text:
    WELLER v. HARRISON LAND CO.
    1. Appeal and Error — Assignment—Sufficiency.
    Where the court below directed a verdict for defendant on the ground of estoppel of plaintiff’s grantor and lessor, and refused a motion for a new trial on the same ground, an assignment of error that the court erred in directing a verdict of no cause of action is sufficient.
    2. Estoppel — Acts of Grantor and Lessor.
    In an action by the owner of land, who was also tenant of another tract of land under the same grantor, against a prior grantor to recover damages for the flooding of the premises due to the filling up of a ravine across a street at the time it was laid out, where it appeared that when the ravine was filled plaintiff’s grantor and lessor was in the employ of the defendant and was a foreman working by the day; that he hired some of the men and teams, and made up the pay roll; that the money was paid to him, and that he paid the men, held, that plaintiff was not estopped by the acts of such vendor and lessor from claiming damages caused by the flooding of the premises.
    3. Same — Acquiescence.
    Acquiescence does not always work a complete estoppel.
    4. Same — Reliance upon Acts.
    Reliance upon the acts and conduct of a grantor and lessor to the injury of the party complaining is an essential element to work an estoppel against the grantee and tenant.
    5. Trial — Evidence—Conflict of Testimony — Directed Verdict.
    The weight to be given the conflicting testimony of witnesses and to what extent the testimony is weakened by their conduct, their appearance, or the testimony of other witnesses, is for the jury and not for the court.
    Error to Kent; Perkins, J.
    Submitted January 18, 1917.
    (Docket No. 71.)
    Decided March 30, 1917.
    Case by John Weller against the Harrison Land Company, Limited, for damages for flooding plaintiff’s lands. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      George C. Brown, for appellant.

      Norris, McPherson, Harrington & Waer, for appellee.
   Fellows, J.

We find no difficulty in reaching the conclusion, from the authorities and upon principle, that where the estate of the landlord or grantor has been burdened with a servitude prior to the execution of the lease or grant, the lessee or grantee holds subject to such servitude; therefore we agree with defendant that if prior to the lease to plaintiff his lessor had charged the premises in question with the servitude of permitting the surface water to stand and remain on the premises in question, the plaintiff cannot recover. Nor do we find difficulty in reaching the conclusion that if plaintiff’s landlord or grantor had planned, and, using his own judgment as to the proper place for drainage, created the obstruction which prevented the flow of surface water from his land, and the defendant had relied upon his judgment as to the proper place for drainage, he is estopped from claiming that the drainage should have been at another point, and that the defendant is liable either at his suit or that of his lessee or grantee, subsequent to the placing of the obstruction. The difficulty we encounter in following the defendant to the conclusion that this judgment should be affirmed lies in the fact that the undisputed facts appearing in this record do not, as matter of law, bring the case within the rules above stated. The plaintiff is the tenant of one Martin Zweers of premises on the west side of a street called High avenue, in the city of Grand Rapids, and, it would appear, was the grantee of Zweers of a five-acre parcel in the rear of those leased. High avenue runs north and south, and was laid out by the defendant and graded in August and September, 1914, as a part of a piece of land it was platting. It crosses, a small ravine six or seven feet deep, which was filled up in the street at the time of the grading. Plaintiff, claiming this ravine to be a natural water course and that its obstruction causes the water to back up and flood his premises, brings this, action.

The court directed a verdict for the defendant on the ground of estoppel of Zweers, refused a motion for a new trial on the same ground, and this presents the sole question here. It is properly raised by the first assignment of error. Wolfe v. Stack, 153 Mich. 445 (116 N. W. 1010).

The undisputed testimony showed that when this ravine was filled Zweers was in the employ of defendant and was the foreman, working by the day; that he hired some of the men and teams, made up the pay roll; the. money was paid to him, and he paid the men. This is as far as we are able to say the undisputed testimony as to material facts goes. We do not think these facts, standing alone, constitute an estoppel from claiming damages caused by flooding the premises. In the case of Blake v. Cornwell, 65 Mich. 467 (32 N. W. 803), complainant’s minor sons, with their consent, worked on the dam erected by the defendant which caused complainant’s lands to be flooded. It was held that this fact, together with others, showed such acquiescence as precluded the complainants from relief by injunction, but nevertheless it was held that they were entitled to recover for the damages done by erecting the dam, and this court awarded them a sum in gross for the damages caused by flooding their lands.

Among the cases which might be cited where this court has refused equitable relief without denying the complaining party relief on the law side of the court, are Edwards v. Mining Co., 38 Mich. 46 (31 Am. Rep. 301), McKee v. City of Grand Rapids, 137 Mich. 200 (100 N. W. 580), and among the cases where this court has fixed damages, while denying relief by injunction, are Lane v. Traction Co., 135 Mich. 70 (97 N. W. 354), Allen v. Electric Co., 144 Mich. 370 (108 N. W. 79, 115 Am. St. Rep. 453), and Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435). These cases demonstrate that under varying circumstances a party may be entitled to recover damages for injury to his property, even though he be so situated as to preclude equitable relief, and make clear that we ought not to apply rules to an action at law to recover damages that might be applicable to an equitable action brought for injunction; acquiescence does not always work a complete estoppel.

There is wanting in the undisputed testimony a very essential element to work an estoppel, viz.: Evidence that the defendant relied upon the acts and conduct of the plaintiff’s landlord and grantor to its injury. Indeed a jury would have been justified, from the undisputed facts, in believing that the plan of grading this street and filling up this ravine was the plan of the defendant, and would have been put through no matter who it employed as foreman. True, defendant gave testimony tending to show that Zweers requested it to furnish tile, and it furnished them, and left it to Zweers as to where they should be put in. If the defendant furnished the necessary tile for draining the land west of High avenue, including that then owned by Zweers, and left it to Zweers to select the proper location for the drainage, and relied upon him to see that the tile were put in at the right place, and he selected the wrong place, he cannot now, either by himself or his lessee, be heard to complain that the tile were not put in at the right place. But his testimony tends to show that the only tile put in was some put in from 250 to 300 feet from the ravine, and that he put them in himself; that he wanted to put in a culvert or tile in the ravine and that he requested Mr. Voss, an officer of the company, to furnish tile for that purpose; that they were not furnished; and that he did the work as he was told to do by the company. It is not for the court to determine which of these claims was true. That was a question primarily for the jury.

The weight to be given the testimony of the witnesses and to what extent that testimony was weakened by their conduct, their appearance, or the testimony of other witnesses, presented questions for the jury, and not for the court. The case should have been submitted to the jury. The judgment is reversed, and a new trial granted, with costs of this court to the plaintiff.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Moore, J., did not sit.


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    OCEANA CANNING CO. v. KING.
    1. Carriers — Freight Shortage — Admissions — Principal and Agent.
    A freight bill, upon -which appears an Indorsement by an authorized agent of the carrier at the point of destination that the shipment is a certain number of cases short, constitutes an admission of shortage and of nondelivery.
    2. Evidence — Court Rules — Written Instrument — Proof.
    Circuit Court Rule 33, providing that upon the plea of general issue being made in an action upon any written instrument, the plaintiff shall not he put to proof of the execution thereof or of the handwriting of the defendant unless defendant files and serves a copy of the affidavit denying the same, applies only to the instrument sued upon, and has no reference to a paper which may be used as evidence to support the plaintiff’s claim.
    3. Carriers — General Issue — Affirmative Defenses — Pleading.
    Proof by a carrier that goods shipped were delivered is not an affirmative defense within Circuit Court Rule 23, providing that an affirmative defense must be plainly set forth in a notice attached to the defendant’s plea.
    4. Same — Freight Shortage — Negligence—Question for Jury.
    In an action against a railroad company by the assignee of a claim of the consignee of a shipment of goods for damages for negligent performance of the contract of carriage, resulting in a shortage of goods received by plaintiff’s assignor, where it appeared that the freight bill, with an admission thereon of shortage, signed by an agent of the carrier, was introduced in evidence, but that the seal of the car was intact when the car was delivered to the consignee; that all of the goods were not removed during the day and there was no evidence that the car was sealed during the night following the first day, and the shortage was not discovered until the goods reached the warehouse of plaintiff’s assignor, held, that it was a question for the jury whether there was a shortage which was due to the negligent performance of defendant’s contract.
    Error to Oceana; Sullivan, J.
    Submitted January 5. 1917.
    (Docket No. 36.)
    Decided March 30, 1917.
    Case by the Oceana Canning Company against Paul H. King and Dudley E. Waters, receivers of the Pere Marquette Railroad Company, for the loss of certain freight in transit. Judgment for plaintiff on a directed verdict. Defendants bring error.
    Reversed.

      Parker, Shields & Brown {Oscar E. Waer, Seward L. Merriam, and John C. Bills, of counsel), for appellants.

      A. S. Hinds, for appellee.

      Plaintiff in its own right and as assignee of Franklin MacVeagh & Co., brings this action against defendants, as receivers of the Pere Marquette Railroad Company, counting in its declaration upon the negligent performance by the defendants of their contract of carriage and their duty as common carriers in transporting from Shelby, Mich., to Chicago, 111., a consignment of 650 cases of canned peaches, in that they only delivered 550 cases, the shortage of 100 cases being of the value of $220. To this declaration plaintiff attached a copy of the freight bill upon which there appeared in red ink: “102 cases short. C. Harsch, O. F. S. 11/14/12.” The defendant pleaded the general issue and added a notice of defense which is not insisted upon and becomes unimportant. The bill of lading introduced by plaintiff was issued at the Shelby office of the railroad company and bears date October 29, 1912, and shows receipt of the 650 cases of peaches consigned by plaintiff to Franklin MacVeagh & Co. at Chicago, 111., that they were to be shipped in Erie car No. 74559, and were to be . and were as the record discloses, shipped over the lines of the Pere Marquette. Plaintiff also produced the receiving clerk of Franklin MacVeagh & Co., and he gave testimony tending to show that on hauling this shipment from the team track of the Pere Marquette to Franklin MacVeagh & Co.’s warehouse, which was the Great Western Warehouse, the shipment checked 102 cases short; that upon receipt of the freight bill he returned the same to the railroad company, requesting the notation of the shortage, and that it was returned by the railroad company with the notation in red ink, “102 cases short. C. Harsch, O. F. S. 11/14/12,” and thereupon the freight was paid; the witness was not at the car when the same was unloaded and did not count the cases; that he received his records from the teamsters; and that all he knew about the shortage was from the records of the teamsters and the warehouse. The check clerk of the warehouse also testified to the shortage at the warehouse; that the goods in question were hauled from the Pere Marquette to the warehouse by a teamster named Healy, who reported a shortage of 102 cases; but that the witness checked in 550 cases, there being 2 more cases on the wagon than reported by the teamstér. The teamster was not called as a witness. The value of the canned peaches was proven as alleged in the declaration.' Defendant gave testimony tending to show that there were only two doors on the car in which this shipment was made, each of which was sealed at Shelby with certain numbered seals; that the car, Erie No. 74559, with seals intact, was delivered on a team track of the Pere Marquette Railroad Company in the city of Chicago to the teamsters of .Franklin MacVeagh & Co. on November 5, and that the seals were then broken by the agents of the railroad on delivery to the teamster and to enable them to get into the car; that a part of the goods were taken but the 5th of November and the balance the 6th. There is no testimony whether the car was sealed up at night or not.
    Defendant also produced as a witness O. F. Steffins, claim clerk of the railroad company at Chicago, who signed the notation by initials “O. F. S.” He testified that shortage notations were put on freight bills when requested by the consignee, and that such notations as appeared on the freight bill in question signifies a claim of shortage by the consignee, but does not establish such shortage. He says:

      “Q. Now just state how you came to put that notation on the expense bill.
    “A. Why the consignee or his agent or teamster, or whoever made the request, asked for the notation to be placed on there so that they could pay the freight bill. I don’t remember writing this notation on the original expense bill at Chicago. When the request was made for the notation, I don’t know what I did. I might have called up the team track. I might have looked up in the tally. I might have taken a chance. I don’t know whether there was a shortage existing or not. I don’t know whether the shipment had been checked over by the railroad company’s employees. I didn’t satisfy myself that there was a shortage. As far as I am concerned, I didn’t know if there was any shortage. I place as high as 50 and 60 a day. Sometimes I make an investigation. I might have made an investigation as to whether or not there was a shortage. I made this notation on the expense bill that there was a shortage without satisfying myself -if it was true; yes, sir.”
    Defendant also called as a 'witness- John J. Waite, station agent at Shelby' On cross-examination^ this witness testified:

      “Q. And in regard to certifying shortages;- what is the rule as to that?

      “A. Certifying shortages. I wouldn’t certify a shortage to a carload, because we don’t check them.

      “Q. Is it not considered and is it not one of the rules of the company that the person certifying a shortage must be satisfied that there is a shortage before he certifies it?

      “A. Certainly.

      “Q. And is it not considered, and isn’t it one of the. rules, that a shortage certification by. the agent is conclusive as to that shortage?

      “A. Yes; by the agent.”
    At the close of the proofs both parties asked for a directed verdict, the plaintiff basing his motion on the grounds, that, a copy of the freight bill with the notation above referred to having been attached to the plaintiff’s declaration, and no affidavit having been filed denying its execution, the defendants, could not, under Circuit Court Rule 33, deny their liability, and upon the further ground that plaintiff’s case was established by the uncontradicted evidence. The defendants’ grounds were that the plaintiff had failed to make out a case showing any shortage at the time of delivery of the car to the consignee on the team track; that the only proof of shortage was at the warehouse of plaintiff’s assignor some distance away; that a verdict cannot be predicated upon evidence which tends equally to sustain either of two inconsistent propositions, neither of which can be said to have been established by legitimate proof; and that plaintiff had therefore not discharged the burden of proof which the law casts upon it. The court directed a verdict for the plaintiff, and the case is brought here by the defendants.
    By appropriate assignments of error the defendants raise two questions, viz.:

      First, was there error in directing a verdict for the plaintiff?

      Second, was there error in refusing to direct a verdict for the defendants?
   Fellows, J.

(after stating the facts). It is the claim of the plaintiff here, and was in the court below, that inasmuch as it attached to the declaration a copy of the freight bill upon which appeared the shortage notation referred to in the statement of facts, the notation was an admission of liability, and that, in the absence of an affidavit denying its execution, defendants could neither deny nor explain it; that not only was the execution of the paper admitted but also the authority of the agent to execute it, citing Circuit Court Rule 33; Citizens’ Savings Bank v. Brass Works, 155 Mich. 3 (118 N. W. 507); Inglish v. Ayer, 92 Mich. 370 (52 N. W. 639). It must be apparent from what has already been said that the freight bill, with the notation, was not the instrument upon which the action was grounded. It was upon its face an admission of shortage, of nondelivery, and created no contract relations. Circuit Court Rule 33 provides:

“Upon the plea of the general issue in an action upon any written instrument, under seal or without seal, the plaintiff shall not be put to the proof of the execution of the instrument or the handwriting of the defendant, unless the defendant or some one in his behalf shall file and serve a copy of an affidavit denying the same, and this rule shall apply in actions brought against indorsers as well as other parties, and shall also apply in favor of a defendant in cases where claims by way of set-off are insisted upon by him. Such affidavit shall be filed, when by the defendant, with the plea, and, when by the plaintiff, within ten days after service of the specific set-off claimed; but the court may, upon proper showing, enlarge the time for filing such affidavit.”

It will be noted that this rule has reference to actions upon written instruments, and in such actions “plain-' tiff shall not be put to the proof of the execution of the instrument or the handwriting of the defendant.” This must be construed to apply, and only to apply,' to the instrument sued upon. It has.no reference to a paper which may be used as evidence to support the plaintiff’s claim, and which is not the instrument upon which the cause of action is based, and which creates no contract relations between the parties. Plaintiff’s position as to the construction of this rule is therefore untenable. Nor is the plaintiff aided by Circuit -Court Rule 23. One of the essential elements of the plaintiff’s case was nondelivery of the goods shipped; proof by the defendants that the goods shipped were delivered was not an affirmative defense within the meaning of Circuit Court Rule 23, but might be shown under the general issue. Williams v. Brown, 137 Mich. 569 (100 N. W. 786); Greenman v. O’Riley, 144 Mich. 534 (108 N. W. 421, 115 Am. St. Rep. 466).

We are of the opinion that the case was one of fact for the jury. While we have held that the freight bill with its notation was not the instrument' sued upon within the meaning of Circuit Court Rule 33, there was sufficient evidence in the case that it was signed by an authorized agent of defendant; it was an admission of. shortage, and it was for the jury under all the evidence to say whether it had been sufficiently explained away. This admission, with the other evidence, was sufficient to take the plaintiff’s case to the jury; on the other hand, the proof that the seals on the car were intact when the car was delivered to Franklin MacVeagh & Co., that all the goods were not removed during the day, the absence of any evidence that the car was sealed during the night of the 5th of November, the fact that upon the record the shortage was not discovered until the. goods reached the warehouse of plaintiff’s assignor, was sufficient to take the case to the jury on behalf of the defendant.

It therefore follows that it was error for the court to direct a verdict for the plaintiff, but that it was not error to refuse to direct a verdict for the defendant.

The case is reversed, and a new trial ordered. Defendants will recover costs of this court.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    VERTIN v. HOUGHTON CIRCUIT JUDGE.
    Quo Warranto — Informations, Right to Fiee.
    Under 3 Comp. Laws 1915, § 13550, 5 How. Stat. (2d Ed.) % 14082, providing tliat informations may foe filed foy the prosecuting attorney of the proper county on his own relation, or that of any citizen of the county without leave of court, or foy any citizen of the county foy special leave of court, relators who show hy their petition that they have such an interest in the matter as to entitle them to an adjudication of the questions involved, should he permitted to file an information in the nature of quo warranto for the purpose of determining hy what warrant certain persons claim to exercise the liberties, privileges, and franchises of a corporation, and the matter should not he disposed of on affidavits.
    Mandamus by Joseph D. Vertin and others against Patrick H. O’Brien, circuit judge of Houghton county, to compel respondent to permit relators to file an information in the nature of a quo warranto.

    Submitted October 24, 1916.
    (Calendar No. 27,387.)
    Writ granted March 30, 1917.

      Burritt & Burritt, for relators.

      Galbraith & McCormack (/. F. Hambitzer, of counsel), for respondent.
   Brooke, J.

Relators in this proceeding seek a writ of mandamus requiring the respondent to make an order permitting them to file in his court an information in the nature of a quo warranto for the purpose of determining by what warrant certain persons therein named claim to exercise the liberties, privileges, and franchises of a body politic and corporate in law, fact, and name, under the title of the “Calumet Slovenian Catholic St. Joseph Benevolent Society.” Relators filed a petition in the circuit court for the county of Houghton, setting out at large the facts which they claim entitled them to file said information. This petition was supported by affidavits. Instead of making ah order allowing said information to be filed, the learned circuit judge issued an order to show cause, requiring the persons named in said petition as defendants to answer the averments in said petition, whereupon said defendants filed an answer, supported as to its material averments by several affidavits. Arguments in the matter appear to have been made, but no testimony was taken, whereupon an order was made by respondent denying relators the right to file said information.

Application having been made to this court, an order to show cause issued, and in his answer to said order respondent shows that, in denying relators the right to file said information, he passed upon issues of fact raised by the petition and the answer, and supported on each side by affidavits. The governing statutes will be found in 5 How. Stat. (2d Ed.) § 14054 (3 Comp. Laws 1915, § 13524). The right of relators in the premises is particularly based upon 5 How. Stat. (2d Ed.) § 14082 (3 Comp. Laws 1915, § 13550), which provides:

“Informations under this act may be filed by the prosecuting attorney of the proper county, on his own relation, or that of any citizen of the county without .leave of the court, or by any citizen of the county by special leave of the court, or a judge thereof.”

There would appear to be no question but that the ■relators have by their petition shown such an interest in the matter as would entitle them to an adjudication of the questions involved. While the legal questions, as well as those involving disputed facts, are discussed In briefs filed for both relators and respondent, we are of opinion that the matter should not be disposed of upon affidavit.

The writ will therefore issue.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.


author: MOORE, J.

text:
    HALL v. CITY OF FLINT.
    1. Evidence — Appeal and Error — Conclusion oe Witness — Personal Injuries.
    In an action against a municipal corporation to recover ' damages for personal injuries sustained by plaintiff while driving with a companion in a buggy, even if a question asked plaintiff whether he observed any carelessness or careless, act on the part of his companion while so driving, was incompetent as calling for a conclusion, its admission and the answer was not reversible error.
    2. Same — Admissibility—Appeal and Error.
    In such action, where a witness, after testifying that plaintiff, who worked for him after the injury, could do certain things in attending to a team, was asked what there was which plaintiff "did not do” about getting a team ready, and answered, “He could not put his arm up to put the harness on,” and testified further to things plaintiff did in using his arm, held, that such answer Was not responsive, but its admission was not erroneous in view of what preceded and followed it.
    3. Same — Exclamations of Pain — Admissibility.
    Exclamations of present pain and suffering from an injury are admissible, in an action to recover damages for such injury.
    4: Same — Municipal Corporations — Highways and Streets — Unguarded Obstructions.
    In such action, where the injury sustained by plaintiff was due to a collision between a buggy in which he was riding and a wagon standing without a light on one of defendant’s streets, evidence offered to show how a certain rig was driven, held, properly excluded in the absence of a showing that it was the rig in which plaintiff was riding.

      5. Appeal and Error — Argument op Counsel — Saving Questions eor Review — Exceptions.
    Remarks of counsel at the trial, which were held by the presiding judge to be immaterial, cannot be complained of on appeal where no exception was taken and the judge was not asked to say anything further to the jury.
    6. Trial — Instructions—Appeal and Error.
    A charge which, when read in its entirety, is a fair and impartial statement of the law applicable to the facts of the case, will not be held erroneous on account of a few sentences therein, which, standing by themselves, might be subject' to criticism.
    7. Municipal Corporations — Highways and Streets — Personal Injuries — Unguarded Obstructions — Negligence — Contribu- . Tory Negligence — Question eor Jury.
    In an action against a municipal' corporation to recover damages for personal injuries sustained by plaintiff while driving in a buggy which collided with a wagon having no light thereon, Standing in a public street of defendant, where there was evidence tending to support defendant’s claim that certain conditions were such that due care on plaintiffs part would have discovered such wagon, and also evidence tending to sustain plaintiff’s claim that certain other conditions were such as to charge defendant with a duty to hang out a danger signal, held, that the testimony presented issues of fact, and a directed verdict for defendant was.-properly denied.

    Error to Genesee; Stevens, J.
    Submitted January 15, 1917.
    (Docket No. 142.)
    Decided April 9, 1917.
    Rehearing denied June 1, 1917.
    Case by Sidney Hall against the city of Flint for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Homer J. McBride {John H. Farley and Jackson & Fitzgerald, of counsel), for appellant.

      Clinton Roberts, for appellee.

      On liability of municipal corporation for defects or obstructions iii streets, see comprehensive note in 20 L. R. A. (N. S.) 513; particularly as to the use of streets for storage of vehicles, lumber, etc., see page 612 of above note.

   MOORE, J.

Sidney Hall, on the 29th day of October, 1914, with one Mr. Darling, drove to the city of Flint in a phaeton top buggy drawn by a horse owned by Mr. Darling which horse was blind. They drove into the city over South Saginaw street, which was being paved. The plaintiff and Mr. Darling at about 10 o’clock in the evening started for home. There was a double-track street railway on this street along the line of which were red lights where the paving operations were in progress. The buggy in which the plaintiff was riding collided with a wagon loaded with brick, which was on the east side of the street next to the curb. There was no light on the wagon. The plaintiff was thrown out and suffered injuries for the recovery of which this action was brought. The jury returned a verdict for the plaintiff of $1,500. The case is brought here by writ of error.

Appellant assigns 29 errors, each of which he says is relied upon for reversal. These assignments of error are grouped as follows:

(1) Error relating to the admission or rejection of evidence.
(2) Improper conduct of counsel.
(3) Error in denying defendant’s motion to direct a verdict.
(4) Errors in the charge and refusal to charge.
(5) Error in denying defendant’s motion for a new trial.

The first assignment of error relates to the testimony of the plaintiff, Hall, who was permitted to answer the following question:

“Q. You may state whether or not you observed any carelessness on the part or any careless act on the part of Mr. Darling while you were driving over the street?”

It is said this calls for a conclusion and is incompetent. Mr. Hall and Mr. Darling were examined at great length, both as to what they did and what they did not do. If the question and answer were incompetent it was not reversible error.

The sixth assignment of error relates to the testimony given by the witness Diamond to the effect that after the injury Mr. Hall could not raise his arm to put the harness on the horses. At this point it is well to consult the record:

“I have known plaintiff about five years. He was working for me at the time this injury occurred. * * * This was the third summer he had been working for me when the accident happened. * * * He came back to my place to work after the injury. * * * He could drive a team if you got them ready for him, harnessed them. He could feed the team and brush them up a little with one hand and he could hitch them up.
“Q. What was there about getting the team ready that he did not do?
“A. He could not put his arm up to put the harness on them.
“Mr. McBride: I move to strike it out as a conclusion.
“The Court: Why?
“Mr. Jackson: He said he could not do it; that is certainly his conclusion; it could not be anything else.
“Mr. Roberts: The question was what did he do.
“A. (Repeated.)
“Mr. Jackson: I move to strike it out as a conclusion of the witness.
“The Court: Well, now here; he was there and worked for him; he could observe what he did and what he tried to do and could not do. While you may say it is a conclusion, yet it is a conclusion based on actual observation. I think it is competent. He may answer it.
“Mr. Jackson: Take an exception to the remark of the court.
“Q. What could he do on the farm, as a common farm laborer after he was injured as compared with what he could do before his injury?
“A. Why the principal thing he could do was to drive the team, drag, something like that, work he did not have to use his arm, then he would have to draw a loop, on the lines to hang on to the lines with that hand.”

It will be observed that the answer was not responsive to the question, but in view of what preceded and followed it we do not think it error. Elliott v. Van Buren, 53 Mich. 49, at page 53 (20 Am. Rep. 668); Harris v. Railway Co., 76 Mich. 227 (42 N. W. 1111); Will v. Village of Mention, 108, Mich. 251 (66 N. W. 58).

The witness Diamond was asked:

“During this time that he was working you may state whether or not he made any expressions of present pain and suffering from it.”

This question was objected to as being too remote. The rule that exclamations of present pain and suffering, are admissible is well settled in this State. Hyatt v. Adams, 16 Mich. 179, 200; O’Dea v. Railroad Co., 142 Mich. 265 (105 N. W. 746); Girard v. City of Kalamazoo, 92 Mich. 610 (52 N. W. 1021); Strudgeon v. Village of Sand Beach, 107 Mich. 496 (65 N. W. 616); Will v. Village of Mendon, supra. The trial judge very carefully safeguarded the admission of this testimony.

Assignments of error are made because of the exclusion of testimony offered by the witness James Owen as to how a certain rig observed by him was driven. The court said if the rig was identified as the one in which plaintiff was riding he would permit it. Counsel replied:

“Mr. Jackson: I want your honor to understand what I promise in this respect. We will show rigs driven similar to those rigs, that one of them was a rig occupied by these people which collided with the wagon, and about this same time, and from that we say it will be a question for the jury.
“The Court: You are going to ask the jury to say whether they were in this rig or not?
“Mr. Jackson: Yes, sir.
“The Court: I do not think you can do it.”

The court again said that he would permit the testimony if counsel would show it was the rig in which plaintiff was riding. This was not done, and there was no promise to supply the testimony. The court' did not err in his ruling.

We quote from the brief:

“I do not wish to say anything in the presence of this jury, nor I won’t, but it is manifestly certain that the associates of the city attorney are here for some purpose; that is, they are not the city’s attorneys.”

The above language is complained of as prejudicial. The record shows:

“Mr. Jackson: We object to the remark of counsel on the record.
“The Court: I think that is immaterial.
“Mr. Roberts: That is all Mr. Newcombe.”

Apparently counsel were content with what was said by the judge; for no exception was taken, and the judge was not asked to say anything further to the jury. Under such circumstances counsel cannot complain.

As to the errors relating to the charge and refusal to charge, it may be said that the charge was a long one covering 20 pages of the printed record. There are a few sentences in it which standing by themselves might perhaps be open to criticism, but, if the case was to be submitted to the jury at all, thé charge, when read in its entirety,- was a fair and impartial statement of the law applicable to the facts of the case.

This brings us to:

(3) Error in denying defendant’s motion to direct a verdict.
(5) Error in denying defendant’s motion for a new trial.

-It was the plaintiff’s claim that while in the exercise of due care the vehicle in which he was riding came in collision with a wagon standing on the paved portion of that part of the street that was open for travel, and that there was no red or other light upon the wagon to warn him and his companion.

On the part of the city it is conceded that the paved portion of the street between the street railway and the curb was open to travel, but it is claimed there is no testimony showing the city was responsible for the placing of the wagon where it was. It is also claimed that it was a bright moonlight night, and that there were street lights in the vicinity, so that if plaintiff and his companion were in the exercise of due care they would have discovered the danger.

The plaintiff replies to these contentions that the wagon and its contents were being used in the paving which was being done under direction of the city, that the street lights were too far away to be of use, and that at the time of the injury there was a foggy, drizzling rain which made it difficult to see, and that it was the duty, if such an obstruction was to be left on the paved one-half of the street which was open to travel, to hang out a danger signal.

These various claims were supported by testimony which made issues of fact. These were fairly submitted to the jury. We have examined all of the assignments of error, but it is not practicable to discuss each of them in detail.

The judgment is affirmed, with costs to the plaintiff.

Kuhn, C. J., and Stone, Bird, Steere, and Fellows, JJ., concurred with Moore, J. Ostrander and Brooke, JJ., concurred in the result.


author: Moore, J.

text:
    TONN v. MICHIGAN CENTRAL RAILROAD CO.
    1. Fires — Railroads—Locomotives—Evidence—Admissibility.
    In an action to recover damages for the destruction of plaintiff’s building and lumber by fire from defendant’s engine, evidence of expert witnesses that such an engine as the one claimed by defendant to have been the only one in the vicinity of the fire at the time would not, if in good order and properly handled, have thrown out sparks of fire of sufficient size and vitality to set fire to a dry building and lumber at a distance from the tracks at which the fire in question started, and that if it did do so it would indicate it was out of order or not properly handled, was improperly excluded.

    2. Same — Evidence—Question for Jury.
    Where the evidence admitted and that improperly excluded, m an action to recover damages for destruction of plaintiff's building and property by fire from defendant’s engine, was sufficient to entitle plaintiff to go to the jury and have them say whether such fire was set by sparks from such engine, it was erroneous to direct a verdict for defendant.
    3. Same — Finding—Evidence—Sufficiency.
    Evidence that a fire originated near a railroad track shortly after the passage of an engine, when the weather was dry and the wind blowing from the railroad towards tie place where the fire was. discovered, held, Sufficient to warrant a finding that the fire was caused by such engine.
    Error to Wayne; Barton, J., presiding
    Submitted January 4, 1917.
    (Docket No. 31.)
    Decided April 9, 1917.
    Case by William Tonn and Frederick C. Schreiber, copartners as Tonn & Schreiber, against the Michigan Central Railroad Company for the negligent operation of its locomotives and the setting of a fire. Judgment for defendant on a directed verdict. Plaintiffs bring error.
    Reversed.

      Wirt I. Savery, Barger & Hicks, and C. Oscar Carl- ' son, for appellants.
    /. W. Dohany (Henry Russel and Frcmk E. Robson, of counsel), for appellee.

      'On the question as to whether presumption of negligence arising from the fact that fire was set by railroad company’s locomotive necessarily make the question of negligence one for the jury, see note in 5 L. R. A. (N. S.) 99.
      Authorities discussing the question as to distance within which sparks from a properly equipped engine will set fire as a subject of expert testimony, see note in -22 L. R, A. (N. S.) 1039.

   Moore, J.

This action was brought to recover damages for the destruction by fire of buildings and a quantity of lumber situated adjacent to defendant’s railroad in the city of Detroit, alleged to have been communicated to the property from a locomotive engine of the appellee, which was in a defective condition.

The cause was tried before a judge and a. jury, resulting in a directed verdict of no cause of action. The case is brought here by writ of error.

It was the claim of the plaintiff that some of the locomotives of defendant company were at work over its lines adjacent to plaintiff’s, premises, all the evening preceding the fire,- and that one of them was not far away from where the fire originated when it was first discovered.

It was the claim of the defendant company that only one locomotive was at work in the vicinity of the premises of the plaintiff for a considerable time preceding the fire,' and that this, locomotive was. so equipped and managed that it could not possibly have set the fire. There was testimony given and offered tending to support each of these claims.

The first important question requiring examination is: Did the court below err in excluding competent evidence offered by the plaintiffs? The court excluded evidence offered by the plaintiffs on cross-examination of the defendant’s expert witnesses, and by an expert witness offered in rebuttal and as set forth in an offer to prove made by the plaintiffs which, briefly stated, was to the effect that an engine constructed and equipped as No. 8804, which defendant claims was the only locomotive which was in the vicinity of the fire, was said to have been, if in good order and properly handled, would not throw out sparks of fire of sufficient size and vitality to set fire to a dry building, lumber, or shingles at a. distance from the tracks at which the fire; in this case started, and that if it did in fact, do so it would indicate that it was out of order or was not properly handled. This evidence was offered to meet the claim of defendant that its locomotives were properly equipped and properly handled.

This court has recently considered this question, where it was said:

“The substance of his testimony, based on observation and experience, was, so far as it had any probative force, that an engine properly equipped as this was said to be. and in good order, would not throw sparks with sufficient vitality to set a fire at the distance shown in this case. This was qualified by the statement on cross-examination that dry weather would add to the vitality of the spark, and it was possible in a long period of dry and very warm weather for a spark which would set fire to get out of such an engine. Without reviewing at length the objections launched against his testimony, we conclude that no reversible error appears in the rulings relating to it, under Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033, 52 L. R. A. [N. S.] 713), and Potter v. Railway Co., 157 Mich. 216 (121 N. W. 808, 22 L. R. A. [N. S.] 1039). In the latter case witnesses who were experienced locomotive engineers were allowed in rebuttal to give testimony to the effect that an engine in good order and properly managed, as defendant’s evidence showed the one in question was, would not throw .sparks and set a fire 81 feet distant. Of the admissibility of their testimony the court said;
'“A fair interpretation of their testimony is that, although some of the questions seem to call for scientific conclusions, the answers were, for the most part, really based upon their observation and experience as to the distance live or burning sparks would be carried if the engine was in proper order. We are satisfied that the testimony of these locomotive engineers raised a question of fact for the jury, and that the court did not err in. refusing to direct a verdict.’ ”

Pennsylvania Fire Ins. Co. v. Railroad Co., 184 Mich. 375 (151 N. W. 578).

See, also, Stoddard v. Railway Co., 191 Mich. 321 (158 N. W. 7). It was error to exclude this testimony.

The other important question is: Did the court err in directing*a verdict for defendant? There was evidence which if supplemented by the excluded testimony was sufficient to entitle the plaintiffs to go to the jury and have them say whether the fire was set by sparks from one of the defendant’s locomotives. In the absence of proof of some other probable cause therefor, it is a fair and reasonable presumption, and the jury would be justified in finding, that a fire which originated near to a railroad track shortly after the passage of a locomotive, when the weather is dry and the wind is blowing from the railroad toward the point where the fire is discovered, was caused by such locomotive. Pennsylvania Fire Ins. Co. v. Railroad Co., supra; Stoddard v. Railway Co., supra; Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033, 52 L. R. A. [N. S.] 713). It was error to direct a verdict for the defendant. The case should have been submitted to the jury under proper instructions.

For the reasons stated, judgment is reversed, and a new trial ordered, with costs to the plaintiff.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.


text:
    EVEREST v. McKENNY.
    Libel, and Slander — Privileged Communications — Good'Faith— Malice.
    Where the president of a State normal school, whose duty it was to look after the students attending the school and their environment, and approve the rooming houses in which they lived, upon complaint against the plaintiff, one of such students, by four out of sis roomers at the house where she lived, investigated such complaint and reported his conclusions to the keepers of the house, the occasion was privileged and an action for slander did not lie against him for language used by him in such report in regard to plaintiff without malice and in good faith.
    Error to Washtenaw; Kinne, J.
    Submitted January 12, 1917.
    (Docket No. 112.)
    Decided April 9, 1917.
    Case by Mildred Everest against Charles McKenny for slander. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Lee N. Brown and Andrew J. Sawyer (H. A. Balser, of counsel), for appellant.

      Alex J. Groesbeek, Attorney General, Samuel D. Pepper, Assistant Attorney General (John P. Kirk and Martin Cavanaugh, of counsel), for appellee.
   Moore, J.

The plaintiff was a student at the State Normal School. The defendant is president of that institution of learning. The plaintiff sued the defendant in an action of slander. Omitting the formal portions of the declaration, the part which is material here reads:

“The said defendant * * * did falsely, wickedly, and maliciously, in the presence and hearing of others, on or about, the 4th day of December, A. D. 1912, in the city of Ypsilanti, county and State aforesaid, speak and publish the following defamatory words of and concerning the plaintiff, to wit: ‘Don’t you know you (meaning Elizabeth West and M. E. Parkinson) are going to lose all your roomers if Miss Everest (meaning the plaintiff) stays. Miss Everest (meaning the plaintiff) is crazy (thereby meaning and intending to charge that the plaintiff was immoral, unchaste, a woman of loose habits, a person not fit to keep as a roomer, or to associate with, and a person without mind, and therefore unable to conduct herself in a rational and respectable manner).’ By reason of speaking, publishing, and uttering of the said false, scandalous, malicious and defamatory words, she, the said plaintiff, has been and is greatly injured.”

The defendant pleaded the general issue, and gave notice, among other things:

“That as such president, under the rules pertaining to the government of such college, it became and was his duty to approve of all boarding and rooming houses and societies in said city of Ypsilanti at which students attending said Normal College roomed or boarded, the general purpose of which rule was and is to secure rooming and boarding houses for such students as would be conducive to their welfare and for the purpose of discipline; that the said Elizabeth West and M. E. Parkinson had theretofore kept a rooming and boarding house for the students of the said Normal College, which up to the time of the said conversation had been approved as. such by this der fendant; that the said plaintiff, Mildred Everest, and several other students of the Normal College, had been rooming and boarding there, and that this defendant had been informed that the said Mildred Everest had been acting strangely and had been using unusual and objectionable language in said house in the hearing of other students, and that the said other students, who roomed and boarded in said house, had become alarmed and disturbed by such actions and words; that thereupon this defendant caused an investigation to be made respecting the conduct of the said plaintiff, Mildred Everest; - * * * that, if the said words were spoken at all, they were spoken as part of a general conversation and between the said defendant and one Elizabeth West and M. E. Parkinson, to wit, at the city of Ypsilanti, said county and State, at or about the time alleged in said declaration, and that the words there spoken by this defendant of and concerning the said plaintiff were spoken in good faith and without unnecessary publication, and that no words were spoken by the said defendant on such occasion, or upon any other occasion which in any wise reflected upon or intended to reflect upon the morality or chastity of the said plaintiff, or that called into question the morality or chastity of the said plaintiff, or that in any wise imputed that the said plaintiff was then or had ever been unchaste or immoral. * * * Defendant further says that inasmuch as he was, upon the occasion in question, performing his duty as president of the said Normal College in good faith, as aforesaid, the words spoken by him to the ' said Elizabeth West and M. E. Parkinson of and concerning the said plaintiff, Mildred Everest, were and are privileged communications.”

After the testimony was all in, the defendant moved for a directed verdict for several reasons, and among them that the words uttered were privileged. The trial judge directed a verdict for the last-named reason in favor of the defendant. The case is brought here by writ of error.

The record discloses that there are in attendance at the school of which defendant is the president from 1,300 to 1,500 students, a large proportion of whom are young women from 17 to 25 years, of age. Nearly all of these students live in rooming houses that must be approved by the school authorities before the students are permitted to live in them. The plaintiff roomed in a house that was on the approved list, kept by Elizabeth West, with whom Mrs. Parkinson, a sister of Elizabeth West, lived. Besides the plaintiff, five other students roomed at this house. After a time differences arose between the plaintiff and the other students, which seemed to have their origin in the fact that Mrs. Chapman, a music student, practiced upon the piano when Miss Everest claimed it interfered with her studying. The trouble reached such an acute stage that one of the inmates of the house, Mr. Chapman, went to the defendant with a complaint as to the conduct of the plaintiff and what she said. He reported to the president that plaintiff had used language that he repeated to the president that is obscene and profane and would not look well in print, ending with the statement, “I will poison every one of them,” referring to the other roomers. The defendant inquired in whose presence this language was used, and was told that three others of the roomers were present. He sent for each of them, and each of them confirmed the statements of Mr. Chapman. He then sent for Elizabeth West, the landlady of the plaintiff, and her sister, and it is at this interview that it is alleged the slanderous words were spoken. The testimony differs as to what occurred at this interview, but all are agreed that the president told these ladies what had been reported to him. They say he stated in the course of the interview that Miss. Everest was crazy. He denies that he used the word “crazy,” but says he stated that he thought she was abnormal. It ought to be said that the plaintiff denies she ever used the language attributed to her. Her landlady says she never saw anything in her conduct that was not proper.

The record discloses that on the evening of the day of the interview two of the girls rooming in the house of the plaintiff came to the dean of the woman’s department crying, and asked permission to move. As a result the following letter was sent:

“Michigan State Normal College, Ypsilanti.
“Office of the President.
“Mrs. Elizabeth West,
“914 Congress St.,
“Ypsilanti, Michigan.
“My Dear Mrs. West: I had expected, as I intimated, at the close of our conference yesterday, that the situation at your house would remain undecided for a few days until I could hear from Miss Everest’s brother, but the events of last night make it necessary for the students rooming at your house to move. They are leaving with my permission. They are not in a condition of mind to do their school work, and I have no moral right to force them to live under conditions which are so extremely unhappy as those now existing in your home. The best thing for all of us to do is to accept the inevitable and let the students leave quietly. Let me also say that what has occurred will not prejudice us against your house in the future, and that if proper conditions are brought about we shall be willing that students room at your house. ;
“Very truly yours,
[Signed] “Chas. McKenny.
“A. M. December 5, 1912.”

In the meantime a letter had been written to the brother of the plaintiff, who lived at Frankfort. He replied:

“Received your letter last night. Am at a loss to know what to advise you to do. I have not been with my sister much of late years, but I have noticed a burden on her mind, which seemed to temporarily overbalance her mind. From a child she has been self-willed, and has always hesitated to listen to family advice. I am sure it would be of no use for me to write my sister, as it would anger her against me. I am sorry that things are as they are, and I am at a loss to know how to advise you. Please regard this letter as strictly confidential.”

Communication was also had with another brother, who wrote the president as follows:

“You ’phoned me today in reference to my sister, who is now attending the State Normal. You asked that I call in consultation. I feel that I can hardly spend the time from my work. I cannot understand what can be the difficulty, and wish you would write me in detail. I would rather not have the matter spoken over the telephone. Please do not call my parents’ attention to this matter. It would be of great sorrow to them. If there is anything the matter, I would rather you would let me know, and I will see what can be done.” '

• Other investigations and inquiries were made, and the following letter was sent:

“Michigan State Normal College, Ypsilanti.
“Office of the President.
“Miss Mildbed Eveeest,
“Ypsilanti, Michigan.
“My Dear Miss Everest: After thorough investigation of the work which you have done in class during the present quarter 'and your general fitness for teaching, it seems quite fair to say that teaching is not the line of work you should fit yourself to do. I believe that every one should get into the line of work for which she is best suited, and I strongly feel that you could do better in some other line of work than you will do in teaching. For that reason I do not think it is best for you to return next quarter. As I said at the beginning of this letter, I have given this matter very careful consideration, and my decision in the matter is final. I shall be glad to be of any service to you that I may.
“Yours very sincerely,
[Signed] “Chas. McKenny, President.”

We have quoted this correspondence because of the claim, which will appear presently, of counsel for appellant. It is conceded that whether an occasion is privileged or not is a question for the court. Bacon v. Railroad Co., 66 Mich. 166 (33 N. W. 181). But it is said whether the facts or circumstances which give the communication the privileged character claimed for it are established by the evidence is a question for the jury. It is also contended that the question of the good faith of the defendant and the presence or absence of actual malice are purely questions of fact, and must be left for the decision of the jury, and that there is evidence from which these might be found.

The questions involved in this case are not new in this State. In affirming a directed verdict in Howard v. Dickie, 120 Mich. 238 (79 N. W. 191), Justice MONTGOMERY, speaking for the court, said:

“It is urged that the occasion was not privileged, for the reason that, if the defendant believed that the plaintiff was wanting in integrity, or that he failed to live up to his vows as a member of the church, it was defendant’s duty to take steps to expel plaintiff from the church, rather than to attempt to prevent his election to an office in the church. We cannot assent to his view. The defendant was called on to vote for or against the plaintiff, and it was certainly his duty, or at least his privilege, to make known, in response to an inquiry from another member of the conference, any facts within his knowledge which bore upon the question of plaintiff’s fitness for the place," and if this was done without malice, and in good faith, we have no doubt it was privileged. O’Donaghue v. McGovern, 23 Wend. [N. Y.] 26; Dial v. Holter, 6 Ohio St. 228; Shurtleff v. Stevens, 51 Vt. 501 (31 Am. Rep. 698) ; Kirkpatrick v. Eagle Lodge, 26 Kan. 384 (40 Am. Rep. 316); Howard v. Thompson, 1 Am. Lead, Cas. 167, note.
“The question whether there is any evidence justifying an inference of malice is more difficult of determination. The rule is well settled that, when it appears that the occasion is privileged, the plaintiff has the burden of proving actual malice. The rule is stated in a note to Howard v. Thompson, 1 Am. Lead. Cas. 167:
“ ‘The showing of a privileged occasion prima facie removes the quality of malice, and puts upon the plaintiff a necessity of showing express or actual malice; and, if this be proved, the defense entirely fails. And this express proof of malice appears to consist in all cases in showing mala fldes in the defendant — that is, that the occasion was made use of colorably, as a pretext for wantonly injuring the plaintiff; and this express malice, being matter of fact and motive, is upon sufficient
evidence a question ior the jury. The fact that the words were consistent with malice is not enough; they must be inconsistent with bona fides.’
“We have held that malice may be inferred from circumstances under which the publication takes place in some cases, as that the slander was uttered in the presence of third persons, when no necessity existed for so public an accusation. Garn v. Lockard, 108 Mich. 196 [65 N. W. 764]. So, too, if it be shown that the alleged slanderous statement was known to be untrue, this is sufficient proof of malice. Harrison v. Howe, 109 Mich. 476 [67 N. W. 527]. But in this case there is no evidence of actual malice unless it be held that the evidence tending to show that the charges made were ill-founded is sufficient for that purpose. There was nothing in the manner of the defendant on the occasion in question to indicate ill will towards the plaintiff; on the contrary, the evidence negatives this. No previous utterances of defendant tend to show malice. * * * To remove privilege by evidence of the untruth of the words spoken would therefore leave one acting under a qualified privilege in practically no better attitude than one who can plead no such privilege. This question was before the court of queen’s bench in Fountain v. Boodle, 3 Q. B. 5. It was said by Patteson, J.: ‘Falsehood in fact is no proof of malice, unless the proof involves knowledge of the truth.’ In Somerville v. Hawkins, 10 C. B. 583, it was said that the supposition that defendant believed the charge is always to be made when the question is whether a communication is privileged or not. In Harris v. Thompson, 13 C. B. 333, it was said by Williams, J., citing Fountain v. Boodle: ‘The mere circumstance of the statement being false will not suffice to show malice, unless there is some evidence to show that the defendant knew it to be false/ ”

In Trimble v. Morrish, 152 Mich. 624 (116 N. W. 451, 16 L. R. A. [N. S.] 1017), Justice Carpenter, speaking for the court, said:

“In the law of slander there are two classes of privileged communications. There are communications which are absolutely privileged; and there are communications which have a qualified privilege. A communication absolutely privileged — as, for instance, words spoken by a judge in his judicial capacity in a court of justice — is not actionable, even though spoken maliciously. Where the privilege is qualified, the communication is not actionable if made in good faith. It is actionable if made maliciously; that is, with actual malice. It is not claimed that the communication in question is absolutely privileged. It is claimed that it is qualifiedly so. Says Mr. Justice Champlin, speaking for this court in Bacon v. Railroad Co., 66 Mich. 170 [38 N. W. 181]:
“'Qualified privilege * * * extends to all communications made bona pie, upon any subject-matter in wbicb tbe party communicating has an interest, or in reference to wbicb be bas a duty, to a person having a corresponding interest or duty. And tbe privilege embraces cases where tbe duty is not a legal one, but where it is of a moral or social character of imperfect obligation.’
“Within this rule defendant had a qualified privilege to make the communication in question. He had an interest in the business of Dr. Rogers. He had become possessed of information which affected that business. It was clearly his duty to communicate it to the doctor. It follows that, in making this communication, he committed no actionable wrong, unless he exceeded the limits of his privilege — unless he acted maliciously. Is there evidence that he acted maliciously? Plaintiff insists that there is. Her counsel say that malice is to be inferred from the falsity of the . statement. The contrary is the rule.
“ ‘Tbe falsity of tbe charge alone will not establish malice, so as to authorize a recovéry, if tbe charge be privileged, and only becomes sufficient when coupled with evidence tending to show that plaintiff made tbe charges knowing them to be false, or with other evidence tending to show malice.’ 25 Cyc. p. 524.
“Said this court in Edwards v. Chandler, 14 Mich. 471 [90 Am. Dec. 249]:
“ ‘Where a communication is privileged, tbe plaintiff cannot recover without proving affirmatively, not only tbe falsehood of its contents, but also that it was published with express malice.’
“See, also, Konkle v. Haven, 140 Mich. 472 [103 N. W. 850].
“It is said that malice may be inferred because defendant declined to name his informant. No authorities are cited in support of this contention, and it does not appear to us to be sound. Defendant was told that, if he would name his informant, he would not be troubled. He declined to do this, saying:
“ ‘TRe story was told to me in confidence, and I do not desire to implicate any otRer person in it.’
“This is the precise course that a high-minded person would have taken. He would have taken that course, not because he was actuated by a desire to save a wanton wrongdoer, but from considerations of true manliness. Only a despicable character would have availed himself of the privilege of escaping responsibility by exposing another to the danger which threatened him. Surely, because one does just what he ought to do, it should not be said that his conduct furnishes evidence of malice.
“Plaintiff also insists that malice may be inferred from the words of the privileged communication. He relies upon the following statement in the opinion of Bacon v. Railroad Co., supra:
‘TRe jury may find tRe existence of actual malice from tRe language of tRe communication itself as well as from extrinsic evidence’ — citing cases.
“This does not mean, as the argument of plaintiff’s counsel seems to assume, that the inference of malice can always be drawn from the language of a privileged communication. No such proposition was before the court. What was meant was this: That when a privileged communication contains on its face evidence of malice, that evidence may be used to prove malice. This is made clear by the application of the principle in that case, and by the authorities cited in its support. Respecting this point, the law is correctly stated in the following quotation. from the opinion of the supreme court of Pennsylvania in Mulderig v. Wilkes-Barre Times, 215 Pa. 474 [64 Atl. 636, 114 Am. St. Rep. 967]:
“ ‘If tRere is tRat in tRe publication wbicR furnishes a basis for reasonable inference tRat malice was back of it, tRe burden remains With the party charged to establish, either its truth, or the probable ground for believing it true. When such is not the case, there must be some evidence beyond the mere fact of publication; but there is no requirement as to what the form of evidence shall be. It may be intrinsic, from the style and tone of the article.’
“It is not contended that the communication in question contained on its face any evidence of malice. It clearly did not. We conclude, therefore, that defendant had a right to a directed verdict, upon'the ground that the communication was privileged.”

See, also, Wieman v. Mabee, 45 Mich. 484 (8 N. W. 71, 40 Am. Rep. 477); Madill v. Currie, 168 Mich. 546 (134 N. W. 1004).

In the instant case we have a defendant who is at the head of a great institution of learning, who is expected, and whose duty it is, so far as he is able, to look after the students attending the school, and to look after their environment. He has relations, too, with the keepers of the rooming houses in which these students find temporary homes. If the defendant, after receiving the communications mentioned from four out of the six roomers stopping at the house of Elizabeth West and Mrs. Parkinson, had not conferred with those ladies, he would have been derelict in his duty. The occasion was privileged. A careful reading of the voluminous record does not disclose any evidence from which a legitimate inference of actual malice can be drawn, nor does it disclose a lack of good faith.

The judgment is affirmed, with costs to defendant.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Fellows, J., did not sit.


text:
    WEBSTER v. DETROIT UNITED RAILWAY.
    1. Street Railways — Personal Injuries — Negligence—Contributory Negligence.
    In an action by a pedestrian for damages for injuries due to being struck by a street car in a congested section of a city, heXd, that the questions of defendant’s negligence and of plaintiff’s contributory negligence were for the jury.
    2. Same — Issue—Directed Verdict.
    In such action, where plaintiff introduced testimony tending to support the claim, and no testimony was offered in defense, held, that a motion for directed verdict for defendant was properly denied.
    Error to Wayne; Hosmer, J.
    Submitted January 22, 1917.
    (Docket No. 134.)
    Decided April 9, 1917.
    Case by Ena Webster against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Moody and William G. Fitzpatrick, for appellant.

      Bailey & Bradley, for appellee.
   Moore, J.

Plaintiff, a married woman about 28 years of age, was struck by the fender of one of the defendant’s street cars that was coming out of Congress street west upon Woodward avenue at about 6 o’clock in the evening. She suffered injuries for which she brought this suit. From a judgment in her favor the case is brought here by writ of error.

Congress street crosses Woodward avenue at right angles. At this point there is a great deal of traffic. The plaintiff was a passenger upon a south-bound Woodward avenue car. She alighted from the car at Congress street, and after getting the signal of the traffic officer she started east to go across Woodward avenue. When partly across she received her injury. It was her claim that she was in the exercise of due care, but that the motorman did not sound his gong and did not have his car under control and was not watching out for the safety of pedestrians.

Plaintiff produced testimony tending to support her claim. No testimony was offered on the part of the defendant. A motion was made by the defendant for a directed verdict; it being the claim that plaintiff was guilty of contributory negligence, and that the motorman was not guilty of negligence. This motion was overruled, the case was then submitted to the jury, and a verdict rendered as before stated. A motion was made for a new trial for the reasons urged in the motion for a directed verdict, and for the further reasons that the court erred in his charge to the jury, and that the verdict is against the weight of evidence.

The trial judge was of the opinion that plaintiff made a case for the jury, that there was no error in his charge:

“The defendant produced no evidence at the trial, and the questions raised by the defendant upon the plaintiff’s evidence were properly submitted to the jury, who found against defendant’s contentions. The court is of the opinion that the weight of evidence was clearly with the plaintiff rather than with the defendant.”

The motion for a new trial was overruled.

The same questions are presented in this court that were presented upon the motion for a new trial. The case was argued orally. The record and briefs have been examined with care. We think the assignments of error are without merit. See Thurston v. Railway, 137 Mich. 231 (100 N. W. 395); Sewell v. Railway, 158 Mich. 407 (123 N. W. 2); Sloan v. Railway, 172 Mich. 68 (137 N. W. 691); Prince v. Railway, 192 Mich. 194 (158 N. W. 861). We have not overlooked the case of Pearl v. Railway 188 Mich. 84 (153 N. W. 1062), but think it distinguishable.

Judgment is affirmed, with costs to the plaintiff.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.


text:
    TOZER v. MICHIGAN CENTRAL RAILROAD CO.
    1, Carriers — Personal Injuries — Proximate Cause — Negligence.
    Where an invalid, plaintiff’s decedent, riding in defendant’s baggage car, was placed by defendant’s baggageman, with the knowledge of defendant’s conductor, both experienced railroad men, on a cot near a pile of trunks, which, upon a sudden stopping of the train by the engineer, toppled over upon and injured the decedent, and, had she not been so placed, one or more of the trunks would not have fallen upon her, the proximity of the cot to the trunks was the proximate cause of the injury and due to the act of the baggageman.
    2. Same — Contributory Negligence.
    Where an invalid was negligently placed on a cot in a baggage car of defendant by her husband and brother, under the direction of defendant’s baggageman, near a pile of trunks which toppled over and injured her, upon a sudden stopping of the train, held, that the question whether the husband and brother Were contributorily negligent was for the jury.
    . 3. Same — Assumption oe Risk.
    An invalid, who was placed by her husband and brother, neither of whom was experienced in railroading, under the direction of defendant’s baggageman and with the knowledge of defendant’s conductor, both of -whom were experienced railroad men, in defendant's baggage car upon a cot near a pile of trunks which, upon a sudden stopping of the train, toppled over and injured her, and there was room in the car for her. to be. placed so that the trunks would not fall upon her, did not assume the risk of such injury. •
    4. Same — Negugence—Liabiuty.
    Where an invalid passenger on defendant’s railroad train was placed by defendant’s baggageman for transportation on a cot in the baggage car with the knowledge of defendant’s conductor, who collected full fare for such transportation, held, that it was for the jury to determine the question of defendant’s liability for injuries sustained by such passenger while being so transported.
    5. Damages — Death—Excessive Veedict.
    Verdict for $2,625 held, not excessive for injuries hastening the death of plaintiff’s decedent, who was 60 years of age, had been an invalid for some time, but probably would have regained her health in a short time, and who had been severely hurt and suffered pain for six weeks from the injury until her death'.

    Error to Otsego; Sharpe, J.
    Submitted January 17, 1917.
    (Docket No. 88.)
    Decided April 9, 1917.
    Case by Harvey Tozer, executor of the estate of Minnie Tozer, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

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

      W. L. Townsend and C. S. Reilly, for appellee.

      On the question of excessive or inadequate damages for personal injuries resulting in death, see note in L. R. A. 1916C, 820.

   Moore, J.

This is an action on the case for damages for injuries received by and the ultimate death of Mrs. Tozer, plaintiff’s wife, claimed to have been due to the negligence of a baggageman in the employ of the defendant. The accident occurred on the 6th day of September, 1915, while deceased, who was sick at the time, was riding on a cot in a baggage car attached to a regular passenger train, en route from Otsego Lake to a hospital in Bay City. Because of the sudden stopping of the train trunks fell upon her. A motion for a directed verdict for the defendant was made and overruled. From a judgment for plaintiff of $2,625, the defendant brings the case into this court by writ of error.

After the verdict was rendered a motion was made for a new trial. In overruling this motion the trial judge filed an opinion which so clearly states the issues involved that we quote from it freely as follows:

“There is little dispute about the facts. Plaintiff’s intestate, while ill, was riding on a cot in a baggage car on one of defendant’s passenger trains. The car was filled with trunks, piled as high as convenient, from its north end to the doors nearest the south end. The remaining space was comparatively unoccupied. The baggageman says it was so left to accommodate cream cans which he expected to be required to take on. The cot was placed on the west side of the car, and quite close to a pile of trunks. When the train had traveled a few miles south of Otsego Lake, where plaintiff’s intestate was put on, the engineer discovered that something was wrong with the locomotive and applied the emergency brake. The sudden stopping of the train caused the trunks to topple over, and seriously injure the deceased. The position in which the cot was placed was directed by the baggageman. The husband and brother of the deceased were in the baggage car with her. The husband had, in this car, paid the fare of all three to Bay City, where the deceased was being taken to a hospital. The injuries she received caused her much pain and suffering and hastened her death. The jury awarded damages in the sum of $2,625.
“The grounds of the motion will be considered in the order in which they are set up. The first four may well be considered together:
“(1) No negligence of defendant was established.
“ (2) The negligence complained of was not the proximate cause of the injury to deceased.
“(3) Plaintiff’s decedent assumed the risk.
“ (4) Plaintiff’s decedent was guilty of contributory negligence.
“The negligence charged against defendant on which plaintiff relies was the act of the baggageman in placing the cot so near the pile of trunks when he knew, or by the exercise of reasonable care and foresight should have known, that if the emergency brake should be applied, the trunks would be likely to topple over and injury to deceased probably result. Unless ordinary foresight on his part would have so anticipated, the jury were instructed that the defendant was not liable.
“It is, of course, true that had not the emergency brake been applied, no injury would have been sustained by the deceased. It se.ems just as certain that had not the cot been placed so near the pile of trunks, no injury would have resulted.
“The conductor testified, and he is not disputed, that the necessity frequently arises in the operation of passenger trains for the engineer to apply the emergency brake. The effect of such application is well known. The attempt to so stop a heavy passenger train cannot but result in the tumbling of all articles not quite securely fastened. Of course no one who knows Mr. Borland, the baggageman, would for a moment believe that he intentionally placed the deceased in a position of danger, but had he considered the matter, I cannot but believe that he would have so concluded. He was in charge of the car, and it was his duty to think about it, and to take such reasonable precautions as were necessary so as not to subject the deceased to unusual danger.
“The question of proximate cause, herein involved, was considered by our Supreme Court in Selleck v. Railway Co., 93 Mich. 375 [53 N. W. 556, 18 L. R. A. 154], and many authorities cited and quoted from therein. It is also discussed at length in Cooley on Torts (2d Ed.), p. 73 et seq., and in Baldwin on Personal Injuries (2d Ed.), § 12 et seq. From these and the other authorities I have consulted, I believe the rule of law which should govern this case to be as follows:
“If a man does an act and he knows, or by the exercise of reasonable foresight should have known, that in the event of a subsequent occurrence, which is not unlikely to happen, injury may result from his act, and such subsequent occurrence does happen and injury does result, the act committed is negligent, and will be deemed to be the proximate cause of the injury.
“Mr. Baldwin cites the case of Jensen v. The Joseph B. Thomas, 81 Fed. 578, inthese words:
“‘The plaintiff was at work in the hold of the vessel. The hatch covers were piled up by the hatchway, under which the plaintiff was at work. A keg was placed upon the covers, and this keg was precipitated upon the plaintiff by reason of some person stepping upon the covers. Held, that the defendant was liable.’
“The case of Southwestern Telegraph, etc., Co. v. Robinson, 50 Fed. 810 [1 C. C. A; 684, 16 L. R. A. 545], is cited with approval in the Selleck Case, as follows:
“ ‘The company had permitted one of its wires to remain suspended across a public highway a few feet from the ground, and plaintiff came in contact with it during an electrical storm, and was injured by a discharge of electricity, which had been attracted from the atmosphere. The court held that, since the electricity would have been harmless except for the wire, the defendant was liable.’
“Each of these cases seems to me decisive of the question here presented. They both hinge upon the rule above stated, that the act was negligent in view of the consequences not unlikely to result therefrom and which should have been foreseen by the exercise of reasonable foresight, and such act was deemed to be the proximate cause of the'injury. It is this element, it seems to me, which distinguishes this case from those on which defendant’s counsel rely. In the case of Lewis v. Railway Co., 54 Mich. 55 [19 N. W. 744, 52 Am. Rep. 790], the court says that the wrong committed by defendant was. in no way connected with or related to the injury. Neither could defendant’s servants have reasonably foreseen that plaintiff would probably step into an open cattle guard when he was familiar with the premises and well knew a way to reach the station without passing over the cattle guard at all. This distinction is pointed out in the case of Louisville, etc., R. Co. v. Rommele [152 Ky. 719], 154 S. W. 16 [Am. & Eng. Ann. Cas. 1915B, 267], also cited by defendant’s counsel, wherein the court say, if defendant’s servants with ‘ordinary care might reasonably anticipate that the movement of the car would cause it [the package in the rack] to fall out, it is the duty of the servants named to remove it from the rack or secure it in some way, and if they fail to do this, and a passenger is injured by the package falling from the rack, the carrier will be liable.’
“The case of Sheltrawn v. Railroad Co., 128 Mich. 669 [87 N. W. 893], conforms to the same reasoning. The negligence'of the defendant was in furnishing a flat car for use in loading logs, apparently supplied with a proper brake, whereas in fact the ratchet wheel was broken. It, of itself, caused no injury, but its absence caused the plaintiff to attempt to block the car, and he was injured by logs falling upon him. The defendant was chargeable with notice that when the' car was in use in loading logs, it would be necessary to stop it at skidways, and that the brake was there to be used for that purpose. Its inefficiency necessitated the use of other means which linked and connected itself with the original wrongful act in committing the injury.
“Defendant’s counsel submit a list of cases which ■hold that where a person takes a place on a train not ¡provided for passengers, he assumes the risk incident ¡to such place and the uses to which it is put, but none ■of such cases holds that riding in such a place relieves the company from damages due to an overt act of negligence. In this case we find a sick woman on a cot as the train pulls out at Otsego Lake. There was no agent or operator there who might have been consulted. There is some evidence that those in charge of deceased were told to take the cot to the opening at which the baggageman stood, but, aside from that, she was taken there, and the baggageman assisted in getting her into the car, and directed where the cot should be placed. The conductor accepted her fare and that of those who accompanied her while in that car, and understood that she was to ride in it to her destination. Having so received her, the rule of assumption of risk should not, in my opinion, apply. The officials in charge of the train saw her condition; and if, owing to the uses to which it was necessary for them to put the baggage car, or the dangers incident thereto, which were known, or should have been anticipated, by them, such place was dangerous, they should have refused to receive her. Having accepted her, as stated to the jury, ‘the other necessities of the baggage car must, to a sufficient extent, yield to the care of this woman on the cot, as not to cause the baggageman to place her in a position of danger/ This was qualified by the further statement that such position of danger ‘must have been known, or should have been known by the exercise of reasonable care/
“5 and 6. In my opinion the weight of the evidence was for the jury. If the case was properly submitted to them, there was surely sufficient evidence in support of the plaintiff’s claim to justify the verdict rendered.
“7. In view of the testimony of the physician and' nurse who attended the deceased as to-the pain and suffering she endured, and the fact, not disputed, that her life was shortened by the injury, I do not feel that the damages found by the jury can be said to be so excessive as to justify interference on my part.”

Counsel for appellant present here practically the same questions that were presented on the motion for a new trial. They are grouped by counsel as follows:

“(1) The absence of evidence of negligence of the defendant’s baggageman ‘in negligently placing the said cot and plaintiff’s intestate near said trunks/
“(2) The affirmative proof that negligence attributable to defendant was not the proximate cause of plaintiff’s injury.
“(3) The affirmative showing that plaintiff’s decedent assumed the risk of this injury.
“ (4) The affirmative showing that plaintiff himself was guilty of contributory negligence which is imputed to decedent and bars recovery.
“(5) The grossly excessive damages.”

Each of these groupings is discussed at great length in a very carefully prepared brief in which a great many authorities are cited, but the questions involved are comparatively simple, as we think is shown by the opinion from which we have so freely quoted.

Groupings 1 and 2 may be discussed together: The testimony shows that the baggageman and the conductor were both experienced railroad men, and knew, or should have known, what was liable to occur by the movements of the train and the effect that should be anticipated upon movable baggage in the baggage car should it be necessary to stop the train suddenly. They also knew that in the operation of the train it was frequently stopped suddenly. It is true that the accident to the engine justified the use of the emergency brakes, but it is equally true, as stated by the trial judge, that if the cot had not been placed near the trunks, piled one upon the other, one or more of them would not have fallen upon Mrs. Tozer, so that we think it clear that the proximity of the cot to the falling trunks was the proximate cause of the injury, and the cot was so placed by the direction of the baggageman.

3 and 4 may be discussed together. Whether plaintiff’s decedent assumed the risk depends upon whether she knew, or should have known, of the risk. There is nothing to show that she had ever before been in a baggage car or had any knowledge of the risks involved by riding there, but it is said the husband and brother assisted in placing the cot, and if the baggageman was negligent, they were negligent, and their negligence must be imputed to the deceased, and bars recovery. This contention overlooks the element of the experience, or rather lack of experience, of the husband and brother in situations like the one we are considering. They were instructed what to do by the baggageman, who had experience and they had none, and when the cot was in the car the baggageman directed where it should be placed. There was no station agent with whom, an arrangement could be made in advance for the placing of the cot. The baggageman is said to have directed that it be brought into the baggage car; at least he did not' object to it. The conductor saw the cot and what was being done with it before it was put in the car. He afterwards collected fares from the deceased, the husband, and the brother, and saw the situation of the cot, and made no suggestion that it should be moved. There is testimony there was room in the car so that the cot might have been placed where the falling of the trunks would have worked no mischief. The trial judge, under a very careful charge, left the question of whether the husband or brother"was guilty • of contributory negligence to the jury. In the recent case of Steketee v. Waters, 193 Mich. 177 (159 N. W. at page 370), Justice Kuhn, speaking for this court, said:

“The authorities seem to be uniform in holding that in the case of a sick, aged, or otherwise infirm passenger the carrier should exercise a degree of care commensurate with the responsibility assumed, which would be such care as would be reasonably necessary to protect him in view of his condition. 2 Hutchinson on Carriers (3d Ed.), p. 1140; 6 Cyc. p. 598; 2 Moore on Carriers (2d Ed.), p. 1250; Croom v. Railway, 52 Minn. 296 (53 N. W. 1128, 18 L. R. A. 602, 38 Am. St. Rep. 557); 4 R. C. L. p. 1160, par. 1594.”

It should be remembered that Mrs: Tozer was a passenger for whom a full fare was paid, traveling upon a regular passenger train, and in a location selected by a train officer. See Larskowski v. Railway, 193 Mich. 409 (159 N. W. 530). In the instant case we agree with the trial judge that there was a case for the jury, and that it was fairly submitted to them.

One other question remains, and that is, Was the verdict so excessive as to call for our intervention? The plaintiff, it is true, was upwards of 60 years of age, and had been an invalid for some time, but her attending physician testified that, in his judgment, if she would go to the hospital for a short time, she would regain her health and be all right. She was. on her way to the hospital when the accident happened. She was severely hurt, suffering pain for six weeks, when she finally died. See Hunn v. Railroad Co., 78 Mich. 513, 529 (44 N. W. 502, 7 L. R. A. 500); Retan v. Railway Co., 94 Mich. 146 (53 N. W. 1094); Love v. Railroad Co., 170 Mich. 1 (135 N. W. 963). We do not think we should disturb the verdict.

Judgment is affirmed, with costs.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.