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    SYKES v. VILLAGE OF PORTLAND.
    1. Electricity — Municipal Corporations — Negligence.
    Plaintiff brought case against the village of Portland and the Citizens’ Telephone Company for injuries received by her in attempting to rescue her infant son, less than ten years of age, from contact with a live wire. Defendant village operated a plant for lighting used for municipal electrical service, both public and private. Plaintiff charged lack of support and insecure fastening of the telephone wire, and lack of proper guards or • insulation, and that the telephone wires during a storm sagged and came in contact with the heavily charged wires - of the village of Portland, and that one of the wires, which broke off, was allowed to hang down for a long time in a very dangerous condition on a public thoroughfare. Held, on a review of the testimony, that the questions of negligence and contributory negligence were for the jury, and ' the court properly declined to direct a verdict for either defendant.
    2. Same — Evidence—Expert and Opinion Testimony — Mode of Construction — Safety of Method or Position.
    The opinion of an expert on the subject that the distance between the wires was dangerous and the wires would not be safe unless placed about 40 inches apart was admissible over the objection that it involved the question for the jury to pass upon.
    3. Same — Changes After the Accident.
    Testimony that after the accident the telephone wires had been fixed so the two could not come together, offered to show that whatever marks appeared on the light wires were made before the injury and to show that the wires were not afterwards affected, held, to be proper for the indicated purpose and that it could not be excluded because it was incompetent for another purpose.
    4. Same — Expert Testimony — Trial.
    It was also permissible to show, by the testimony of experienced witnesses, that a person might get a shock sufficient to knock him down without burning him, amplified by .the cross-examination of another witness along similar lines.
    5. Same — Experience.
    It was, however, erroneous to receive evidence of an inexperienced electrical worker as to his individual experience under dissimilar conditions, since it tended to raise a collateral issue.
    6. Evidence — Medical Authorities — Witnesses.
    The trial court committed reversible error, on cross-examination of one of the medical experts of defendant, in permitting counsel, on interrogating the witness, to show what certain medical authorities claimed and that the question was differently answered by others, as the testimony tended to interject the opinions of persons who were not witnesses in opposition to the opinions of some of the witnesses of defendants, who were charged with negligently maintaining light wires.
    Error to Ionia; Davis, J.
    Submitted June 22, 1916.
    (Docket No. 102.)
    Decided September 26, 1916.
    Case by Mary A. Sykes against the village of Portland and the Citizens’ Telephone Company for personal injuries. Judgment for plaintiff. Defendants bring error.
    Reversed.

      T. E. BarJcworth and Richard Price, for appellant village of Portland.

      R. A. Hawley, for appellant telephone company.

      Ellis & Ellis and E. M. Davis, for appellee.
   Stone, C. J.

The plaintiff, a married woman, brings this action to recover damages against both defendants by reason of an injury which she claims she received on April 21, 1909, at the village of Portland by an electric shock which she received in trying to rescue her son, John Sykes, Jr., a boy between nine and ten years of age, from contact with a fallen village electric light wire which caused the boy’s death.

Since the trial of the instant case, a former case, involving damages under the death act (3 Comp. Laws, § 10427 [3 Comp. Laws 1915, § 14577]) for the death of the son, and arising out of the same general facts, has been determined by this court, namely, Sykes v. Village of Portland, 177 Mich. 290 (143 N. W. 326). While many of the questions involved in this record are different from those raised and determined in that case, yet a reference to that case will aid in an understanding of this case.

The defendant the village of Portland, in Ionia county, has since 1896 maintained and operated an electric lighting plant, which is used not only for municipal lighting, but also furnishes lights to the inhabitants who desire to buy the same from the village. Prior to 1902 it had erected its wires along Brush street, an east and west street in said village. Crossing Brush street at substantially right angles are Kearney and Grant streets, and midway between these two streets an alley runs north from Brush street. About 50 feet east of the east line of this alley the village had a pole from which electric light wires were extended from the lights on Brush street to a pole on the west side of the alley, about 79 feet north of the north line of Brush street. This latter pole contained a transformer, or step-down, which lessened the current for use at two houses situated on Grant street respectively northwest and southwest from the transformer. These conditions existed when, in 1902, the Citizens’ Telephone Company (the other defendant herein) was granted a franchise by the village of Portland to erect its poles and maintain them with necessary wires, etc., for an electric telephone system. Subsequently the said telephone company erected poles on the streets and alleys of Portland, including a line running north and south on the alley in question, also a line running diagonally across Brush street, and to a point in the alley about 62 feet north of the north line of Brush street. The relative situation of the poles and wires at the time of the accident which formed the basis of this action is shown by the diagram appearing in the opinion in the case in 177 Mich., above referred to.

On the 21st day of April, 1909, plaintiffs said son was passing along Brush street, and in some manner came in contact with the fallen village electric light wire which ordinarily passed from the pole about 50 feet east of the alley on Brush street to the transformer pole on the west side of the alley. As a result of this contact the boy was killed. The immediate cause of the condition of the wire is stated in the declaration in the instant case as follows:

“That afterward, to wit, on the 21st day of April, 1909, while said poles of the Citizens’ Telephone Company were so insecurely fastened, and were without support, or guy wires or otherwise, and when its uninsulated wires were sagging and in close proximity to the highly charged, poorly insulated electrical wires of the village of Portland, and when no guards of any kind had been provided by either of the said defendants to keep said wires from coming in contact with each other, and when the said wires of the village of Portland so uninsulated and heavily charged with electricity were running diagonally across said alley west of the property owned by the said Flowers in the village of Portland, close to and underneath the wires of the Citizens’ Telephone Company, and while a strong wind was blowing, causing the said corner pole of the said Citizens’ Telephone Company to sway, and its wires to sag and strike said heavily charged electrical wires of the village of Portland, where its wires were uninsulated, and where they crossed said alley between Kearney and Grant streets, at a point north of Brush street,_ and by reason of said contact, or weakness of the said heavily charged electrical wires of the village of Portland, caused by previous contact with the said Citizens’ Telephone Company’s wires, one of said heavily charged wires of the village of Portland burnt off or broke off, and fell to the ground, and by reason of such falling hung from the aforesaid pole of the village of Portland standing on Brush street, to which one end of said wire was joined to the pole, and the free broken end extended across a portion of the ground, the part of the street used as a sidewalk, and across the path of pedestrians who walked along the north side of Brush street, and said wire hung then and there for a long time from said pole charged in a dangerous and unsafe manner, to wit, charged with 2,000 volts.”

No one saw the boy at the time he came in contact with the wire. When found he was in a little path about six feet from the electric light pole on Brush street, from whence the wires led to the transformer pole. There was no sidewalk on the street at that point, but a worn foot path where people passed between the pole and the lot line. The accident occurred about 4 o’clock in the afternoon. The averments of the declaration as to the immediate circumstances attending the injury, the conduct of the plaintiff, and the consequences following, are set forth as follows:

“That when the said John Sykes, Jr., came in contact with the said wire, he fell to the ground upon his back, with said wire lying across his hand, his feet resting in the path, or sidewalk so called, and his head and body extending to the southwest, and while he was in this position, the plaintiff in this case, who is the mother of the said John Sykes, Jr., was notified that her son was lying on the ground and burning up; that at that time she was at her home, which was from six to eight rods from the place where the boy lay; that she ran from the house in great haste and excitement, and discovered him lying, as above indicated, on his back on the north side of Brush street in the village of Portland; that she feared for his life ; that while he was so lying on his back, his eyes and mouth moving, a fire was apparently burning in his hand, and he was apparently alive, and she thought the boy was still alive, and that he was unable to get up; that she believed that she could save the boy’s life; that she then and there grabbed him, asked him to get up, and tried to pull Mm away from the position he was then in; that she did not then know or appreciate that it was dangerous or unsafe to touch his body, and did not appreciate his real condition; that when the- plaintiff came in contact with the electrically charged body of her son, by seizing Mm with her hands, she received a powerful shock, so that she was knocked to the ground with great force, and fell backwards, dragging the boy with her; that just what plaintiff then did she does not know, for, by reason of the shock and fall, she did not recover her senses for, to wit, three days, and she has no recollection of the boy’s fun'eral or burial; that plaintiff in some manner got the body of her son, the said John Sykes, Jr., away from the contact with the said wire, and that in so doing she was so shocked and injured that she has never recovered therefrom; that by reason of the shock and fall she so received, which she alleges was occasioned by the carelessness and negligence of the defendants as set forth in this declaration, and without fault on her part, she was permanently injured in her spine, chest, right arm, right limb, stomach, lungs, and bowels, and that her right arm has been useless, and she has been growing worse from the time of said shock to the present time, all of which was occasioned by the carelessness and negligence of the said defendants, and while she was attempting to save the life of her son, so occasioned by the negligence as aforesaid; that the plaintiff has lost her health and suffered great pain, and become, by reason of the electric shock and fall occasioned thereby at the time aforesaid, a permanent cripple, and will for the balance of her life have to be, and will remain a cripple and an invalid, without any enjoyment of her life; that before the time of the death of the said John Sykes, Jr., above set forth, and the injury to herself, as stated herein, this plaintiff was a strong and healthy woman, and had not súffered from any complaint or weakness, except that during her life, since puberty, occasionally at the season of her monthly periods, she would have what was called rush of blood to the head, which would occasionally cause dizziness or fainting, but she would immediately on commencing to flow be all right and able to discharge all her duties and exercise all the functions of her body and mind; that this trouble was not constant and never occurred during pregnancy, or while she was nursing children, and it never caused her more than temporary inconvenience, and that at the time of the injury complained of in this case, and for more than a year prior thereto, the plaintiff had no weakness, except what was occasioned by her age, which was then about 44 years, and being then passing through what is called a ‘change of life’; that she had always been able to perform housework and other manual labor, and was a strong, healthy woman, and had no ailments, except the ailments above referred to, which she reasonably expected would, in time, pass away and leave her, as she always had been, a strong, able-bodied woman in good health, strong limbs, upright carriage, and possessed of all her powers, except as herein stated.”

Upon the issue framed on this declaration there was a great volume of testimony upon the trial, the case presenting a printed record of more than 650 pages. There was a sharp conflict in the evidence, and nearly every claim made by the plaintiff was strenuously controverted by the defendants, not only upon the facts, but also upon the expert testimony of which there was a great volume. The case was submitted to a jury in a lengthy charge, and the trial resulted in a verdict and judgment for the plaintiff against both defendants in the sum of $6,000 damages.

There was no motion for a new trial, but the case is here upon writ of error on behalf of both defendants who have assigned, severally, many errors. The case was presented to this court upon briefs. On behalf of the defendant Citizens’ Telephone Company it was said that the several questions raised by the assignments of error naturally arrange themselves in groups as follows:

(1) Expert testimony as to safety of defendant’s wires.

(2) Subsequent change of wires in alley.

.(3) Opinion evidence as to effect of electric shock.

(4) Cross-examination as to contents of medical works.

' (5) Permitting Dr. Allen to rebut diagnosis of defendant’s physicians.

(6) Impertinent cross-examination by plaintiff’s counsel.

(7) Admission in evidence of Exhibit 14.

(8) Should the court have directed a verdict for the telephone company?

(9) Court’s charge as to separate liabilities of telephone company.

(10) Nature of plaintiff’s ailment.

(11) Duty of defendants.

(12) Plaintiff’s contributory negligence.

(13) Charge of court as to plaintiff’s previous condition of health.

(14) Measure of damages.

We will consider the questions in the order stated.

1. Expert testimony as to safety of defendant’s wires.

Upon the trial plaintiff’s witness Hicks was asked the following questions by plaintiff’s counsel, and made the following answers:

“Q. Assuming what I have stated concerning the position of these wires, and that they run as indicated as to the distance apart they are, where they cross in the alley, and that they ran as stated or shown on the map or model there, what can you say whether or not that is a safe construction?
“Mr. Hawley: Object to it as incompetent for the reason already stated.
“Q. Is it reasonably safe construction?
“A. No, sir.
“Mr. Hawley: Take exception.
“A. Yes sir. I would say it is not reasonably safe.
“Q. What is the matter with it? Tell the jury.
“A. I understand these are the high tension wires or the primary wires running to the transformer from No. 3 to transformer pole No. 1, carrying the wires 8 to 14 inches of the telephone wires, which is not considered a safe distance. We have never considered it safe to put them that close. This pole No. 2 is not guyed¿ so it would have a tendency to pull over from the wind blowing this long spans here. The wires carried from No. 2 to No. 8 is a long spans, and from No. 2 to No. 6 is a long spans, too heavy a spans for this pole to support without guys. I would not consider it properly constructed.
“Q. What change could be made to make it safe?
“Mr. Hawley: Object to it as incompetent and immaterial. * * *
“Mr. Ellis: The question is, What changes necessarily would have to be made to make it safe?
“The Court: He may answer. (Exception.)”

The witness was also permitted to answer the following question over objection and exception:

“Q. Is there any other way that could have been arranged to make it less hazardous than with what is now or was at the time of this accident?”

After the witness had testified that they always figured on keeping electric light wires charged at 2,000 volts placed about 40 inches from the telephone wires, plaintiff’s counsel asked him, and he was permitted to answer the following question over defendant’s objection and exception:

“Q. Would any nearer location than that be safe?”

The answer was: “No.”

It is urged by said defendant that one of the questions which should have been eventually submitted to the jury as a question of fact for its determination was this very question, and that this was a question for the jury to answer, according to their own judgment and without being controlled or influenced in that, respect by the judgment of any expert or nonexpert witness, and the following cases are cited: Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842); Kelley v. Railroad Co., 80 Mich. 237 (45 N. W. 90, 20 Am. St. Rep. 514); Girard v. City of Kalamazoo, 92 Mich. 610 (52 N. W. 1021); Kraatz v. Light Co., 82 Mich. 457 (46 N. W. 787); People v. Plank Road Co., 125 Mich. 366 (84 N. W. 290); Lindley v. City of Detroit, 131 Mich. 8 (90 N. W. 665).

We think that an examination of the above-cited cases will show that they are readily distinguished from the instant case. The witness was an expert, and was called and testified as such.

In N. & M. Friedman Co. v. Assurance Co., 133 Mich. 212 (94 N. W. 757), a hypothetical question detailing the method adopted to remodel and improve the interior of a building, and asking if witness thought such construction safe, was held not objectionable as not a proper subject for expert testimony. In that case one ground of the objection was that it was the very question which the jury was to pass upon in the case.

In Transportation Line v. Hope, 95 U. S. 297, it was said, concerning a transportation agent:

“The witness ■ was an expert, and was called and testified as such. His knowledge and experience fairly entitled him to that position. It is permitted to ask questions of a witness of this class which cannot be put to ordinary witnesses. It is not an objection, as is assumed, that he was asked a question involving the point to be decided by the jury. As an expert, he could properly aid the jury by such evidence, although it would not be competent to be given by an ordinary witness. It is upon subjects, on which the jury are not as well able to judge for themselves as is the witness than an expert as such is expected to testify.”

In 2 Joyce on Electric Law, § 1057, it is said:

“But the mere fact that the opinion of an expert may be upon a question which the jury is to decide is not sufficient to exclude the testimony, unless the question is such that the jury would be competent to decide it after having become acquainted with the facts as they existed at the time of the transaction, and the history of the subject to which the question relates.”

See, also, Id. § 1059; Nelson v. Lighting & Water Co., 75 Conn. 548 (54 Atl. 303).

Most of the cases cited by appellant telephone company relate to highways in which nonexpert witnesses were involved.

An examination of Kraatz v. Light Co., supra, will show that hypothetical questions directed to the effect of certain conditions of electric light wires as to the transfer of electricity, are proper.

In Sykes v. Village of Portland, supra, in which case a judgment for the plaintiff was affirmed, experts were permitted to testify that a proximity of 14 inches was dangerous proximity.

We are of the opinion that the court did not err in admitting this evidence.

2. Subsequent change of wires in alley. 4

The testimony showed that on the day in question, and after the accident, employees of the village installed a new wire from pole 1 to pole 3 in place of the broken electric light wire, and that a bracket was nailed or fastened upon telephone pole 2, and that the electric light wires were fastened to it in such a way that they could not come into contact with the telephone wires, or with each other. This testimony was elicited by the following questions asked by plaintiff’s counsel of the witness Hale:

“Q. What can you say, witness, as to whether it has been possible for those wires to get together since the day of that accident?
“Mr. Price: What wires?
“Q. The Citizens’ Telephone Company’s wires and the electric light wires where they cross the alley?
“Mr. Price: Object to it as immaterial and improper, whether it is possible for them to get together since.
“The Court: How is that competent?
“Mr. Ellis: I shall introduce the wires that were taken off from there by the village last spring, and offer to show that the wire had been in contact many times with the Citizens’ Telephone Company’s wires. I want to show by this evidence they fixed it that day of the accident in the afternoon, right then and there, they made such a change that it would be impossible after that time for these wires to get together; simply to show that whatever mark was on the electric light wires was made before that time. I do not claim anything about the change; just the same as though I wanted to show for the same purpose, if I had shown by him, he took down that wire that day, and kept it ever since, and therefore there had been no change. The purpose is to show the wire, so far as any wires came in contact with the top of it, was done before that time, and not since.
“The Court: He may answer the question.
“Mr. Price: Exception, and I want to add to my objection the further objection that the witness was not in a position to testify.”

The witness then testified to the fastening to bracket. It is urged that the effect of this testimony was to show changes after the accident. We think that the object of this testimony was plainly stated by plaintiff’s counsel, and that it was competent for that purpose. We have held that testimony competent for one purpose cannot be excluded because it is incompetent for another purpose. People v. Doyle, 21 Mich. 221; McKenzie v. Vandecar, 105 Mich. 232 (62 N. W. 1031).

We do not think there was any error in this ruling.

3. Opinion evidence as to effect of electric shock.

It is the claim of the defendants that the testimony showed that there were no indications upon the hands or body of the plaintiff, after the accident, of any contact with an electric wire, or any visible marks of an electric shock, and that, in order to weaken the effect of such condition, plaintiffs counsel, after stating certain alleged facts as to the conditions at the time of the accident, asked the following question of the witness Lamb:

“Q. What I want to know whether a woman taking her where she stopped there — she is reaching for his collar next his face — whether she could have pulled him loose from that wire, he lying on the ground in this position, and she runs and grabs him, without burning her hands?”

This was objected to because the question stated pathological conditions that this witness was not competent to answer. This witness was being examined as an expert electrician. The question was finally changed to the following:

“Q. How heavy a shock can you get into the body without having anything show on the outside of the body?
“Mr. Hawley: I don’t know as he is an expert on that matter, and object to it as incompetent. * * *
“A. I should say he could get quite a shock — a very unpleasant one. (Exception.)
“Q. Do you know whether a person could get a shock enough to knock him down without being burned?
“A. Yes, sir; I do know it from actual experience that they could.”

This last answer was not excepted to.

Another witness, a Mr. Hicks, also testified as an expert in a similar way, but gave no actual experience.

Later, while Mr. Lamb was on the stand, said defendant’s counsel moved to strike out the testimony of both witnesses, as to their judgment whether or not plaintiff would get a shock in attempting to remove the boy from the wire. This motion was denied, and an exception taken. It will be noted that the motion to strike out the testimony of the witness Lamb was not limited to that relating to his own experience.

Later, and in rebuttal, a witness James Bogardus, a common laborer, was produced by the plaintiff and allowed to testify that he received an electrical shock at one time, and was permitted to testify further as follows:

“Q. Connected with what was it, what kind of a light?
“Mr. Hawley: Object to it as immaterial and not rebuttal.
Mr. Ellis: It is claimed that electricity will not affect; if it does, it wears right off at once. I offer to show by this man he was struck by electricity over a year ago, and he- feels the effects of it yet; that is what I offer to show.
“Mr. Hawley: I object to it as incompetent.
“Mr. Price: Part of their main case.
“Mr. Ellis: Meets the proposition they make that unless you get enough to kill it will not have any effect.
“Mr. Hawley: This man is not an expert; it is incompetent.
“Mr. Ellis: I don’t claim he is an expert; he is giving his own experience. * * *
“The Court: Dr. Knapp’s testimony you want to meet?
“Mr. Ellis: Yes, sir.
“The Court: He gave his theory and belief in the matter based upon what he had read and seen. * * * He may answer. * * *
“A. Common incandescent light 16 candle power.
“The Court: It strikes me as to the other question about whether a man would receive a shock, any man would be pretty well aware whether they were shocked, as well as were injured in any other way. I think it would be competent to show that. As to the subsequent effects, there might be some question. Its immediate effect may be shown.”

Over the objection that it was incompetent, the witness was permitted to answer as to the immediate effect, to which defendants’ counsel excepted. The witness answered as follows:

“A. They were working at the schoolhouse fixing a chimney. I went in there in the morning. There was no light on. I says, T should think you could see better if you could move the light on.’ I reached up and turned the light on. It was dark, I couldn’t see it, and the brass around the socket was charged, so the minute I touched it my hand grasped right around it, I couldn’t let loose of it, and I fell right back on a stove that was there, and I hollered to get loose from that, and Dummy Cole grabbed the bulb and pulled it out. I couldn’t get up. The men that were there picked me up and carried me to the basement door and sat me into a chair there. After I got done trembling and gained my strength a little I got up and went home. I couldn’t use my arm that day at all. I went back and locked up the house. Gradually, after a few days kept working off, and I went on and done my work.”

There was a motion to have the whole statement stricken out as immaterial and incompetent, which was refused, and an exception taken. The court remarked :

“I think as to its, immediate effects he has given it may remain. * * *
“A Juror: Do we understand that the man grabbed hold of a globe, and couldn’t let go of it?
“A. I couldn’t let go, my hand here grasped; electricity will shut your hand as tight as can be, and you «an’t let loose of it.
, “A Juror: I have taken hold of them things.
“A. I stood in water for one reason, some bad wiring.
“Q. The juryman wants to know whether you got hold of the glass, or what?
“A. I got hold of the brass right above in here, shut my hand over it, and I couldn’t let go. I was standing where they had mixed mortar. It was wet; that brass was charged. Once before when I had reached in that way I had felt a little twinge in one of my fingers, but that time I got it, and it knocked me down quicker than blazes.”

We do not think it was error to refuse to strike out the opinion evidence of the witnesses Lamb and Hicks, and the motion was not directed to the actual experience of the witness Lamb, much of which had been drawn out by defendants’ cross-examination. We do think, however, the case, being a close one, that it was prejudicial error to receive the testimony of the witness Bogardus as to his individual experience under other and different conditions. It raised a collateral issue. It is urged by plaintiff’s counsel that an expert may be contradicted otherwise.than by the testimony of other experts, and the cases of Reeve v. Dennett, 145 Mass. 23 (11 N. E. 938), and Commonwealth v. Leach, 156 Mass. 99 (30 N. E. 163), are cited in support of the position. An examination of those cases will show that they are readily distinguished. In the last-cited case the court said by way of illustration:

“If, for example, expert witnesses were to testify that it would be impossible to propel a vessel by steam across the Atlantic Ocean, * * * it would not be necessary in reply to call.other experts to give opinions to the contrary. The direct facts might be testified to by any person who knew them.”

Here there was no such general question in dispute. The question was as to the effect under similar circumstances and conditions as shown in the instant case.

4. Cross-examination as to contents of medical works.

Plaintiff’s counsel on cross-examination asked Dr. Riley the following question:

“Q. Isn’t it a fact that authorities, in just such cases as that, have not yet determined whether there is molecular change or not?
“Mr. Hawley: Object to it as incompetent.
“The Court: He may state.
“Mr. Hawley: Take an exception.
“A.' I think the man you are referring to there says that it is not known whether they are molecularly changed or not.”

This witness' had already testified that, in his judgment, the plaintiff was not suffering from any organic disease or injury to the nerves or nerve centers.

In his testimony Dr. Dewey, another of defendants’ witnesses, was equally emphatic in asserting that, when nerves are affected by a shock, it does not cause any organic or any molecular change in them, and that he knew it from observation and reading. After drawing out this fact on cross-examination the follow-; ing question was asked by plaintiffs counsel:

“Q. It is a medical fact, or laid down as a fact, that an animal that is killed by electricity, there is a change in the condition of the nerves, a molecular change or a pathological change?
“Mr. Hawley: Object to it as incompetent.
“The Court: He may answer.
“Mr. Hawley: Take an exception.
“A. No, sir; I never heard of such a thing.”

Thereupon plaintiff’s counsel in the same connection asked:

“Q. Now, doctor, do you mean it isn’t in the medical works, that doctrine advanced and sustained by authority, there can be a molecular change by electricity in the nerve?
“Mr. Hawley: Object to it as incompetent.
“The Court: He may state.
“Mr. Hawley: Take an exception.
“A. I know it is claimed, and I know the opposite is claimed by medical men. The question is an undecided one; therefore there has been no evidence to prove it.”

It is claimed by appellants that the purpose of the above cross-examination was to import into the case the theory of some author to rebut or refute the testimony of these witnesses, and that the effect was to practically destroy their testimony, and the following cases are cited: Marshall v. Brown, 50 Mich. 148 (15 N. W. 55); People v. Millard, 53 Mich. 63, 75, 77 (18 N. W. 562, 567). To which may be added People v. Hall, 48 Mich. 482 (12 N. W. 665, 42 Am. Rep. 477); People v. Vanderhoof, 71 Mich. 158 (39 N. W. 28); Fox v. White Lead & Color Works, 84 Mich. 676 (48 N. W. 203).

In People v. Millard, supra, this court said:

“Another source of error quite as mischievous, * * * was the introduction of what is no more than hearsay evidence, in the shape of references to writers and books in such a way as to invoke their authority. As we have had occasion on more than one record to explain heretofore, expert evidence is only admissible on the theory that the jury cannot be supposed to comprehend the significance of facts shown by other testimony which needs scientific or peculiar explanation by those who do comprehend it. But this does not permit hearsay testimony of the written or spoken opinions of other persons, whom the jury have no means of examining as to their learning, their honesty, or their sources of special knowledge.”

In Marshall v. Brown, supra, the question arose upon the cross-examination of the witness, as here. We are of the opinion that the refusal of the court to sustain the objections of defendants’ counsel to these questions constituted reversible error.

5. Was there error in permitting Dr. Allen to rebut the diagnosis of defendants’ physicians? We think not. See Laughlin v. Railway Co., 62 Mich. 220, 227 (28 N. W. 873).

6. We have examined the other assignments of error relating to the admission of evidence, and are of the opinion that there was no error in the rulings, except that Dr. Riley should have been permitted to answer the following question:

“What is the fact, doctor, with hysterical patients. as to whether or not there is an element of deception and simulation mixed up with their ailments, either always or some of the time — whether characteristic with hysterical people?”

Neither do we think there was error in the refusal of the court to direct a verdict for either defendant.

We think that the charge of the court as to the duty of the defendants was well within the ruling of this court in Sykes v. Village of Portland, supra.

We think that the question of contributory negligence was one of fact, and was properly submitted to the jury. It cannot be said, in the light of the evidence, that the attempt of the plaintiff to rescue the son was so rash as to entail certain injury to her.

The charge of the court is complained of by appellants in many respects, and, among other things, that it was too general in its language. For instance, the court said, “It is for you to say whether the village was negligent, and in what way”; and it is urged that this was without limitation or qualification of any kind as to the necessity of finding that the negligence, if there was any, must be in some particular specified in the declaration, and supported by evidence at the trial.

A reference, however, to other parts of the charge shows that the attention of the jury was called to the declaration, and the negligence there alleged, and the necessity of evidence to support it.

It is also urged that in the charge the measure of damages was not properly limited, and that it was broad enough to enable plaintiff to recover for loss of earnings and earning capacity, although she was a married woman. No requests to charge upon that subject were proffered, and, while the charge was very general, yet as the error complained of would only affect the amount of the verdict, and, as the case must go back for a new trial, it is sufficient to say that upon another trial the charge should be more specific and guarded upon the subject.

We have examined all of the assignments of error which have been argued, and find no other reversible error; but for the errors which we have pointed out and which affected both defendants we feel constrained to reverse the judgment, and grant a new trial, with costs to appellants.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


source: Caselaw Access Project

author: Stone, C. J.

license: Public Domain

text:
    KING v. VAN SLACK.
    1. Carriers — Contracts—Payment of Freight by Consignee.
    It was lawful for a carrier to agree with the shipper, at the time of receiving the goods, that the carrier would collect the freight from the consignee.
    2. Same — Bill of Lading — Owner of Goods.
    Upon shipment of goods through a carrier to a third party, and a delivery to the shipper of the hill of lading, the consignee is prima facie the owner of the property.
    S. Same — Action for Freight Charges — Liability of Shipper.
    Where defendants shipped goods under an agreement with the carrier and the consignee that the freight charges should he paid by the consignee, and the goods were delivered and the charges demanded collected, the consignee, and not the shippers, became liable for the difference between the amount demanded and the true legal rate.
    Error to Gratiot; Searl, J.
    Submitted June 21, 1916.
    (Docket No. 44.)
    Decided September 26, 1916.
    Assumpsit by Frank W. Blair, Dudley E. Waters, and Samuel M. Felton, receivers of the Pere Marquette Railroad Company, against C. E. Van Slack and others for freight charges. Paul H. King was by stipulation substituted as plaintiff for Mr. Felton, and when Mr. Blair resigned his name was dropped, leaving as plaintiffs Paul H. King and Dudley E. Waters. Judgment for defendants on a verdict directed by the court. Plaintiffs bring error.
    Affirmed.

      Parker, Shields & Brown (Seward L. Merriam, John C. Bills and J. T. Matthews, of counsel), for appellants.

      Fred J. Northway (Edwin H. Lyon, of counsel), for appellees.
   Stone, C. J.

This is a suit in assumpsit to recover the balance of freight charges on shipments of butter made by defendants from Breckenridge, Mich., a point on the Pere Marquette Railroad, to New York, Boston, and other eastern points, all outside the State of Michigan. The bill of particulars covers- a period from about May 1,1909, to about September 1,1913.

On the trial it appeared that for some time prior to May 1,1909, to December 31,1910, the Breckenridge Creamery Company was a partnership composed of all the defendants; that on December 31, 1910, defendant Obert severed his connection with' the company, from which time until October 15, 1913, defendants Eldridge and Van Slack continued the business as partners. * The plaintiffs therefore elected to proceed against all of the defendants for the period covered by the bill of particulars up to December 31,1910. Plaintiffs claim for balance of correct amount of freight charges according to the lawfully filed and published tariffs in effect at the time, $345.85.

The suit was started in the name of Frank W. Blair, Dudley E. Waters, and Samuel M. Felton, receivers, but subsequently Mr. Blair and Mr. Felton both resigned, and Mr. Paul H. King was appointed as receiver in place of Mr. Felton. No appointment was made to fill the place made vacant by the resignation of Mr. Blair. By stipulation duly filed Mr. King was substituted as plaintiff for Mr. Felton, and when Mr. Blair resigned his name was dropped as one of the parties, leaving as plaintiffs Paul H. King and Dudley E. Waters, as receivers.

The shipments were made by defendants upon ordinary straight bills of láding (a sample of which is attached to the record), about 75 per cent, of which were prepared and signed by the defendants at their office, and presented to the carrier’s agent; the balance being made out at the station. Defendants, in making the sales of the butter covered by the shipments in the bill of particulhrs, invariably made arrangements to sell their output in advance of the time .when they made shipments.

By the terms of their agreements with the consignees, defendants were to deliver the butter to the carrier (plaintiffs) at Breckenridge, and the consignees were to pay the freight at destination, upon the various shipments. All shipments of butter made by defendants during the time covered by the bill of particulars to the various consignees named therein were made in pursuance of and according to those arrangements. On each package of butter covered by the bill of particulars there was marked the net weight of the butter and the tare, making up the total gross weight of shipment. Defendant Fred L. Eldridge had charge of that part of the business, and had personal knowledge of the making of each and all of the shipments referred to in the bill of particulars. He was called under the statute for cross-examination, by the plaintiffs, and testified, without contradiction, as follows:

“For a time I billed all of the 60 pound tubs, so called, at 60 pounds. Then Mr. Fea (plaintiffs’ agent) instructed me to bill them at 72 pounds. I do not know when this was. I am unable to state whether or not that was after the time we began to use the larger tubs that I have spoken of. I weighed, or knew of the weighing of each of these tubs or other packages of butter shipped, and covered by the bill of particulars in this case, and that the exact and substantially precise weight of each package, both as to net weight of the butter, and the weight of the package itself, was placed upon the outside of the package. I am not able to say now what the exact weight of any one shipment was. During all the time that the railroad company had the shipment in its possession as a carrier it had that means of information before it, to determine the exact weight, from reference to the tubs. It made not a penny’s difference to me whether the tubs were billed at 60 or 73 pounds. I simply billed them as directed by Mr. Fea, the local agent of the Pere Marquette Railroad Company.
“Q. And did you at any time during the time of the shipments covered by this bill of particulars either look yourself at any ruling or regulation of the Interstate Commerce Commission, or were you otherwise informed that the requirements of the Interstate Commerce Commission were otherwise than you were directed by Mr. Fea to bill the goods?
“Plaintiffs’ Counsel: I object to that as immaterial. He may have been informed as to the rulings of the Interstate Commerce Commission.
“Defendants’ Counsel: It is a negative, that he had no information on that subject.
“The Court: Do you think it is important here to show that — they propose to show that he didn’t enter into any agreement to rebate.
“Defendants’ Counsel: I propose to show his good faith.
“Plaintiffs’ Counsel: He wants to get out from under that. It is irrelevant and incompetent in this case.
“The Court: You claim he is liable whether he entered into the agreement or not?
“Plaintiffs’ Counsel: Certainly; whether he knew or not. We are not trying Mr. Eldridge on an indictment for underbilling. We are seeking to collect freight charges, and his knowledge or lack of knowledge cuts no figure under the issues in this case. * * *
“The Court: I think the testimony is competent. (Exception by plaintiffs’ counsel.) * * *
“A. I was not.
“Q. And whether or not in making these shipments at 60 pounds for 60 pound tubs, and the other weights that you shipped them at, whether or not you acted in good faith?
“A. I did.”

•C. W. Fea was the local agent of plaintiffs at Breckenridge at the time of the commencement of these shipments, and remained such agent, and in charge of its office there, during the time of all the shipments involved in the ease. At the commencement of the shipments Mr. Eldridge called the attention of said agent of plaintiffs to the fact that the net weight and the tare, showing the gross weight, were marked on each one of the packages, and Mr. Eldridge also asked him to weigh the butter, in case any question arose as to his stating the total weight of the shipments upon the packages, to which the agent replied that he had no time to do anything of that sort. Fea instructed Eldridge, prior to the first shipment mentioned in the bill of particulars, to bill the tubs of butter at 60 pounds per tub, and Eldridge followed his directions, and the same was true of the small tubs, packages, and boxes. Defendants did not pay freight in advance upon any of those shipments, and were never asked to pay in advance.

Upon the subject of the agreement with the plaintiffs to ship the butter subject to freight charges, Mr. Eldridge testified as follows:

“Q. About the time you began making shipments to the East did you have a talk with Mr. Fea, the local agent, in reference to the shipments, and payment of freight and so forth?
“A. Yes, sir; that was the first day we were in business. * * *
“Plaintiffs’ Counsel: I object to that as immaterial and irrelevant, and for the further reason that no authority on the part of the agent has been shown, and as matter of fact he didn’t possess any authority to bind the defendant.
“The Court: I don’t think it is irrelevant, and it is material, unless you are right upon your proposition of law that, no matter what bargain they made, they could not change the law. *
_ “Plaintiffs’ Counsel: That is the basis of my objection so far as the materiality and relevancy is concerned.
“Defendants’ Counsel: If that arrangement is not forbidden by the interstate commerce act, and I say that it not from an examination of the act and the amendments, that the railroad company carrying under that arrangement cannot accept part of the contract which makes in its favor, and seek to get rid of the rest.
“The Court: So far as the authority of the agent is concerned, if he was there in charge of the office, it would be presumed that, he had the right to make arrangements to ship goods, within the law at least. He may answer the question. * * *
“Defendants’ Counsel: I propose to show such facts and circumstances as will show that the arrangement and agreement was that the company was not to look to the consignor, the Breckenridge Creamery Company, but to the consignees, or to their lien upon the freight for the freight; and that agreement is not in violation of the interstate commerce act.
“The Court: He may answer. (Exception.) * * *
“A. I said to him that we had a shipment of butter, and we wished to ship it, collect, charges to be paid at the other end, and asked him if it was all right, and he replied that it was.
“Q. Was it shipped that way?
“A. It was.
“Q. And did he ever notify you to the contrary in any shipments after that?
“A. He did not.
“Q. Was there any other or different arrangement made between you and the company or the agent of the company at Breckenridge in reference to these shipments, except that they were to be shipped, and the freight collected at the other end?
“A. There was not.”

This evidence was uncontradicted.

All of the shipments in question were made f. o. b. Breckenridge, and defendants then made draft on the consignee for 60 per cent, of the selling price, and received the remainder from the consignee when the shipments reached their destination. The Pere Marquette Railroad Company did not reach the destination of any of the shipments in question with its own lines, but delivered them to the next connecting line at Suspension Bridge, N. Y. Upon issuing the bills of lading referred to, plaintiffs would make out a waybill, and send this forward with the goods, first turning it over to the conductor who picked up the goods, and it being turned over with the goods to the connecting carrier. Plaintiffs did not offer any evidence showing the weights of the shipments in question, either as to the weights of the butter or the weights of the tubs, and on that question the following occurred on the' trial:

“The Court: * * * You haven’t shown yet that a dozen people didn’t weigh these tubs. The law presumes that they were weighed. Does the railroad company take the weight of the shipper, under the interstate commerce law?
“Plaintiffs’ Counsel: They have the right to weigh them, or they can take the weight of the shipper, or they can guess at the weight. They are not bound to weigh them, and there is no presumption that they did weigh them, and, as a matter of fact, in this case they were not weighed.”

Defendant Eldridge testified, without contradiction, that defendants’ books showed the actual weight of the butter, but that there was no way, then, to tell from their books or invoices the total weight of the butter and packages; that defendants did not keep any record of the actual gross weight of the butter and tubs, and that the butter itself weighed from 60 to 62 pounds, and the packages from 8 to 12 pounds; that unsalted butter is lighter than salted butter, and that -he could not tell which kind predominated in the shipments, although “as one big guess” he “should imagine about half and half,” and that the salted butter would go from 60 to possibly 61 or 63 pounds, and that the salted butter tubs would run from 10 to Hl/2, and occasionally one up to 12 pounds, while the unsalted or sweet butter tubs would run from 7% to 9 pounds.

Plaintiffs did not prove the actual weights of the shipments, and conceded that they were not entitled to go to the jury on the actual weights, but claimed the right to recover upon the basis of the estimated weight of 73 pounds per tub. During all of the time covered by the bill of particulars the tariffs in effect contained the provisions as follows:

“Estimated Weights — Misc.
“Butter or butterine 60 pounds in tub per tub 73 pounds. When actual gross weight of butter, butterine, or eggs received from connecting railroads, or otherwise, are in excess of the estimate weights herein specified, such actual weights shall be charged, and same shall not be reduced to basis of estimate weights.
“The estimated weights shown in this item will be used when actual weights cannot be ascertained by weighing or otherwise on shipments made locally between all points on the Pere Marquette Railroad, and on shipments from stations on Pere Marquette R. R. to all points on connecting roads to which through rates governed by official classification are in effect.”

It appeared that there were no proper scales at Breckenridge with which to weigh the tubs. It is the claim of the plaintiffs that freight charges were assessed and collected from the consignees upon the billed weights of the butter as furnished by the defendants. It is uncontradicted that the goods were all consigned to the purchasers upon whom the drafts were made, and there is no claim that the goods were not delivered to, and received by the consignees, who paid the freight charges then demanded. The conditions printed upon the back of the bill of lading contain the following:

“Sec. 8. The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery.”

At the close of the testimony, upon motion of the defendants, the court directed a verdict for the defendants upon the following grounds, viz.:

(1) That the suit should have been brought by the delivering carrier, and not by plaintiffs.

(2) That neither railroad company could recover of defendants “after having accepted shipment of the goods with the understanding that the charges were to be collected at the other end, and after having released the goods to the consignee, without having collected these extra charges, especially in view of the fact that the actual weight was marked upon each tub of butter.” "

(3) That the provision in the tariff providing for estimated weight of 73 pounds per tub was not applicable in the case, because the actual weight could have been readily ascertained.

A judgment for the defendants was duly entered. There was a motion for a new trial, which was denied, and exceptions duly taken.

Plaintiffs have brought the case here upon writ of error; and error is assigned upon certain rulings in the admission of testimony, and in the charge of the court, and especially in refusing to direct a verdict for plaintiffs, and in directing a verdict for defendants.

In our view of this case, from the undisputed evidence, it is unnecessary to consider the numerous questions discussed by appellants, for the reason that there is an insuperable obstacle in the way of plaintiffs’ right to recover of these defendants. This is not a case where the consignee has refused to accept the goods and pay the freight. It is a case where the consignee has accepted the goods and has paid such charges as have been demanded of him, and is liable to pay such other charges as are legal, upon demand. We have examined the authorities cited and others, and find none against the proposition that it was lawful for plaintiffs to agree with defendants, at the time of receiving the goods in question, that they (plaintiffs) were to collect the freight in question from the consignees. It is not necessary to decide whether such an agreement was, in the first instance, binding upon the consignees. They accepted the goods and paid all charges demanded. The consignees were prima facie the owners of the goods.

“Upon shipment of goods through a carrier to a third party, and on delivery to the shipper of the bill of lading, the consignee is prima facie the owner of the property.” Sturges v. Railway Co., 166 Mich. 231, 239 (131 N. W. 706).

See, also, Turnbull v. Railroad Co., 183 Mich. 213, 219 (150 N. W. 132); New York, etc., R. Co. v. York & Whitney Co., 215 Mass. 36 (102 N. E. 366); Hutchinson on Carriers (3d Ed.), §§ 177, 735, 807.

The consignees were, in fact, the owners of the goods, and accepted them and became liable solely to pay the lawful freight. As the carrier is in general entitled to collect freight from the consignee as a condition of delivering the goods, so the consignee who actually received the goods is liable for freight, although it may not have been exacted before delivery. 5 Cyc. p. 501, and cases cited.

No case cited by appellants would authorize the bringing of this action against the consignors upon the facts as disclosed here. There is no evidence that any demand has ever been made upon the consignees, as was the case in Baltimore, etc., R. Co. v. Box & Basket Co., 48 Ind. App. 647 (94 N. E. 906, 96 N. E. 28), cited by appellants.

Nothing is claimed by way of bad faith on the part of defendants in underbilling the goods, as appears by the record. It is not a case of double liability. The consignees, the owners, are solely liable, upon this record.

We are of the opinion that the trial court made a proper disposition of the case, and it is unnecessary to consider the other questions discussed by counsel.

The judgment below is affirmed.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
    JOHNSTON v. CORNELIUS.
    1. Trial — Evidence—Discontinuance—Demurrer to Evidence— Directing Verdict.
    Where an action is brought against more than one defendant, and plaintiff does not care to dismiss as to any one of them, he need not do so, under Circuit Court Rule 43, § 3, yet, if there be no evidence as to any defendant joined in the action, the court may, and properly did, direct a verdict against plaintiff and in favor of the particular defendant, according to Act No. 182, Pub. Acts 1899, 3 Comp. Laws 1915, § 12628, relating to demurrers to the evidence.
    2. Automobiles — Death—Negligence—Agency—Master and Servant.
    Where the death of plaintiff’s decedent was caused by defendant’s automobile while it was being driven by the minor son of the owner, without his knowledge or authority, defendant was not responsible on the theory that he had knowledge of the son’s incompetency and was chargeable with having allowed the son- to operate a dangerous agency, nor did the fact that defendant owned the car furnish any presumption of liability.
    3. Same — Agency—Negligence.
    To create a liability the act must have been within the scope of the son’s employment and in conducting what was properly the father’s business.
    4. Same — Directed Verdict — Court—Judgment.
    The trial court did not commit error in directing a verdict in favor of the father, at the close of the plaintiff’s case, or discharging the jury which disagreed as to the other defendant, and was authorized to enter an order describing the proceeding as a verdict for the party in whose favor the direction was given.
    5. Same — Agency—Knowledge.
    Where the testimony of the son was somewhat contradictory and tended to impeach him, but, leaving it out of consideration, there was no evidence of an agency, the court did not err in holding that the owner was not liable for a death arising while the car was being used by the minor son.
    Error to Kent; Perkins, J.
    Submitted June 14, 1916.
    (Docket No. 100.)
    Decided September 26, 1916.
    Case by Eleanor M. Johnston, executrix of the last will and testament of Andrew W. Johnston, deceased, against Harold C. Cornelius and Russell Cornelius for the negligent killing of plaintiff’s testate. Judgment for defendant Harold C. Cornelius on a directed verdict. Plaintiff brings error.
    Affirmed.

      Ellis & Ellis (C. G. Turner and Francis A. Stace, of counsel), for appellant.

      Lombards, Hext & Washburn, for appellee.
   Stone, C. J.

This is an action brought by the plaintiff, as executrix of the last will and testament of Andrew W. Johnston, deceased, against Harold C. Cornelius and Russell Cornelius for damages resulting from injuries to plaintiff’s decedent, occasioned by an automobile owned by defendant Harold C. Cornelius, and being driven and operated by Russell Cornelius, the infant son of Harold C. Cornelius, about 9 o’clock on the evening of November 28, 1913, and from which injuries Mr. Johnston died on December 12, 1913.

At the trial and at the conclusion of the plaintiff’s testimony, upon motion of defendant Harold C. Cornelius, the trial .court entered an order discharging said defendant from liability, and the jury disagreed as to the liability of the son, Russell Cornelius. From the judgment in favor of defendant Harold C. Cornelius, the plaintiff has brought the case here on error, and we have only to deal with that judgment; as there has been no verdict or judgment as to the defendant Russell Cornelius.

Andrew W. Johnston was a resident of Grand Rapids. On the 28th of November, 1913, about 9 o’clock in the evening, he left his home on the east side of North avenue, in said city, and accompanied a Miss Van Winkle to the street car on Michigan street, which latter street runs east and west. It was a dark, rainy night, and Mr. Johnston was carrying an umbrella. Upon leaving Mr. Johnston’s home the evidence tended to show that the parties went south on the east side of North avenue until they arrived at the intersection of the sidewalk on the north side of Michigan street, at which point they stopped and looked east up Michigan street, and saw a street car approaching approximately 100 feet away. They did not see any automobile. They then turned west and stepped down into North avenue, at its intersection with Michigan street, and walked diagonally across such intersection to a point in Michigan street south of the west sidewalk of North avenue, and a few feet from the car tracks. As they stopped and were about to take the street car they were struck and run over by an automobile owned by the defendant Harold C. Cornelius, and being driven west and operated by Russell Cornelius, a boy 17 years old and the son of said Harold C. Cornelius. Mr. Johnston was dragged for some distance under the automobile, and received serious injuries from which he died as above stated. The declaration alleged the joint liability of the defendants. There were six counts. The first count alleged that the defendant Russell Cornelius was the son and employee of the defendant Harold C. Cornelius, and was a member of his family, and a boy of immature years, to wit, 17 years, and was a careless, reckless, and negligent operator and driver of said automobile, all of which was well known to the defendant Harold C. Cornelius, and that said Harold C. violated his duty in allowing, and not preventing his automobile from being taken control of, operated, or driven on Michigan street by such an incompetent, incapable, and careless operator and driver.

The second count alleged that the automobile was a pleasure vehicle, which was then and there driven by Russell Cornelius, who was an unlicensed chauffeur, and minor son and member of the family of the defendant Harold C. Cornelius, and was then and there the representative, servant, agent, and employee of the said Harold C. Cornelius, and the count was based upon the breaches of statutory duties.

The third count alleged the same, with the additional statement that the defendant Russell Cornelius was driving the automobile with the permission, knowledge, and consent and in and about the business of the said defendant Harold C. Cornelius, and alleged a breach of the ordinances of the city of Grand Rapids.

The fourth count made the same allegations concerning the agency of Russell Cornelius and knowledge of defendant Harold C., and alleged a breach of duty in not stopping said automobile and preventing the same from running over or upon said Johnston, etc.

The fifth count alleged that the defendant Harold C. Cornelius was the owner and was possessed of an automobile of large size, and capable of being driven at more than 25 miles an hour, and that when driven recklessly,, carelessly, and negligently it became dangerous 'to the safety of persons upon the streets and highways, that Harold C. Cornelius knew that his son was a careless, reckless driver, and that it was the duty of Harold C. Cornelius not to permit or authorize said Russell Cornelius to take or use said automobile, and that Harold C. Cornelius violated his duty to the public by permitting Russell Cornelius to drive said automobile, when he knew that Russell was a careless, reckless, and negligent operator and driver of automobiles, and was a boy of immature years.

The sixth count is like unto the fifth, and also alleges that Harold C. Cornelius went away from home and left said automobile in the care and keeping of Russell, knowing that the latter might take the automobile, and drive and operate the same on the public streets, as he had done before, and that Russell, in violation of law, wilfully and maliciously and without the consent of Harold C. took the automobile and drove the same upon the public streets, and that he wilfully, maliciously, wantonly, and recklessly drove and operated the same at, to wit, 20 miles per hour at, against, and over the said Johnston.

The injuries sustained by Johnston were fully set forth in each count, with claim for damages.

Upon the trial the plaintiff called the defendant Russell Cornelius for cross-examination under the statute. We have read his testimony and the entire record with great care, and we think that it may be stated that it is undisputed that the son, Russell, at the time of the accident, had no right or authority to take the car from the garage; that he had no rightful personal control whatever over this automobile, and never had had any such control. He was not a licensed chauffeur, and while he frequently operated the car in going after his father at the factory where the latter’s business was, or in taking his mother or grandmother, or both, or even other members of the family out to drive, or for his own use, it was always done under the supervision, consent, or direction of one of the parents; that he never had any right to take the automobile out, without first obtaining permission to do so either from his father or mother. It appeared that on one occasion he had taken the car without consent. This was about one year before the accident. He was then punished for doing so by being refused the use of the car. for himself for two weeks. It further appeared that he had hever attempted to interfere with, or use the car of his own volition for about one year before this night. On the night in question his father and mother had gone out to dinner with some friends, using their electric car, leaving the one in question in the garage. It further appeared that on that occasion they instructed Russell, the son, to remain at home and care for a younger brother, and he had no permission to take the car out. After the departure of his parents he did take the car out, took his younger brother to a neighbor’s home, who were friends of the family, and left him there, and from there he drove to the corner of Prospect avenue and Michigan street, where he met and took out to ride a young woman, a friend of his. They then drove down town, a distance of about a mile, and went to a place known as “Sweet’s” where ice cream, etc., are served.) Following this he started to take the young lady back home. It was while going west on Michigan street, and when only about 250 feet from the young lady’s home, that the unfortunate accident occurred.

In the course of the examination of Russell Cornelius by the plaintiff he was interrogated as to certain testimony given by him before the coroner relating to matters that occurred at the time of the accident, and such testimony before the coroner was offered by the plaintiff as tending to impeach the witness. As we have already said, at the close of the plaintiff’s testimony defendants’ counsel moved the court to direct a verdict of no cause of action in favor of the defendant Harold C. Cornelius for the following reasons:

(1) “Because the plaintiff has failed to establish any liability on the part of said defendant Harold C. Cornelius for the injuries complained of in the plaintiff’s declaration.”
(2) “That it has appeared from the undisputed evidence in the case that the automobile in question was at the time of the accident being operated by defendant Russell Cornelius, for his own pleasure, without the knowledge, consent, approval, or permission of the defendant Harold C. Cornelius.”
(3) “Because, under the undisputed evidence in the case, said automobile was, at the time of the injury complained of, being operated by defendant Russell Cornelius, without the knowledge, consent, approval, or permission of said defendant Harold C. Cornelius, and against his express instructions, given by him to said Russell Cornelius.”

After a lengthy discussion of the question, the court granted the motion placing its decision upon the rule stated in Loehr v. Abell, 174 Mich. 590 (140 N. W. 926), and Daugherty v. Thomas, 174 Mich. 371 (140 N. W. 615, 45 L. R. A. [N. S.] 699, Am. & Eng. Ann. Cas. 1915A, 1163).

Counsel for plaintiff contended that the plaintiff was not bound by the testimony of Russell Cornelius, under the statute; that, evidence having been received tending to impeach him upon material matters, it was for the jury to say whether he had sworn falsely in all particulars.

After the ruling of the court, which was duly excepted to, the jury were called in and the court said:

“Well, gentlemen of the jury, this case from now on will proceed as against only one of the defendants, and that is Russell Cornelius, the son. A motion has been made, argued, and determined in your absence as to both of these defendants, on a request to take the case from the jury and direct a verdict in favor of the defendants. That motion has been granted as to the defendant Harold C. Cornelius, based upon a recent decision of the Supreme Court that, where, under circumstances similar to the circumstances in this case, the father was the owner of an automobile, and the son, with a general knoweldge of the father that the son used the automobile, took the automobile on one occasion, and used it for his own pleasure and advancement, and an injury resulted, the father is not liable for the negligence on the part of the son in running an automobile and consequent damages; that, if any one is liable, it would be the son, because the relation of master and servant or principal and agent does not exist between the father and son, under those circumstances; and, while it*may be inferred that the father gives permission to the son to use an automobile which is bought for the family use, that inference is not sufficient to create a personal liability against the father for the son’s own tortious act, when the son is using the machine for himself, and not for the father, or other members of the family. On those grounds I' have directed a verdict, and I will at the proper time direct you to render a verdict of no cause of action as against the defendant Harold C. Cornelius.”

The trial then proceeded against the defendant Russell Cornelius, and testimony pro and con as to his liability was received. In its charge to the jury the court made no reference to the defendant Harold C. Cornelius, and the jury were not instructed to return any verdict of any kind as to him. The jury, after being out for a time, were unable to agree as to the liability of the defendant Russell Cornelius, and were finally discharged. When the court announced its decision that it was going to direct a verdict in favor of Harold C. Cornelius, no order was entered by the court in the journal, and no order was actually entered in the journal until some days after the termination of the trial, and after the jury were discharged, and then an order was entered in the journal under the date of the said .announcement, as follows:

“In this cause, the parties by their respective attorneys and the jury heretofore duly impaneled being present in court, the trial was resumed, and the said jury sat together, and, after hearing further proofs and allegations of the said parties, said court orders and directs that a verdict of no cause of action as to defendant Harold C. Cornelius be rendered.”

Here follows the judgment for said defendant in the usual form. We quote from the record:

“That in fact the jury was not directed to give any verdict in the cause, but was told by the court that he would direct them at the proper time, and that the final judgment of disagreement was entered in the journal at the close of the trial on the 28th day of May, and the part of the judgment of May 25th, after the word ‘parties,’ was an amendment to the journal entered some days after May 28, 1915.”

Afterwards, on the 9th day of June, the plaintiff made a motion to set aside the order of the court made by the court as of the 25th day of May, and grant a new trial of said cause against both of said defendants. The motion was denied; the court filing its reasons therefor, which were duly excepted to by the plaintiff.

The following questions, properly raised by assignments of error, are discussed by counsel for appellant:

(1) “Could the circuit judge legally announce to the jury in the middle of the trial what the verdict as to Harold C. Cornelius would be, and inform the jury at that time that he would later direct a verdict in-favor of the defendant Harold C. Cornelius?”
(2) “Was the plaintiff entitled to the presumption against Harold C. Cornelius arising from the ownership of the car, and was such presumption waived by the calling of Russell Cornelius?”
(3) “Did the court have a right to enter an order, and call it a verdict in the record, without submitting the question to the jury?”
(4) “Was the defendant Harold C. Cornelius free from all negligence, or should his conduct, under the evidence and the declaration, have been submitted to the jury?”
(5) “It being admitted that the automobile was bought and owned by defendant Harold C. Cornelius as a family car, was the question of agency of Russell Cornelius for the jury?”

1. The question here presented is whether the trial court had the right at the close of the plaintiff’s case to direct a verdict in favor of a defendant against whom there was no evidence?

We have a statute which provides that upon the trial of any case the defendant, upon the conclusion of the plaintiff’s testimony, may request the court to direct the jury to bring in a verdict for the defendant, or demur to the evidence, without resting his case absolutely. Act No. 182, Pub. Acts 1899, section 12967, 5 How. Stat. (2d Ed.) ; 3 Comp. Laws 1915, § 12628.

Counsel for appellant calls attention to former Circuit Court Rule 27, subd. c, which is now found in section 3 of Rule 43, and reads as follows:

“But in case an action is brought against two or more defendants, the plaintiff shall not be required to discontinue as to any of them, but the jury shall show by their verdict, or the court by its finding, in a trial by the court without a jury, which of them are and which of them are not liable to the plaintiff, and judgment shall be given accordingly.”

In Pruner v. Railway, 173 Mich. 146 (139 N. W. 48) this subdivision of the rule was referred to. In that case we affirmed a judgment against the railway, where the trial court at the close of the proofs directed a verdict in favor of the city of Detroit, and submitted the case to the jury on the liability of the railway. See, also, Mally v. Wrapper Co., 181 Mich. 568 (148 N. W. 443), and cases cited.

In McPherson v. Pinch, 119 Mich. 36 (77 N. W. 321), it was held that, where one of the parties admitted his liability under this subdivision of the rule, the jury should have been instructed to render a verdict against him, provided they did not find a third party liable. We are of opinion that there is nothing in this rule that interferes with the court’s authority and duty to direct a verdict in behalf of any joint defendant against whom there is no evidence of liability, at the close of the plaintiff’s case.

2. We do not think the ownership of the car by Harold C. Cornelius furnished any presumption of liability under the undisputed facts in the case. The real question involved is whether or not, at the time of the accident, Russell was using the car in his own behalf and for his own pleasure. In our opinion, the case is ruled by our own decisions. Loehr v. Abell, supra; Daugherty v. Thomas, supra; Hartley v. Miller, 165 Mich. 115 (130 N. W. 336, 33 L. R. A. [N. S.] 81); Riley v. Roach, 168 Mich. 294 (134 N. W. 14, 37 L. R. A. [N. S.] 834).

As was said by Knappen, J., in Denison v. McNorton, 228 Fed. 401, 142 C. C. A. 631:

“The father is not liable for the son’s alleged negligence merely because of such relationship; his liability, if any, must rest upon the relationship of principal and agent, or that of master and servant. Defendant’s mere ownership of the machine is not enough to create liability for his son’s negligence. Lotz v. Hanlon, 217 Pa. 339 [66 Atl. 525] 10 L. R. A. (N. S.) 202 [118 Am. St. Rep. 922, 10 Am. & Eng. Ann. Cas. 731]. To have that result the act complained of must have been done within the scope of the son’s employment and in conducting what is called the father’s business. White Oak Coal Co. v. Rivoux, 88 Ohio St. 18 [102 N. E. 302] 46 L. R. A. (N. S.) 1091 [Am. & Eng. Ann. Cas. 1914C, 1082].”

In the Denison Case, from which we have quoted, a judgment for the plaintiff against the father was affirmed, and it is cited by plaintiff’s counsel. In that case the son was driving the car taking other members of the family on a trip to a resort for recreation. The case is readily distinguished from the instant case, as shown by the following language:

“A significant feature of this case, which distinguishes it from some of the cases relied on by defendant, is the fact that all the members of defendant’s family (so far as at home) were participating in the use of the car; there being no other occupant except a family guest. The importance of this consideration is illustrated by the cases of Doran v. Thomsen, 76 N. J. Law, 754 [71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677], and Missell v. Hayes, 86 N. J. Law, 348 [91 Atl. 322]. In the former case the father was held not liable for the negligence of his daughter in driving the car for her own pleasure, notwithstanding its purchase by the father for the use of his family, and his implied consent that the daughter use it for the purpose stated. In the latter case, where the accident occurred while one of the sons was driving the car, which contained also defendant’s wife and daughter, together with a guest of the son and a guest of the daughter, the facts were held sufficient to support a finding that the son was acting as the servant of his father, and within the scope of his employment as such. The fact that the car was occupied by the father’s immediate family and their guests was held to distinguish the case from Doran v. Thomsen."

3. We are of the opinion that the court did not err in directing the verdict and judgment for the defendant Harold C. Cornelius in the manner shown in the record. Manifestly, if the court had the right to direct the verdict and did direct it, the jury had no duty to perform in the matter, and we think the court had the power to amend the record to show the facts. We find no error here.

4. We think that the fourth question should be answered by stating that, under the undisputed evidence, the defendant Harold C. Cornelius was not guilty under any count in the declaration. ■

5. We think that the fifth question has already been answered, and that there was no evidence of the agency of Russell Cornelius. Counsel for appellant complain that they were not permitted to go to the jury upon what they term the conflicting testimony of Russell. The tendency of the claimed contradictory statements would have been to impeach him. The difficulty is that, with Russell’s testimony entirely eliminated from the case, there is nothing to show any liability of defendant Harold C. Cornelius under our decisions, and we are only concerned here with the question of his liability.

Finding no error in tne record, the judgment of the court below is affirmed.

Kuiin, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Person, J. Fellows, J.

text:
    WINN v. ADJUSTABLE TABLE CO.
    1. Master and Servant — Workmen’s Compensation Act — Agreement eor Compensation — Fraud—Repudiation.
    Where there was no evidence of any deceit practiced by the agent of an insurance company in obtaining an injured employee’s signature to an agreement for compensation for the loss of a finger, and he did not ask to have it read, nor read it himself, although competent to do so, and he claims that he supposed it was a receipt, he will not be heard to deny its validity.
    2. Same — Workmen’s Compensation Act — Review by Industrial Accident Board.
    Such agreement may be reviewed by the Industrial Accident Board, upon proper showing, under section 13, pt. 3, Act No. 10, Extra Session 1912, and the compensation ended, diminished, or increased in accordance with the law and facts, but, as a general rule, the essentials leading up to the award are to be taken as res adjudicata, except the physical condition of the injured employee.
    3. Same — Workmen’s Compensation Act — Partial Disability— Loss oe Finger.
    The order of the Industrial Accident Board setting aside an agreement between the employer’s insurer and the injured employee fixing the compensation for the injury as provided in the law for the loss of a finger, and awarding compensation, as for partial .disability, is reversed, for the reason that the loss of the finger, combined with a former accident, rendered the employee totally incapacitated from following his trade as a carpenter, and the provisions of the law providing compensation for partial disability are inapplicable (section 10, pt. 2, Act No. 10, Extra Session 1912), and the agreement entered into was in accord with the law and should stand.
    On Rehearing.
    4. Same — Basis of Awabd.

      Held, the claim of applicant that the award of the board was based- in part upon an impairment of the shoulder, due to the accident, is not sustained upon the record, and the former decision is affirmed.
    Certiorari to the Industrial Accident Board.
    Submitted April 24, 1916.
    (Docket No. 67.)
    Decided September 26, 1916.
    Resubmitted June 27, 1917.
    Former opinion affirmed July 26, 1917.
    Edward H. Winn petitioned the Industrial Accident Board for an order setting aside an agreement entered into by him with the United States Fidelity & Guaranty Company, insurer of the Adjustable Table Company, for compensation for injuries received in the course of his employment. From an order setting aside said agreement and awarding additional compensation, respondents bring certiorari.
    Reversed.

      Travis, Merrick & Warner, for appellants.

      H. Monroe Dunham and John M. Dunham, for appellee.
    Edward H. Winn, the claimant, while employed by the defendant the Adjustable Table Company, had the third finger of his right hand cut off, between the first and second joints, by a ripsaw. He was taken to a hospital, where the finger was amputated at . the second joint. The accident occurred on the 21st of October, 1914. Necrosis of the bone having set in, the finger was opened on November 11th, and the bone scraped. On the 21st of November it was found necessary to remove the entire finger, and to take out the metacarpal bone up to the metacarpal joint. Thereafter the wound healed slowly, and claimant suffered considerable pain in his shoulder, which continued to the time of the hearing before the Industrial Accident Board. One of the physicians who examined claimant thought that the pain was caused by an inflammation of the joint capsule, called arthritis, caused by the germs and poison of the decaying tissue. The other was of the opinion that the trouble with the shoulder had no connection with the injury to the finger.
    Several years before his employment by defendant, claimant had suffered an injury by which he had lost the larger part of the three other fingers of the right hand; but up to the present accident, by the use of the thumb and the third finger, he had been able to follow his trade as a carpenter. With the loss of the third finger also he was no longer able to work at his trade.
    On the 28th day of November, 1914, claimant entered into an agreement for compensation with the insurance company carrying the risk. By this agreement he was to receive $7 per week for a period of 20 weeks. That was the amount provided by statute for the loss of a third finger. Nineteen weekly payments were made to claimant under this agreement; but he declined to receive the last payment, and, on the 6th day of May, 1915, filed a petition with the Industrial Accident Board asking that the agreement be set aside and that further compensation be awarded him. To this petition an answer was filed by the Fidelity & Guaranty Company; and at the hearing an order was made by the Industrial Accident Board allowing claimant compensation at the rate of $7 per week during the period of his disability, but not to exceed, in all, 200 weeks. Defendants bring the case to this court by certiorari, insisting:
    (1) That the agreement in regard to compensation, made by the parties, is binding upon them, and correctly states the compensation to which claimant is entitled; and
    (2) That the award of the Industrial Accident Board is for a disability arising largely from an injury in no way connected with the accident in controversy; and that it is in excess of the amount allowed by the compensation act.
   Person, J.

(after stating the facts). It is not shown that any deceit was practiced by the agent of the insurance company in obtaining the agreement for compensation. Claimant says that he supposed it was a receipt when he signed it, but that he did not ask to have it read, nor did he read it himself, although he was competent to do so. Under these circumstances he will not be heard to deny the validity of the agreement. Sanborn v. Sanborn, 104 Mich. 180 (62 N. W. 371). But such an agreement may undoubtedly be reviewed by the Industrial Accident Board upon a proper showing, under section 13, pt. 3, of the act (2 Comp. Laws 1915, § 5466), and the compensation ended, diminished, or increased in accordance with the law and the facts. Upon such a review, as said in Estate of Beckwith v. Spooner, 183 Mich. 323 (149 N. W. 971):

“It can be stated as a general rule that the essentials leading up to the award, or its equivalent, are to be taken as res adjudicata, except the physical condition of the injured employee, which naturally and legally remains open to inquiry.”

But the facts do not bring this case within any provision of the law that will permit an increase of compensation beyond the amount stated in the agreement. The Industrial Accident Board found that claimant was totally incapacitated from following his trade as a carpenter, but it also found, as it necessarily must have found, that the total incapacity was not the result of the present accident alone, but of that in conjunction with the earlier accident. As was held by this court in Weaver v. Maxwell Motor Co., 186 Mich. 588 (152 N. W. 993, L. R. A. 1916B, 1276):

‘‘The absence of either accident would have left the claimant partially incapacitated. We think it clear the total incapacity cannot be entirely attributed to the last accident. It follows that the compensation should be based upon partial incapacity.”

But how can an award for partial disability be made, under the statute, in the presence of a total actual disability, except as a specific liability under the schedule in section 10 of part 2? There is no way by which we can fix the duration of a partial disability that has been merged in a total disability. This is true even if the partial disability is, as asserted by claimant, something more than the mere loss of the finger. And, if we could approximate its probable duration, there is no method provided for determining the amount of the compensation. The section referred to says:

“While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter.” Act No. 10, Pub. Acts 1912, Extra Session, pt. 2, § 10 (2 Comp. Laws 1915, § 5440).

And it is impossible to know how much the claimant might have earned if suffering only from the partial disability, when, as a matter of fact, he cannot earn anything because of the total, disability. The difficulty is illustrated by the award that the Industrial Accident Board made. That board found a total disability, but did not make an award for total disability, inasmuch. as it limited the payments to a period not exceeding 200 weeks, when for total disability they might have extended through a period of 500 weeks. Nor, on the other hand, did the board measure the amount of compensation by the statutory rule for partial disability. It evidently treated the injury as the loss of an arm for which the period of compensation is 200 weeks. But the arm was not lost within the meaning of the statute, and the order was unauthorized. It was an attempt to meet a situation not provided for by the statute, and neither the Industrial Accident Board nor this court has any power to do that.

The injury must be treated simply as the loss of the third finger, for which the claimant is specifically compensated by the terms of the statute. The agreement entered into by the parties was in accord with this provision, and must stand.

¡ The order of the Industrial Accident Board is reversed, and the petition dismissed, but without costs.

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

On Rehearing.

Fellows, J.

We were led to grant a rehearing in this case upon the claim made by the applicant that the award of the board rested in part at least upon an impairment of the shoulder, due to the accident, and by the insistence of counsel that we had overlooked this finding of the board in determining the case. We have re-examined the case, aided by briefs filed upon the rehearing, and conclude that the case made upon this record was correctly decided. In applicant’s petition to the board to set aside and review the agreement there is no claim of disability by reason of any impairment of the shoulder. The petition alleges:

“That because of the condition of his hand he will suffer partial disability for the performance of work of any kind for the remainder of his life.”

The testimony as to the cause of the condition of applicant’s shoulder was in conflict. While the board mentioned the inflammation about the shoulder, there was no finding that the condition of the shoulder in any way contributed to applicant’s disability, or that it was caused by the accident, and it was not made the basis of the award, and did not enter into it. The award was based upon the finding that the injury, “together with the previous loss of other members of the same hand,” produced a total incapacity. In making the order it did, based upon this finding, the board was in error. The order is reversed and the petition dismissed.

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