidence.
    In an action for injuries by a live electric wire, which had become hot by contact with defendant’s trolley span wire, it was proper to ask defendant’s foreman, on cross-examination, whether he had not warned linemen against hot span wires.
    Error to St. Clair; Tappan, J.
    Submitted June 21, 1905.
    (Docket No. 43.)
    Decided September 19, 1905.
    Case by Wells WarreD, by next friend, against the City Electric Railway Company and the Michigan Telephone Company for personal injuries. There was judgment for plaintiff against the defendant railway company, and it brings error.
    Affirmed.

      Phillips & Jenks, for appellant.

      8. A. Graham and George G. Moore, for appellee.

      As to liability for injuries by electric wires in highway, see note to Denver Consolidated Electric Co. v. Simpson (Colo.), 31 L. R. A. 566.

   Hooker, J.

The plaintiff, a lad of 11 years of age, was seriously injured by coming in contact with a live telephone wire, which lay upon the ground in a public street in Port Huron. The proof shows 'that the telephone wire received its dangerous current from a trolley span wire belonging to appellant, through its being pressed down upon said span wire by the limb of a tree, which was broken by a severe storm the previous evening, at a considerable distance from the point where the wire parted and fell, which was the place where the boy was injured. Action was brought against the telephone company and the appellant, and a verdict and judgment of $9,000 was returned against the latter; a verdict being directed in favor of the telephone company. The acts of negligence charged against appellant were as follows:

1. Failure to properly insulate the span wires of the trolley line.
2. To properly and at reasonable time inspect said insulation.
3. To place guard wires over the span wires, to prevent contact with other wires.
4. To remove such other wires as should come in contact with the span wires.

There was proof tending to show that the insulators used were ineffective, and that they were not reasonably safe and fit for the purpose. There was also testimony as to the nature and frequency of inspections.

These questions were for the jury, unless it can be said that the proof as to the former was improperly admitted and that the inspection was conclusively shown to be reasonable. Whatever may be said of the former, we cannot' say as matter of law that the inspection proved was reasonable and proper. That is a question for the jury, depending as it does upon the condition of the line and the nature of the danger to be feared. The frequency and care required in inspections depend much upon the character of the apparatus, or machinery, or other agent from which danger is to be feared, and as its destructiveness and danger is increased the duty of care increases. In other words, the degree of hazard attending the use of a dangerous article has a direct relation to the care which is requisite in its use. Electricity is to be classed with gunpowder, dynamite, and other treacherous and destructive agents, of whose dangerous qualities we may take judicial notice, as well as of the fact that society recognizes them, and acts accordingly. No prudent man handles these things with a low degree of caution. We, find it unnecessary to say, as some courts have said, that the use of electricity imposes the duty of the greatest possible care. The circuit judge did not so charge, but contented himself with saying that the duty requisite was such as ordinarily careful and prudent persons would exercise in dealing with electricity under similar circumstances. This was sufficiently favorable to the defendant, although it involved the idea, before expressed, that the nature of the hazard is an element in determining the question. The frequency and nature of the inspections required depend in a measure upon this. The following authorities, suggested by plaintiff’s brief, show the trend of decisions upon this subject: Friesenhan v. Telephone Co., 134 Mich. 292; Wolpers v. Power Co., 91 App. Div. (N. Y.) 424; Fitzgerald v. Illuminating Co., 200 Pa. 540; Paine v. Power Co., 64 App. Div. (N. Y.) 477; Denver Consolidated Electric Co. v. Lawrence, 31 Colo. 301; Economy Light & Power Co. v. Hiller, 203 Ill. 518; Memphis St. R. Co. v. Kartright, 110 Tenn. 277; Lexington R. Co. v. Fain’s Adm’r, 24 Ky. Law Rep. 1443; Lutolf v. Light Co., 184 Mass. 53; Richmond, etc., R. Co. v. Rubin, 102 Va. 809; Keasbey on Electric Wires, §§ 242, 269; 3 Curr. Law, pp. 1182, 1185; 1 Curr. Law, p. 996; City Electric St. R. Co. v. Conery, 61 Ark. 381 (31 L. R. A. 570); 5 Curr. Law, p. 1088.

Counsel contend that the evidence shows that a reasonable time for appellant to discover the danger and make repairs had 'not elapsed, and that the jury should have been so instructed. Were it conclusively shown that defendant’s line was in such perfect condition that the live wire was only chargeable to the effect of an extraordinary storm, this point would merit more consideration. But there was a claim of negligence in not properly insulating the span wire and in not protecting it from contact with other wires, both of which questions were for the jury.

In this connection it is urged that the proximate cause of the injury was not the want of insulation, nor the failuré to guard the span wire, but it was the breaking of the tree. It is generally the case that an accident is the result of concurring causes. If the rain and snow never fell and the wind never blew, wires would be less likely to fall and break. In this case the span wire was hot where it was not intended to be. The telephone wire was pressed upon it when it was not so intended. The wire burned in two from the intense heat taken.on from the span wire, and the ends fell. All of these were things to be anticipated and guarded against. If this was not done to the extent that a prudent man would do it, there was a failure of duty, which might be a concurring cause of the accident, making defendant liable. Thus we held that, where a horse was caused to struggle and injure his master through getting his foot through a hole in a' bridge, the defect in the bridge was a proximate cause of the accident.

One Wager was allowed to testify to efficiency of the insulators used to prevent hot span wires. He was not permitted to testify that they were unfit, but gave his experience in their use. He said he came in contact with many hot span wires during the five years that he worked where such insulators were used on Lapeer avenue in Port Huron. Harry Hoffman, shown, we think, to be experienced and an expert, gave his experience and also his opinion as to the effectiveness of this kind of insulators, as well as their tendency to fall into disuse in places where formerly used. We think that both of these witnesses were competent to give opinions upon the effeetiveness of these insulators; also, that it was proper to introduce the insulator or hanger in evidence.

Walker, a foreman of defendant, was asked on cross-examination if it was not common knowledge and common talk among the defendant’s employes that the span wires were charged. If this was not proper on cross-examination, the answer did not injure defendant; for our attention is not called to an admission that it was so. It was not improper to show on cross-examination that he may have warned linemen against hot span wires.

It is claimed that the damages were excessive. On motion for a new trial they were reduced to |6,000, in which plaintiff acquiesced. The injury was serious, and we think the judgment should not be reversed on this ground.

Complaint is made of the intemperate discussion of the case, but we are not satisfied that defendant was injured by what was said. We think it unnecessary to discuss other questions.

We have found no error, and the judgment is affirmed.

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


author: Blair, J.

text:
    PEOPLE v. DECKER.
    Municipal Corporations — Ordinances—Licenses — Plumbers — Regulation — Permits—Fees.
    Sections 4 and 13 of Act No. 223, Pub. Acts 1901, does not authorize an ordinance empowering a city plumbing board to tax and collect a fee, the amount of which is dependent on the cost of new plumbing work done within the city, to be paid for the services of the board, as a condition precedent to the issuance of a permit for the work.
    Exceptions before judgment from Kent; Perkins, J.
    Submitted June 22, 1905.
    (Docket No. 168.)
    Decided September 19, 1905.
    William A. Decker was convicted of violating an ordinance regulating plumbing and drainage work in the city of Grand Rapids.
    Reversed and respondent discharged.

      Butterfield & Keeney, for appellant.

      William B. Brown, Prosecuting Attorney, for the people.
   Blair, J.

This is a criminal prosecution for violation of Act No. 222 of the Public Acts of 1901, the complaint charging:

“That heretofore, to wit, on the 15th day of July, A. D. 1904, at the city of Grand Rapids, in the county aforesaid, and for twelve days last immediately prior thereto, one William A. Decker, he being then and there a registered master plumber in the city of Grand Rapids aforesaid, did then and there unlawfully install and put in a part of the plumbing and draining system of a building of Otto Thum, and upon the premises of said Otto Thum, located at, to wit, southwest corner of Ottawa street and Louis street, in said city of Grand Rapids, in violation of section 4 and section 93 of the code of rules regulating plumbing and drainage work in the city of Grand Rapids, Michigan, formulated under the laws of the State of Michigan, by the board of examiners of plumbers of said city of Grand Rapids, and approved by the local board of health of said city of Grand Rapids, without first having received a permit, issued by the chief inspector of plumbing, allowing the installing of said plumbing and drainage work as aforesaid, and without first paying the fee, or any part of such fee, as provided in said section 93 and section 4 for the examination, and to procure the permit as provided in said section 93 and section 4, and without paying the fee as provided in said section 93 in order to procure a permit from said chief inspector of plumbing to allow said William A. Decker to install the plumbing and draining system in said building and on said premises as aforesaid; and the said William,,A. Decker did, at the time, place, and in t|ie manner aforesaid, install a part of the plumbing and draining system aforesaid, contrary to the rules formulated as aforesaid and approved as aforesaid, said rules being in full force and effect, and regulating all plumbing and drainage work connected with the trade, calling, or business of journeyman plumber, employing plumber, or master plumber within the city of Grand Rapids aforesaid,” etc.

Section 4, referred to in the complaint, is as follows:

“No plumbing or draining system, or part thereof, shall be installed in any building or upon any premises until plans and specifications for such work have been submitted to the chief inspector, approved in writing, and a permit issued by him for installing the same.”

Section 93 is as follows:

‘ ‘ For the inspection of plumbing in existence, as to its being sanitary or unsanitary, and for the necessary orders or suggestions to make said plumbing sanitary, there shall be no fee or charge, that work, of necessity, being within the duties of the health department; but for the examination and permit for new work, and for material changes in work, there shall be charged -a fee of two per cent, for the first five hundred dollars’ worth of work, and one per cent, for all additional work proposed: Provided, however, That no fee shall be less than one dollar; said money to be deposited with'the application for a permit to do the work, and the amount so collected to be placed in the fund out of which the plumbing inspector’s salary is paid.”

The defendant is a master plumber who has been examined and was duly registered under the law, and by its terms authorized to practice his business as a plumber. On the 1st day of July, 1904, he made to the board of plumbers of the city the following application:

“Grand Rapids, Mich., July 1, 1904. “Mr. EL N. Thompson,
“Plumbing Inspector,
“City.
“Kindly issue permit to install plumbing and sewage in block at southwest corner of Ottawa and Louis streets for Mr. Otto Thum, owner. Work consists of three conduct stacks, one closet with vent stack, roughing in for three closets, and cast-iron sewage to connect with tile sewer now in. This work will be started at once.
“Respectfully yours,
“William A. Decker.”

No permit was issued upon this application. The defendant, having commenced the work, was served with a notice that he had violated the rules of the board in commencing the work without first paying the fee provided for in the rules of the board. The fact that this fee was not paid was the only ground for refusing the permit. No claim is made that the work was improperly performed, or that in any respect it did not conform to the rules of the plumbing board. The record shows that the plumbing inspector examined the work, and no complaint was ever made of the manner in which the work was done.

While the general character of the work was shown by the application, the inspector was informed that there was no contract determining how the work was to be done, how far the defendant was to do it, or' what its material was to be. It was impossible that he could have known the cost at the time of the commencement of the work. The inspector himself says that he did not know how much the expense proposed would be, that the material for work of the kind varied so much that the application itself would furnish no means of determining the expense, and that he saw and knew nothing thai would enable him to determine that question. The whole matter was under the control of the owner of the block, under whose direction the work was to proceed. No determination of the amount of fees was made by the inspector, or by any officer of the board, nor could it have been made at that time, and no demand was ever made for them by the officers. As appears by the report of the plumbing department of the city, its only source of income was the amount received for permits. It also appears that, within the sum of $122.67, the amount received from these permits was sufficient to pay the expenses of the whole department, including as well its public work, for which no compensation was charged, as the work of looking after new buildings or alterations.

On the hearing no witnesses were sworn on the part of the defense, and on motion of the prosecuting attorney the court directed a verdict against the defendant of guilty. His reasons for doing this, as stated by himself, appear in his charge as follows:

“I do not intend, in anything that I may say at this time, to state my own conviction upon this question •, but in view of the importance of the question involved, in view of the fact that for a number of years this license fee has been imposed, and that that is the system now in vogue in the health department in this city, that to change that system would, doubtless, create more or less of a disturbance in the affairs of that board, I feel it is necessary that the question be finally and definitely determined by the decision of the court of last resort. And therefore, gentlemen, in order that the question may be settled, I direct you to render a verdict of guilty in this case, and the clerk will take your verdict.”

The inspector testified, with reference to the refusal to grant a permit to respondent, as follows:

“That application was put in on the 1st of July. It was an application to install a system of plumbing in that building — to get a permit for that purpose. That permit was not given. The reason was, he refused to pay the fees for it. The fees are 2 per cent, up to the first $500, and 1 per cent, thereafter, of the amount of work put in. ”

Respondent contends that he was tried and convicted for a violation of the provisions of section 93, above quoted, and not for an infraction of section 4, and that the provisions of section 93 as to fees were not within the powers conferred upon the board by the act in question, and, if they were, such attempted grant of power was unconstitutional and of no effect. Counsel for the people insist that respondent could properly be convicted under section 93, but that, even if he could not, he could certainly be lawfully convicted under section 4 for failing to file plans and specifications with the" chief inspector and procuring his written approval and permit before proceeding with the work.

We think it clearly appears, from the testimony of Inspector Thompson and the charge of the court above quoted, that the respondent was actually tried and convicted of a violation of section 93, and we shall, therefore, consider the case with reference to that section only. In our opinion the statute does not attempt to confer upon these local boards authority to require the payment of the fees provided for in section 93. On the contrary, the legislative intent is plainly manifested that such expenses shall be borne by the city at large. Section 12 of the statute in question (Act No. 222, Pub. Acts 1901) provides :

“ Each of such boards of examiners shall have power to procure suitable quarters for the transaction of business, to provide the necessary furniture, books and stationery, and to employ a clerk whose duty it shall be to keep a detailed and accurate record of all acts and proceedings of such board. The board of estimates and the common council of every city in this State shall annually insert in their tax levy a sufficient sum to meet the expenditures incurred under the provisions of this act; and all expenses incurred by the several boards of examiners in the execution and performance of, the duties imposed by this act, including the per diem of the board of examiners and compensation of the inspector or inspectors of plumbing and drainage as fixed by the board, commissioner or department making their appointments shall be a charge on the respective cities, and shall be audited, levied, collected and paid in the same manner as other city charges are audited, levied, collected and paid ”

Section 4 of the statute provides, among other things, that the boards of examiners shall have power—

“To formulate, with the approval of the local board of health of the city in which it shall act, a code of rules regulating all plumbing and drainage work connected therewith in such city, including the proper materials, and workmanship, and from time to time to add to, amend or alter the same; to charge and collect from each person applying for examination the sum of two dollars for each regular examination made by said board, and all money so collected shall be paid over by the board monthly to the treasurer of such city in which said board shall be appointed.”

In view of the specific provision for collecting a fee of $2 for each regular examination made by the board, and the general provision for charging the respective cities with the expense incurred under the act and necessary for carrying out its provisions, it seems manifest to us that the legislature did not contemplate the fixing and collection of fees by the local boards to pay for services which it had already otherwise provided for.

In our view of the case, it is not necessary to consider the important constitutional questions raised and so ably presented in their briefs and oral arguments by counsel for the respective parties. Whether it was within the constitutional powers of the legislature to authorize such a regulation by these local boards or not, it is sufficient to say that they have not attempted to do so.

The judgment is reversed, and the respondent discharged.

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


author: Montgomery, J.

text:
    PEOPLE v. SCHIMMELL.
    Intoxicating Liquors — Screens — Obstruction op View — Information-Sufficiency.
    An information under section 5409, 2 Comp. Laws, which nowhere charges that a view “ of the bar or place in said room where said liquors are sold or kept for sale ” was obstructed, is fatally defective.
    Exceptions before judgment from Oakland; Smith, J.
    Submitted June 22, 1905.
    (Docket No. 169.)
    Decided September 19, 1905.
    Louis W. Schimmell was convicted of violating the liquor law.
    Reversed and respondent discharged.

      Davis & Bromley, for appellant.

      John E. Bird, Attorney General, Frank L. Covert, Prosecuting Attorney, and Charles S. Matthews, Assistant Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted under an information which, after charging that respondent was a keeper of a saloon, charged the offense in the following language:

“ And the said Louis W. Schimmell did then and there by means of certain curtains and screens and other things obstruct the view from the sidewalk and street in front of said bar there situate on or about May 22, 1904, the same being the first day of the week, commonly called Sunday, in said village of Royal Oak, county and State aforesaid.”

The statute defining the offense is 2 Comp. Laws, § 5409, and reads as follows:

“ During the time when, by the provisions of this act, places where liquor is sold or kept for sale must be closed, all curtains, screens, partitions and other things that, obstruct the view from the sidewalk, street, alley or road in. front of or at the side or end of said building, of the bar or place in said room where said liquors are sold or kept for sale, shall be removed.”

The case comes to us on exceptions before sentence.

Objection was made to the introduction of evidence on the ground that the information charged no offense. This objection was overruled, and exception taken. It is somewhat doubtful whether the objection was so framed as to point out to the circuit judge the defect which we deem fatal; but as no sentence has been announced, and as the question was fully discussed at the argument, it is manifest that it would not be proper to permit the case to proceed to sentence. The defect is obvious. The information nowhere charges that a view “ of the bar ,or place in said room where said liquors are sold or kept for sale ” was obstructed. It does charge that the view from a certain point was obstructed; but the view of what, or what place, is not stated.

The conviction is reversed, and the respondent will be discharged.

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


text:
    PEOPLE v. HODGE.
    1. Witnesses — Examination—Leading Questions.
    Questions intended to call attention to certain subjects about which proper testimony is desired, and which do not in themselves suggest the answers expected, are not objectionable as leading.
    2. Abortion — Manslaughter — Evidence — Other Offenses — Admissibility.
    Where defendant, on trial for manslaughter in procuring an abortion, admitted the abortion, but claimed that he believed that the operation was necessary, and that he performed it without criminal intent, evidence that he had performed a similar operation on another woman for the purpose of producing an abortion was admissible on the issue of intent.

    3. Same — Res Gestje.
    The testimony of the woman that defendant, on the occasion of performing the criminal operation on her, requested her to procure as much money as possible from the one responsible for her pregnancy, but stated that he would make the expense lighter if she would permit him to have sexual intercourse with her, was admissible.
    Error to recorder’s court of Detroit; Murphy, J.
    Submitted June 22, 1905.
    (Docket No. 174.)
    Decided September 19, 1905.
    Scott E. Hodge was convicted of manslaughter and sentenced to imprisonment in the Michigan Reformatory at Ionia for not less than six and not more than nine years.
    Affirmed.

      Allan P. Cox (Abbott & Abbott, of counsel), for appellant.

      Ormond F. Hunt, Prosecuting Attorney, and Louis O. Wurzer, Assistant Prosecuting Attorney, for the people.

      For homicide in commission of, or attempt to commit, abortion, see note to State v. Power (Wash. ), 63 L. R. A. 902.

   Hooker, J.

The respondent, charged with the offense of manslaughter in an attempt to produce an abortion, was convicted, and has appealed. The alleged errors are grouped, and raised three legal questions:

1. Whether certain questions asked witnesses for the prosecution were leading, and so prejudicial as to call for a reversal of the case.
2. Whether it was error to permit a witness to testify that the defendant had made indecent proposals to her while he was giving her medical treatment.
3. Whether it was error to permit the prosecution to show that respondent had on one occasion, before the act for which he was on trial, performed an operation to produce an abortion upon the last-named witness.

Attention is called to eight questions said to be leading. Among these questions were the following: Elmer Kuhl, a witness responsible for deceased’s condition, had testified to a professional interview with a Dr. Kimball about the condition of the girl, and was asked: “ What did she say ? Did she say anything about marrying ?” The answer was: “Yes. She said it would be "a dangerous thing to tackle, to do anything like that, and she advised us to get married.” Much more was said in the same connection, without other suggestion than that contained in tfie foregoing question. Again, the witness, having testified at some length concerning the first interview with the defendant, and that he said that there was no danger, was asked: “ What did he say in reference to the tools, if anything ? His answer was that defendant said, “ I have all the necessary tools to do this with,” and that he took witness into the operating room and showed him, and said, “If one did not have the necessary tools, he could not go ahead and do this.” Again, the witness was asked whether the defendant spoke to him on another occasion with reference to a written statement. The answer was, “Yes. He said he had to have a statement of some kind to bring a sick person to a hospital. He said he was going to take her to Grace Hospital. I signed the statement, and so did the girl.” Again, he was asked whether he paid defendant any money. In answer he gave a somewhat lengthy conversation upon this subject, all relevant. Counsel admit that the allowance of such questions is usually within the discretion of the trial judge, but say that these were so plainly improper and injurious as to call for reversal. To us they seem proper, and not leading. They were intended to call attention to certain subjects about which testimony was desired. It was proper testimony, and the questions did not in themselves suggest the answers expected.

The other two questions can best be discussed together. It was the claim of the defendant that the operation, which he did not deny, was a necessary one, or, if not, that he believed it to be, and that he performed it without criminal intent. To show a criminal intent one May Lane was called by the prosecution, who testified that defendant performed a similar operation upon her for the avowed purpose of producing an abortion. It is said by counsel that this testimony was inadmissible, under the case of People v. Lonsdale, 122 Mich. 392. .The cases differ widely. In that case the criminal intent was a necessary conclusion from the act proved. Here it was not, as we have already seen. It depended on the truth or falsity of defendant’s defense that the act was done for a legitimate purpose. See People v. Seaman, 107 Mich. 348.

It remains to consider the second question. May Lane testified in detail to what occurred between her and defendant on the several occasions that he treated her. Upon the subject of payment, which was a proper subject of inquiry, she said that defendant wanted her to give him what money she could.

Q. What did he say, if anything, about bringing a young man in ?
“A. He said, if I would do what he wished me to do, to stay with him, he would make the expense lighter. Get what money I could from the fellow, and give him part of it, and I would have more for myself. He threw himself upon me.”

The court admitted this testimony as part of the res gestee. It is undeniable that this testimony was well calculated to prejudice the jury, and that the question was whether he had committed a criminal abortion upon May Lane, not whether he sought or had sexual intercourse with her. But it is undeniable that this conversation, if it occurred, characterized the act, which the defendant afterwards (in making his defense) claimed was treatment for a venereal disease, with which the proposal was inconsistent. It may be said that when the testimony was admitted he had not testified regarding such disease, and that it would not have been necessary, but for such testimony. May Lane testified to an operation for abortion. It was materially strengthened by showing that it was to be paid for, and the price charged and the proposition to have her get him money from the man in the case were explanatory facts and clearly proper; the other proposition and the attendant circumstances being closely connected with the transaction and in fact part of it.

The conviction is affirmed.

McAlvay, Montgomery, and Ostrander, JJ., concurred. Blair, J., concurred in the result.


text:
    FOSTER v. EAST JORDAN LUMBER CO.
    1. Negligence — Contributory Negligence — Question for Jury.
    Where, in an action for personal injury, the testimony as to plaintiff’s conduct is conflicting, the question of contributory negligence is for the jury.
    2. Railroads — Management of Trains — Frightening Horses.
    A railroad company is not liable for the frightening of horses resulting from the ordinary movement of its trains, but is liable for damages caused by fright resulting from its doing anything unusual or unnecessary, naturally calculated to frighten ordinarily gentle horses.
    3. Same — Question for Jury.
    Whether a railroad company, unnecessarily placing its locomotive in an obscure position near a traveled street and then putting a blower in operation, causing a traveler’s horse to run away, was negligent in failing to learn of the approach of the traveler, or in unnecessarily putting the blower in operation, held, questions for the jury.
    4. Same — Proximate Cause.
    Defendant’s negligence in frightening the horse was the proximate cause of a personal injury resulting to plaintiff from the collision of plaintiff’s vehicle with that of a third person while the horse was unmanageable from fright.
    5. Evidence — Opinions—Examination of Witness.
    Where, in an action for personal injuries occasioned by plaintiff’s horse being frightened, the court sustained an objection to a question asked a witness as to what frightened the horse, and stated that it might be well to find out if the witness knew, and the party asking the question failed to lay the proper foundation, the sustaining of the objection was not error.

      6. Appeal — Questions Raised in Supplemental Brief — Consideration.
    Objections first raised in appellant’s supplemental brief will not be considered.
    Error to Charlevoix; Mayne, J.
    Submitted June 23, 1905.
    (Docket No. 60.)
    Decided September 19, 1905.
    Case by Frank A. Foster against the East Jordan Lumber Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Dennis L. Rogers {Pratt & Davis, of counsel), for appellant.

      Alfred B. Nicholas {J. Ernest Converse and E. N. Clink, of counsel), for appellee.
   Blair, J.

The plaintiff, a physician, brought this action against the defendant, a lumbering corporation, to recover damages for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant in so managing a locomotive on its logging railroad as to frighten plaintiff’s horse and cause him to run away.

The occurrence took place at defendant’s railroad crossing of Mill street in the village of East Jordan, in February, 1901, when the plaintiff, accompanied by two ladies, was driving a single horse attached to a Portland cutter. The crossing is located near the east end of the bridge which spans the south arm of Pine Lake and connects the village of South Arm with the village of East Jordan, and plaintiff approached the crossing along this bridge, the east end of which connects with Mill street, forming a continuous highway and the main thoroughfare between the two villages. The east shore of the lake for upwards of a mile in this locality is used by defendant as a millyard and piling ground for logs and lumber, and as a switch-yard for its logging railroad. The lumber in the yard was piled along here in several tiers, running up quite close to the street line at Mill street, so that the plaintiff’s view to the south up defendant’s track as he approached the crossing was limited to the street lines. At the time of the accident, and for about two hours prior thereto, one of the defendant’s locomotives, under steam, was standing at a point from 30 to 90 feet south of the crossing, as estimated by different witnesses. The snow was deep, and banked up on either side, leaving a narrow beaten track along the street.

Plaintiff testified that he stopped, looked, and listened when on the bridge some 60 or 80 feet from the crossing, and again on Mill street, from 25 to 30 feet from the crossing, and neither saw or heard anything to indicate the proximity of the locomotive; that when the horse’s head was 10 or 12 feet from the track, he suddenly took fright and started to run, and about the same time plaintiff heard the sound of escaping steam. “ I heard a rumbling sound just as the horse took fright. I have heard a blower on an engine, and this sounded like the sound of a blower.” Plaintiff’s horse became unmanageable, ran away, and collided with tbe bunks on a pair of lumber bob sleighs, and plaintiff was severely injured. There was evidence from which the jury might properly find that the horse was road wise, gentle, and tractable. The jury found a verdict for the plaintiff, and returned answers to two special questions submitted on behalf of defendant, as follows:

“1. Did the plaintiff stop his horse and listen for the sound of a locomotive just before crossing defendant’s railroad track ?
“A. Yes.
“2. Could the plaintiff hear the sound of the steam escaping from the cylinder cocks, safety valves, and whistle of the locomotive in question at the time he stopped his horse and listened, just before crossing defendant’s railroad track ?
“A. No.”

. The principal questions of law for our consideration are presented by assignments of error 7 to 13, inclusive, to the effect that the court erred in not directing a verdict for defendant for the reason that the proofs showed that plaintiff was guilty of contributory negligence and defendant was not guilty of any negligence, or, at least, of any negligence which was the proximate cause of the injury.

The testimony was conflicting as to the plaintiff’s management of his horse and his own conduct; but if the jury believed his testimony and that of the ladies with him and others called by him, as they evidently did from their answers to the special questions, they could properly find him free from contributory negligence, and the court was not in error in submitting the question to them.

The fundamental question in the case is whether, under the evidence, any negligence was shown on the part of the defendant. It is well settled that arailroad companyisnot liable for the fright of horses resulting from the ordinary use, movement, or situation of its engines, cars, or trains, and that it has a lawful right to make all such noises as are necessarily connected therewith. It may, however, become liable if in such use of its property it does anything unusual or unnecessary, naturally calculated to frighten ordinarily well-broken and gentle horses. 2 Thompson on Negligence, § 1908; Hinchman v. Railroad Co., 136 Mich. 341; Geveke v. Railroad Co., 57 Mich. 589; Dunn v. Railroad Co., 124 N. C. 252; Petersburg R. Co. v. Hite, 81 Va. 767. In the Hinchman Case the plaintiff attempted to drive across defendant’s highway crossing while the tender of its locomotive was something over 10 feet distant from the planking of the crossing, but still on the highway. Just as plaintiff got to the edge of the planking, steam was emitted from the engine, which frightened the horse, and plaintiff was injured. Mr. Justice Carpenter, delivering the opinion of the court, said r

“The evidence of the plaintiff did not indicate with any certainty just what caused the emission of steam, and defendant’s engineer testified positively that he did no act to occasion its emission. It also appeared that there was an automatic safety valve, through which the steam which frightened plaintiff’s horse might have been emitted.
“It is the contention of the defendant that we are bound to assume that the emission of the steam was through the automatic safety valve, and numerous authorities are cited to the proposition that such emission is not negligence. There was testimony from which the jury might have inferred that, though the steam was emitted from the automatic .safety valve, its emission could have been prevented by appliances under control of defendant’s engineer, and that defendant’s engineer could have foreseen this emission and have provided against the consequences by moving his engine farther from the crossing. From this evidence, we think that the jury might infer negligence.”

In the case at bar there was no automatic valve, but a blower, which must be operated by the engineer or fireman, and it follows, necessarily, from the decision in the Hinchman Case, that the negligence of the defendant would have been properly submitted to the jury, if, as in that case, the enginemen had been aware of his presence.

Is the defendant free from negligence in this case, as a matter of law, because its servants were not aware of plaintiff’s approach ? In the case of Geveke v. Railroad Co., supra, it was said that—

“ It was for the jury to say whether, under all the circumstances, it was negligence for the company’s agents not to have discovered the plaintiff’s team before, and to allow the steam to escape in the manner it did just at the time the plaintiff was making the crossing. We have discovered nothing in the record showing any necessity for opening the cylinder cocks just at that time.”

So we think it was a question for the jury in the case at bar whether the defendant’s employés ought not to have contemplated that a traveler might be near the crossing at the time the fireman put on the blower, and to have refrained from doing so unnecessarily.

Defendant had placed its locomotive so near to an important and much-traveled public thoroughfare that the putting on of the blower was likely to frighten any horse that might be near the track, and was bound to know that a horse might come upon the crossing at any time. It had so placed the locomotive that it was entirely concealed from a traveler coming from the west, and had left it there under steam for two hours prior to the accident; and it was open to the jury to find from the evidence that it was not necessary to have placed the engine at this particular point so near the highway, but that it might have been stationed much farther away. There was also evidence that the use of the blower was entirely unnecessary. The engineer was absent at the time of the accident, having left the engine in charge of the fireman. He testified:

Q- When the engine is fired up, what is customary to be done with the blower ?
“A. After your steam is up, you have no use for the blower.
“ Q. Was the steam up when you left the engine ?
“A. Yes, sir.”

As to whether the blower was in use at the time of the accident was a question of fact for the jury. Chester Thompson, a witness of the accident, testified that he saw the fireman “turn the blower on a very short time before I saw the doctor,” and that he first Saw the doctor after the horse began to run away. Plaintiff testified that he had heard a blower on an engine, “ and this sounded like a blower.” The fireman testified that the blower was not on. If the blower was on at the time of the accident, it must have been put on during the absence of the engineer, and, according to his testimony, unnecessarily. The placing of the engine so near the highway, and leaving it there so long behind the lumber piled by defendant on its own premises, and the unnecessary use of the blower, made it proper for the court to submit the question of defendant’s negligence to the jury.

The contention that the alleged negligence of the defendant was not the proximate cause of the injuries is disposed of by the case of Hinchman v. Railroad Co., supra.

Defendant’s counsel further insist that the court erred in sustaining the objection of plaintiff’s counsel to the following question to the witness Nelson Shaw:

“Q. What, in your opinion, did that horse of Dr. Foster’s get frightened at?”

Mr. Shaw saw plaintiff when he was on the bridge, and it was with his lumber sleigh that plaintiff’s cutter collided. He stopped his team some 40 or 50 feet east of the crossing to wait for plaintiff to pass him. Upon the propounding of this question the following occurred.

“Mr. Clink: We object to that as incompetent and calling for a conclusion.
“The Court: I don’t know as a man looking at that distance could testify. (Objection sustained. Exception for defendant.)
“The Court: It might be well to find out, possibly, if he knew.
“Q. Where did the horse commence to shy towards your sleighs ?
“A. About the time, I think, he came even with my horses’ heads.
“Q. How far were your horses’heads from the railroad track, in your judgment?
“A. Don’t know how far, possibly 40 or 50 feet.”

In Geveke v. Railroad Co., supra, it was held competent for the plaintiff’s companion “to give his opinion as to what frightened the team. He was driving them at the time, and his attention was directed to the surroundings, and his observation' must have enabled him to form some judgment.” In McCullough v. Railway Co., 101 Mich. 234, the question was again before the court, and Mr. Justice Hooker, delivering the opinion, said:

“Defendant complains that the plaintiff’s husband was permitted to testify that the horse was frightened by the train, upon the ground that the question was for the jury and that the evidence involved a conclusion. In Ceveke v. Railroad Co., 57 Mich. 589, such evidence was held competent, where the horses were immediately in front of a locomotive when the engineer allowed steam to escape from its cylinders; and in this case, the other evidence clearly shows the cause of the fright of the horse, and the opinion of the witness, if inadmissible, worked no injury to the defendant.”

If the testimony of the driver as to the cause of the fright is admissible, the testimony of any other witness of the entire transaction must be equally admissible, after showing that his knowledge of the surroundings is sufficient to warrant him in expressing an opinion.

In the case at bar, after overruling the objection, the court said to counsel: “It might be well to find out, pos-

sibly, if he knew.” We think this was an intimation to counsel that the court would hold the question open for him to test the witness’ knowledge, since it did not appear to the court to be shown that the witness could state what the cause was. The substance of the entire testimony of the witness as to the action of the horse, hearing upon the question put to him, was as follows:

“I got down there, and noticed a horse coming across the bridge. They came lively as they came on, and I see it was Dr. Foster and two young ladies sitting in the cutter coming, coming along at quite a good gait, and I see we were going to come on the bridge at one time. I sheared off to the right, and thought I would give him his part of the road. His horse, as he went to go by mine, shied, I think, and struck the end of the bunk on the left-hand side of the bunks — on the nigh side of the sleighs. I think he struck my back bunk with his cutter, and his horse broke loose and yanked him over the dashboard, and he laid there on the ground for a minute. * * *
“ I saw the horse coming over the bridge; do not know as I could tell how fast. It was a good lively gait. Horse had a nice driving appearance — head up and traveling right along.
‘ ‘ Q. Did he come to a stop before he got to that railroad track ?
“A. Not that time I see him until he hit my sleigh. * *
“That 40 or 50 feet was towards Mr. Palmiter’s, and horse continued about the same gait until he struck my sleighs; if anything, a little faster from the time I saw him until he hit my sleigh. I was in a position that I could see him plainly, and the horse was trotting all the time until he struck my sleigh. When I first saw the horse on the bridge, he wasn’t far from the middle of the draw. The horse wasn’t running when he struck my sleigh.”

It does not appear clearly from this testimony that the horse was frightened at all, certainly not till he went to go by the witness’ team; and defendant’s counsel, not having seen fit, after the intimation of the court, to supply a proper foundation for the question, the ruling was not erroneous.

There are several points argued in defendant’s supplemental brief relative to the declaration and proofs which we do not consider, for the reason that they are raised for the first time in that brief. We have considered the other assignments of error not covered by what has already been said, but do not find the allegations sustained; and the judgment is affirmed.

Moore, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred.