author: Ostrander, C. J.

text:
    KEELEY v. CITY ELECTRIC RAILWAY CO.
    1. Carriers — Boarding and Alighting of Passengers.
    It is the duty of employés in charge of a street car to ascertain who and how many of the passengers intend to alight at a place where the signal has been given to stop, and to wait a sufficient time to allow them to alight in safety, in the exercise of reasonable diligence, and such employés are required to see and know that no passenger is in a perilous position when the car is started.

    2. Same.
    After the car has waited a reasonable time for passengers to alight, and no passenger is in the act of leaving the car, and the conductor has no notice or knowledge of the intention of a passenger to alight, it is not negligence to give the signal to start.
    3. Same — Street Railways — Conductor.
    It is the duty of the conductor, before signaling to proceed, to look about and ascertain that all passengers are safely on board.
    4. Same.
    And a passenger, riding on the platform of a crowded car or trailer, might be warranted in stepping to the ground when the car stopped and upon the rear platform of a preceding car in the same train.
    5. Same — Contributory Negligence.
    Nor was an infant nine years old guilty of contributory negligence, as a matter of law, for leaving the platform on which he was riding and attempting to board the next car at a stopping place, though he did not know why the cars stopped, did not see any one attempting to leave or enter the car, and did not know where the conductor was.
    6. Same — Negligence.
    It could not be said, as a matter of law, that the conductor need not anticipate that plaintiff would leave his position and try to secure another.
    7. Same.
    The carrier is not an insurer of the safety of passengers.
    8. Same — Trial—Argument of Counsel.
    Where counsel for plaintiff, in the course of a somewhat inflammatory argument, stated that it was defendant’s duty to see that plaintiff, an infant, had a safe position íd which to ride, and the court, interrupting, stated that he could not so instruct the jury, but permitted counsel to proceed further with his argument, and in the course of his charge permitted the jury to take into consideration the claims of the respective attorneys without advising the jury to consider only the law as laid down by the court, a verdict which was opposed to the weight of the evidence is reversed and a new trial ordered.
    Error to St. Clair; Tappan, J.
    Submitted June 27, 1911.
    (Docket No. 6.)
    Resubmitted October 10, 1911.
    Decided December 29, 1911.

      Case by George A. Keeley against the City Electric Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.
    P. H. Phillips, for appellant.

      Fred B. Brown (Gyrus A. Hovey, of counsel), for appellee.
    The plaintiff, then nine years old, fell or was thrown under the wheels of one of defendant’s cars and was injured. The time was the afternoon of December 24, 1901. The case for plaintiff, indicated by the declaration and supported by testimony, may be stated as follows: He, unattended, boarded a train of defendant’s cars, consisting of a motor car and two trailers, at a railroad station in Port Huron, taking his place — the cars being crowded and the platforms occupied by passengers — on the front platform of the rear car. There was a single track, and passengers could, and did, enter and leave the cars from either side. On the journey towards the business center of the city, at a certain street crossing, the train was stopped. Plaintiff stepped upon the street for the purpose of getting upon the rear platform of the car ahead of that on which he had been riding. While doing so, the train was started, and he, having secured a hold upon the platform railing of the car, was dragged for some distance, lost his hold, and was run over. There was no passageway from one car to another. There was but one conductor.
    It is not claimed that the conductor saw the plaintiff or knew or had notice of his intention to change his position. It does not appear that plaintiff did not occupy a safe position on the rear trailer. In his charge to the jury the learned trial judge, after stating, concisely and clearly, the claims of the parties, added:
    “These are the salient points of the claims of the respective parties. In addition, the attorneys for both parties have explained their claims in detail, and you may consider them in connection with this concise statement made by the court.”
    He further said that, under the declaration, plaintiff must establish at least two facts: First, that the car had come to a standing position when he attempted to board it; second, that it was suddenly started from a standing position as plaintiff was boarding it. He also advised them that if these facts were established by a preponderance of the evidence—
    “If plaintiff did board the trailer at the Tunnel depot and rode from there to Minnie street as he claims, and there got off the trailer and immediately took hold of the handholds and put his feet upon the next car, at that moment when it was standing still, he was a passenger and entitled to the same reasonable precaution against accident that any other passenger similarly situated would be entitled to. You will recall that there is no proof that the conductor did in fact see the plaintiff attempt to board the standing car, so the question is: If he was so boarding the car, should the conductor, in the exercise of reasonable care in examining the approaches to his car, for intending passengers, have seen him and have known that the starting of the car, under the conditions that existed, would be likely to cause his injuries ?”
    The jury was also instructed:
    “Now, as to the duty of the company to passengers attempting to board the car: You are instructed that where any street car has stopped at a street crossing to allow one or more passengers to alight, in a populated community, it is the duty of those in 'charge of the car to be alert to ascertain whether there are also intending passengers attempting to board the same car or cars. If a car has either stopped to let off a passenger, or for any other reason, an intending passenger at a street crossing would have a right to take advantage of that fact and-board the car.
    “In exactly the same manner, if you find from the proofs that the plaintiff was riding upon the front steps of the rear trailer, and the platform and steps were crowded with passengers, as he states, then he would have a right to step down upon the ground and step to and upon the-steps of the platform of the next car while that car was standing still upon the track.
    “You are further instructed that when he left the steps of the car, if he did so, and stepped down upon the ground to hoard the next caf while it was standing still upon the track, then while he was upon the street he occupied the same position and was entitled to the same degree of caution on the part of the employés of the company as any other person who might have been attempting to board the car while it was standing still, and no further or different degree of care was due to him than to any other passenger attempting to board the same car under like circumstances.
    “ The reason for applying this rule is plain. As I have heretofore said, it is plaintiff’s claim that he was upon the ground in a safe position just before he attempted to get on the car. There is nothing to show that he was not able to step up from the street upon the step and platform of the standing car as any older person in the same position. There is no proof at all of his inability to do this, and you have no right to assume such inability on his part to do this. Therefore the same degree of care and watchfulness for boarding passengers applies in this case as it applies in the case of all passengers under like circumstances. * * *
    “ If you find from the proofs that the boy was in fact boarding a standing car and in a dangerous position, and also find that the conductor failed to exercise reasonable care and prudence to discover the presence of boarding passengers at the time the car was started up and plaintiff injured, then your verdict should be for the plaintiff. If, on the other hand, the boy was in the act of boarding a standing car, as he claims, and you find from the proofs that because of the short space of time he remained at the point of boarding the car, or for any other reason, a reasonable, careful, and prudent inspection of the approach to the car would not have led to the discovery of his position in boarding it, then there was-no breach of duty, no negligence on the part of the employés of the defendant company, and there can be no recovery by plaintiff. The reason for this must be plain to you, for, as I have explained, recovery must be based upon the breach of duty to make reasonable inspection for boarding passengers, and if for any reason that reasonable inspection, as I have explained it, would have failed to discover the impending danger, if there were any, then there has been no breach of duty, and consequently no liability on the part of the defendant company.”
    For defendant the court was requested to instruct the jury that:
    “ If the claim of the plaintiff in this case be true, he was in a position of safety on the car from the time the car started from the Tunnel Depot, up to the point where the accident occurred. The plaintiff admits that at the time of his alleged attempt to move from the position in which he originally was, to the platform of the other car, that he was not aware of the cause for the stopping of the car, and that he saw no one attempting to board or depart from the car. He further admits that he did not see the conductor at this time, and did not know where he was. Under these circumstances, it was his duty to know that the cars might start at any time, and in his attempting to leave the place where he claims he was and take a position on the other car, knowing this fact, and knowing that the conductor was not where he could see him, he was guilty of contributory negligence which would prevent his recovery in this case.
    “The plaintiff claims in this case that he secured a position on the front end of the rear trailer, and that he occupied his position with safety and without danger from the point where the car started up to the point where the accident occurred. He admits that at the time the ear stopped, as he claims, near Minnie street, he saw no person attempting to either, board or alight from the cars, and that he did not see the conductor. If, under these circumstances, he attempted to change his position from one car to another, as he states the fact, the defendant cannot be charged with negligence on account thereof.
    “ While it was the duty of the conductor on this car not to start the car if any passengers were attempting to board one of the cars while it was stationary, until such passengers had gotten upon the car safely, it was not the duty of the conductor to anticipate that passengers securely upon the car would attempt to change their position, and his failure to observe the passengers attempting to so" change their position from one car to another, without any indication to him that it was their intention to do so, •would not constitute negligence.
    “Thereis no testimony in this case tending to show, and no claim is made on the part of the plaintiff, that, at the point where the plaintiff claims the car stopped, there were any passengers waiting for the car or intending to board the car. Under these circumstances, no duty devolved upon the conductor that required any care in the starting of his car, so far as intending passengers were concerned. I therefore charge you that the act of the plaintiff in suddenly leaving his position on the car and attempting to board the car ahead was an action assumed at his own risk, and, even if there was a passenger alighting from the ear, the conductor was justified in starting the car as soon as the passenger alighted, and if, during this time, the plaintiff attempted to change his position, the conductor would not be chargeable with notice, and there could be no recovery on the part of the plaintiff in this case.”
    These were refused. The testimony for defendant tended to prove that plaintiff was not a passenger upon this train; that the train did not stop at or near the point where plaintiff claimed he was injured; that plaintiff attempted to board the car while it was in motion.
    One of the attorneys for the plaintiff in his argument to the jury employed the following language:
    “Now I am going so ask your attention to some general considerations in this case. Have you got any right, Captain Danger, or any of you gentlemen, to go out and tear up the streets of the city of Port Huron, and put a street railway track down there and run cars and charge people 5 cents for riding upon it; when a farmer comes in town and a car comes along he has got to turn out of the way — or when a pedestrian comes along you have got to get out of the way of the car. You have no such right here because you have not any franchise. Who gives the franchise ? The public. And what is that franchise ? It is a privilege, is it not ? A privilege to do what ? A privilege to use the streets that belong to the people, to carry the people for pay, is it not ? Is it a free gift carrying no responsibility, or does it carry a duty ? It carries a duty, and that is to carry the blind, the old, the halt, the lame, the young, does it not ? To carry them indiscriminately, does it not ? * * * What are the street cars for ? Are they for the people that can swing along in their automobiles or in their landaulets ? Why, no, gentlemen, the street cars are the people’s conveyances, are they not ? And the poorer a man is the more he needs a street car. Now, this boy on that day had just as much right to ride upon that street car as though his name was John D. Rockefeller or Pierpont Morgan, just the same, and it was just the same duty of this company to carry him, and more than that, being a little boy nine years old. Some of you have got little children, possibly. You know what the responsibility of a little nine-year old boy is. Now he cannot take care of himself. It was their duty to look after him, was it not ? Now, I say this young George was nine years old. Why we commonly say, if we want to put a man down in the scale, ‘He doesn’t know as much asa ten-year old boy,’ and this was not a ten-year old boy, but nine years old. What is it that gives a man knowledge of the danger of street cars ? It is observation first, is it not, and it is experience. Those are two things. Now, what is the peculiar characteristic of a nine-year old boy or a ten-year old boy ? From eight to fourteen what is the peculiar characteristic ? Why it is that you cannot keep him still a minute with a padlock. The only way you can get that boy still so he will stay so any length of time is to chloroform him and put him to sleep, and then he is liable to waken. The street car company were bound to know the nature of this boy. They were bound to look after him, because that is the duty of the street car company. What was the fair reasonable rule that governed this boy or that should govern him; that is,.governing his responsibility ? It was not the same as an adult. Of course, that is self-evident. The rule that should govern this boy, as we claim, was that ordinary discretion and judgment of boys of his years. That is all we claim; no more and no less. Now, we claim that it was the duty of the street car company to take charge of this boy when he stepped his foot— When does a man become a passenger on a street car ? When the man steps his foot on the step, and when a man steps his foot upon the step of the car, he becomes a passenger, whether he has got hold of the handles or not. It was the duty of the railroad company, when this boy stepped his foot upon the step of that car the first time, to look after him. It was their duty not to let him ride upon the steps of that car, a little nine-year old boy, was it not ? It was their duty to see that he took a safe position, not only to tell him to do it, but to see that he did.
    “ The Court: I don’t know but it is my duty to inform you that the court cannot take that position, as a matter of law.

      “Mr. Eovey: Would your honor do me the favor to tell me what position the court intends to take, for my information, in my argument to the jury ?
    “ The Court: That this boy has all the rights that any boarding passenger would have at the time that he was on the ground and attempting to get on the car, if the jury find that to be the fact. The reason why I make that suggestion is because of the exception of Mr. Phillips to that line of argument.
    “ Mr. Eovey: Now, I understand, if your honor please, I have a perfect right to argue to the jury what I claim to be the law, whether it is the law or not.
    “ The Court: Well, go ahead; it is for you to determine that.

      “Mr. Eovey: I do not want to run contrary to the opinion of the court, but I am simply claiming what I think is the legal right.

      “The Court: You have had lots of experience in the trial of cases. I am not going to stop your argument. Make whatever argument you see fit.

      “Mr. Eovey: Very well, I will go ahead and take my chances. Now, I say then that it was not only their duty to tell him to get in a safe place when he got on that car originally, but it was their duty to see that he did it. In view of the suggestion of the court, I am not going to pursue that; I am going to leave the truth of it to your inner consciousness, whether that is true or not.”
    Plaintiff recovered a verdict for $7,000, which the court refused to set aside. In so refusing, the court said, among other things:
    “As stated, two juries have passed upon the questions of fact involved in this action. A crucial question of fact in each trial was whether or not the plaintiff received his injuries while boarding defendant’s ear after it had come to a full stop at Minnie and Twenty-Fourth streets. At each trial plaintiff produced proof that the car came to a full stop at or near that point, and that plaintiff received his injuries by means of the starting of the standing car while he was in the act of boarding it. At the first trial the plaintiff and a witness Alex Freeland testified that the car that injured plaintiff came to a full stop at the street crossing at Minnie street. Several witnesses for defendant testified that it did not so come to a full stop at that point or where plaintiff was injured. The court set aside the verdict of May 26, 1908, upon the finding that upon this crucial question the verdict was against the weight of the evidence. At the present trial plaintiff produced additional evidence that had a tendency to corroborate the evidence given by Freeland to the effect that he was in a position to see the car in question at the time plaintiff received his injuries. This evidence consisted of the testimony given by the witnesses Mary Hall, Earl Hall, and Violet McKenzie. Defendant also produced additional proof tending to support the claim that the car did not stop as claimed by plaintiff. This additional proof consisted of the testimony of the witnesses Henry Hoffman, Frank Mills, and Julius Phillips. The 24 jurors who heard and considered the conflicting evidence were as competent as jurors are likely to be at any number of trials of the case. From the proofs and results of both trials it is my conclusion that it is extremely unlikely that any different conclusion upon the essential facts will result from another trial. An examination of cases shows that more than one new trial after a second verdict for plaintiff on the same issues and on the ground that the verdict is against the weight of the evidence is very rarely granted. I conclude that it is not the court’s duty to again interpose its judgment as to the weight of the evidence upon which the jury must have found for plaintiff. However the court may regard the question as to weight of all the evidence, the jury, upon competent evidence, now have a second time given credence and greater weight to the evidence as to defendant’s negligence than that opposed to it. As to the allegations charging error because of prejudicial argument and statements made by plaintiff’s counsel, the jury was so thoroughly instructed to eliminate all of plaintiff’s other claims and to confine themselves to the sole question as to whether or not the conductor in charge of the car negligently started it from a standing position, thus causing plaintiff’s injuries, that it is my conclusion that the jury followed these instructions and were not induced to render a verdict because of improper argument or prejudice.”

       Duty of street car conductor to see that passenger is off before starting car, see note in 11 L. R. A. (N. S.) 140.

   Ostrander, C. J.

(after stating the facts). The principal question of law is whether the court erred in instructing the jury concerning the duty of the conductor. For the purpose of deciding this question, the circumstances to be considered are those related by plaintiff and have been stated.

In Booth on Street Railways, § 849, the doctrine with respect to the duty of those in charge of street cars is stated in these words:

“ It is the duty of those in charge of the car, when signaled to stop for the purpose of discharging passengers, to ascertain who and how many of the passengers intend to alight at that place, to wait a sufficient length of time to allow them to alight in safety by the exercise of reasonable diligence, and, in any event, to see and know that no passenger is in the act of alighting, or is otherwise in a position which would be rendered perilous by the motion of the car when it is again put in motion.”

See, also, Highland Avenue, etc., R. Co. v. Burt, 92 Ala. 291 (9 South. 410, 13 L. R. A. 95); Railroad v. Mitchell, 98 Tenn. 31 (40 S. W. 72); Memphis Street Ry. Co. v. Shaw, 110 Tenn. 467 (75 S. W. 713); Medler v. Railroad Co., 126 N. Y. 669 (27 N. E. 854); s. c. (City Ct. Brook.) 12 N. Y. Supp. 930; Finn v. Railway Co., 86 Mich. 74 (48 N. W. 696). The following instructions to a jury were approved in Gilbert v. Railway Co., 160 Mass. 403 (36 N. E. 60):

“(1) A common carrier is bound to delay at a station or stopping place only a reasonable length of time for the purpose of allowing passengers to alight, unless those in charge know or have reason to know that some passenger has not got off, and is desiring to do so.
“(2) Passengers on a street car, when at their place of destination, should leave the car with reasonable dispatch, and after the car has stopped a reasonable time for passengers to get off, and as soon as all passengers destined for a particular place, or intending to get off there,'have apparently left, and the conductor has no notice that any one else is trying to get off, then the conductor may properly start his car.
“(3) If the car has stopped a reasonable time, and the plaintiff did not step from the car until after the car had started, and was not at the time of starting the car apparently in the act of leaving it, and the conductor did not know, or have any notice, or have reason to know, that the plaintiff was intending or desiring to get off there, then there was no negligence on his part in starting the car.
“ (4) If the jury find that the car had waited a reasonable length of time for passengers to alight, and that the plaintiff delayed and was not apparently in the act of leaving the car when the bell was'given for the car to start, and the conductor had no notice or knowledge of the plaintiff’s intention or desire to get off, then there was no negligence in starting the car.
“5. The conductor was not bound to know that every passenger had left the car that was intending to leave it at that place, in the absence of any sign of such intention, and if, after waiting a reasonable time, he took reasonable means to see whether passengers were at the time leaving the car, and no one appeared to be leaving it, and the conductor did not know, or have any reason to know, that the plaintiff was intending to get off, there was no negligence in starting the car.”

No different rule should be applied when passengers are entering the car. Kinkade v. Railroad Co., 9 Misc. Rep. 273 (29 N. Y. Supp. 747); Dean v. Railroad Co., 34 App. Div. 220 (54 N. Y. Supp. 490); Dudley v. Railway Co. (C. C.), 73 Fed. 128; Smith v. Detroit United Railway, 145 Mich. 629 (108 N. W. 1024). In Dudley v. Railway Co., supra, it was said:

“It was the duty of the conductor, before giving the signal to the gripman, to look around, and to have seen that all passengers to take passage at that place were safely on board; and failure in the performance of this duty cannot be excused by the fact that the conductor did not actually see the plaintiff.”

We think the judgment should not be reversed because of the instructions which were given or because defendant’s requests were refused. The instructions do not incorrectly state the applicable rule of law.

They do not, as of course they should not, state, or imply, that defendant was an insurer of plaintiff’s safety, or that the conductor was bound, at the peril of defendant, to know that no one was entering any of the cars when they were started. The court might very properly have incorporated in the charge reference to length of time the cars were stationary, to the rather unusual conduct of plaintiff, and we think it would have been error to refuse to do so if requested.

When street cars have stopped for such a time that any one capable of entering, or of alighting, with reasonable celerity, ought to have done so, the conductor, in the absence of notice to the contrary, may rely somewhat upon the presumption that the purpose of .bringing the cars to a stop is accomplished. It is a matter of common knowledge, too, that a conductor would be less likely to notice such a change of position as plaintiff claims he made than the actions of those leaving or entering cars in the ordinary manner. The court was not asked to amplify his instructions in this respect, nor is the failure to do so assigned as ■error.

We find no merit in the assignments based upon rulings admitting and rejecting testimony.

We are impressed that for some reason, or reasons, a verdict opposed to the great weight of the evidence was returned by the jury. Whether this was due to the failure of the court to amplify the charge in the manner herein indicated, or to the inflammatory and improper arguments of counsel for plaintiff, some of which have been set out, or to both, it is, of course, impossible to determine.

Counsel for defendant made such objections to the argument referred to that the court gave it attention and stated a view of the law opposed to the one presented by counsel. But neither at that point, nor in the charge, was the jury told to consider only the law stated by the court. Counsel did not submit to the ruling of the court. On the contrary. And what was said might well have been treated by the jury as indicating that counsel’s views were as likely to be right as those expressed by the court. The argument was calculated, and apparently intended, to do harm to the defendant and to induce the jury to determine the issue without regard to the limitations imposed by the court in the charge. If it had not been made, we should have hesitated, and probably refused, to set aside the verdict.

Under the circumstances, we are impressed that it is our duty to reverse the judgment and order a new trial. It is so ordered.

Steere, “Moore, Blair, and Stone, JJ., concurred with Ostrander, O. J.

McAlvat and Brooke, JJ., concurred in the result.

Bird, J., did not sit.


source: Caselaw Access Project

author: Stone, J. Ostrander, O. J.

license: Public Domain

text:
    WENZEL v. KIERUJ.
    1. Contracts — Building Contracts — Construction.
    Under the provisions of a contract to install heating apparatus in a church as specified therein, plaintiff to cover all pipes underground so as to protect them from freezing, he was not bound to cover pipes under the church but not underground, and work done in protecting such pipes at the request of the architect was an extra.
    2. Same — Trial.
    The construction of the writing was for the court, not the jury.
    3. Same — Parol Evidence — Prior Negotiations.
    Parol agreements and statements made prior to the execution of the written instrument could not be shown to vary its terms.
    4. Same — Subsequent Agreement.
    But plaintiff was entitled to have submitted to the jury his claim, which was supported by testimony, that defendant and its architect authorized him to protect the pipes after the execution of the contract, and agreed to the charge therefor as an extra.

      Error to Wayne; Rohnert, J.
    Submitted November 7, 1911.
    (Docket No. 57.)
    Decided December 29, 1911.
    Assumpsit in justice’s court by Paul Wenzel against Eelix F. Kieruj for work done for defendant. On appeal -to the circuit court the cause was tried by a jury. Judgment for defendant.' Plaintiff brings• error.
    Reversed.

      May & Dingeman, for appellant.

      McIntyre & Wheeler, for appellee.
   Stone, J.

This is an action of assumpsit, in which the plaintiff seeks to recover the sum of $135 for alleged extra work for coveringlthe steam pipes under St. Francis Church, in the city of Detroit. The plaintiff has for many years been engaged in the business of plumbing and steam fitting. In 1904, the congregation of said church determined to erect a church and school, and Kastler & Hunter, architects, were selected to prepare plans and specifications, and to ask for and receive bids for the work. Among the bids received was the one from the plaintiff for steam fitting, which was accepted, and a contract was signed by the parties. The plaintiff claimed and testified that the contract was left in possession of Mr. Kastler, who was the supervising architect in control of the work, and that plaintiff never had a copy. It is the claim of the plaintiff that under the specifications on which his bid was figured there was no obligation on his part to cover the steam pipes under the church with asbestos. He testified that Kastler called him up and told him to cover these pipes (which were under the church, but not under the ground), and, when told by the plaintiff that it would be extra, Kastler said:

“ Go ahead and do it, and we will take the matter up later on. Go on with the work; they have got to be covered.”

Plaintiff claimed further, and offered testimony tending to show, that both Kastler and the defendant stated that the pipes would have to be covered, and that the work would be paid for as extra. This is denied by the defendant, who contended that the covering of these pipes under the church was included in the original contract, and that the work should not be allowed as an extra. If there is liability, it was conceded that the defendant was the proper party to be sued.

The testimony tended to show that the contract between the parties was lost, but the specifications (Exhibit A) read in part as follows:

“Specifications for Heating St.'Francis Church.
“Radiators: The church will be heated with radiators in the sanctuary, sacristy, vestibules and choir, the house and boiler house with radiators, to heat the church 60 degrees in zero weather; remainder of radiators throughout house and boiler house to be heated to 70 degrees in zero weather.
“Pipes Underground: To be thoroughly protected from freezing must be deep enough to be boxed in wooden boxes 3' larger than pipe, pipes must be covered with magnesia and felt, enough to afford good service. The putting in of heating apparatus must be done complete in every respect by the heating contractor; all necessary tools for boiler, etc.”
“The covering pipes underground may be done with crock of sufficient sizes.”

The undisputed evidence was that the work sued for was worth $135. The case was submitted to a jury by the trial judge, and resulted in a verdict and judgment for the defendant. The plaintiff has brought the case here on writ of error, and the 10 assignments of error all relate to the charge of the court.

The appellant states that there are really two questions in the case: (1) Did the original contract and the specifications require the plaintiff to cover with asbestos the pipes under the church ? (2) If not, did the parties subsequently make an additional contract covering this work ?

Counsel for appellant urge that the first question is entirely one of construction; that the contract which the parties signed must be held to include the specifications for the work, and therefore must be construed together; that, in the absence of any ambiguity, it was the duty of the court to construe these instruments, and to instruct the jury as to their extent and governing force, citing Tompkins v. Gardner & Spry Co., 69 Mich. 58 (37 N. W. 43); Douglass v. Paine, 141 Mich. 485 (104 N. W. 781).

It is further claimed that in considering the terms of the heating specifications, and applying to the words their plain and ordinary meaning, there is nothing that obliged the plaintiff to cover the steam pipes under the church, the obligation being to cover the pipes underground to prevent their freezing; and there is no claim that he failed to do the latter.

It is conceded that the second question was one of fact, in which the plaintiff claimed a subsequent oral contract, authorizing him to cover the pipes and agreeing to pay him for the work as an extra; and the plaintiff claims that he was entitled to go to the jury on the question, under proper instructions. The appellant urges that the trial judge ignored this phase of the controversy, and failed to present the question to the jury.

The following is the substance of the charge, and error is assigned on the portions numbered and inclosed in brackets:

“1. [If you find that it was mutually understood between the parties, before the contract was signed, that the specification included the covering of those pipes, then he is not entitled to a verdict, and your verdict must be for the defendant, no cause of action.]
“2. [If you find that in the discussion from the parties, or from the circumstances as they appear prior to the time of the execution of the contract, that it was mutually understood between the parties that the covering of the pipes was within the specifications, then you will consider whether or not the plaintiff was told by Mr. Nastier, before he covered the pipes, that it was included in the contract, and was not to be an extra. If you find that he was told so, and did the work with the statement that it was,, to be within the contract, then your verdict will be for the defendant, no cause of action.]
“3. [But, if you find from the testimony that he was not told, then it is up to you to determine whether or not, within the terms of the contract, it became necessary that those pipes should be covered in order to make it the guaranty which the plaintiff embodied as a part of his contract.]
“The guaranties in the contract were that the radiation should be what was specified in the contract, and it was so understood that there should be that much radiation, and the pipes covered by the plaintiff, for which he sues. If you find that that radiation specified would not heat the church in accordance with his guaranty, namely, heat the church to a temperature of 60 degrees and the house and boiler room 70 degrees when the temperature was zero outside, then it would be necessary for the plaintiff, either to add additional radiation in the building, or else to provide, by covering the pipes, or by other means, sufficient protection to the steam to prevent condensation, and to bring the radiation in the building up to the amount required. If you find that it became necessary to cover those pipes in order to bring up the radiation in the church to the amount specified in the contract, it became necessary to cover those pipes for that purpose, the plaintiff cannot recover.
“4. [Again, if it was guaranteed in the contract that the system would carry radiation in the building, such as would heat all of the premises to a temperature of 70 degrees when the temperature outside was 10 degrees below zero, and if you find that that system as installed, taking it for granted that you find the covering was not specified in the contract or specifications, if you find that the system as installed would not carry a radiation in the building to a degree of temperature of 70 degrees when the temperature outside was 10 degrees below zero, without covering the pipes, then it became necessary for them to be covered, and he is not entitled to recover.]
“If you find that the plaintiff is entitled to recover, you will allow him a reasonable charge for the work, and add thereto interest from January 1, 1905, 4 years and 21-months, would be 21 per cent., in addition to the amount you find. If you find for the defendant, it is no cause of action. You will understand, gentlemen, that there are three propositions which you are to consider.
“5. [If you find in favor of the defendant on any one of them, your verdict must be for the defendant, no cause of action. The first one is, Was it contemplated or understood mutually between the parties, before the contract was signed, that they were to cover these pipes, and that they were included within the terms of the contract ?]
“ If it was so understood, then the plaintiff cannot recover. The second proposition is, Was it stated before the pipes were covered that this work was to be part of the work to be done as a part of the contract, and would not be an extra, and did the plaintiff do it under that statement ?
_ “ 6. [And the third question is, Was it necessary that these pipes be covered in order that the radiation guaranteed by the contract should be sustained ? If you find that it was necessary to cover these pipes in order to give the necessary radiation within the terms of the contract, then the plaintiff cannot recover.]
“ 7. [ As I stated, the guaranties in that contract required the plaintiff to install a plant with radiation provided for in the radiators; that it should carry a heat of 60 degrees in the church and 70 degrees in the other buildings when the temperature was zero outside. Also that the system should be such that sufficient radiation could be added by the installing of large radiators, so that the system would carry a temperature of the degrees specified in all places to be heated when the temperature outside was 10 degrees below zero. If it was necessary to meet that that these pipes should be covered, it became the duty of the plaintiff to cover them. If you find for the plaintiff on that proposition, it will be necessary for you to also find for him on the other proposition. I hope I make myself clear.]
“Mr. May: I should like to say that I think the jury should be instructed that, as a matter of economy, if this was put on as a matter of economy, that it would not preclude us from recovering.
The Court: 8. [If the guaranty as to radiation could be made without crowding the boiler, that was all that was necessary; you cannot allow them to demand anything which was not reasonable. Of course, experience teaches us that in cold weather you will have to have more fire in the furnace, but the guaranty is expected to be fulfilled without any unreasonable crowding of the boiler ; in other words, that guaranty should be fulfilled by a reasonable and ordinary use of the boiler, such as would be expected under ordinary circumstances in the various degrees of weather when the boiler is in use. I think that covers the proposition.] ”

We are of opinion that the heating specifications should have been construed by the court, and that the jury should have been instructed as to their meaning and import, and that they did not embrace the work sued for in this action.

Error is assigned upon the following part of the charge:

“ If you find that it was mutually understood between the parties, before the contract was signed, that the specification included the covering of those pipes, then he is not entitled to a verdict, and your verdict must be for the defendant, no cause of action.”

Similar language was used in other parts of the charge, upon which error is assigned. This part of the charge is rendered very significant, because Mr. Kastler, the architect, testified to conversations with the plaintiff prior to the making of the contract, as follows:

'* They were not mentioned in the specifications. He asked me if they would have to cover them, and I said: ‘ Certainly; it is exposed to the weather.’ That is before he put in his figure. He had that conversation in my office when he was figuring on the work. * * * I told him it was a part of his contract; it was so understood before the contract was signed.”

This part of the charge was erroneous. We understand the rule of law to be that prior mutual understandings of the parties are unimportant, ‘when they have signed a contract covering the subject-matter, since the latter includes and covers all such prior negotiations and agreements. In Rumely & Co. v. Emmons, 85 Mich. 517 (48 N. W. 637), this court said:

“ It is a well-settled rule of law that, when the parties have reduced their contract to writing, it must be presumed that the writing contains the whole of the agreement, and all parol contemporaneous agreements are merged therein.”

See, also, Cook v. First Nat. Bank, 90 Mich. 214 (51 N. W. 206); Johnson v. Bratton, 112 Mich. 323 (70 N. W. 1021). The general rule is that you cannot import into a written agreement a prior parol agreement which alters the terms or legal effect of the written agreement.

We think that the plaintiff was entitled to have fully submitted to the jury his claim, to wit, that, by a subsequent oral contract with the architect and the defendant, he was authorized to cover the pipes and charge for the same as an extra, and that the court failed to so submit it.

We have pointed out the errors which we think were prejudicial.

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

Moore, Steere, and Brooke, JJ., concurred with Stone, J.

Ostrander, O. J.

I concur upon the last point, namely, that plaintiff was entitled to have his claim submitted to the jury.


author: Steere, J.

text:
    MORSE v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Evidence — Infants—Mortality Tables.
    It was reversible error to admit the mortality tables in evidence, in an action under the survival act for the wrongful death of an infant 27 months old, whose expectancy did not appear from the tables: and the evidence was not admissible to show the probable duration of his life after he should arrive at majority.
    2. Railroads — Negligence.
    Evidence that defendant’s engineer, seeing the infant on the track soon enough to have stopped his train, did not do so, merely sounding his whistle and continuing until he was too near to avoid an accident, had a tendenoy to show negligence justifying a verdict for plaintiff.

    Error to Ingham; Wiest, J.
    Submitted November 9, 1911.
    (Docket No. 77.)
    Decided December 29, 1911.
    Case by Glenn Morse, administrator of the estate of Albert J. Morse, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Harrison Geer, for appellant.

      Odell Chapman, for appellee.

       Care required of railroad company to prevent injuring small children upon the track, see notes in 25 L. R. A. 784; 6 L. R. A. (N S.) 288.

   Steere, J.

Albert J. Morse, a child 27 months of age, was struck and fatally injured by one of defendant’s freight trains near Comstock street crossing in Corunna, Mich., in the afternoon of July 16, 1904. He lived about 24 hours after the accident. His father, Glenn Morse, brought this action as administrator of his deceased son to recover damages under the so-called survival act (3 Comp. Laws, § 10117).

Deceased’s parents resided 165 feet south of the crossing where he was killed, in a house which stood 55 feet east of Comstock street. On the afternoon of the accident, deceased’s mother had gone up town on some errand, and left the child in care of his father, who was lame as the result of an injury sustained while working as a brakeman on the Soo Line Railway, and walked with difficulty, generally using a cane. Towards evening, the father, going to a field back of the house to milk a cow, took the child with him. About the time the father finished milking, the child started ahead toward the house through a patch of corn, and was hidden from sight. The father, being lame, walked slowly, but reached the house a short time after the child left him, and found he was not there. He looked around the house for him, and up and down the street. Looking toward the crossing of the railroad, he finally discovered him on defendant’s track. A train was just coming, and the father started as hurriedly as he could for the child, but, before reaching him, the child was struck by the train, receiving injuries which resulted in his death. The declaration is in proper legal form under the survival act, and, briefly stated, charges defendant with gross negligence in the particular that the engineer saw deceased, a child of tender years, alone upon the track far enough away to have stopped the train before reaching him, and should have done so, but, instead, only sounded the danger signals to frighten him off the track, not attempting to stop the train until it was too late. Defendant pleaded the general issue. The case was tried before a jury.

At the conclusion of the testimony, defendant’s counsel requested the court to direct a verdict for the defense on the ground that there was no evidence from which the jury could find defendant guilty of gross negligence, which was refused. A verdict was rendered by the jury in favor of plaintiff for the sum of $3,850. A motion was thereupon made for a new trial, and denied on condition that plaintiff remit the sum of $850. This was done, whereupon the court rendered judgment for $3,000 against defendant.

The record contained numerous allegations of error, but, in the view taken of the case by this court, it is thought only two require consideration at this time: First. The admission of the mortality table in evidence against defendant’s objection. Seeond. The refusal of the court to grant the request that a verdict be directed for defendant.

The record shows that counsel for plaintiff, against objection, was permitted to introduce in evidence the mortality table under section 7220, 2 Comp. Laws, for the purpose of showing the probability of life on the part of the child after arriving at the age of 21 years. In Raj nowski v. Railroad Co., 74 Mich. 21 (41 N. W. 847), a case brought by the mother as administratrix of a child alleged to have been killed through defendant’s negligence, the court says:

“Counsel for plaintiff, against defendant’s objection, were permitted to introduce in evidence before the jury the mortality table. * * * This was error, for the reason that the table gives no expectancy of life for any age under 10 years. The plaintiff’s intestate was but five years of age, and what pertinent use could be made of the table it is impossible to see. Those at all versed in the science of longevity know that the chances of an infant of the age of five to reach a remote period of existence are far less than when he arrives at ten. Few, if any, insurance companies, take risks upon lives under ten years of age.”

Infant mortality is a matter of common knowledge. It follows that an infant of 27 months has yet fewer-chances to reach a remote period of existence than when he arrives at ten. It was the duty of the jury to estimate deceased’s expectancy from the age of 27 months, not 10 years or 21 years. In disposing of the motion for a new trial, the court took note of this error, and stated that the admission of such table only bore upon the amount of damages, and, inasmuch as it gave the plaintiff’s intestate a greater expectancy than it would had the consideration of the jury been limited to his actual age at the time of his death, substantial justice could be done by reducing the award made, and so required the plaintiff to remit $850. While this might be a fair and rational disposition of the objection if within the power of the court, it was, nevertheless, invading the province of the jury, and amounted to a participation on the part of the court in the deliberations of the jury when passing upon questions of fact. It is impossible for any court to judge what effect the mortality table had upon the deliberations of the jury. This table, compared with what is called the Carlisle mortality table, shows that the jury may have heen misled as to the child’s expectancy to tho extent of about 12 years. Whether such was or was not the case no one can say. Under the decision referred to, admission of the mortality table against objection was reversible error.

Under the second allegation of error, before mentioned, it is strenuously urged by counsel for defendant that there is no evidence of gross negligence in the case which justifies a submission of that question to the jury. Inasmuch as there must be a reversal of this case for reasons stated, it seems incumbent upon us to review this allegation of error, but it is not deemed advisable to dwell upon the testimony at this time, or emphasize the evidence of any particular witness by calling attention to it. Suffice it to say that we are all agreed there is competent testimony in the case tending to show that the engineer should have seen, and in fact did. see, the child on the track soon enough to have stopped the train before reaching him, and plainly enough to see and realize that he was a small child, unattended, and too young to appreciate the danger, or the meaning of the alarm given, and that, instead of checking his train so that he had it under control, he only sounded the danger signals and recklessly kept on until it was impossible to stop before striking the child.

On the other hand, there is also competent testimony controverting this, and tending to show that the instant the engineer, who was faithfully attending to his duties, discovered the child upon the track, he applied the emergency brake, shut off the steam, gave the danger signals, and made every effort within his power to stop the train.

It is not proper to here discuss the significance or weight of such evidence further than to hold that it presents an irreconcilable conflict of competent testimony on a vital issue, which it is within the province of the jury to decide under proper instructions.

For the error heretofore pointed out, the case is reversed, and a new trial granted.

Ostrander, C. J., and Moore, Brooke, and Stone, JJ., concurred.


text:
    CREEN v. MICHIGAN CENTRAL RAILROAD CO.
    1. Pleading — Negligence—Railroads—Counts.
    Plaintiff may set ont his eanse of action in different counts of his declaration, with as many different but consistent averments of acts of negligence causing the injury, as he sees fit, in order to meet possible evidence as it may develop on the trial.
    3. Same — Demurrer.
    On special demurrer to the declaration it must be considered more critically than after a plea on objection raised at the trial.
    3. Same — Duplicity.
    In order to avoid the objection of duplicity, a declaration should not join allegations of common law and statutory duties in one count.
    A Same — Counts—Joinder.
    Averments of related facts not contradictory, logically connected with a single injury and capable of jointly or sepa' rately contributing to or causing it, may be joined in one count.
    5. Same — Declaration—Personal Injuries.
    There was no sufficient ground of objection to a declaration for the wrongful death of plaintiff’s intestate, caused by the explosion of a locomotive boiler, where the pleading charged in one count in separately numbered paragraphs that it was defendant’s duty: (1) to have provided a boiler of sufficient strength, etc., to withstand the expansive force of the steam; (3) to have employed inspectors and others who were competent to examine and to keep the appliances connected therewith in safe condition; (3) to have inspected the boiler and its several parts; (4) to have had the water glass cleaned and properly prepared; (5) to have had the inspectors inspect the bolts, rivets, joints, etc.; (6) to have repaired the burned and warped iron of the fire box and water space; and where breaches of said duties were averred in corresponding paragraphs, separate and numbered.
    Certiorari to Crawford; Sharpe, J.
    Submitted November 10, 1911.
    (Docket No. 89.)
    Decided December 29, 1911.
    Case by Anna E. Creen, administratrix of the estate of John T. Creen, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff’s decedent. An order overruling a demurrer to plaintiff’s declaration is reviewed by defendant on writ of certiorari.
    Affirmed.

      George L. Alexander (Humphrey & Grant, of counsel), for appellant.

      Hall, Defoe <& Henry, for appellee.
   Steere, J.

This is an action brought by plaintiff as administratrix of her deceased husband, John T. Creen, to recover compensation for his death, which was caused by the explosion of a boiler of one of defendant’s locomotives on which he was engineer.

The question before us is the sufficiency and legality of plaintiff’s declaration, to which defendant has filed a special demurrer. This declaration, as an entirety, is skillfully drawn, containing, in proper arrangement and apt phraseology, all the requisite parts of a declaration, according to the rules of pleading at common law. It is composed of two counts, each of which charges a cause of action, sounding in negligence, by sufficient averments of duty, breach of duty, and resultant damage. Only one accident and one injury are stated. They are the same in each count, being the explosion of the locomotive boiler and consequent death of plaintiff’s intestate; but the pleader has stated in the first count six, and in the second count seven, separate breaches of duty and acts of negligence which caused the explosion. Each duty and breach of duty is stated separately in separately numbered paragraphs.

In the first count the duties are stated as follows:

“(1) To have provided such engine with a water space constructed of boiler iron of sufficient strength, and so bolted, riveted, and fastened together as to withstand the expansive force of such confined steam required to propel said train, and to have kept and maintained the same in reasonable repair.
“(2) To have employed inspectors, repairers, boiler washers, and hostlers who were reasonably competent to examine and inspect the water space of such engine and the openings of said check valve and water glass, with reference to the condition of repair thereof, and in regard to matter and scale formed therein, and to have caused such examination and inspection of said space and openings to have been made by inspectors, repairers, boiler washers, and hostlers, so competent, at reasonable times and whenever necessary, and before delivery of said engine to intestate for use as a locomotive.
“ (3) To have caused the inspectors, repairers, boiler washers, and hostlers so employed by it to examine and inspect the water space of such engine and the openings of said check valve and water glass to ascertain the condition thereof in regard to earth and scale therein, at reasonable times, and before the delivery of said engine to intestate for use as a locomotive.
“ (4) To have caused the water space of such engine and the openings of said check valve and water glass to be washed out and cleaned by its said inspectors, repairers, boiler washers, and hostlers and such matter and scale removed from the interior thereof before the delivery of said engine to intestate for use as a locomotive.
“(5) To have caused the inspectors, repairers, boiler washers, and hostlers so employed by it to examine and inspect the fire box and water space of said engine, to ascertain the condition thereof in regard to the uneven expansion, warped, and burned condition of the iron comprising the same, and loosened and broken stay bolts and rivets therein, before the delivery of said engine to intestate for use as a locomotive.
“(6) To have caused the fire box and water space of said engine to be repaired by the removal of the iron comprising the same that was so unevenly expanded, warped, and burned, and by repairing the same with boiler iron that was suitable for such use, and by replacing the stay bolts and rivets therein that were loosened and broken, before the delivery of said engine to intestate for use as a locomotive.”

Said count further alleges, in six separate paragraphs, correspondingly numbered, a failure to perform each one of these several and distinct duties. There is no allegation that said acts of negligence concurred to produce the injury complained of.

The second count is claimed to be based upon Act No. 104 of the Public Acts of 1909, which makes a defendant liable for the negligent acts of its employés. This count states, in substantially the same language, the six duties and breaches of duty found in the first count, imputing them to “defendant and its several officers, agents and employes,” and, in addition thereto, also alleges, as a seventh ground, the duty of the fireman to test and examine the water glass to ascertain the amount of water in the boiler, and to keep the same properly filled, with a corresponding averment of a breach of that duty, charging defendant as liable therefor.

Defendant’s demurrer is special, full, and complete, specifically traversing each of the several matters complained of. Its import is that the several, separate, and distinct duties and breaches of duties found grouped together in the separate counts render them so multifarious and duplicitous as to violate all rules of pleading, thereby defeating the office and purpose for which a declaration is designed, which is to apprise the defendant of the specific negligence on the part of the defendant which it is claimed caused the accident, and which plaintiff proposes to prove in support of the action brought'. The gist of said demurrer is contained in its concluding paragraph, which is as follows:

“ Both of these counts are insufficient in law, in that they do not apprise the defendant whether the accident was caused by reason of defective construction of the engine, defective material in the original construction, want of competent inspectors, failure to inspect, failure to repair, failure to remove scale, or failure to keep a sufficient supply of water in the boiler, nor do they give to defendant sufficient information to enable it to intelligently and properly prepare to meet the issues thrust upon it by this sweeping declaration of duties and neglect of duties: These counts being so drawn as to encompass all possible phases and contingencies that the plaintiff may be able to develop on the trial is a mere fishing expedition without apprising the defendant upon what specific acts or omissions the plaintiff intends to rely so as to enable it to be prepared to meet them, and do not fill the requirements and provisions of a proper pleading in that regard.”

The charge that this declaration is a fishing expedition imputes uncertainty and a possible expenditure of time and effort without results, but the suggested uncertainty relates rather to what acts of negligence can be proven than to what are alleged. Fishing is sometimes legitimate, even in the troubled waters of a negligence case.

It is settled beyond debate that a plaintiff may set out his cause of action in different counts of his declaration, with as many different averments of acts of negligence causing the one injury as he sees fit, provided they are not inconsistent, in order to meet possible evidence as it may first fully develop on the trial. As an aid to that end, we have a recent statute which authorizes a litigant to call as witnesses the opposite party and his employés, and cross-examine them, without being bound by their answers. Each of the several charges objected to might unquestionably be set forth in the declaration in separate counts. The serious question is whether or not they can be embodied in a single count. It is true that the practice has become somewhat common in this State to allege in a single count separate and distinct acts of negligence on the part of the defendant, any one of which would be sufficient to sustain a verdict, and many declarations of that character, some of which closely resemble the one under consideration, have passed through this court, but they were either not objected to or the objections raised have, as a rule, been after a plea had been interposed, the court disposing of them on the ground that they had been waived by pleading, and could only be considered on special demurrer. The matter now being before the court on demurrer, this declaration must be considered more critically than if defendant had gone to trial on a plea to the merits. The serious import of defendant’s demurrer is that the counts objected to are duplicitous and multifarious.

It is a generally recognized rule of pleading that breaches of duty imposed by the common law and breaches of statutory duty, while chargeable in a single action, should be embodied in separate counts. The majority of cases, in which a count in the declaration alleging two or more acts of negligence capable of contributing to a single injury is held duplicitous, are cases where statutory duties and common-law duties are charged in the same count. That objection has been obviated by the pleader in this case. We find much conflict of authority as to the legality of charging in one count of a declaration to recover damages for personal injuries two or more acts of negligence on the part of the defendant, which, together or separately considered, might have caused said injury. Many cases from different States well in point have been cited by both sides in support of their respective contentions. These cannot be reconciled.

It is the claim of defendant that most of the cases cited by plaintiff are from States where a code has been adopted and the strict rules of pleading abandoned. Such is naturally the case, for the reason that most of our sister States have adopted codes; but we find the decisions from code States are often in marked conflict. The strongest decision we find in support of defendant’s contention is from a code State — Highland Avenue, etc., R. Co. v. Dusenberry, 94 Ala. 413 (10 South. 274) — which cannot be reconciled with Flynn v. Staples, 34 App. D. C. 92 (27 L. R. A. [N. S.] 792), Boireau v. Rhode Island Co. (C. C.), 169 Fed. 1015, Southern R. Co. v. Blanford, 105 Va. 373 (54 S. E. 1), Seaboard Air Line v. Rentz, 60 Fla. 449 (54 South. 20), New York, etc., R. Co. v. Robbins, 38 Ind. App. 172 (76 N. E. 804), and J. W. Bishop Co. v. Shelhorse, 141 Fed. 643, 72 C. C. A. 337.

“All the different acts of negligence on the part of defendant which caused the injury may be alleged in one paragraph.” 29 Cyc. p. 565.

It is said in Black on Proof and Pleadings in Accident Oases, p. 200:

“In most of the United States, the common-law system of pleading has been abolished and the code substituted, by which the cause of action is stated in a complaint or petition, and not, as at common law, in a declaration, yet some of the States still adhere to the common law, and, under the liberal practice now allowed in amending the pleadings, the old common-law system is no more technical than the code.”

While this State has no code and the common-law form of pleading obtains, special pleadings have been abolished, and numerous innovations and modifications which formerly would not have been tolerated have been introduced, tending to relax technical rules and simplify the practice. Many different causes of action may now be joined in one declaration, where it was formerly forbidden. Assumpsit may be brought on waiver of tort and the action joined in other causes maintainable in assumpsit. In an action for destruction of one’s business and credit, growing out of the breach of a single contract, a series of wrongful acts, aimed at a single result, may be joined in one count. Oliver v. Perkins, 92 Mich. 304 (52 N. W. 609). It has been held that our practice does not encourage needless repetition of allegations. A multitude of words is not necessary in a declaration, though reasonable certainty is required. Extreme niceties and technical exactness in form is not favored, and many other authoritative rulings and suggestions along the same lines, familiar to the profession, clearly indicate the tendency to eliminate the ultra refinements and technicalities of old forms of common-law pleading.

It was said in Douglas v. Marsh, 141 Mich. 213 (104 N. W. 625):

“ It would have been better pleading to set out the two possible theories in separate counts, but, unless the one averment negatives the other, the objection of duplicity was not good.”

This might be regarded as dictum, as the defendant had pleaded to the declaration in that case, but it was, at least, an intimation of the tendency to relax old technical rules, for, under them, the objection of duplicity would have been good.

It is material to note in this connection that a plea of the general issue, which would be fatally defective for duplicity and multifariousness under the old, strict rules of pleading, is now a denial of all material facts and allegations contained in a plaintiff’s declaration. In the States where, even under a code, a plea or answer must separately traverse and meet the averments in plaintiff’s declaration or complaint, there is more substantial reason for stricter rules against cumulative charges and duplicity of allegations in a single count. In this State a plea of the general issue is sufficient pleading to meet all charges of negligence in plaintiff’s declaration, whether set forth in two counts or many. Not necessarily being contradictory, or incompatible, if each was set out in a separate count, they would not be demurrable, and would be no more definite and specific. In the form they now appear, the duties and breaches of duty averred are as distinctly stated and separately numbered, available for specific objections on the trial of the cause, and for separate treatment by the court in ruling on evidence, and for instructing the jury, as though they were in separate counts. It is the claim of this defendant that,.if this pleading is sustained, counts can be filled with averments of every imaginable act of negligence which might possibly cause an injury, until they became so multifarious and uncertain as to amount to nothing more than a general charge of negligence, giving defendant no definite information as to what it must prepare to meet.

When a declaration fails to advise the defendant with reasonable oertainty, according to the circumstances of the case, of the facts upon which plaintiff proposes to rely, and will seek to prove, it can not be sustained. To a degree, uncertainty necessarily exists in every case where a declaration contains more than one count, and where an accident resulting in injury is attributable to more than one cause; but, if the averments are of related facts, not contradictory, logically connected with a single injury and capable of jointly or separately contributing to or causing it, we think it proper to allege and prove them in one action. In this case we see no useful purpose to be served by requiring that they be in separate counts.

The gravamen of the case is the death of plaintiff’s intestate, caused by explosion of the boiler of one of defendant’s locomotives, which, owing to defendant’s negligence, was not of sufficiently strong construction and not properly cared for. Proof of the accident is not proof of negligence. To recover, plaintiff must not only prove the injury, but establish by a preponderance of competent evidence the particular acts of negligence claimed to have caused it. The defendant, being the owner, and having the possession, care, and control of the locomotive in question, is presumed to have as good, if not better, means of information as to its construction and condition as has the plaintiff. Its construction and condition at the time of the explosion are the condensed issues in the case.

The duties and breach of duties alleged in each count of the declaration are not inconsistent, distinct, or disconnected causes of action, foreign to each other, but related, coexistent acts tending to effect a single, complete result. Under our rules of pleading a single, short plea of the general issue meets and covers them. The following language in Flynn v. Staples, supra, is peculiarly applicable :

“In this case either both or neither of the alleged acts of negligence may have produced the injury complained of. It is clear that their joint consideration is indispensable to a determination of appellant’s right. To compel a separation of them would impose an unreasonable restriction upon her, and violate the spirit of all rules of pleading. Both alleged acts of negligence related to substantially the same thing. They are so closely connected in the pleading that the taking away of one must inevitably result in the impairment of the other. In other words, it is impossible to say, without consideration of all the facts, that they did not unitedly produce a common result, and a jury might so find. There was but one result, no matter what produced it; and these acts must be considered, not as separate grievances, but as related acts, whose united or cumulative effect may have produced that result; that is, as two different acts, not as two different counts.”

We therefore are of the opinion that the order overruling the demurrer should be affirmed.

Ostrander, C. J., and Moore, Brooke, and Stone, JJ., concurred.


text:
    KOEHLER v. ABEY.
    1. Evidence — Books—Memoranda—Witnesses.
    A writing or memorandum used to refresh the recollection of a witness is not thereafter admissible as further substantive evidence of the fact: but when the witness has no recollection of the matters shown by the memorandum it is competent evidence if properly proved.
    2. Same.
    Whether the truth of the memorandum was sufficiently guaranteed by the witness, who gave evidence tending to show that he may not have performed the duty which the memorandum evidenced, was a question for the court, and was correctly determined by rejecting the memorandum.

      3. Same — Corroborative Evidence — Official Action.
    In an action for personal injuries, alleged to have been caused by defendant’s failure to guard the knives of a jointer, as required by an order of one of the State factory inspectors, who kept a memorandum of the order, but was unable to prove the truth thereof sufficiently to admit it in evidence, the court erred in rejecting evidence of the routine duties, and the custom of the witness to keep memoranda of his orders, and as to his habit of making false or correct entries.
    4. Same — Reports of Officers — Labor Commissioner.
    The court erred in excluding from the evidence a report of the State commissioner of labor, required to be made by the provisions of statute, showing that the witness left an order at defendant’s factory to guard the machine; but the report was not competent evidence that such order was, in fact, made, it was evidence only that the memorandum was authentic, and was made in the discharge of the inspector’s official duty.
    Error to Wayne; Murfin, J.
    Submitted November 9, 1911.
    (Docket No. 83.)
    Decided December 29, 1911.
    Case by Frederick Koehler against Daniel W. Abey and Edwin C. Palmer, copartners as the Detroit Wood Pulley Company, for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Clarence P. Milligan, for appellant.

      Walker & Spalding, for appellees.
    The plaintiff was employed by defendant in August, 1907, at work upon a planer or jointer. He was injured, and ascribes his injury to the fact that the machine was not guarded. He alleges in his declaration the duty of defendant to guard and protect the jointer knives, the further duty to comply with the statute requiring the safeguarding of dangerous machinery, and the further duty to comply with an express order of the factory inspector given on or about June 1, 1905. He alleges a violation of each of these alleged duties. The statute (Act No. 113, Pub. Acts 1901; see 2 Comp. Laws, chap. 137) requires an annual inspection of factories and manufacturing establishments by the commissioner of labor, or his deputy, requires that all planers shall be properly guarded when deemed necessary by the factory inspector, requires deputies to make a report to the commissioner of labor of each factory inspected, such report to be kept on file, and a copy thereof to be left with the owner of the establishment inspected, provides that the commissioner of labor shall annually make to the governor a report of such inspection, and for the printing and distributing of such reports.-
    Upon the trial plaintiff called as his first witness Henry J. Eikhoff, who testified that in 1905 he was employed by the State as a factory inspector, and was so employed for several years, and that during the term of his employment he annually inspected defendant’s factory. He was shown a book which he identified as the statistical field book^kept by him in the year 1905, and he identified entries therein, made by himself, showing an inspection of the factory June 2, 1905. There was an entry under the head, “ Orders Made by Inspector.” He testified that the entry refreshed his recollection so that he was able to say that the jointer was not then guarded; but he would not state from recollection that he left orders to put a guard on the jointer. He would not say that he did not leave such an order. He said:
    “This factory always had a guard and there was no necessity for ordering a guard, but because of the men for various reasons removing the guards temporarily, when I would go to a place and find a guard removed, I would ask the man in charge of the machines to replace the guard. That does not necessarily follow that an order must be left. But where there is no guard upon a machine, and the work is of such a character that a guard can be used, then we write out an order, giving the name of the company.

      “The Court: The question is, What did you do in this case ? Did you leave orders to put on a guard, or did you not ?
    “A. I don’t remember.”

      This question (whether the witness could state from recollection, refreshed by the record, that he made an order to guard the knives) was several times, and in various forms, repeated, and the witness answered that he did not remember. He was not permitted to read to the jury the notation to which his attention was directed.

      “The Court: This witness has testified now twice after examining the memorandum that he doesn’t remember whether or not he left an order. At least, I so understand your testimony, Mr. Eikhoff.

      “A. That is right.

      “Mr. Milligan: It seems to me that the circumstances are these: That, if we can show here this book is in his handwriting, these orders and these memoranda which he testifies are in his handwriting, kept by virtue of the laws of the State of Michigan, we have a right to have that book go in evidence on that proposition.

      “The Court: I will give you an exception. I don’t think so.”
    The witness was further interrogated:

      “Q. Do you know whether that is printed ?

      “A. I don’t know positively whether it is printed. There is a printed report gotten» out by the State.
    *' Q. Are you familiar with that report of that description (showing book to witness) ?

      “A. Yes, sir.

      “Q. Will you look on' page 222 of that report, gotten out by the commissioner of labor, and see whether or not any orders appear there in the printed report ? I want to get you upon record upon this proposition. Do I understand you to tell this jury, under oath, that from the memorandum that appears on this book which you have read, that you are willing to tell this court and jury that that does not refresh your recollection as to having left an order there to guard the jointer and shaper knives in that factory ?

      “A. Yes, sir.

      “Q. You mean to say that, do you ?
    “JL Yes.

      “Q. Do you know what are done under the law with orders that are left to guard machines of these factories that you visit ? * * *

      “A. Yes.

      “Q. What are done with them? (Objected to and excluded.)

      “Mr. Milligan: Why, under the law, if your honor please, those are admissible in evidence.

      “The Court: I would like to see your authority for it.

      “Q. Does that refresh your recollection, witness ?

      “Mr. Connor: He has no recollection on that subject.

      “The Court: If it is an additional memorandum, he may use it.
    “A. That does not.

      “Q. Look at it carefully especially down here (indicating).

      “A. I see where it is marked.

      “Q. Does that refresh your recollection ?

      “A. That does not refresh my memory with reference as to whether an order has been left or not.

      “Q. If it says there that an order was left, would not that refresh your recollection about it ? * * *

      “A. I don’t remember.

      “Q. Does it in any way refresh your recollection ?

      “A. No, sir.

      “Mr. Milligan: I will offer this book in evidence, if your honor please. It is a public record.”
    The witness testified that to his knowledge all reports of inspections which were in the office of the commissioner of labor were destroyed in 1906.

      “The Court: It seems to me, gentlemen, that, under the circumstances now before the court, justice will better be served if the court simply directs a verdict at this time, stating in the direction the admission of counsel that their cause of action is predicated upon this situation; that is to say, that they claim notice was given reciting the facts as they thus far appear, and let the Supreme Court pass upon the question whether or not these books, under these circumstances, are receivable in evidence as substantive proof; that makes the record very short. Do you see any objection to that, Mr. Connor ?

      “Mr, Connor: Not if the plaintiff is willing to concede that his case must fall without such testimony.

      “The Court: Plaintiff’s counsel has very plainly told the court that. I understand there is no question about that, is there, Mr. Milligan ? *

      “Mr. Milligan: No.”

      The court thereupon directed a verdict for the defendant. Except as stated in the charge to the jury, it does not appear what the entries in the field book were. The court stated that upon the field book, under the head, “Orders Made by Inspectors,” appeared the notation, “Guard all jointer and shaper knives,” and that substantially the same words appeared in the annual report for 1906. Referring to the twenty-third annual report of the Michigan Bureau of Labor, a volume containing also the thirteenth annual report of State factory inspection, at page 180, it appears that under the general heading, “Synopsis of Orders Made by Inspectors,” it is written:
    “The following are the orders made by the several inspectors while prosecuting their work in the season of 1905. They are given by counties in alphabetical order.”
    On page 222 is to be found: “Detroit Wood Pulley Oo. — Guard all jointer and shaper knives; also emery wheel.” The rulings excluding the testimony of Eikhoff as to the contents of the books, excluding his statement of his routine duties, and excluding the field book and the annual report, are the grounds of the errors assigned.
   Ostrander, C. J.

(after stating the facts). The learned trial judge expressed his views in the following language:

“It does not seem to me, in view of the fact that the burden of proof in cases of this description is upon the plaintiff, and in view of the fact that the plaintiff must make out a prima facie case before there is anything to be submitted to the jury, that a jury can be permitted to guess from documentary evidence originating with a live witness whether or not his * * * recollection is a prompted recollection or not. And, when he is unable to say to you that he gave the notice contemplated by the statute, I don’t think that these other documents under the circumstances of this case are receivable in evidence. It appears beyond controversy that at some time (the) commissioner of labor had cleaned house in and about his office, and the records of 25 years’ standing and upwards were all destroyed. So there is no way of showing whether the duplicate notice, the notice contemplated by the statute, was ever made; whether there was ever any such notice or not.”

The ultimate fact sought to be proved was that an order to guard the planer had been made. The witness testified, in substance, that, with or without the aid of the memorandum, he had no present recollection of the fact.

If he had testified that the writing refreshed his recollection, so that he had a present recollection of the fact sought to be established, the writing would not have been admissible as further substantive evidence of the fact. In such a ease it is the testimony of the witness, the recollection, which is evidence, not the document or writing used to refresh recollection.

In testifying that the memorandum or notation made by him in his field book indicated that at the time when it was made the planer knives were not guarded, the witness testified to what is obvious. The memorandum indicates, not only that, but it indicates, also, that the inspector left an order to guard the planer knives. The book was kept for the purpose of recording just such facts as the memorandum imports. It is supplemented by the printed, authoritative report of the commissioner of labor, which indicates that the inspector, witness, pursuant to law, made to the commissioner a report in harmony with the memorandum of fact which was made in the field book.'

In Fisher v. Kyle, 27 Mich. 454, it appeared that the trial court refused to permit an attorney to read to the jury the minutes taken by him of testimony given on a former trial. This court, speaking by Cooley, J., said:

“Had Draper testified to any present recollection of what these witnesses swore to, he would have been allowed to state what it was. But clearly his minutes, taken at the time, and which he swore were correct, were much less liable to err than any recollection he might have could possibly be. His minutes embodied his understanding of the evidence at the time, and would remain the same, and not become varied in the lapse of time; but his recollection, which would start with the same understanding, was constantly liable to be more or less perverted and changed, or in material parts obliterated from the memory. It could not possibly, therefore, be more certain than the minutes, and, as every variation from the minutes must render it more uncertain and unreliable, any rule of evidence which would admit the recollection and exclude the minutes must obviously be illogical and unsound. We approve, in this regard, of the case of State v. Rawls, 2 N. & McC. [S. C.] 334, and Halsey v. Sinsebaugh, 15 N. Y. 486, which we think lay down the true rule, and explain the origin of some misapprehensions regarding it.”

See, also, Spalding v. Lowe, 56 Mich. 366 (23 N. W. 46); Lucker v. Liske, 111 Mich. 683 (70 N. W. 421); Draper v. Brown, 153 Mich. 120, 132 (117 N. W. 213). In Halsey v. Sinsebaugh, 15 N. Y. 485, referred to by Mr. Justice Cooley, the opinion was written by Judge Selden. He said, in part:

“The learned judge who presided at the trial seems to have followed the rule laid down by Mr. Phillips in his work upon Evidence, which is, in substance, that such memoranda may be used to refresh the recollection of the witness, but can have no force as evidence, unless the witness, after referring to the memorandum, has a present recollection of the facts to which the memorandum relates.
“This was, no doubt, at one time, supposed to be the true rule; and, as such, it was adopted and followed in several cases by the courts of this and other States. Lawrence v. Barker, 5 Wend. [N. Y.] 301; Feeter v. Heath, 11 Wend. [N. Y.] 485; Calvert v. Fitzgerald, Litt. Sel. Cas. [Ky.] 388; Juniata Bank v. Brown, 5 Serg. & R. [Pa. ] 232. But in the case of State v. Rawls, 2 Nott & McC. [S. C.] 334, this rule was subjected to a critical examination by the Constitutional Court of South Carolina, and was, as I think, proved to have originated in a misapprehension of the cases of Doe v. Perkins [3 D. & E. 752], and Tanner v. Taylor [MSS.], cited by Mr. Phillips in its support. The commentary by Nott, J., upon those cases shows conclusively that the memoranda there produced were not the originals made by the witness at the time the events occurred, but mere copies or extracts from such originals taken long afterwards.
“This commentary, which is quoted in extenso and approved by Cowen, J., in the case of Merrill v. Rail road Co., 16 Wend. [N. Y. ] 586 [30 Am. Dec. 130], seems to me entirely just and sound; and I entertain no doubt that Mr. Phillips fell into an error from not discriminating with sufficient care between the original memorandum itself and a mere copy. This subject is treated with much learning and ability in the Notes to Phillips’ Evidence, by Messrs. Cowen & Hill (note 528 to p. 290), where the authorities bearing upon it are elaborately reviewed; and I fully assent to the principle there stated, ‘that an original memorandum, made by the witness presently after the facts noted in it transpired, and proved by the same witness at the trial, may be read by him, and is evidence to the jury of the facts contained in the memorandum, although the witness may have totally forgotten such facts at the time of the trial.’”

In State v. Rawls, 2 N. & McC. (S. C.) 331, the rule is stated in the headnote as follows:

“Where a person who is a witness to a particular transaction, has made a memorandum at the time of certain facts for the purpose of perpetuating the memory of them, and can, at any subsequent period, swear that he had made the entry at the time for that purpose, and that he knows from that memorandum that the facts did exist, it will be good evidence, although the witness does not retain a distinct recollection of the facts themselves.”

In Jones on Evidence (2d Ed.), § 883, the effect of the testimony identifying the writing, plus the writing itself, is said tobe “the equivalent of a present positive statement of the witness, affirming the truth of the contents of the memorandum.” And in 1 Wigmore on Evidence, § 747, it is said in analyzing and illustrating the rule:

“The witness must be able now to guarantee that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he ‘ knew it to be true at the time.’ ”

Under this rule, the memorandum was competent evidence of the fact recorded therein if its verity as a record of fact was sufficiently established. Was the fact that it was true when made sufficiently guaranteed ?

Upon this point the only doubt which can exist arises from the testimony of the witness tending to prove that, notwithstanding the record, and what it imports, he may have in fact left no order with the proprietor, but have merely given one to the men, or to one of them employed there, to replace a guard which had been removed. In short, he professed to have a present recollection, which discredits, if it does not deny, the truth of a memorandum which he admits having made in the performance of official duty. I am of opinion that the question whether the truth of the memorandum was sufficiently guaranteed was one for the court to determine, and that, as the record stood, it was not error to exclude the memorandum.

But I am impressed that, under the circumstances disclosed, it was error to exclude testimony of the routine duties of the inspector. The ground of the ruling was that the inspector could not have duties in the premises other than those prescribed by the statute. Now the statute does not say that the inspector shall carry a book, or shall make any memorandum of his acts other than to make a report thereof. But it appears that the witness carried a book in which he made memoranda. His testimony indicates that the book was furnished by his superior for the purpose of making memoranda therein. The heading referred to indicates that he was expected — required — to make a memorandum thereunder in accordance with the fact. Was he also expected to — required to —make a memorandum thereunder not in accordance with the fact which the heading indicates ? For example, was it his duty to make such a memorandum as well when he told a workman who had removed a guard placed by the employer to replace it as when he ordered the employer to guard the machine ? If it was not a duty, was it a habit of the witness to make such memoranda in either case ? And, if it was not his habit, did he occasionally make false entries ? It must be kept in mind that the discovery, and not the suppression, of material facts, is the purpose of the court, and that a party litigant has the right to prove material facts by competent evidence. Under the rule which has been stated, this book was competent evidence of the recorded fact, although the witness had forgotten the fact, if the accuracy of the record was established. It would have the same probative value as the testimony of the witness that upon the occasion in question he ordered defendant to guard the planer knives. Spalding v. Lowe, supra. The testimony of the witness tended somewhat to discredit the accuracy of his memorandum, to deny that it meant, when made, what it seems to mean when read in the light of the duty he was performing, and in the light of his statement that it was a memorandum made by him at the time, and that he cannot now tell whether he did or did not leave an order to guard the planer. Counsel should have been permitted considerable latitude in examination of the witness upon the subject of his routine duties to discover whether the witness can now sufficiently guarantee that the memorandum was true when made.

While it was persuasive evidence that the memorandum in the field book was not spurious, but was made at the time indicated in the discharge of the official duty of the witness, the annual report was not, in my opinion, evidence of the fact that an order to guard the planer had been made.

'the judgment is reversed, and a new trial ordered.

Steers, Moore, McAlyat, and Stone, JJ., concurred.


author: Blair, J.

text:
    EDWARDS STANWOOD SHOE CO. v. CURTIS.
    Sales — Rescission—Warranty—Return of Goods.
    Where defendant purchased a quantity of rubbers of plaintiff upon the understanding that if they were not satisfactory defendant could return them, but the purchaser, not effecting any sales for some time, wrote plaintiff asking for an extension of time, which plaintiff refused, and where defendant, having received back from her customers certain rubbers that proved defective, notified the plaintiff of the fact, and afterwards returned the shipment, stating that since plaintiff refused to grant the extension of time she returned the goods, defendant was not limited to the ground of objection stated in her first letters, and the verdict for defendant was supported by the testimony
    Error to Arenac; Sharpe, J.
    Submitted November 14, 1911.
    (Docket No. 110.)
    Decided December 29, 1911.
    Assumpsit by the Edwards Stanwood Shoe Company against Alice R. Curtis for goods sold and delivered. Judgmentfor defendant. Plaintiff brings error.
    Affirmed.

      B. J. Henderson, for appellant.

      W. C. Cook, for appellee
   Blair, J.

Plaintiff brings this suit to recover the price of certain rubbers, amounting to $191.16. On January 22, 1908, defendant gave an order to plaintiff’s traveling salesman for the rubbers, to be shipped not before September 1, 1908; the bill to be dated November 1, 1908, 30 days net.

Defendant testified:

“Q. State to the jury, if you please, what your contract was with reference to these rubbers.
“A. He told me when he sold me these rubbers, if they were not satisfactory in every respect, that I could return them at their expense. I received the rubbers some time during the month of September, 1908, and put them in the storehouse until I opened the winter sale.
“Q. And at what time of the year does your rubber sale usually start in this country ?
“A. It usually starts along about the 1st of November.
“Q. Up to the time that this bill became due, Mrs. Curtis, had you sold any rubbers ?
“A. No, sir; I had not.
“Q. State to the jury the reason why you had not been able to sell.
“A. It was owing to the hot, dry fall; we had fires all over Arenac county, and people didn’t have any reason to buy rubbers. They could wear anything most that would hold on their feet.
“Q. About what time was it that you first began to sell those rubbers ?
‘ ‘A. The first rubbers I sold was on the 28th of November. * * *
“Q. And what happened after you sold those rubbers, Mrs. Curtis?
“A. Why, they brought them back, and I gave them another pair in the place of them.
“Q. Well, how long did they have those rubbers before they brought them back ?
“A. The first pair was brought back on Saturday, December 12th, and I notified them on the 14th.”

The salesman sent his memorandum of the order to plaintiff, and September 9,1908, plaintiff shipped the rubbers, and an invoice was sent to defendant, which conformed to the order. No information was furnished plaintiff of the oral arrangement between the salesman and defendant. November 25,1908, defendant wrote to plaintiff:

“ If it is not asking too much, I wish you would please give me an extension of thirty days on the rubbers. Owing to the dry warm weather, we have not sold a pair of rubbers.”

Plaintiff replied that on prompt payment of one-half of the bill it would extend the balance to December 20th. December 1st defendant wrote as follows:

“If you had rather that I would ship the goods back than to extend the time, please let me hear from you by return mail, and back comes the goods.”

December 3d plaintiff replied, declining to permit return of the goods.

Defendant testified that she wrote to plaintiff December 14th:

“ I wrote them that there had been some rubbers returned, and if I didn’t hear from them that week I should return the balance.
“Q. Is that all that the letter contained, Mrs. Curtis?
“A. As near as I can remember.
“Q. That was all that you can remember that this letter contained ?
“A. Yes, sir.
“Q. Did you write to them on any other occasion, Mrs. Curtis, with reference to the condition of these rubbers, of what was the matter of the rubbers ?
“A. That they being broke they were returned; that they were not satisfactory.
“Q. When did you write that ?
“A. I wrote that in the letter of the 14th; that they had been returned not satisfactory.
Q. Did you receive any reply to that letter of the 14th ?
“A. Not until I received the telegram.
“Q. After the time you wrote that letter of December 14th, did you do anything with these goods ?
“Á. I kept them until the 21st, and shipped them back.”

Plaintiff’s manager testified that no such letter was ever received by plaintiff. December 23d defendant wrote to plaintiff, inclosing draft to amount of goods sold, $56.79, saying:

“ Now as you could not wait the time asked I have sent you back the rubbers not sold. This will save you time and expense.”

Defendant secured verdict and judgment in her favor, and plaintiff brings the record to this court for review.

The assignments of error are as follows:

First. The court erred in overruling the plaintiff’s motion for a directed verdict in its behalf, for the reason that the defendant was limited to the cause of complaint stated in her letters, and that, such cause of complaint not being sufficient in law to warrant a refusal to accept the goods, plaintiff was entitled to recover the contract price.
Second. Intemperate language of defendant’s counsel in his argument to the jury.

Counsel for plaintiff rely upon Providence Jewelry Co. v. Bailey, 159 Mich. 285 (123 N. W. 1117), as decisive of this case in favor of plaintiff. The cases are not parallel. In the Jewelry Case, the plaintiff was entitled to recover by the very terms of the contract, unless the defendant could invalidate the contract upon the ground of fraud. In the present case, by the terms of the contract as testified to by defendant, she had a right to return the goods if unsatisfactory to her. According to her testimony and according to the letter itself, she had not sold any of the rubbers at the time she wrote her first letter, asking for an extension of time. None of the rubbers had been returned when she wrote the second letter, and she testifies that two days after the return of the rubbers she wrote to plaintiff that rubbers had been returned broken and unsatisfactory, and if she didn’t hear from them that week she should return the balance; and she testifies that she did ship them back on December 21st, notifying them thereof by her letter of December 23d.

Plaintiff’s manager testified that the sales agent had authority to make the agreement as testified to by defendant, and she had a right to assume that plaintiff knew what the terms of the contract were. Her letter of December 14th is susceptible of the interpretation, in connection with her prior letters, that, although the rubbers had proved to be unsatisfactory, she would retain them if the plaintiff, within the week, would extend the time of payment. We think the trial judge properly declined to hold, under such circumstances, that defendant could not insist upon the defense urged by her.

The second assignment is without foundation.

The judgment is affirmed.

Ostrander, O. J., and Steers, McAlvay, and Stone, JJ., concurred.