text:
    WHITE v. McKENZIE.
    1. Appeal and Error — Directed Verdict.
    Upon appeal from a directed verdict, plaintiff is entitled to have his testimony viewed most favorably to himself, but he is not entitled to a construction of it opposed to its reasonable significance.
    2. Trusts — Parol Contract — Resulting Trust — Express Trust —Statute oe Frauds.
    Where defendant orally agreed with plaintiff and an associate to furnish the purchase price of certain real estate, taking title in defendant’s name, and all three were to make an effort to sell at a profit, which was to be divided equally among them after allowing defendant $200 for the use of his money, there was no resulting trust, and no other trust could exist without a written agreement.
    Error to Wayne; Hosmer, J.
    Submitted June 16, 1916.
    (Docket No. 144.)
    Decided September 26, 1916.
    Assumpsit by William White against William McKenzie for money had and received. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Thomas A. Conlon, for appellant.

      Watson, Safford & Shepherd, for appellee.
   Ostrander, J.

Plaintiff rested his case, and the court directed a verdict for defendant. The court was of opinion that the testimony for plaintiff tended to prove a parol contract, or agreement, for an interest in lands — a contract not enforceable unless in writing —and that in any event the suit was prematurely instituted.

The declaration, which concludes with the common counts in assumpsit, contains a special count. In the special count, as amended, plaintiff alleges, in substance and effect, that he and another found for sale certain real estate in the city of Detroit which they brought to the attention of defendant, who agreed with plaintiff and his associate to purchase the property from the owner for $8,800. The property was incumbered for $5,000. A commission of $132 was received from the owner for making the sale, and was divided equally between plaintiff, his associate, and defendant. Defendant had and furnished $3,800 of the purchase money, was to have $200 for the use of his money, the title was taken in his (defendant’s) name, and plaintiff, his associate, and defendant were to each make an effort to sell the property for more than $9,000, dividing equally between them any sum more than $9,000 received for the property, and dividing the rents received therefrom pending the sale. It is alleged that defendant sold the property for $10,500, and collected in rents therefrom $900. In his bill of particulars plaintiff claims a one-third interest in the profits made on the sale, $500, one-third rents, as per agreement, $300, for advertising, $15, interest on $500 from the time defendant sold the property, and interest upon $300 rent collected by defendant. The plea is the general issue. When the motion for a directed verdict was made, one ground of the motion being that the contract proven was not the contract alleged in the declaration, counsel for plaintiff said: “We are proceeding entirely on the common counts in this declaration.”

Plaintiff upon this appeal, and upon the merits— I think there is no occasion to discuss any point save the one that his agreement is not enforceable — is entitled to have his testimony viewed most favorably to himself. He is not entitled to a construction of it opposed to its reasonable significance. He described upon direct and cross-examination. what the parties said and what they did. Without setting out the testimony, its substance is that plaintiff and his associate learned that certain productive property was for sale. At the price asked for it they believed it could be resold, in a short time, at a profit, and that the accruing rents would carry the property after the original payment of purchase money was made. There was also a certainty, at least a chance, that if they could find a buyer they could get a commission from the owner if a sale was made. They took the matter up with defendant, talked with him, and with him examined the property. The owner’s price was $9,000 and the property was mortgaged for $5,000. The owner agreed to take and did take $8,800 for the property, deeding it to defendant. Why defendant should purchase the property at the owner’s price and agree to divide the profits, if it was sold at a profit, with plaintiff and his associate, no limit of time of sale or price being fixed, is not well explained, unless they purchased it on joint account, each, as between themselves, having an interest in the property, and were to later agree as to the length of time it should be held and the price at which it should be resold. The mortgage plaintiff learned would be due in the fall or winter following the purchase. The deed was made about July 1, 1913. The rents, if it was all of it continuously rented at the prices fixed by the owner, were about $150 a month. The mortgage debt drew interest, and the property was, of course, liable to taxation. It might never be sold for more than it cost. Plaintiff at various times and in varying language testified to the agreement which was made:

“I will take $200 for the use of my money, and we will divide all the profits above $9,000 between the three of us,” is one statement.
“He said we will all try to sell the property, and when it is sold we will divide the profits,” is another statement.
“The agreement was that it did not make any difference whether the property was sold the next day or how long it might be before it was sold; that Mr. McKenzie was to have $200 for the use of his $3,800 during the time that it was tied up in this property. * * $
“Q. What was said as to how the rent would carry the property along?
“A. Simply that we would divide the profits on the property — the income and the outgo at the time the deal was completed.
“Q. I want to know what was said between you men with respect to the rent that that property would bring, carrying the property along.
“A. Why simply that the property had that rental on it, and that we would sell it, and when we would sell it we would divide the profits on it.
“Q. Do you mean to say that it was included in your agreement that you should have one-third of the rent the property brought in, Mr. Welch one-third, and Mr. McKenzie one-third?
“A. That is the understanding.
“Q. That was the agreement?
“A. Yes, sir.”

This testimony, given by plaintiff, is somewhat varied by the following:

“Mr. McKenzie said that he would make the proposition of $8,800 for that property. He would take $200 for the use of his money, and that we would sell it for all we could above $9,000 and divide the profits on the deal.
“Q. And that was all that was said?
“A. That was the proposition in toto; Mr. McKenzie was to pay the taxes.
“Q. What was said about that?
“A. Why he would take care of those things when they came along.
“Q. Did he say that?
“A. I believe so; I won’t swear to that absolutely. * * * I don’t recall any conversation as to who should pay the interest on the outstanding mortgage of $5,000. There was nothing said at all as to who should pay the upkeep of the property.”

Plaintiff’s associate, Mr. Welch, gave testimony to the effect that he took defendant to look at the property which he was trying to sell for the owner, and which could be purchased for $9,000.

“McKenzie says we would take the property for $9,000. We would divide any profits over $9,000, and I ought to have the $200 for the use of my money.
“Q. What money?
“A. Well, whatever he would have to put in.
“Q. How much would he have to put in to swing the deal?
“A. Well, there was a mortgage of $5,000 on the property, and that would necessitate the $3,800, and so, of course, he would have to take care of that; whatever arrangements he could make they were satisfactory to us; we did not care.
“Q. And then he said that all over and above $9,000 that the property was disposed of or sold for, what would be done with that?
“A. And when it was sold we were to Share thirds in the profits above the $9,000. * * *
“Q. As between you three men it was a joint proposition?
“A. To share equally in the profits made, except that Mr. McKenzie was to have the $200 for the use of his money.
“Q. That is correct, is it?
“A. We were to share in the profits.
“Q. Just answer that ‘Yes’ or ‘No,’ please; that is the only answer that question calls for.
“A. Oh, I suppose that is so; yes, sir.
“Q. That was your understanding of it at least?
“A. Yes, sir.”

There can be no reasonable doubt, I think, that the plaintiff’s case, vague as it is, amounts to no more than this, that by voluntary agreement title to the land was placed in defendant, with a parol understanding how he should hold it. He was to hold it for sale at a profit for joint account. The rentals to accrue from it were to be used at least to maintain it. An accounting for rents and compelling defendant to sell at a reasonable profit within a reasonable time were rights attaching to the agreement testified to. There was and could be no resulting trust. No other trust could exist without a written agreement. Pulford v. Morton, 62 Mich. 25 (28 N. W. 716); Tuttle v. Bristol, 142 Mich. 148 (105 N. W. 145); Nester v. Sullivan, 147 Mich. 493 (111 N. W. 85, 1033, 9 L. R. A. (N. S.) 1106).

The judgment is affirmed, with costs to appellee.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    SAGE v. WYANDOTTE TERMINAL RAILROAD CO.
    Master and Servant — Personal Injuries — Negligence — Safe Place — Directed Verdict.
    Where a switchman was injured by being crushed between the jamb of a door and a car which was wider than those he had been accustomed to handle, in the absence of testimony that he supposed all the cars handled by his crew were of one width, or any excuse for failure to observe that cars were of unequal width, it being common knowledge that freight cars are of different dimensions, defendant railroad company was not negligent in failing to notify plaintiff that the car in question was wider than the cars he had been handling.
    Error to Wayne; Van Zile, J.
    Submitted June 14, 1916.
    (Docket No. 19.)
    Decided September 26, 1916.

      Case by Allen Sage against the Wyandotte Terminal Railroad Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Maxwell W. Benjamin, for appellant.

      Gray & Gray and J. Walter Dohany, for appellee.
   Ostrander, J.

Plaintiff had worked for defendant as night switchman for 24 days when he was injured. One of the duties of the night crew, of which plaintiff was one, was to bring from the shipping room of the Michigan Alkali Company, every night, a car loaded with soda ash and spot the car in a shed or building of the J. B. Ford Company. At both plants the tracks ran through doors, with scant clearance between the rails and the door jambs; there were no doors at the alkali plant, there were doors at the Ford plant, and the opening or doorway there was smaller. Within plaintiff’s experience the engine had handled only the single loaded car at the Ford plant previous to the night when he was injured, and in spotting the car he rode into the shed, occupying a place on the footboard of the engine, from which, the signal that the car was in position being received, he uncoupled the car and engine. Upon the particular occasion, on the journey to the Ford plant, a coal car had been found in the way and placed between the engine and the soda ash car. The building was dark, another switchman went in to spot the car and give signals, and plaintiff took up a position on the ground near the door jamb to take the signals of the other switchman and report them to the engineman. The soda ash car passed him. The coal car was wider than the soda ash car, and plaintiff was hit by it and squeezed between it and the jamb of the door. Nothing about the premises, or the cars, was defective or out of repair, nor was there any want of care in operating the train. Except for the extra car the conditions had existed for some six years. But plaintiff alleges his ignorance of the hazards of the situation, the failure of defendant to advise him about them and how to avoid them, and the failure to provide him a reasonably safe place in which to work. As his testimony convincingly shows, the plaintiff misapprehended nothing unless it was the width of the second car. It, in fact, used some three inches more of the clearance space than the soda ash or first car did. Plaintiff made use of the clearance space, not to pass through it, but to look through it from outside the building. The movement of the engine was controlled by him. He took up his position with reference to the passing cars, and no instructions could have added to what his intelligence made evident. The cars were being moved very slowly. He intended that they should pass him. If the first or soda ash car had been the wider, he would have behaved no differently. He would have seen to it that it passed him without striking him. His calculations were wrong only because the second car was wider than the first. This is the single fact, unappreciated, he says, unprovided for, to which his injury may be ascribed. Although he says he did not know the exact clearance — it was night, and he had worked only at night — still, upon analysis, and as relating to his injury, the foregoing is the effect, the substance, of his testimony. If, therefore, defendant was negligent in a way which caused or contributed to the injury, it was in neglecting to advise him that the cars moved by it were not all of them of equal width.

I do not find that he alleges or offered testimony tending to prove that he supposed that all the cars handled during the night by his crew were of one width, or any excuse given for failure to observe whether the cars were of unequal width. Knowledge that freight cars are of different dimensions is very-common, so common that I think it was no violation of defendant’s duty to fail to call plaintiff’s attention to the fact. The learned trial judge was of opinion that no negligence of defendant had been proven, and with this conclusion I agree.

The judgment is affirmed, with costs to appellee.

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


text:
    HURLEY v. SELDEN-BRECK CONSTRUCTION CO.
    Master and Servant — Workmen’s Compensation Law — Hernia Caused by Particular Strain.
    Where claimant’s husband, a brick mason in defendant’s employ, suffered an injury while lifting a terra cotta window sill into place, and strangulated hernia resulted, which caused his death later, after two operations, claimant was entitled to compensation under the workmen’s compensation law (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5423 et seq.), and the presence of a structural weakness or actual pain, antedating the injury, in the region affected, would not preclude recovery if the injury itself was distinct and the result of a particular strain. Bell v. Hayes-Ionia Co., 192 Mich. 90.
    Certiorari to Industrial Accident Board.
    Submitted June 12, 1916.
    (Docket No. 35.)
    Decided September 26, 1916.
    Annie Hurley presented her claim against the Selden-Breck Construction Company for compensation for injuries to her husband causing his death while in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Frederick T. Witrrdre, for appellant.

      Howard B. Bloomer and Seth J. Wicker, for appellee.
   Ostrander, J.

The facts found by the Industrial Accident Board are stated as follows:

“(1) On December 6, 1913, Arthur Hurley, the deceased husband of claimant, Anna Hurley, was in the employ of the Selden-Breck Construction Company, a corporation, which said company was erecting a building for the Ford Motor Company at Woodward avenue and the East Grand boulevard in the city of Detroit, and State of Michigan.
“(2) Arthur Hurley was by trade a brick mason, and on December 6, 1913, was laying terra cotta window sills, which, according to the custom observed in the trade of brick mason, comes under the head of brickwork.
“(3) Henry Singer, foreman in charge of the work on December 6, 1913, ordered three bricklayers, one of whom was Arthur Hurley, to lay terra cotta window sills (pieces of terra cotta 2 feet long, 18 inches wide, and 9 inches thick), and the two bricklayers, so ordered to lay terra cotta window sills with Arthur Hurley, worked together, lifting, carrying, and setting said terra cotta window sills, but Arthur Hurley, having no one to help him, was compelled to lift, carry, and set said terra cotta window sills without assistance.
“(4) Arthur Hurley was engaged in laying terra cotta window sills weighing between 75 and 80 pounds, unassisted as aforesaid, when at about the hour of 2 o’clock in the afternoon on said December 6, 1913, while lifting a terra cotta window sill on the wall, he was injured, crying out at the time and putting his hand on his back, and appeared to be in great distress, although he changed work with William J. Booth, who was near him at the time, and finished the day laying brick, continuing until 4 o’clock in the afternoon, the usual quitting time.
“(5) The injury sustained by Arthur Hurley on said December 6, 1913, was caused by the strain of lifting terra cotta window sills, and resulted in a right oblique inguinal hernia, which became strangulated, and for which an operation was performed on Mr. Hurley on December 9, 1913, and a second operation a few days later, but Mr. Hurley’s condition did not improve, and he died January 1, 1914, as a result of the injury sustained by him as aforesaid.”

It is urged, as it has been in earlier cases, that Mr. Hurley suffered from a disease or from a congenital defect, the development of which, in either case, in the course of an employment, is not an accidental injury. We said, in Robbins v. Engine Co., 191 Mich. 122 (157 N. W. 437), of the rule announced in United States Accident Ass’n v. Barry, 131 U. S. 100, 121 (9 Sup. Ct. 755), and in similar cases, that:

“It is doubtful, however, if in applying our statute,’ its general purpose being considered, the court should exactly follow the rules suggested and applied in the cases referred to.”

In Grove v. Paper Co., 184 Mich. 449 (151 N. W. 554), the strain ruptured an artery, in La Veck v. Parke, Davis & Co., 190 Mich. 604 (157 N. W. 72), the exertion resulted in a cerebral hemorrhage, and in Hills v. Wood Dish Co., 191 Mich. 411 (158 N. W. 214), the period of incapacity was prolonged by a preexisting disease, and in each an award of compensation was affirmed. In Bell v. Hayes-Ionia Co., 192 Mich. 90 (158 N. W. 179), it was said:

“The presence of a structural weakness or actual pain, antedating the injury alleged, in the region where the injury occurred, does not preclude a recovery if the injury itself is distinct and the result of a particular strain causing a sudden protrusion of the intestine.”

The case at bar and Bell v. Hayes-Ionia Co., supra, cannot, in principle, be distinguished. The action of the Industrial Accident Board is affirmed, with costs to claimant.

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


text:
    ROBBINS v. MAGOON & KIMBALL CO.
    1. Master and Servant — Workmen’s Compensation Law — Defenses — Assumption op Risk — Animals.
    In an action for the alleged negligent death of defendant’s employee, caused by the kick of a mule, where defendant had not elected to come under the provisions of the workmen’s compensation law (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5423 et seq.), the defense that plaintiff’s decedent had knowledge of the vicious character , of the mule and assumed the risk, is not open to defendant. Act No. 10, Extra Session 1912, pt. 1, § 1, subd. c.
    2. Same — Evidence—Conjecture.

      Held, that the evidence supported the conclusion that the cause of death was a kick by a vicious mule, as alleged.
    3. Evidence — Opinion Evidence — Vicious Mule — Animals.
    On the issues as to whether the mule was vicious and as to whether defendant’s servants knew of its alleged vicious propensities, testimony that it had a bad eye, that it kicked at witness, that witness could tell by its look that it was not a safe animal, was admissible, as disposition of animals is judged, in part, at least, by appearance and movements.
    4. Same — Physicians—Similar Injury.
    Where it was plaintiff’s theory that the kick of the mule injured the spleen and kidney and caused the death of decedent, although. It broke no bones and left only slight marks upon the body, evidence of a physician that such a case had occurred within his personal observation was admissible to meet the contention of defendant that the result attributed to the kick was improper because no external evidences of injury and no broken bones were found.
    5. Appeal and Error — Hearsay—Evidence.
    Where no objection was made in the court below that the cause of the injury in the related case was hearsay, and no motion to strike for that reason was made, the judgment will not be reversed for such alleged error, raised for the first time in this court.
    6. Trial — Argument of Counsel — Curing Error.
    Where the court at once advised the jury that alleged improper argument of counsel should not have been made, the error, if any, was cured.
    7. Same — Instructions.
    It was not erroneous for the court below to charge the jury that the accident naturally appealed to the sympathy; that he would not ask them to cast it aside, but to govern it by their oaths, judgment, reason, and charge of the court.
    Error to Muskegon; Sullivan, J.
    Submitted June 19, 1916.
    (Docket No. 62.)
    Decided September 26, 1916.
    Case by William A. Robbins, administrator of the estate of William J. Robbins, deceased, against the Magoon & Kimball Company for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Kleinhans, Knappen & TJhl, for appellant.

      John G. Anderson and Charles B. Cross, for appellee.
   Ostrander, J.

The principal contention of appellant is that there was introduced by plaintiff no testimony tending to prove the negligence of the defendant. It appears that plaintiff’s intestate was employed by defendant as helper or assistant to a teamster, who was in charge of a wagon and a team of mules used in delivering ice. It is alleged that one of the mules was vicious and in the habit of kicking, and that he kicked plaintiff’s intestate, inflicting injuries which resulted in his death. This was in June, in the year 1913. Knowledge that the mule was vicious and in the habit of kicking is imputed to the defendant from the fact that the teamster possessed such knowledge. Upon this proposition the controlling rule was stated and applied in a former decision in this case. 186 Mich. 672 (153 N. W. 13). The cause has again been tried, and it is now contended that, assuming that the knowledge of the teamster was possessed by the defendant, no negligence of defendant is made out, because no breach of any duty owed to plaintiff’s intestate has been proven. This proposition is rested upon another proposition or rule and upon a fact. The fact is that plaintiff’s intestate knew about and had been told of the alleged vicious propensity and habit of the mule; the rule or proposition is that a master is not bound to furnish absolutely safe instrumentalities for conducting his business to his servants, and, as regards a servant who fully understands the perils to which an instrumentality exposes him, it is not negligence to furnish or to continue to use such instrumentality.

The point cannot be discussed without reference to Act No. 10, Extra Session 1912, which as to this defendant, which had not elected to be governed by the act, and in this case forbids the defenses: First, that the employee was negligent, unless wilfully so; second—

“that the employee had assumed the risks inherent in or-incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.” Act No. 10, Extra Session 1912, pt. 1, § 1, subd. c (2 Comp. Laws 1915, § 5423).

Counsel for appellant assume, in the argument made, that the mule, in the defendant’s business, was an appliance, or instrumentality, and that it was an unsafe and unsuitable one. They cannot, I think, resist the conclusion that it was negligence to furnish such an instrumentality, except by using, in favor of defendant, the fact that plaintiff’s intestate knew that the instrumentality was unsafe. The principle deduced and stated in Ragon v. Railway Co., 97 Mich. 265, 273 (56 N. W. 612, 614, 37 Am. St. Rep. 336), is “that obvious imperfections in methods or machinery, existing at the time of the employment, cannot be made the basis of a liability in favor of an employee who suffers an injury in the course of his employment, for the reason that the employer has a right to have and use imperfect methods and tools, and to ask others to enter his employ to aid him in such use, and that in so doing he does not undertake to insure the employee” — is one an element of which is an acceptance of whatever risk there is by the employee. In McGinnis v. Bridge Co., 49 Mich. 466, 473 (13 N. W. 819, 821), no different principle was stated in saying that:

“When it appears the employee is aware, as the plaintiff was, of the risks to which he exposes himself in the service, and consents to encounter them, his employment subject to the risks cannot be treated as a breach of duty.”

It is true that “the three principles — negligence, contributory negligence, and assumed risk — are consistent,” but not identical. Bradburn v. Railroad Co., 134 Mich. 575 (96 N. W. 929). But to hold that conduct which is not negligent because the employee assumes or consents, impliedly or actually, to share a risk, is not negligent in view of the statute is to allow a defense which the statute refuses. The employer may not now safely invite the employee to share with him “the risks * * * arising from the failure of the employer to provide and maintain safe premises and suitable appliances.”

It is said the cause of death is purely conjectural. There was, however, testimony supporting the conclusion that the cause of death was that alleged, namely, a kick by a vicious mule.

The principal issue of fact was whether the mule was vicious. With this went along another issue, namely, whether defendant’s servant, or servants, knew of the alleged vicious propensities of the animal, of his propensity to kick, that he was a kicking mule. Witnesses said that the mule had a bad eye — a wicked look in his eye. One witness said he was afraid of the animal, but he gave as a reason for fear that the mule kicked at him, and further stated that he had refused to “hook” him up. Another witness testified that he could tell by the mule’s looks that he was not a safe animal. Objections to the testimony referred to were made, and exceptions to the rulings admitting it were taken. I have regarded it as matter of common knowledge, at least among those accustomed to driving and handling' horses and mules, that vicious propensities, as to bite and kick, were likely to be manifested in the general demeanor of the animals. The eyes and various movements which they make convey the impression, not always entirely reliable, that they are gentle and can be handled, or otherwise. A buyer, or one charged with handling animals, would judge disposition, in part at least, by appearance and movements, and act accordingly. The testimony objected to furnished to the jury no means of judgment other than those which ought to be and are employed in such cases.

It is plaintiff’s theory that the kick of the mule, although it broke no bones and left no considerable, if any, external marks upon the body of plaintiff’s decedent, injured the spleen and a kidney, and caused death. A physician, testifying for plaintiff, was permitted to say that such a case had occurred within his personal experience. It was objected that evidence of specific cases was not competent to prove the cause of injury in the particular case. It appears to have been urged that the result attributed to the kick in the case at bar could not be properly so attributed because no external evidences of injury and no broken bones were found. The experience of a medical man in a similar case ought to affect the judgment of a jury respecting such an issue. It is urged in this court that it appears from his testimony that the witness did not know that in the specific case related the injury was caused by a kick. His testimony supports the inference that the cause of the injury — the witness in that case removed the kidney of the woman— was not within his personal knowledge, but was related to him. No such objection was made in the trial court, and no motion to strike out the testimony for any such reason was made. What might have been developed, or what further testimony introduced upon such an objection being made, we cannot know. The judgment should not be reversed for any alleged error in admitting or in rejecting testimony.

The assignment of error based upon an exception to alleged improper argument of counsel for plaintiff may be passed without discussion. It is doubtful if the argument should be classed as improper, and, in any event, the court advised the jury, at once, that it was improper, and 'that counsel should not have made it.

In a single respect the charge of the court is criticised in the brief. The jury were told that:

“There has appeared here in the trial of this case his father and his mother, fine, estimable appearing people, naturally appealing to our sympathy. The unfortunate accident and all that appeals to our sympathy; you desire to render assistance if we might, to any one that may have lost a son. That sympathy wells up in the ■ hearts of every human person. I would not have you cast it aside. That would be asking you to do more than you can do, but I want you to govern it, govern it by your oaths, by your judgment, by your reason, by the charge of the court.” ■

The criticism is that its effect was “to instruct the jury to start out with their sympathies as a basis and to render assistance to the bereaved ‘if we might,’ ” and it is claimed that sympathy is reflected in the verdict of the jury. The trial judge may have been impressed that in the circumstances it was advisable to remind the jury of their duty and their oaths, contrasting duty and sympathy, and it is quite fair, I think, to say that the language used was perhaps as effective for this purpose as could have been employed.

The case is apparently a hard one, for defendant if the judgment stands, for plaintiff if it does not stand. As the law is, no reversible error appearing, the judgment must be affirmed, with costs to appellee.

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


text:
    KINCADE v. PECK.
    1. Trial — Pleading—Right to Open and Close — Circuit Court Rule.
    In a suit upon a promissory note, where defendant’s counsel claimed a set-off, but neglected, by notice accompanying his plea, to waive the benefit of the general issue and admit the facts alleged in plaintiff’s declaration, in compliance with Circuit Court Rule 24c, he was not entitled to open and close the case.
    2. Pleading — Limitation of Actions.
    While the general rule is that, if relied upon, the statute of limitations must be pleaded, yet it has not been applied in such way as to prevent a plaintiff from having the advantage of the statute when a demand sought to be set off by the defendant is barred by the statute.
    3. Evidence — Bills and Notes — Set-Off and Recoupment.
    In a suit upon a note given jointly to husband and wife for money loaned and furnished by them jointly, defendant could not show that the money, as against his creditors, really belonged to the husband alone; and advances to the husband could not be set off against said claim.
    4. Limitation of Actions — Bills and Notes — Set-Off and Recoupment.
    Where defendant loaned plaintiffs money, taking their note for one or five years, which was afterwards destroyed at their solicitation, and parol promise to pay accepted in lieu thereof, and ten years after said note was given defendant borrowed of plaintiffs. $200, and gave the note in suit, defendant’s demand against plaintiffs, which matured more than six years before suit was begun, was barred by the statute of limitations.
    5. Trial — Absence of Counsel — New Beginning.
    Where defendant’s counsel was absent from the courtroom when the court was ready to begin the trial, and, after a half hour’s delay in an effort to locate counsel, a jury was called and plaintiffs permitted to make their prima facie case, after which court adjourned, counsel was not entitled, on the reconvening of court, to make a new beginning and examine the jurors, whether his default was intentional or unintentional.
    6. New Trial — Default—Prejudice.
    Any supposed prejudicial consequences of an unintentional default must be presented, after verdict, to the trial court upon motion for new trial.
    7. Same — Affidavits—Cumulative Evidence — Diligence.
    A motion for new trial, based upon affidavits showing cumulative testimony might be produced, without showing due diligence to bring it in upon the first trial, was properly denied.
    Error to Wayne; Murphy, J.
    Submitted June 15, 1916.
    (Docket No. 8.)
    Decided September 26, 1916.
    Assumpsit in justice’s court by Richard J. Kincade and another against Mary J. Peck upon a promissory note. There was judgment for plaintiffs and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      James H. Pound, for appellant.

      Frederick E. McCain, for appellee.
   Ostrander, J.

Plaintiffs filed in justice’s court the promissory note given by defendant, dated, as the-record is understood, July 24, 1912, and declared upon-the common counts in assumpsit. The summons was issued November 6, 1914, returnable November 19, 1914. With the plea of the general issue defendant gave notice that she would prove that the plaintiffs are indebted to her for money lent December 20, 1902, and evidenced by a note payable five years from said date, with interest at 5 per cent, per annum, which interest was paid for the years 1903 and 1904; that thereafter, at different times during the years 1906 to 1912, inclusive, “the said plaintiff borrowed money from defendant, averaging $25 per year,” all of which demands defendant would set off against plaintiffs. Plaintiffs had judgment, defendant appealed, and on September 29, 1915, the appeal came on to be tried. A jury was called, examined by counsel for plaintiffs, counsel for defendant not being present, and sworn. The note was marked and put in evidence, and plaintiff Richard J. Kincade was sworn as a witness, and testified to a computation he had made of the sum due. At 12:20 o’clock p. m. court adjourned until 2 o’clock p. m. Counsel for defendant then appeared and asked leave to examine the jury, which, upon objection by counsel for plaintiffs, was refused. The trial proceeded, and resulted in a verdict for plaintiffs for $240.54, the sum due upon the note. Judgment, a new trial having been refused, was entered on the verdict.

Before the cause was submitted to the jury, it was admitted that plaintiffs were entitled to recover from defendant upon the note in suit $240.54. It was admitted that in the year 1902 plaintiffs jointly made their promissory note, running to defendant, for the sum of $150. It is said in appellant’s brief:

“The court will see by an inspection of the record that the only question in this case is: Was the $150 note given by plaintiff to defendant Mary J. Peck ever paid? Plaintiff Richard J. Kincade swears it was. Mrs. Peck, James Kincade, the two daughters, and the witness Charles Millard give testimony to show that it was not.”

But, as will at once appear, this is not the only question, nor is it the only one discussed in the brief. Whether the demand evidenced at that time by that note was a subsisting valid demand of defendant against plaintiffs was, it is true, the sole issue of fact submitted to the jury and involved, upon the testimony : (a) Whether it fell due one year or five years from its date, December 20, 1902; (6) if five years, whether plaintiffs had paid it; the jury being instructed that if it ran for one year only, it was outlawed, and could not be set off against plaintiffs’ demand, and that logically, the first question to be determined by them was whether the note was given for one or for five years. In answer to special questions which counsel agreed should be submitted to them, the jury found that the note was given for one year. It is therefore apparent that the jury did not determine, and they probably did not consider, whether the note had been paid. Having found that it was given for one year, the rule given them in the charge required them to return the verdict they did return. If they were correctly instructed, and if no prejudicial ruling affecting the testimony upon this subject was made, the judgment should not, for any error committed during the trial, be set aside.

It is complained that counsel for defendant was not allowed “to open and close the case, contrary to the rule of this court applicable thereto, and which applies to the party who has the affirmative of a question. Having the opening thereon, I demanded this privilege, but was refused, most erroneously, I think.” The foregoing is the substance of the argument made upon this point. If counsel refers to Circuit Court Rule 24, subd. “c,” the objection is answered by saying that the cause was begun in justice’s court; and, if the rule could be applied to cases so begun, the defendant did not, by notice accompanying the plea, waive the benefit of the general issue and admit the facts alleged in plaintiffs’ declaration. If there is any other applicable rule, it has escaped my attention.

It is said that the statute of limitations, not having been pleaded, cannot be invoked against defendant’s alleged demand, originally evidenced by the $150 note, “unless there is one rule for the plaintiff and another for the defendant in the one case, and surely that cannot be.” This is the substance of the argument upon this point. It is not pointed out how plaintiffs could properly have pleaded the statute of limitations as against any demand defendant might try to prove under her notice of set-off. The general rule is, of course, that, if relied upon, the statute of limitations must be pleaded. But it has not been applied in such way as to prevent a plaintiff from having the advantage of the statute when a demand sought to be set off by the defendant is barred by the statute.

Other criticisms of the charge upon the subject now being considered are that:

“The view is too strongly stated for the plaintiff in the charge.
“The element of the confidential relations is overlooked.
“The .question should have been submitted to the j'ury as to whether the advances proven to Richard Kincade were on family account or not.”

These must be interpreted by the theory of and testimony for defendant. Defendant introduced testimony tending to prove that at various times — some of them within six years before this suit was begun — she let plaintiff Richard Kincade have money and goods on credit. Defendant’s counsel contended, and contends, that if the real facts could be elucidated, it would appear that, although the note in suit is made payable to both of the plaintiffs, who are husband and wife, the money for which it was given belonged to plaintiff Richard; that the money and goods furnished by defendant to Richard were really furnished on family account to the knowledge of plaintiff Mary; that there was a sort of mutual account between the parties; and that matters of indebtedness and cross-indebtedness were never balanced and liquidated. But there is no testimony from which a j'ury could be permitted to reach any such conclusions, whatever the legal effect of such conclusions might be held to be. Stripped of immaterial things, the defendant’s contention is this: She lent the plaintiffs money, for which they gave her a note due in five years. She destroyed the note at their solicitation, or at the solicitation of Richard, and accepted in lieu thereof the parol promise that at some time, if she lived, they would pay the demand. After-wards, at various times, she furnished to plaintiff Richard money and goods as above related. Ten years after her note was given, she never having demanded pay of her loan from plaintiffs, or either of them, defendant borrowed of them $200, and gave the note in suit. Neither the alleged promise to pay the demand evidenced by the destroyed note, nor the maturity of that note, whether it was given for one or for five years, was within six years of the time when this suit was begun. Having borrowed money which plaintiffs jointly furnished, and given her note payable to them jointly, it is not perceived how defendant can be allowed to show that as against his creditors the money really belonged to Richard alone. Beyond this, the undisputed testimony is that the money was a part of the proceeds of a sale of land owned by plaintiffs jointly. In any view of the case, defendant’s alleged demand against both plaintiffs appears to be barred by the statute of limitations; and, in my opinion, the court should have told the jury that defendant had produced no testimony tending to prove the existence of a demand against the plaintiffs accruing within six years before the suit was begun.

Assuming that the question whether the note originally given by plaintiffs to defendant was given for one or for five years was a question for the jury, the record does not disclose any ruling affecting that question prejudicial to appellant, nor any instruction to the jury which was wrong. The testimony upon that point was produced and admitted.

If, then, there was not a mistrial resulting from the refusal of the request of defendant to examine the jury, the judgment must be treated as the fair result of the trial. The trial judge said, in denying a new trial, that at about 11:30 a. m. the parties to the suit, the attorney for plaintiffs, and some, if not all, of the witnesses entered the courtroom; the cause having been assigned to him for trial. At the same time the general panel of jurors not on duty came into the courtroom. All was in readiness for the trial, except that defendant’s attorney was' absent. The judge was advised by the judge’s clerk that Mr. Pound had been in attendance earlier in the morning, and had been informed that the trial “might momentarily be reached, and had deputized a representative to receive notice when an opening for the trial was obtained, to whom he, the clerk, had given notice that the trial would forthwith proceed in my division.” The court waited at least 20 minutes; then learned who it was who had been delegated by Mr. Pound to apprise him of the assignment of the case for trial. This person was interviewed by the judge, and at once went to Mr. Pound’s office, returned, and said Mr. Pound was not in his office, and that he did not know and could not find out his whereabouts. This delay consumed time, and a further delay was had. Finally, after a half hour’s delay, a jury was called, plaintiffs permitted to make their prima facie case, and the court adjourned. What occurred in the afternoon has been briefly stated. The right to a trial by jury in civil actions is a right which of necessity must be exercised in conformity with and with reference to the rules and the business of the court in which the trial is to take place. Counsel for a defendant not on hand when the cause is called for. trial may be admitted, by grace, to enter the trial at any stage before it is concluded. But it is a preposterous notion that, whether the default is intentional, or unintentional, counsel for defendant may appear after the trial of a cause is regularly begun and make a new beginning of the trial. Any supposed prejudicial consequences of an unintentional default must be presented, after verdict, to the trial court upon a motion for a new trial. There is, in the case at bar, no evidence and no intimation of any prejudice arising from the fact that defendant’s counsel did not take part in securing a jury.

The affidavits filed in support of the motion for a new trial show, some of them, that cumulative testimony upon the subject of when defendant’s note was due, whether in one year or in five years, may be produced upon a new trial, but there is no showing of diligent, or of any, effort to bring it in upon this trial.

No reversible error is made out, and the judgment is therefore affirmed, with costs to appellee.

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


text:
    BROWN v. GEORGE A. FULLER CO.
    1. Master and Servant — Workmen’s Compensation Law — Judgment Entered on Award.
    While there are difficulties in the way of applying the provisions of section 13, pt. 3, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5466), providing for entering judgment in the circuit court upon presentation of a certified copy of the decision of the Industrial Accident Board approving the agreement of settlement, especially in cases where, by the terms of the award, liability of the employer to make weekly payments runs with disability of the employee, and the disability is not permanent, it is not impossible to apply the law according to its terms; however, a series of judgments upon an award is not contemplated by the act, although a series of executions may be required to enforce payment of the judgment; and the judgment should be entered “in accordance” with .the award, by reciting and following the award, which furnishes the data for further action of the court,
    2. Same — Judgment on Award — Interpretation of Award.
    "''he judgment of the court below, agreeing with claimant’s interpretation of an ambiguous award, which may be interpreted as claimant claims, will not be disturbed, where no objection was made as to its form, and no error of law appears requiring reversal of the judgment or requiring the court to set it aside.
    Certiorari to Kent; McDonald, J.
    Submitted June 13, 1916.
    (Docket No. 84.)
    Decided September 26, 1916.
    James B. Brown presented an award from an arbitration committee against the George A. Fuller Company under Act No. 10, Extra Session 1912, pt. 3, § 13. From a judgment for plaintiff, defendant brings certiorari.
    Affirmed.

      H. Monroe Dunham and John M. Dunham, for appellant.

      E. A. Maher, for appellee.
    From the petition for the writ of certiorari and the return to the writ it is made to appear that an arbitration committee, April 28, 1915, made an award, the substance of which, is:
    “The said applicant, James B. Brown, is entitled to receive and recover from said respondent, George A. Fuller Company, the sum of $7 per week during disability (partial) from the 28th day of July, 1913, and that said applicant is entitled to receive and recover from said respondents on this date $77 (11 weeks), being the amount of such compensation that has already become due under the provisions of law, the remainder of said award to be paid to said James B. Brown, applicant, by said respondents in weekly payments, commencing one week from the date of the award.
    “It is the decision of the arbitration committee that Brown is to return to work for the George A. Fuller Company, and furnished with such employment as he may be able to do. Wages to be $2 per day ($14 per week of seven days). No time was lost by applicant from date of accident until December 26, 1914. The Fuller Company agreed to furnish applicant with light work.”
    No appeal having been taken from the committee to the Industrial Accident Board, a certified copy of the award was produced in the circuit court for the county of Kent December 8, 1915, and, without notice to George A. Fuller Company, judgment was entered for Brown against it for $84 and costs. A writ of garnishment, later recalled, was issued January 3, 1916, and served on the garnishee defendant January 4, 1916. A writ of fieri facias was also taken out. Meantime the George A. Fuller Company, on November 10, 1915, filed with the Industrial Accident Board a petition, praying that the board—
    “will by its order decree that the George A. Fuller Company has complied with the order and award of the arbitration committee, and that any portion of said award which may now be in force may be terminated as of the date when the said James B. Brown was laid off, to wit, August 28, 1915, because of the completion of the said hotel building, and that your petitioner may have such other and further relief in the premises as to the Industrial Accident Board may seem meet and just.”
    This petition Brown answered November 19, 1915, and the matter is pending. The circuit court for Kent county was moved, December 13, 1915, to vacate and set aside the said judgment, the grounds of the motion being that the terms of the award had been fully complied with; there was no money due Brown when judgment was entered; the judgment “is void and illegal and has no standing in law upon the award upon which it is based.” The motion was denied.
    The printed record does not contain the petition for the writ of certiorari, but upon examination of the original it is found that it sets out the errors of law relied upon as follows:

      “(a) Because the said judgment is void and illegal.
    “(6) Because said cause is now pending before the Industrial Accident Board of the State of Michigan.
    “(c) Because the judgment has no standing in law upon the award upon which it is based.
    “(d) Because the circuit court for the county of Kent had no jurisdiction in said cause.
    “(e) Because the award on arbitration has been fully complied with by the said defendant.
    “ (/) Because under the award there was no money due the said plaintiff at the time said judgment was rendered.
    “ (g) Because said plaintiff, before taking said judgment on the 8th day of December, A. D. 1915, had submitted himself to the jurisdiction of the Industrial Accident Board of the State of Michigan by filing a sworn answer to the petition of the defendant, on, to wit, the 19th day of November, A. D. 1915, in respect to the same subject-matter upon which the judgment is based.”
   Ostrander, J.

(after stating the facts). It is said in the brief for plaintiff in certiorari that but one question is involved, which is thus stated:

“Can the circuit court take any jurisdiction of an award of the Industrial Accident Board other than that expressly given it by Act No. 10 of the Public Acts of Michigan, Extra Session of 1912, which is known as the workmen’s compensation act?”

This question may be answered in the negative, as counsel answers it, without advancing us very far. Technically, of course, the court takes no jurisdiction of an award. The award is evidence of a liability; the judgment of the court is required and is provided for, to enforce the liability, since the decisions of the Industrial Accident Board cannot be carried into execution by any action or mandate of the board. The provision for judgment is part 3, § 13, of the law, reading:

“Either party may present a certified copy of the decision of such Industrial Accident Board approving agreements of settlement as provided in part three, section five hereof, or of the decision of such committee of arbitration when no claim for review is made as provided in part three, section eight, or of the decision of such Industrial Accident Board when a claim for review is filed as provided in part three, section eleven, providing for payment of compensation under this act, to the circuit court for the county in which such accident occurred, whereupon said court shall, without notice, render a judgment in accordance therewith against said employer and- also against any insurance company carrying such risk under the provisions of this act; which judgment, until and unless set aside shall have the same effect as though duly rendered in an action duly tried and determined by said court, and shall, with like effect, be entered and docketed.”

Manifestly, there are difficulties in the way of applying this provision of the law, especially in cases where, by the terms of the award, liability of the employer to make weekly payments runs with disability of the employee and the disability is not permanent. The procedure, too, if the statute is applied, will be somewhat cumbersome. As an illustration: An award is made to A. of $5 a week, payable weekly, during disability which is not permanent. A certified copy of the award is produced to a court and, without notice, judgment is entered “in accordance therewith.” Payments being promptly made, no execution is required. In time, payments accrue and are not made and an execution is applied for. What sum shall the sheriff be advised to collect, and, in default of payment, to make a levy for? Obviously orderly procedure would require that a showing be made, and upon notice, before the execution issued. And, as disability is a fact to be determined by the board, the weekly payment may be reviewed by the board at the request of the employer, the insurance company carrying the risk, the commissioner of insurance, or the employee, and may be increased, or diminished, or ended, if the board finds such action to be warranted. Part 3, § 14. If a judgment has been entered in accordance with the original award and the award is modified or the right to further payments denied by the board, orderly procedure will, in such cases, require that the court be moved to modify the judgment or to vacate it.

In my opinion, these and other difficulties which might be suggested, most of which may perhaps be removed by legislation, do not present insuperable objections to giving effect to the particular provision of the law, although its application may impose burdens upon the parties in interest and upon the courts. It is not impossible to apply the law according to its terms.

It ought to be said, however, that a series of judgments upon an award is not contemplated by the act, although a series of executions may be required to enforce payment of the judgment. And the judgment of the court should be entered “in accordance” with the award, which means that it should recite and follow the award, which furnishes the data for further action of the court. This, although objection to it is not based upon that ground, the judgment in the case before us did not do. The judgment entered “in accordance” with the award will remain in force until satisfied by payment according to its terms, or by such action of the Industrial Accident Board, brought to the attention of the court, as renders its further enforcement improper.

The award in this case is ambiguous, and it is apparent that the parties do not agree upon its force and effect. Claimant interprets it as an award of $7 a week, payable during disability, but not to be paid so long as the employer kept him in service at a weekly wage of $14. The employer, plaintiff in certiorari, interprets it as an award in lieu of payment of which it was to employ claimant at $14 a week as long as it had work for him to do. There being no more work for claimant, it says the award is vacated — has been performed — by what it has done. The court below seems to have agreed with claimant, and, as the award may be interpreted' as claimant says it should be, and as no objection is made to the form of the judgment, no error of law, requiring reversal of the judgment or requiring the court to set it aside, appears, and this court ought not to disturb it. The award, until modified by the Industrial Accident Board, is in force.

The defendant in certiorari will recover costs of this court.

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


text:
    PERHAM v. AMERICAN ROOFING CO.
    Master and Servant — Workmen’s Compensation Law — Independent Contractor.
    Where claimant’s husband had been employed for more than a year at irregular intervals by a roofing company, at a daily wage, laying roofs, and was accidentally killed while laying a roof for the same firm, which he had taken by the job, to be paid for at so much per square, he was not a servant or employee entitling claimant to compensation under the provisions of the workmen’s compensation law (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5423 et seq.), but was an independent contractor. Gall v. Journal Oo., 191 Mich. 405 (158 N. W. 36).
    Certiorari to the Industrial Accident Board.
    Submitted June 21, 1916.
    (Docket No. 12.)
    Decided September 26, 1916.
    Edith May Perham presented her claim against Albert J. Berschbach and Michael J. Herz, copartners as the American Roofing Company, employers, and the General Accident, Fire & Life Assurance Corporation, Limited, insurers, for compensation for the death of her husband in defendants’ employ. From a judgment for plaintiff, respondents bring certiorari.
    Reversed, and award set aside.

      Ralph, B. Lacey, for appellants.

      Albert J. Hetchler, for appellee
    The facts are not in dispute. Briefly stated, they are as follows: Prior to July 1, 1914, for a period of more than one year, Albert E. Perham was employed by the American Roofing Company, a partnership, at irregular intervals, as its contracts required, at a daily wage of $3, laying roofs. Whether he laid other than slate roofs does not appear. On or about July 1, 1914, the American Roofing Company had to lay the roof on the Webber residence in Detroit, and Perham applied to both members of the firm for the job of laying the slate for $1.75 per square. To this the firm agreed. Perham at once, or soon, arranged with another workman, Anderson, to do the job with him, they to divide, and a boy was borrowed from the firm, but paid by Perham, as helper. On the 6th of July, while working on the Webber residence, under the said arrangement, upon a scaffold which he had built in a dormer window, Perham fell with the broken scaffold to the ground, the injuries he received resulting in his death. The material employed in roofing was furnished by the American Roofing Company, as well as scaffolds, scaffold hoist, and a slate machine. Anderson, whom Per-ham had secured to do the job with him, finished the work according to the original arrangement. Perham had already been paid $20 on account, which sum he divided with Anderson. The widow presented a claim for compensation, and two members of the arbitration committee awarded her the sum of $8.65 a week for 300 weeks from July 6, 1914. The Industrial Accident Board, on appeal, affirmed the award. Upon this writ two points are raised: One that Perham was not a servant or employee of the American Roofing Company when he received his injury, and was an independent contractor; the other, a minor one, that the award is too large by 58 cents per week.
   Ostrander, J.

(after stating the facts). The facts import, not a contract to lay slate at a price per square, instead of by the day, but a contract to do a job of slate laying. It is as though Perham had measured the roof, found the number of squares, and, multiplying by the price per square, had contracted to do the job for a sum certain. It was a necessary implication that the work was to be done in a workmanlike and proper manner, the premises being considered. Per-ham was in the exercise of an independent and distinct employment, not under the immediate control, direction, or supervision of the American Roofing Company.

In principle, the point is ruled by Gall v. Detroit Journal Co., 191 Mich. 405 (158 N. W. 36). The opinion in that case contains a reference to the former decisions of this court.

It follows that the second point is unimportant, and that the conclusion of the Industrial Accident Board was wrong, and must be set aside. It is so ordered.

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


author: Bird, J.

text:
      In re WYNN’S ESTATE. PRUIM v. De WITT.
    1. Wiles — Contest—Parties—Interested Persons.
    Generally, under the statutes, a contest of a will can be brought only by a person interested at the time the will was admitted to probate, such persons including not only those named as beneficiaries in the will, but those who would share in the estate in case of intestacy, such as the heir or next of tin and those interested under a prior will.

      2. Same — Pakty Contestant — Evidence.
    Evidence that contestant was not a relative of decedent, but was taken when two years of age by testatrix and cared for and maintained until 17, when she married and left home, that there was a kindly feeling between them and that deceased had stated the contestant should have all her property, and she had given it all to her, etc., that a previous will had been drafted and either the contestant or her husband had been named as beneficiary, held,1 insufficient to establish any right to maintain a contest,1 though the contestant would have such right if she could show she was a legatee under a pre-existing will.
    3. Same — Competency—Undue Influence
    Also, held, that the evidence which tended to show mental weakness, forgetfulness, and other incidents of old age was insufficient to prove mental incompetency, and that the proofs of undue influence were insufficient to warrant the court in' submitting the case to the jury.
    Error to Ottawa; Cross, J. ’
    Submitted October 18, 1915.
    (Docket No. 148.)
    Decided September 27, 1916.
    Rehearing denied December 22, 1916.
    Enno J. Pruim presented for probate the last will of Esther T. Wynn, deceased, which was opposed by Grace De Witt, contestant. The will was allowed in probate court and contestant appealed to the circuit court. A judgment for contestant is reviewed by proponent on writ of error.
    Reversed.

      Lillie & Lillie, for proponent.

      Charles E. Misner and Corrie C. Coburn, for contestant.
   Bird, J.

A paper purporting to be the last will and testament of Esther T. Wynn, deceased, was admitted to probate in the county of Ottawa. An appeal was taken by Grace De Witt, on the grounds of mental incompetency and undue influence, and these issues were tried out in the circuit court before a jury, resulting in the will being set aside upon both grounds. The trial court was requested to direct a verdict for the estate, on the ground that the contestant, Grace De Witt, did not have sufficient interest to entitle her to make the contest. The request was refused, and error is assigned thereon. This point, if well taken, is a serious one, and should be first examined. The testatrix was childless, and appears to have had no near relatives. Grace De Witt does not pretend to be either a relative or heir, but, as we assume, bases her right to contest upon the ground that she was a legatee in a former will claimed to have been executed by the testatrix a few years prior to the one in question.

The rule which enables one to contest a will is generally stated as follows:

“Under the statutes generally an action to contest a will can be brought only by a ‘person interested’ at the time the will was admitted to probate. Such ‘persons interested’ include not only those named as beneficiaries in the will, but also those who would share in the estate in case of intestacy such as the heir, or next of kin, and those interested under a prior will.” 40 Cyc. p. 1241.

See, also, 16 Enc. Plead. & Prac. p. 1009; 1 Beecher’s Probate Law & Practice, § 509; Williams v. Bailey, 186 Mich. 677 (153 N. W. 39).

The substance of the evidence which appears in the record bearing upon the question of the interest of contestant is that she is no relative of the deceased; that she was taken when 2 years of age by the testatrix, cared for and maintained until she was 17 years of age, at which time she was married and left the home of the testatrix. Many expressions of kindly feeling toward the contestant were testified to as having been made by the testatrix. To some she stated that the contestant “should have all of her property”; to others she said that she had given it all to Grace; and the scrivener who drew the will in question testified that he drew a previous will for her some years before, in which either Grace De Witt or her husband was named as beneficiary, he could not recall which. There was also proof that several years before she had made a will giving all of her property to the church of which she was a member, and an old lady companion testified that at one time she offered to will her property to her. We think the rule is well established by the authorities that Grace De Witt would have a right to contest the present will if she were, in fact, a legatee under a prior will, but before this right would accrue to her a satisfactory showing should be made to that effect.

We do not think such a showing sufficiently appears by the record in this case. The former will was not produced; neither was it accounted for. If it were lost, no evidence was given of its contents, other than that referred to. In the case of Kostelecky v. Scherhart, 99 Iowa, 120 (68 N. W. 591), a very similar question was presented. In that case the proof was made of the due execution of the prior will, and that the formalities of the law were complied with in its execution. It was held in that case that the showing was sufficient to show the interest of the contestant.

In the case under consideration, the proofs leave it uncertain as to whether she was a legatee at all. There was no showing that the formalities of the law were complied with in the execution of the prior will, as in the case cited, and, as before said, no effort was made to produce the will or to account for it, except the statement of the scrivener who had at one time the possession of it that he delivered it to the testatrix, but was not certain when he did so, and that it was not found among her papers. We think that under the state of the proofs at the time the request was made it should have been granted. Inasmuch as the question will naturally arise upon a retrial as to the practice, we suggest that the better practice is to determine the contestant’s “interest” in advance of the trial. 16 Enc. Plead. & Prac. p. 1016. Under the present practice this can be accomplished by a motion to dismiss the appeal.

The record discloses that the testatrix was an old lady 78 years of age when she executed the will in May, 1914. At that time she was living alone, as she had been for several years. She did her own housework and looked after her own business affairs. She was a devoted member of the Methodist Church, and was a member of the church board. She attended church regularly on Sunday, and prayer meeting on Wednesday evening, and gave generously of her means to the church. She made frequent visits to Chicago to see her foster daughter, going and returning alone. In May, 1914, she returned from one of her visits, and the following day went unaided and alone to an old resident who drafted papers and dictated a simple will providing for the'payment of her debts, a small legacy to the husband of her foster daughter, and gave the residue to a Mrs. White, one of her neighbors. She gave as a reason for changing her will that upon her recent visit to her foster daughter in Chicago she had not been treated well. She gave as a reason for giving the property to Mrs. White that she had been kind, and aided her in sickness. Several women acquaintances gave it as their opinion that she was not mentally competent to execute the will in question. Their reasons for so thinking were that she had failed in health after her sickness in 1912; that she had complained at times of her head; that she was at times forgetful, and at other times would repeat her words, and forget what she was conversing about. Nothing was detailed by them other than what comes to nearly every man and woman of her age, as a result of a gradual weakening of physical and mental powers. These reasons furnish no basis in support of an opinion that she was mentally incompetent to execute the will in question. The court should have withheld this question from the jury.

Neither do we think he should have submitted to the jury the question of undue influence. The charge of undue influence was directed at Mrs. White, the beneficiary. There is no testimony showing that Mrs. White exercised any undue influence over her, or even attempted to influence her with reference to her property, or that she ever had any talk with her with reference to its disposition. The only thing shown was that she had an opportunity, but even the opportunity must have been somewhat brief, because the testatrix was home from Chicago only a few hours before she changed her will. Some attempt was made to show that Mrs. White refused to send for contestant during the last illness of the testatrix. One of the contestant’s witnesses testified that she asked the testatrix if she wanted Grace to come, and she nodded that she did not. The record shows without contradiction that Mrs. White was following the direction of testatrix in not sending for contestant.

For the reasons indicated, the judgment is reversed, and a new trial granted. Proponent will recover her costs.

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


text:
    BABCOCK v. HEENAN.
    1. Equity — Injunction—Parties—Complainant—Former Owner.
    A minor who purchased a parcel of land in the name of his mother and later sold the premises to third parties was not a proper party complainant in a suit to enjoin the closing of a street which the owners had represented to him was dedicated or open to the public. But since an amendment would have been proper on motion or objection, the court on appeal will treat the same as having been done, no harm resulting to defendant from treating the amendment as made.
    2. Same — Streets—Dedication.
    After making representations concerning the opening or dedication of a street, the owners could not later change their intention to dedicate, to the injury of one who purchased adjoining property in reliance on the existence of the street, or as to his grantee or vendee.
    3. Same — Highways and Streets — Obstruction.
    The erroneous description of the town or range in which a parcel was situated could be and was rightly amended on the hearing, when the error was merely technical and not prejudicial to appellants.
    Appeal from Sanilac; Beach, J.
    Submitted January 13, 1916.
    (Docket No. 10.)
    Decided September 27, 1916.
    Bill by Boscoe W. Babcock and another against James Heenan, James McCaren, and another, to enjoin the obstruction of a street or highway. From a decree for complainants defendants appeal.
    Affirmed.

      H. V. Babcock, for complainants.

      C. F. Gates for defendants.
   Bird, J.

Complainants seek by this proceeding to restrain defendants from interfering with their use of a strip of land 4 rods in width by 40 rods long, situate in the city of Sandusky, which they claim is a public street. The chancellor granted the relief prayed for, and defendants have appealed.

The case made by complainants in their bill is, in substance, that on January 1, 1904, complainant Babcock purchased from defendant McCaren a 14-acre tract in the village of Sandusky. That previous to the purchase thereof, and while defendant McCaren and his agents were endeavoring to make the sale to him, they exhibited to him a surveyed plat, which showed the 14-acre tract. The plat also showed another tract of similar size lying west of it, which had been subdivided. Through this latter tract the plat showed a 4-rod strip running from Elk street on the west to the 14-acre tract, which complainant afterwards purchased; that defendants pointed out this strip on the plat, and stated that the same was reserved for a public highway, and complainant Babcock shows that he would not have purchased the said 14-acre tract had he not been assured of the use of this street, as there was no other way of reaching the 14-acre tract without passing over the premises of other persons. He further shows that some time after he purchased the tract, defendant McCaren conveyed the said tract to Heenan, who owned land immediately adjoining on the south, and that said Heenan in 1913 closed said street and denied complainant Corbishley, the grantee of said Babcock, the right to use the same.

1. Defendants raise the question that neither complainant has any standing in court, because not proper parties. This contention arises out of the fact that when complainant Babcock purchased the tract, he had not reached his majority, and he elected to have the title placed in his mother, so that it would be more easily conveyed if he desired to sell it. The testimony shows without contradiction that he carried on the negotiations which resulted in its purchase, and after-wards its sale, and that his money was invested in it. Whether he would have had sufficient interest to maintain the suit had it been commenced while the title was still held by the mother, it is unnecessary to decide. Three months before suit he disposed of the premises by causing them to be transferred by his mother to Corbishley. This left him without any legal or equitable interest in the premises. The objection as to him as a party appears to be well taken. At the time the suit was commenced, Corbishley had both the legal and equitable title, and therefore was a proper party. Upon motion the proceedings might have been amended by striking out the name of Roscoe Babcock, as complainant. In view of this we will now consider that, as having been done, it not appearing that any harm resulted to defendants’ case by reason of his having been made a party.

2. The testimony convinces us that complainant Babcock purchased the 14-acre tract in reliance upon the representations of the defendants that the strip was a public street. Upon the question whether this strip was a public street the testimony was somewhat conflicting. The chancellor, after hearing the testimony, was impressed that it was. The surveyed plat was not of record, and it does not appear that there was ever a formal dedication of the land for a public street, although the public used it to some extent as a street, both before and after complainant purchased, and the city authorities treated it as such. The city placed a crosswalk at the end of the street at Elk street, and refrained from assessing it from 1904 to 1914. The testimony of the surveyor who surveyed the tract is rather convincing that it was the intention of the defendants at the time the survey was made to make a public street of it. And the testimony of some of the defendants shows that it was their intention to make a street of it prior to the time they sold the 14-acre tract to Babcock.

But it is argued that if defendants had intended to make a public street of it after they sold the 14-acre tract to'complainant, they had a right to change their intentions concerning it. If defendants sold the 14-acre tract to complainant on the strength of the existence of a street connecting it with Elk street, they would have no right to change their intentions, at least so far as it affected its use by complainant Babcock and his grantee. It is certain that the city understood that there had been a dedication or it would not-have refrained from assessing it. Neither would it have constructed the crosswalk at the end of it. If the defendants had changed their intentions about making it a public street, they ought to have advised the city of the fact when they saw it constructing the crosswalk. In Ruddiman v. Taylor, 95 Mich. 547 (55 N. W. 376), which involved a similar proposition, it was said that:

“It is well settled in this State that persons who have dedicated or platted lands and sold lots on streets cannot thereafter withdraw or change the use of such public streets to the detriment of their grantees, especially where the public have evinced an acceptance of the dedication by performing highway labor on such streets. Sinclair v. Comstock, Har. Ch. 404; Smith v. Lock, 18 Mich. 56; White v. Smith, 37 Mich. 291; Grand Rapids, etc., R. Co. v. Heisel, 47 Mich. 393 [11 N. W. 212].”

Upon a review of the whole record, we are inclined to agree with the conclusion reached by the chancellor that the strip of land in controversy is a public street.

3. The complainants in describing the strip in dispute misstated the “range.” The court permitted them to correct this by amendment on the hearing, and exception is taken thereto. The error was a technical one, and misled no one. The amendment was very properly allowed.

The decree of the trial court will be affirmed, but without costs to either party.

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


text:
    FOLEY v. DETROIT & MACKINAC RAILWAY CO.
    1. Carriers— Railroads — Evidence — Personal Injuries — Negligence — Boarding Train.
    Where plaintiff brought an action against defendant railway company for injuries sustained by him in attempting to board the train, after alighting at what he supposed was his destination, the evidence which was held in a previous opinion in the same cause to have presented a question of fact upon the issue of negligence, was, on the second trial, properly left to the jury: the first decision was rightly treated as the law of the case, at the retrial.
    2. Evidence — Materiality—Trial—Cross-Examination.
    The question asked of plaintiff, on cross-examination, whether any one depended on him for support, was not material and was properly excluded, since his damages were not in any way affected by his family requirements, or necessities.
    3. Same — Negligence—Proper Cross-Examination.
    After testifying that, from examination of plaintiff after the accident, he was of the opinion that he had been drinking, the physician, who was a witness for defendant, was rightly prevented from answering the interrogatory whether he had stated that the plaintiff had told him that he had been drinking, on objection to the form of the question, when counsel was not prevented from showing the extent to which plaintiff’s condition might have been due to the use of intoxicants.

      i. Damages — Charge — Railroads — Negligence ■— Carrier and Passenger.
    The trial court did not err in charging the jury, in a suit brought by a passenger who was injured in attempting to board defendant’s train, that it was the duty of the jury to allow plaintiff such sum as would compensate plaintiff for his injuries, limited or defined by a detailed statement of the different elements to be considered, and was not too broad or comprehensive.
    5. Railroads — Personal Injuries — Instructions.
    In a personal injury case against a carrier for negligence in failing to allow sufficient time for boarding a train, the court was not in error in charging that the jury might consider the interest of the witnesses of the parties, their bias, prejudices, etc., as it is always proper to consider the interest or bias that any witness might have.
    Error to Arenac; Sharpe, J.
    Submitted January 6, 1916.
    (Docket No. 55.)
    Decided September 27, 1916.
    Case by David E. Foley against the Detroit & Mackinac Railway Company for personal injuries. Judgment for plaintiff. Defendant' brings error.
    Affirmed.

      Henry, Henry & Henry (James McNamara, of counsel), for appellant.

      Defoe, Hall & Converse, for appellee.
   Bird, J.

Plaintiff is a resident of Toledo, Ohio. On the 8th day of July, 1912, he left Toledo to go to Turner, a village situate on defendant’s line. Either through his own or the defendant’s error, he alighted at Twining, a station three miles south of Turner. When he discoyered the error, he attempted to board the train again, and in so doing the train started while he was on the first step. He was carrying a suit case, and it became fast or fouled in the hand rails in such a way that he could get no further. In trying to extricate it he lost his balance, and fell from the train and was injured. Defendant was charged with negligence in failing to give him a reasonable time to reach a place of safety before starting the train. A judgment was awarded him by the jury, and defendant has assigned error.

For a more detailed statement of the case, see former opinion of this court, 179 Mich. 586 (146 N. W. 186).

1. Upon the former review of this case, it was contended that the plaintiff had failed to establish the negligence of the defendant, and that the trial court was in error in refusing to direct a verdict for the defendant. The question was discussed at some length in the opinion of Mr. Justice Steere, and it was held, in effect, that the testimony made the question of defendant’s negligence one of fact for the' jury. It is asserted by plaintiff’s counsel, and does not appear to be denied by opposing counsel, that the testimony on the material questions of the case was substantially the same on the second trial as on the first. If this be so, there is no occasion to reconsider the question of the defendant’s negligence as shown by this record. It is sufficient to say that we are still of the opinion that the trial court was in no error in considering the question as one of fact for the jury.

2. The plaintiff upon cross-examination was asked the following question:

“Q. Mr. Foley, at the present time is there any one dependent upon you for support?”

The question was excluded because not material. Counsel say in support of its materiality that:

“Whether a man worked or refrained from working, whether he earned a certain amount, or a less amount, might depend upon whether or not he was supporting a wife or children.”

The ruling was correct. If it were otherwise, the amount of damages recoverable in such cases would depend, in some measure, upon the injured man’s necessities.

Dr. Tupper, a witness for the defendant, testified on redirect examination that from his examination of the plaintiff after the accident he was of the opinion that he had been drinking prior to the day of the accident. The doctor was then asked:

“Q. And you also said that Mr. Foley told you he had been; is that true?”

Exception was taken to the form of the question, and it was excluded, and we think properly so. Counsel was not prevented from showing the extent to which the plaintiff’s condition might have been due to his indulgence in intoxicating liquors.

3. While instructing the jury on the question of damages, the trial court made use of the following language:

“If you will just bear that in mind. I cannot better express it than to say it is your duty, if you find for the plaintiff, to allow such sum as. will make him good; compensate him for the injury he has sustained.”

The specific objection to this part of the charge is that it was “too broad and comprehensive.” Following the language above quoted, the court proceeded to explain to the jury in detail what he meant by allowing the plaintiff such sum as would make him good. The following quotation will illustrate the way he explained it:

“Now, what he has been compelled to pay out for doctors, nursing, medicines, and hospital bills, you see, that is something that you must allow him to make good. Then whatever he has lost in services you must make good to him,” etc.

The court then enumerated the different elements which the jury were entitled to consider in reaching their conclusion on the question of damages. The charge on that phase of the case was a very clear statement of the law, and was without error.

4. The jury were further instructed that:

“A number of witnesses have been called, and you must consider all of the testimony submitted to you. Consider the interest of the witnesses, their bias or prejudices, and apply all of those little tests and earmarks which occur to you to determine what the truth of the matter is.”

In making their objection to this part of the charge, counsel say:

“This is an action by a laboring man against a railroad corporation. On the trial of this case the crew on the train in question were called as. witnesses. Some testimony was given bearing upon the relation of the witnesses to the defendant railway company. We feel that the court was not justified in the use of the language above quoted, and it is our position that nothing occurred throughout the trial'of this cause, to justify the court in his charge to the jury, in telling them to consider the interest of the witnesses, their bias or prejudices, and apply all of these little tests and earmarks.”

The charge was proper. The instruction applied to all of the witnesses sworn in the case. The interest or bias a witness may have is always a subject of inquiry (Geary v. People, 22 Mich. 220; Swift Electric Light Co. v. Grant, 90 Mich. 475 [51 N. W. 539]), and must be considered if the truth is to be arrived at. No reason is apparent why the application of the rule should not be made in testing the truthfulness of the testimony of railway employees as well as of other witnesses.

We are of the opinion that the assignments are not well taken. The judgment will be affirmed, with costs to the plaintiff.

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


text:
    DERING v. DETROIT UNITED RAILWAY.
    Adjournment — Witness—Absence—Grounds.
    Defendant’s case was originally set down for trial at a date named, and was thereafter called a day earlier upon less than 24 hours’ notification. After the selection of a jury, which took half a day, defendant’s attorney applied for an adjournment until the following morning to enable one of the chief witnesses for the defendant to be secured, who lived in another State, and who could not be present in time to testify unless the court should grant the adjournment. There was testimony tending to show a vigorous effort to get the witness. Held, that the right was improperly refused and the court should have granted the application.
    Error to Wayne; Mandell, J.
    Submitted January 4, 1916.
    (Docket No. 15.)
    Decided September 27, 1916.
    Case by August Dering against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

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

      Walter E. Martin and William Ellsworth, for appellee.
   Bird, J.

Plaintiff brought suit to recover compensation for injuries which he received at the intersection of Rowena and Hastings streets in the city of Detroit, while attempting to board one of defendant’s cars. His claim is that, when the car stopped at the usual stopping place, he took hold of the handle on the front end of the car, but before he could board the car it started and threw him down, and dragged him for a considerable distance. The trial resulted in a verdict for plaintiff of $400. Defendant assigns error on the refusal of the trial court to grant a brief adjournment of the case to enable it to produce as a witness the conductor of the car.

It appears that the case was set down for trial November 18, 1914. Late in the afternoon of November 16th, defendant’s counsel were notified that the case then on trial had been suspended to enable one of the counsel engaged therein to be in attendance upon this court in the city of Lansing, and that this case would be called on the morning of November 17th, a day sooner than was anticipated; that the examination of witnesses began on the morning of November 17th, and was finished soon after the midday recess, whereupon defendant’s counsel, Mr. Fitzpatrick, applied for an adjournment until morning, so that the conductor, Mr. Schaefer, could be used as a witness in defendant’s behalf, and in support thereof he showed that, sometime after the accident, the conductor of the car left defendant’s employment, and on the 16th it was learned that he had moved to East Palestine, in the State of Ohio, 225 miles distant from Detroit; that upon the forenoon of the 17th the defendant had gotten into communication with him by telephone and telegraph, and that he had answered he would leave his home that evening and arrive in Detroit the next, morning in season for court. Upon this showing the trial court refused to grant the adjournment. It was further shown by defendant upon the motion for rehearing that, at the time the case was taken up on the morning of the 17th, the trial court made inquiry as to how long it would take .to try the case, and defendant’s counsel replied that it would probably take a day and a half, and that plaintiff’s counsel were of the same opinion. Plaintiff’s counsel, however, do not recall this conversation. They filed affidavits in opposition to the application for a rehearing, in the trial court, but have filed no brief in opposition to a new trial in this court. The motion for a rehearing was denied. In denying the motion for a new trial, the court said:

‘‘First. The testimony now offered, being that of the witness Schaefer, is merely cumulative.
“Second. Nothing was stated to the court at the opening of the trial of the inability to proceed to trial, and the court did not know and had no means of knowing that Schaefer’s presence at the trial might not be secured, and in fact did not know that Schaefer was to be produced as a witness for the defendant. The case was brought on for trial in the regular way, although perhaps a day earlier than was expected, and I am of the opinion that if due diligence had been exercised the defendant would have been aware that the witness Schaefer had changed his residence, and at the time of the trial did not reside within the city of Detroit. It does not appear that any effort was made on the part of the defendant to obtain Schaefer’s attendance at the trial until after the trial had been begun.”

It appears to be conceded that the case was called a day earlier than it had been set down for, and that defendant’s counsel was not notified of the fact until late in the afternoon of November 16th. It further appears that on the 16th an effort was made by the defendant to locate the witness Schaefer, and that it did not get in touch with him until the forenoon of November 17th, after the trial was in progress. The forenoon of November 17th was exhausted in the ex-aminátion of witnesses, as well as a portion of the afternoon session. Counsel for defendant claims, and it does not appear to be disputed, that, had said adjournment been granted, it would not have involved a loss of to exceed an hour and a half of the court’s time. It is obvious from the testimony introduced that the conductor was an important witness, and that he was'beyond the jurisdiction of the court, and could not be forced to attend, but had promised to be present on the morning of the 18th, the day the case had theretofore been set down for trial, and within the time which counsel announced at the beginning it would take to try the case. We are of the opinion that the trial court should have granted this brief adjournment. We are not unmindful of the pressure of work in the Wayne circuit courts, and we recognize the fact that, in order to keep apace with the work, the time of the courts must be improved; but not infrequently the refusal of a request of this character is more apt to add to the work than to diminish it. We are of the opinion that the trial court did not give as much consideration as he should have done to the fact that the witness Schaefer could not be forced into court at the pleasure of counsel, and that, in dealing with witnesses outside of the jurisdiction of the court, their wishes in a measure must be respected. While the judgment is not largé, we are of the opinion that, under the conditions as they existed, the adjournment should have been granted.

The case will be reversed, with costs to defendant.

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