text:
    EDGERLY v. LADIES OF THE MODERN MACCABEES.
    1. Insurance — Fraternal Beneficial Associations.
    In an action on a benefit certificate issued by defendant fraternal organization, testimony of the finance keeper tending to show the purpose of insured in permitting her policy to lapse and in withdrawing from the order, was inadmissible under the statute excluding testimony in relation to matters equally within the knowledge of the decedent; but where the record showed that the insured voluntarily permitted her certificate to lapse and made no attempt to become reinstated until a short time before her decease, the error in permitting the testimony to be offered was harmless and did not require the reversal of the judgment for the defendant insurer.

      2. Same — Lapse of Poeicy— Reinstatement — Speciae Dispensation.
    A dispensation of the head of a fraternal organization duly authorized, permitting suspended members to be reinstated without fur.nishing a certificate of good health during the period from June 1st to January 1st was only available to such members as took advantage of it while it was in force: suspended members who failed to take advantage of the dispensation were not in position to claim that they were deprived of any right by a rescission of the dispensation before the day limited therein.
    3. Notice — Forfeiture of a Certificate.
    No personal notice to a member of an order who voluntarily permitted her policy to lapse was required as a condition precedent to rescind such special dispensation; having forfeited her certificate she lost all vested right under the rules of the order, in the absence of any provision of law authorizing or requiring notice of such subsequent action. A member who has been suspended may only be reinstated in strict conformity with the by-laws and has no rights until actual reinstatement has taken place.
    4. Same.
    Where the by-laws of a fraternal order required the insured to apply to a regular meeting of the local organization for reinstatement, such dispensation abolishing the requirement of a health certificate did not do away with the requirement of the application to the local branch.
    5. Same.

      Held, also, that under the by-laws of the order when a member became suspended voluntarily she had only such right of reinstatement as existed at the time of her application therefor, and could not complain of what may have happened during the period of her suspension: nor was the beneficiary under the certificate of insurance in any better position than the insured.
    Error to Ingham; Collingwood, J.
    Submitted Jan' uary 15, 1915.
    (Docket No. 103.)
    Decided March 18, 1915.
    Assumpsit by Harry Edgerly against the Ladies of the Modern Maccabees upon a certificate of insurance. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Warner, Raudabaugh & Person, for appellant.

      John B. Mcllwain, for appellee.
   Stone, J.

This case was before this court in 1913, and will be found reported in 175 Mich., at page 28 (140 N. W. 960). An examination of that opinion will render a full statement of the facts here unnecessary.

It is conceded that, if the certificate of Julia E. Edgerly was in force at the time of her death, the plaintiff, her son, would be entitled to recover. To expedite the trial certain facts were stipulated, among which are the following:

“That assessments Nos. 123, 124, 125, and 126 for the months oí August, September, October, and November, 1910, respectively, were duly levied and due notice given thereof, according to the laws of the order.
“That Julia E. Edgerly did not pay or offer to pay assessments 123, 124, 125, and 126 until December 6, 1910.
“That Julia E. Edgerly was not in good health on December 6, 1910, and could not have furnished a certificate of good health on that date.”

Mrs. Luella Hodges, the finance keeper of the Lansing Hive, whose, duty it was to collect assessments and forward them to headquarters, was called as a witness by the plaintiff. On her cross-examination she testified as follows:

“I was a regular attendant of the lodge meetings, and finance keeper during 1909 and 1910. I had been a regular attendant, I should think, somewhere about 15 years. During 1910 Mrs. Edgerly was not in attendance at hive meetings. I have no way of knowing how long she had not been an attendant. I don’t remember her as a regular attendant of the hive meetings at any time. I sent a notice of her suspension September 1, 1910, to the great record keeper. That would be for the assessment due for the month of August. I understood that if the assessment was not paid during the month she would be suspended the 1st of September. During the last of August I had a talk with her by phone.
“Q. What was the nature of it?
“A. She informed me that she intended to drop her insurance; not pay the assessment.
“Q. Did she give any reason for it?
“A. No particular reason. I remember asking her if she was confident that that was what she wanted to do.
“Plaintiff’s Counsel: All that is objected to, and I ask that it be stricken out as incompetent and immaterial.
“The Court: It may stand. (To which ruling of the court plaintiff excepted.)”

On December 8, 1910, Mrs. Edgerly died. On December 6, 1910, two days before her death, and while she was fatally ill, her daughter-in-law called up Mrs. Hodges, the finance keeper, to come to the house. She went there, and the name of Julia E. Edgerly was signed to papers by the daughter-in-law, with the . view of effecting her reinstatement. Mrs. Hodges did not see or have any conversation with Julia E. Edgerly in preparing the papers, and the certificate of good health was omitted; and on the 8th day of December — :the day Mrs. Edgerly died — Mrs. Hodges, learning that a certificate of good health was necessary, again went to the home of Mrs. Julia E. Edgerly, and her daughter-in-law signed a certificate of good health a few hours before the death of the insured.

The articles of incorporation and by-laws of defendant were put in evidence, and from the latter it appeared that, if a member failed to pay an assessment during the month in which it became due, she would stand ipso facto suspended on the 1st day of the succeeding month from all rights and benefits of the order. During the first month of suspension she might be reinstated by merely paying the assessments due. After the first month she must not only pay the assessments, but furnish a certificate of good health to be approved by the great medical examiner.

Section 141 of the laws of the order was introduced in evidence by the plaintiff. It reads as follows:

“Any life benefit member being under suspension after the expiration of thirty days, and before sixty days, must, before reinstatement, furnish a certificate of good health on the form prescribed, acceptable to the great medical examiner, but if after sixty days and within six months, she must pass a full and satisfactory medical examination on the form prescribed by the great executive committee. She may be reinstated upon application being made at a regular meeting of her hive. Such application shall be accompanied by a satisfactory medical examination by the hive physician, to be approved by the great medical examiner. She shall also pay all tax, dues, fines and assessments for which she would have been liable had she remained a member in good standing. The hive finance keeper shall immediately notify the great record keeper of such reinstatement, and forward the money due the order; provided, however, that no suspended member shall be reinstated by any hive unless such application shall be made, examination had and approved, and money paid, within the six months next from and after the date of the failure of such member to pay her liabilities as required as aforesaid.”

Julia E. Edgerly never became reinstated on the books of the defendant order.

Upon the trial it appeared that the defendant order was, during the summer and fall of 1910, engaged in a process of rerating its members; that previously there had been in the order two classes, each class paying its premium in accordance with a different theory. It appeared that the order considered it necessary to readjust and raise its rates. At the great hive meeting held at Kalamazoo in June, 1910, new by-laws had been adopted containing the new re-rating provision. These by-laws went into operation on August 10, 1910. Mrs. Edgerly had been in what was known as class No. 1.

By specific language used in section 98 of such bylaws, relating to the rerating provisions, were the following :

“Members who hold certificates in what is known as class 1 shall, on or before January 1, 1911, pay the monthly rate of assessment as provided in table of rates in schedule 4.”

While this condition of affairs existed, the great commander, under date of July 6, 1910, issued to the great record keeper what she called a “special dispensation.” It reads as follows:

“Ladies of the Modern Maccabees.
“Special Dispensation.
“Office of Great Commander.
“St. Louis, Mich., July 6th, 1910. “To Emma E. Bower,
“Great Record Keeper,
“Located at Port Huron,
“State of Michigan.
“Ladies:
“Under and by virtue of the authority given me in the laws of the L. O. T. M. M., and believing that the best interests of the order will be thereby subserved, I hereby issue to your hive the following dispensations: Allow reinstatements without certificates of good health or re-examination for 120 days from June 1, 1910. Therefore, be governed in accordance herewith in relation thereto.
“Given under my hand and seal and the seal of the L. O. T. M. M. this 6th day of July, 1910.
[Signed] “Frances E. Burns.
“Great Commander.
“Emma E. Bower,
“Record Keeper.”

The dispensation above referred to was filed in the office of the great record keeper. The great record keeper, after the receipt of the dispensation, sent a notice to the record keepers of the subordinate hives, which reads as follows:

“To the Membership:
“The great commander has been requested by the great executive committee to issue a dispensation to allow suspended members over thirty days to reinstate without furnishing a certificate of health, to be in force from June 1st to January 1st, 1911. A member suspended June 1st has under such dispensation until October 1st to reinstate without certificate of health, or re-examination. A member suspended July 1st has until November 1st to reinstate. A member suspended August 1st has until December 1st to reinstate. A member suspended September 1st has until January 1st to reinstate. * * *
[Signed] “EMMA E. BOWER,
“Great Record Keeper.”

On November 1, 1910, the great commander issued another dispensation in terms annulling the dispensation of July 6th. This reads as follows:

“Ladies of the Modern Maccabees.
“Special Dispensation.
“Office of Great Commander.
“St. Louis, Mich., November 1, 1910.
“To the Officers and Members of Subordinate Hives.
“Ladies:
“Under and by virtue of the authority given me in the laws of the L. O. T. M. M., and believing that the best interests of the order will be thereby sub-served, I hereby issue to your hives the following dispensation: Members under suspension for over 30 days may be reinstated on a certificate of good health, provided they make out an application for transfer to class II and pay the assessment for the current month on the new rate, and in such case, the members shall be exempted from payment of all arrearages for life benefit assessments or per capita tax. The certificate of health, application for transfer, and assessment for current month shall at once be forwarded to the great record keeper. If the certificate of health is rejected by the great medical examiner, the amount remitted shall be refunded. The payment of hive dues shall be required, also any amounts that the member may have been owing the subordinate hive, or its officers,, on loans. Those members reinstating and taking a rating as of 50 years, must pay the rating as of class II for September and the following months.
“The above dispensation to be in effect from November 1, 1910, to January 1, 1911. You will, therefore, be governed in accordance therewith in relation thereto.
“Given under my hand and the seal of the L. O. T. M. M. this 1st day of November, 1910.
“Frances E. Burns,
“Great Commander.
“Emma E. Bower,
“Great Record Keeper.”

Notice of this dispensation was sent to the record keepers of the hives, but it appears that notice was not received by the record keeper of the Lansing hive. Under defendant’s laws the local finance keeper had no power of reinstatement of suspended members, but could only accept their applications and forward the same to the great record keeper.

There is no evidence that the deceased knew of, or in any manner relied upon, the dispensation of July 6, 1910, in becoming suspended September 1, 1910, or in remaining under suspension, nor was there any competent evidence offered to that effect. It does not appear that she had any correspondence with any of the officers of the defendant, or talked with them in regard to her membership after September 1st. She had no talk with the finance keeper of her hive about becoming reinstated after the last days of August. There was no evidence in the case that deceased was in any manner misled by the dispensation of July 6th in not paying her assessments within the time required by the laws of the order. Mrs. Hodges, the local finance keeper, in referring to what occurred on December 6, 1910, testified as follows on her direct examination:

“Q. What was done at that visit, Mrs. Hodges— the visit of December 6, 1910?
“A. The money was paid for the reinstatement of Mrs. Edgerly; amount $13.44. It covered assessment No. 123 in class 1, assessments 48, 49, 50, and 51 in class 2. If I had numbered all those in class 1 they would have been numbered from 123 on. No. 123 was for August, 48 September, 49 October, 50 November, and 51 December. I changed from No. 123 and on to No. 48 and on, because of, the difference in the class that Mrs. Edgerly adopted. She passed from class 1 to class 2. Class 2 had only reached that number at that time.”

At that time an application for a transfer was made in her name. It reads as follows:

“Ladies of the Modern Maccabees. Application for transfer from class 1 to class 2. The life benefit certificate in class 1 must be surrendered and returned to the great record keeper with this application duly signed.
“Lansing, Michigan, Dec. 6, 1910.
“I, Julia Edgerly, am a life benefit member of Central Hive No. 162, located at Lansing, State of Michigan, and was born on the 2nd day of October, 1856. Now, in consideration of a certificate in schedule 3, issued as directed by me, on the reverse side of this application, in the Ladies of the Modern Maccabees for $1,000, payable to Harry Edgerly, son, I do hereby surrender my life benefit certificate of membership No. 19906 held by me for $1,000 in class 1, and do release the said order from all liability thereunder. I have paid the last assessment, No. 51, due this month, from class 2, and am a life benefit member in good standing.
“In further consideration of the issuance of the above certificate, I agree to pay the rate in said schedule, as provided in the privilege of transfer, and in all things comply with the laws of the order now in force, or hereafter adopted, governing the said schedule and rates. The warranties and statements made in my original application are herewith reaffirmed and made a part hereof.
“Julia E. Edgerly.”

Then oh the back:

“Eate at Age 50 Option.
“I am now over 52 years of age, and direct that a certificate be issued to me in schedule '3 for $1,000, and I agree to pay the monthly rate in said schedule as of age 50 for the said amount after September 1st.
“Julia E. Edgerly.
“Luella Hodges, F. K. 162.”

This application for transfer was signed by the daughter-in-law of Julia E. Edgerly.

Mrs. Hodges further testified:

“This transfer was then taken by me and receipts were passed. The papers were forwarded to the great record keeper as required. That was done by myself. As I remember it, the transfer took place in the forenoon of the 6th. The papers were mailed directly after leaving there. Those papers were mailed to the great record keeper, Miss Bower. * * * The signature on the application for transfer was made by Mrs. Harry Edgerly. I saw it done, and I did not make any objections to the signature.”

It appears that this local finance keeper had attempted to reinstate another person in the same manner as Mrs. Edgerly. That attempted reinstatement had gone to the great hive before Mrs. Edgerly’s went in — about'two weeks before. Mrs. Hodges got notice in which she was informed a certificate of good health would be required to accompany the reinstatement. This local officer then went to the house of Mrs. Julia E. Edgerly again, and there obtained, on the 8th day of December, a reinstatement certificate of good health, signed by the daughter-in-law in the name of Julia E. Edgerly. This officer did not see Mrs. Edgerly on that occasion at all, and upon the trial it was admitted by counsel for plaintiff that Julia E. Edgerly died shortly after dinner the same day, and it appeared that she died before the certificate of good health had left Lansing. The $13.44 paid for reinstatement on December 6, 1910, was paid back to plaintiff in part, and the remainder was tendered, but not accepted.

After Mrs. Edgerly’s death, plaintiff presented his claim to the executive committee of defendant, and, after an investigation, the claim was disallowed on May 3, 1911. This decision is set forth in full in the record.

No appeal was taken from this decision. The bylaws provide that the decision of the executive committee shall be final, unless an appeal is taken within 60 days to the great hive. At the time of the organization of the order the great hive met once, a year. Thereafter this by-law was changed to once in 2 years. In 1910 the law was again changed so that the great hive would not convene for 4 years. It appeared that their then next meeting would be in June, 1914. It was the claim of the plaintiff that this bylaw was unreasonable, unfair, and in effect took from the plaintiff the right to appeal at all. Action was immediately started in the circuit court.

It is the claim of the plaintiff that Julia E. Edgerly was a member of defendant order in good standing at the time of her death, having been automatically reinstated by the payment of her dues on December 6th, and he bases his contention in this respect on the following propositions:

(1) That the July 6th dispensation could not be rescinded because of the vested rights that arose from Mrs. Edgerly’s reliance upon it.

(2) That it certainly could not be rescinded without notice to Mrs. Edgerly.

(3) That there was no evidence of any notice of any kind to the Lansing hive, or to Mrs. Edgerly, of the dispensation of November 1st.

(4) That even though there were evidence of notice to the Lansing hive of this dispensation, such notice would not be notice to Mrs. Edgerly, for the reason that, while she still occupied legal relations as toward the order, she was suspended from the local hive, and had no right under the by-laws to be present at the hive meetings; hence notice to the hive could not be notice to her.

(5) The great hive, by its qualified officer, having induced Mrs. Edgerly by its dispensation to believe that the requirement of payment and a health certificate had been waived for 120 days, will be estopped from setting up that condition as a cause of forfeiture.

(6) That the dispensation of July 6th, having been issued and circulated, and it being definitely stated therein that it would be in operation until January 1st, could not be rescinded by the great hive on the instant to take effect on the instant.

(7) The rerating section, without considering the dispensation at all, authorized the transfer from class 1 to class 2 at any time prior to January 1, 1911, without a certificate of good health, or without re-examination, upon payment of dues as to all members in good standing at the time of the meeting of the great hive in Kalamazoo, June 10, 1910.

At the conclusion of the evidence, defendant’s counsel moved the court to direct a verdict for the defendant for the following reasons:

(1) Plaintiff has not exhausted his remedy through the tribunals of defendant.

(2) That Julia E. Edgerly became suspended September 1, 1910, and had not become reinstated at the time of her death.

(3) The dispensation of July 6th was but an indulgence or gratuity, available only to those who took advantage of it while in force. It created no vested right in a member under suspension, and, when rescinded, no right was taken away from insured, as none had been conferred by it.

(4) Notice of a revocation of the special indulgence or privilege was not necessary to be given to suspended members.

(5) A suspended member has no right to the benefits of the order until an actual reinstatement has taken place.

The court directed a verdict for the defendant on the first proposition, that the plaintiff had not exhausted his remedy through the tribunals of defendant society, and a judgment was entered for the defendant. The plaintiff has brought the case here upon writ of error, and, aside from a few questions raised upon the introduction of evidence, only one of which we shall notice, the assignments of error relate to the charge of the court, and allege error in directing a verdict-for the defendant, for the reason that the evidence did not support such directed verdict. If it shall turn out that the result reached by the trial court was the correct one, and that upon the trial of the case, for any reason, a verdict should have been directed for the defendant, it is conceded that the judgment below should be affirmed.

Passing the question upon which the circuit judge directed the verdict, and also passing the question whether the great commander had power or authority under the laws of the order to issue the dispensation of July 6, 1910, we think there is a controlling reason why the plaintiff cannot prevail here. There is no evidence in the case that the dispensation of July 6th had any relation to the dropping out of the order of Julia E. Edgerly on September 1, 1910. Whatever her reason may have been, she dropped out, so far as the record shows, voluntarily, deliberately, and purposely.

We are of opinion, however, that the testimony of the finance keeper as to the statement of Mrs. Edgerly of her intention to withdraw was inadmissible and incompetent under the statute (Act No. 30, Pub. Acts 1903). See authorities cited in Rousseau v. Brotherhood of Yeomen, 177 Mich. 568 (143 N. W. 626). But, with this testimony eliminated, the record still shows that Mrs. Edgerly dropped out voluntarily. The error in permitting the testimony to stand was harmless. Although she lived in the same city with the finance keeper, no attempt was made in her behalf to become reinstated until on her deathbed, and that attempt was by the daughter-in-law.

The dispensation merely permitted the great record keeper to accept applications for reinstatement of members suspended more than 30 days without furnishing a certificate of good health. It was but an indulgence or gratuity to members who took advantage of it while in force. Those who took advantage of it while it was in force would be protected, because an actual reinstatement would have taken place on the books of the order, and the transaction would have become a closed one. Those suspended members who did not take advantage of it while in force could not claim any right had been taken away from them, because none was covered by it unless an application for reinstatement was made. On November 1, 1910, the great commander rescinded the prior dispensation, and required all members under suspension more than 30 days to furnish a certificate of good health in order to become reinstated. There was no dealing in either dispensation with any member directly.

Counsel for plaintiff seem to contend that personal notice should have been given to Julia E. Edgerly of the November 1st dispensation, rescinding the prior one. We are unable to find any provision of the laws of the order or authority sustaining the proposition that when a member voluntarily drops out of the order, and thereby her certificate becomes forfeited by the express terms of her contract with the order, she has still a vested right to have notice of subsequent action of the order. When she actually dropped out, the order had the right to treat her as suspended. There is no evidence to justify the claim of plaintiff that Julia E. Edgerly was misled or deceived by the action of the order, or that she placed any reliance upon the July dispensation, or knew of it. She knew that, if she did not pay her assessments, shé would stand suspended, and with that knowledge she voluntarily and deliberately became suspended and dropped out of the order.

A member who has become suspended can only be reinstated in strict conformity with the laws, and has no rights until an actual reinstatement has taken place. 29 Cyc. p. 38, and cases cited. This doctrine seems to be sustained by Hay v. Benefit Ass’n, 143 N. C. 256 (55 S. E. 623).

It is worthy of passing note that the dispensation did not attempt to do away with application to the local hive. We quote from section 141: “She may be reinstated upon application being made at a regular meeting of her hive.” We have looked in vain in this record for any such application, or any action of the local hive. The local finance keeper undertook to restore Mrs. Edgerly, without any action of the hive or any consultation with that body, so far as this record shows.

We are unable to agree with plaintiff’s contention that section 93 of the by-laws of 1910, which is the reinstating section, confers some rights upon suspended members to become reinstated. That section deals with “members,” not suspended members.

It will be noted that the paper signed “Julia E. Edgerly,” on December 6, 1910, does not purport to be an application for reinstatement, but is, on the contrary, an application for transfer from one class to another. It seems to have been assumed that the reinstatement had already taken place, and that the applicant was a member in good standing. We do not understand that such was the fact. We agree with the contention of defendant that, when a member suspends herself, which, by the provisions of the contract, suspends her relations with the order, she only has such right of reinstatement as exists at the time she applies for reinstatement. What may have happened during the period of her suspension she cannot complain about; and her beneficiary is in no better position than she would be.

At the time the application was made for Julia E. Edgerly to be reinstated, if any was made at all, a certificate showing her good health was necessary. This was not, and could not be, furnished. The trouble with the plaintiff’s case is that at the time of the death of his mother her beneficiary certificate had been suspended, and there had been no reinstatement thereof. That was the status at the time of her death.

For the reasons already stated by us, the judgment of the circuit court is affirmed.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    PEOPLE v. WHEELER.
    1. Criminal Law — Trial—Jury—Voir Dire Examination.
    On the trial of a criminal prosecution for the violation of the local option law, where respondent’s counsel inquired of one of the members of the panel if the evidence was equally balanced in his mind which way he would be inclined to lean, for the people or for the respondent, and the court suggested that the question should contain the modification or contingency, “If either way,” and counsel declined to incorporate the suggested amendment in his question, there was no reversible error in ruling out the question unless some sufficient reason was- shown why counsel refused to adopt the suggestion of the court.
    2. Constitutional Law — Intoxicating Liquors ■ — • Regulation — Prohibition- — Different Objects.
    The title of Act No. 381, Pub. Acts 1913, relating to the regulation of the sale, consignment, shipment, transportation, etc., of intoxicating liquors and to the prohibition of the same in certain cases is sufficient; regulation and prohibition not being such distinct objects as to violate the constitutional limitation whereby statutes are required to contain but one object: the act in question effects but one purpose, namely, the regulation of the traffic and prohibition under certain circumstances in counties which have adopted local option.
    3. Same — Title of Act — Double Object.
    Compliance with the constitutional provisions limiting the number of objects to which an act may apply is sufficiently accomplished when the statute has but one general object which is fairly indicated by the title. It is not essential that every end and means necessary to an accomplishment of the general purpose should be effected by a separate act of the legislature. Section 21, Art. 5, Constitution. Under section 16, Art. 2, of the State Con- . stitution and the fourteenth amendment of the Federal Constitution prohibiting the State from depriving any person of life, liberty or property without due process of law, the State is not prohibited from regulating and prohibiting the manufacture and sale of intoxicating liquors in the ordinary exercise of its police power.

    4. Same — Local Legislation.
    Said Act No. 381 applying to the entire State is not local legislation within the meaning of Art. 5, section 30, of the State Constitution requiring acts which have a local effect to be submitted to and approved by the electors of the district which is affected.
    5. Intoxicating Liquors — Criminal Law — Private Residence— Statutes — Keeping Intoxicating Liquors — Public House.
    Where respondent was charged with keeping a quantity of whisky in a room which was not part of his private residence and in a place of public resort, and where the evidence tended to show that the room in which the liquor was discovered was on the first floor of a hotel, that the entire first floor was used as a place of public resort, that the room was locked but was surrounded by others which were open to the public and that it was in use as a servant’s room, being precisely the kind of place which the provisions of the statute were designed to relate to, the conviction of the respondent for violation of the act was justified.
    Exceptions before sentence from Hillsdale; Chester, J.
    Submitted January 21, 1915.
    (Docket No. 127.)
    Decided March 18, 1915.
    Carl Wheeler' was convicted of violation of the liquor law.
    Affirmed.

      Orville J. Cornell, for the people.

      Munro & Powell and Paul W. Chase, for respondent.

       On the question of the constitutional right to prohibit the sale of intoxicating liquor, see note in 15 L. R. A. (N. S.) 908.

   Kuhn, J.

The respondent was convicted under Act No. 381 of the Public Acts of 1913. It was charged in the information that he “did keep, store, and possess a certain quantity of vinous, malt, brewed, fermented, spirituous, and intoxicating liquor, to wit, a quantity of whisky, in a room, building, and structure other than the private residence not used as a place of public resort of said Carl Wheeler, and situate at No. 66 North street, in the city of Hillsdale, * * * known as the ‘Union Hotel’ * * * and place of public resort. * * * ”

The Union Hotel, or “No. 66 North street,” is a three-story brick building. On the first floor there are five rooms. In a large room at the front, cigars, tobacco, and soft drinks were kept for sale. In the rear of this room was a parlor. There is a hallway along the west and south sides of the suite of rooms above described leading from the front door to a door on the east side of the building. At the angle in the hallway where it turns east there is a small room, in which were found by the officers, when they searched the premises with a search warrant, a quart of whisky in a teapot, some whisky glasses, and a tray. At the rear of this small rooms is another small room furnished with upholstered corner seats or benches. In the rear there is another larger room having corner seats upholstered, hardwood floor, and a platform raised about six inches from the floor, on which there was a piano. The second floor was used for living rooms and bedrooms, and the third floor entirely for bedrooms, and the three floors of the building are connected by open stairways.

The first two assignments of error relate to the voir dire examination of jurors John Stone and Duane B. Doty. The record with reference thereto discloses the following:

“Q. Supposing that the evidence in this case were equally balanced in your mind, which way would you be inclined to lean, for the people or the defendant?
“Mr. Cornell: I object to the question.
“The Court: The question assumes that he is inclined to lean.
“Q. If the evidence in this case, at the conclusion of the testimony, were equally balanced in your mind, which way would you be inclined to lean, for the people or the defendant?
“Mr. Cornell: I object to the question.
“The Court: If either way.
“A. I—
“Mr. Cornell: Just a moment, Mr. Stone; get all the question.
“Mr. Powell: I insist upon an answer to my question, if the court please.
“The Court: I think the objection is good, unless you amend the question as suggested by the court.
“Mr. Powell: An exception.
“The Court: You assume in the question that he is inclined to lean one way or the other.
“Mr. Powell: No, I am asking him if the evidence is evenly divided at the conclusion of the testimony, which way he would be inclined to lean, for the people or the defendant.
“The Court: If either way.
“Mr. Powell: No; that isn’t the question, your
Honor. As I understand, you ruled it was objectionable, and I have noted my exception.
“Juror Stone was later excused by the court without objection on ground of deafness.
“The Court: Very well, ask your next.
“Thereupon Duane B. Doty was examined under oath as to his competency, and testified as follows:
“Mr. Powell (counsel for defendant) : _ Q. Now, if the evidence in this case, at the conclusion of the testimony, were equally balanced in your mind, which way would you be inclined to lean, for the people or the defendant?
“Mr. Cornell: I object to it.
“The Court: The objection is good, unless amended as suggested in the other.
“Mr. Powell: And an exception.”

As it appears that Juror Stone was excused by the court because of deafness after the alleged error, the refusal of the court to permit the question to be asked of the juror could not constitute reversible error. The same question, however, is raised by the examination of Juror Doty. The trial judge, in ruling as he did, relied upon the case of People v. Caldwell, 107 Mich. 374 (65 N. W. 213), where this court said:

“We need not determine whether the question was proper, under the rule laid down in Monaghan v. Insurance Co., 53 Mich. 245 [18 N. W. 797], and cases there cited. As explained by the trial court, the question suggested that the witness would have a desire to go one way or the other; and all that the court asked of counsel was. to frame his question so that this suggestion would be eliminated, and the juror required to answer, whether he would have a desire to go one way or the other, or which way he would find. In People v. Keefer, 97 Mich. 19 [56 N. W. 105], the question, was asked a juror; Tf the evidence in this case, as between the people and the defendant, was equally balanced, which way would you give a verdict on the charge of engaging in the saloon business — for the people or for the defendant?’ The exclusion of this, question was held to be error. Under the suggestion of the court in the present case, counsel would have had an opportunity to ascertain the state of the juror’s mind in reference to the saloon business, and how he would have found under the facts suggested; but this counsel declined. No reason is given for declining the question tendered by the court. We think the case should not be reversed on this ground.”

But it is contended that in People v. Peck, 139 Mich. 680 (103 N. W. 178), it was expressly held that it was reversible error to exclude such questions and the answers to them. However, the rule in the Peck Case is stated no stronger than in the cases decided by the court previous to the decision of People v. Caldwell, supra. Monaghan v. Insurance Co., 53 Mich. 238 (18 N. W. 797); Township of Otsego Lake v. Kirsten, 72 Mich. 1, 6 (40 N. W. 26, 16 Am. St. Rep. 524); People v. Keefer, 97 Mich. 15 (56 N. W. 105). The opinion in the Peck Case does not refer to the Caldwell Case, and does not in our opinion overrule it. The reason of the rule first stated in the Monaghan Case is that counsel have the right to ask this question for the purpose of ascertaining the condition of the juror’s mind, which rule is not changed by the decision in the Caldwell Case, which expressly recognized the rule, but held that adding thereto- the words, “if either way,” as suggested by the court, was a reasonable request, and that the condition of the juror’s mind could be as clearly ascertained with the amendment as without it, and’ that therefore it is not reversible error to exclude the question where no reason is shown why counsel refused to adopt the suggestion of the court. So we conclude that in the instant case, counsel having refused to adopt the suggestion of the court as to amending the question, it was not reversible error to exclude the question and the answer thereto.

It is next contended that the act is unconstitutional because its title embraces more than one object. The title is:

“An act to regulate the sale, consignment, shipment, transportation, and delivery to, and the purchase, acceptance, receipt, and possession by any person, firm, or corporation of any vinous, malt, brewed, fermented, spirituous, or intoxicating liquor, when such person, firm, or corporation resides in territory where the manufacture and sale of such liquors for beverage purposes is prohibited; to prohibit the same in certain cases; to prescribe means for the enforcement of the provisions of this act; and to repeal all acts and parts of acts inconsistent with the provisions of this act.”

It is urged that regulation and prohibition are two distinct objects, and that the power to regulate is not the power to prohibit. Timm v. Common Council, 149 Mich. 323 (112 N. W. 942); Churchill v. Common Council, 153 Mich. 93 (116 N. W. 558). It is true that it has been held that to regulate and to prohibit are not synonymous terms. People v. Gadway, 61 Mich. 285 (28 N. W. 101, 1 Am. St. Rep. 578). But in our opinion the title of the act in question shows that the act is aimed at but one subject, viz., intoxicating liquor, and provides for the regulation of the sale thereof and the prohibition of the sale under certain conditions. All of which is clearly expressed in the title. Justice Cooley, in People v. Mahaney, 13 Mich. 481, 495, in speaking of the constitutional provision which declares that “no law shall embrace more than one object, which shall be expressed in its title” (section 20, art. 4, Constitution of 1850, and section 21, art. 5, Constitution of 1909), said:

“But this purpose is fully accomplished when the law has but one general object, which is fairly indicated by its title. To require that every end and means necessary to the accomplishment of this general object should be provided for by a separate act relating to that alone, would not only be senseless, but would actually render legislation impossible.”

In Flower v. Witkovsky, 69 Mich. 371, 375 (37 N. W. 364, 367), it was said:

“The main purpose of the act is to regulate and prohibit the sale of liquors, to provide when it shall be lawful and when it shall be unlawful, and what remedies may be resorted to in cases of unlawful selling and injuries resulting from such unlawful sales. These things all belong to one primary object, which is the distinguishing of lawful from unlawful sales under the law, and providing penalties and remedies against unlawful sales, and the natural consequences resulting therefrom.”

It is also said that the act is in contravention of section 16, art. 2, of the State Constitution, and the fourteenth amendment of the Federal Constitution, which relate to depriving a person of his liberty without due process of law. It is well settled that the State in the exercise of the police power may regulate or prohibit the manufacture and sale of spirituous and intoxicating liquor (Fuchs v. Common Council, 166 Mich. 569 [132 N. W. 96]; People v. Eberle, 167 Mich. 477 [133 N. W. 519]; Id., 232 U. S. 700, 34 Sup. Ct. 464; People v. Schafran, 168 Mich. 324 [134 N. W. 29]), and that the exercise of this power is not affected by the fourteenth amendment. People v. Damm, 183 Mich. 554 (149 N. W. 1002).

There is also no force in the contention that it is a local law and should be submitted to and approved by the electors of Hillsdale county before it can become effective, because of section 30, art. 5, of the State Constitution. The act is of State-wide application. It applies to all counties of the State where local option laws have been adopted and to all other counties which may adopt the law, and is therefore general in its scope. It is not such a local act as comes within the provision of the Constitution referred to.

The trial judge, in his charge to the jury, said:

“If a private residence, or any part of it, is used as a store, shop, hotel, boarding house, or a place of public resort, or for any other purpose than a private residence, then it is unlawful to keep, store, or possess the liquors I have mentioned in such private residence.”

Error is assigned upon this part of the charge. It is clear, however, that whether this statement was proper or improper, it had no application to this case, as the proofs upon which the conviction was obtained were restricted to the quart of whisky found in the small room on the first floor. The evidence is conclusive, to our minds, that the entire first floor was used as a public resort. It is true that the room in question was locked, but it was surrounded by rooms which were open to the public, and it is reasonable to assume from what was found that it was used as a serving room, and was precisely the kind of room that the law in question was aimed at.

We find no reversible error. The conviction is affirmed, and the court below is advised to proceed to judgment.

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


author: Ostrander, J.

text:
    SMITH v. SMITH.
    1. Damages — Verdict—Excessive Amount — Assault and Battery —Pain and Suffering — New Trial.
    A verdict of $10,500 damages for an assault and battery-committed by a woman of seventy years of age upon plaintiff, a daugbter-in-law, who was about thirty years of age, injuring the nerves of the plaintiff and causing some superficial injury which was not shown to be of a permanent and continuing character, was excessive and should be reduced to $5,500 by remittitur or a new trial granted, upon review of the order of the circuit court denying defendant’s motion.
    2. Same — Jury—Feelings.
    It was peculiarly a question for the jury what sum should be awarded to plaintiff for outraged feelings.
    Error to Genesee; Wisner, J.
    Submitted January 8, 1915.
    (Docket No. 38.)
    Decided March 18, 1915.
    Case by Grace Smith against Mary E. Smith for assault and battery and resulting injuries to plaintiffs person. Judgment for plaintiff. Defendant brings error.
    Reduced and affirmed.

      Brennan, Cook & Gundry (Harrison Geer, of counsel), for appellant.

      Farley & Selby, for appellee.
   Ostrander, J.

One assignment of error is based, upon an exception to a ruling admitting testimony. Upon the cross-examination of a witness, counsel for appellant had introduced a subject which, upon redirect examination of the witness, was pursued by counsel for the plaintiff. I think he was bound to pursue it unless the whole matter was withdrawn, or the apparent purpose of the first inquiry disavowed, and that under the circumstances the court ruled correctly.

A portion of the charge is criticised, but no reasonable analysis of the instruction will show it to be inaccurate. No amendment or amplification was asked for.

The single, serious question presented is whether the court below should have set aside the verdict and granted a new trial, as it was asked to do, upon the ground that the verdict is excessive. The testimony for plaintiff tended to prove that on August 7, 1913, her mother-in-law, the defendant, entered her homé and assaulted her, inflicting upon her person some apparently superficial injury. Plaintiff was then 30 or 31 years old, the mother of two children, the younger about 11 weeks old. Defendant was 70 years of age, and she gives a reason, an innocent one, for going into the house of her daughter-in-law, and relates circumstances, there occurring, provocative of the assault. If testimony for plaintiff is believed, the reason given by the older woman for her presence there was a pretext merely for interfering with plaintiff’s management of her elder child, the assault was unprovoked, and the defendant’s conduct a gratuitous example and aggravated evidence of her attitude and feelings, from manifestations of which plaintiff had theretofore suffered. Beyond this, the testimony of plaintiff herself tends to prove that the effect upon her nervous system and general health was serious and continuing. The learned trial judge carefully instructed the jury that they should give nothing by way of punishment of defendant, but assess compensatory damages for pain, suffering, humiliation, and disgrace as they should determine that these elements had been proven. Upon a review of the matter, upon a motion for a new trial, he was of opinion that the verdict was not excessive, but was warranted by the weight of the evidence. His conclusion is not to be lightly overruled.

The medical testimony tends to prove that plaintiff . has no organic trouble, but is “sensitive, physically and nervously delicate.” Her condition, claimed to be a consequence of the assault, is described as neurasthenic, not threatening her life, but affecting her comfort.

“The symptoms were exhaustion, tired-out feeling, continually, and pains in different portions of her body, the limbs, back of the neck, quite a pronounced pain in the abdomen, and sleepless and restless nights. These were the principal symptoms. She also had a retarded appetite. * * *
“Q._ Now, doctor, if Mrs. Smith was of a delicate, sensitive, nervous organization, and some time during the month of May last year she had given birth to a child, and then during the month of August following, about the 7th of August, her mother-in-law should come into her home and into her room and attack her and strike her in the face and scratch her face and arms, and that following that attack Mrs. Smith, the plaintiff, should suffer from nervous excitement and hysterical condition and from a pain in her head and back and easily excited after exertion, physical exertion, would you say that — what would you say as to a person of that kind of organization receiving a shock of that kind producing the condition that you have described, would it be possible for it to be done?
“A. I would say that the shock would bring on a condition of that kind, because she is of a make-up that has not much reserve force, reserve vital force.
“Q. Now, would her suffering as the result of that shock to her nervous condition be real or imaginary?
“A. Yes, sir; it would be real.
“Q. Would it be just as real as it would be if there was an organic lesion or an organic trouble?
“A. Just exactly. Neurasthenia is a disease that sometimes takes a number of years to cure. It is possible that suffering from that source would be intense. The fact that plaintiff lives the next door to her mother-in-law and practically in the same yard might have a tendency, or would have a tendency, to keep this condition alive for the reason that it would have a mental effect upon her, and she not knowing what might happen at any time — it is one of the characteristics of neurasthenia to imagine that something is liable to happen at any time — and it would be so near her that it would be natural that it would have a tendency to keep the patient down.
“Q. Would it be possible, doctor, if that condition continues for a cure to be — an absolute cure to be effected in this case?
“A. It is not likely. A change of environment would have a beneficial effect. An institutional treatment is sometimes recommended. A neurasthenic condition affects the appetite and sleep, and it induces pains in the back of the head. A neurasthenic condition is more liable to produce a pain in the back of the head than in the front. * * * I was first consulted by Mrs. Smith on November 1, 1913. At that time I wrote her symptoms down in my book. They are drawing pains at the back and neck, excited feeling, very nervous, irritable, cannot fix her attention on anything without getting excited, does not sleep well, very depressed at times, sensations of pain especially at the back of the neck and abdomen, goes to the table feeling hungry and a very few mouthfuls of food fills her up. These were the symptoms I wrote down in my book on November 1, 1913. This is what she told me at that time. I did not write down her symptoms every time. I did not think it necessary to take them down later. I had treated her before this, but they were cash visits and no memoranda was made. She had been to see me several times prior to this and paid me each visit. I cannot fix the time when she first came to me with this complaint. It was possibly a month or six weeks prior to this time. I could not say definitely, but think it was the latter part of September or first part of October. When she first came to see me, so far as I know, between the 9th day of August and the latter part of September, she had not consulted a physician at all.”

I have set out so much of the testimony to show: First, that the medical opinions are based upon the disclosures of the plaintiff and the existence of symptoms which she describes; second, that the continuation of the conditions she describes is not necessarily permanent. No one gives the opinion it is more probable that they will continue than that they will abate. The compensation to be awarded her for outraged feelings is peculiarly a matter for the jury. The verdict was for $10,500. It is evident that, as the cause was tried, the case for the plaintiff, if believed, strongly appealed to the jury.

There is testimony, admitted without objection, which, if believed, supports the inference that the defendant had. habitually treated plaintiff with contumely, subjected her to indignities, offended her in speech. While a verdict in such a case is not lightly to be set aside, or amended in amount, nor the opinion of the trial judge lightly overruled, I am impressed, after a careful reading pf the record, that the jury, consciously, or unconsciously, made the assessment of damages to meet what was conceived to be the merits of the whole unpleasant relation which the testimony disclosed. Upon the jury’s finding, plaintiff is entitled to a substantial recovery.

In my opinion, a new trial ought to have been granted unless plaintiff remitted $5,000 of her judgment. Such an order will be made, and appellant will, in any event, recover costs of this court.

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


text:
    WALSH v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Appeal and Error — New Trial — Weight oe Evidence.
    On review of the trial court’s refusal to grant a new trial, in an action for the unlawful death of one of the members of a switching crew, a verdict not clearly against the overwhelming weight of the evidence will not be disturbed by the Supreme Court.
    2. Master and Servant — Workmen’s Compensation- — Employer’s Liability — Negligence.
    Under the Federal act relating to employer’s liability to' employees for negligence, the defendant railway company was liable to the widow and daughter of decedent for negligence of defendant’s conductor in charge of the switching crew whose duty it was to close one switch when it was the purpose of the engineer of the crew to place cars upon another adjacent switch, when, by omitting to close it the conductor caused the cars and train to pass upon the switch where decedent was working, and the train struck and killed him.
    3. Contributory Negligence — Federal Statute.
    Upon the subject of contributory negligence the trial court instructed the jury that they should determine whether or not decedent was chargeable with contributory negligence; that if he was guilty of any negligence contributing to or causing the injury, defining the same as a want of ordinary care, plaintiff was entitled to recover, but that his damages should be diminished by the jury in proportion to the amount of negligence of such employee; that if the plaintiff was entitled to recover and if the jury did not find that he was guilty of contributory negligence he should be awarded full damages and that otherwise they should deduct from the amount of damages suffered, such amount as they might find to have resulted by reason of decedent’s own neglect, held, to sufficiently submit the issue of contributory negligence to the jury under Act of April 22, 1908, 35 U. S. Stat. 65 (U. S. Comp. Stat. 1913, § 8657 et seq.).

      4. Appeal and Error — Saving Questions for Review — Briefs.
    A question not raised in the trial court will not be considered by the Supreme Court on error and assignments of error not discussed in the original brief filed in the Supreme Court will be considered to have been waived.
    Error to Kent; Brown, J.
    Submitted January 22, 1915.
    (Docket No. 73.)
    Decided March 18, 1915.
    Case by Ruth C. Walsh, as administratrix of the estate of Edward M. Walsh, deceased, against the Lake Shore & Michigan Southern Railway Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clapperton, Owen & Hatten (Samuel H. Kelley, of counsel), for appellant.

      Hatch, McAllister & Raymond, for appellee.
    This action is brought under the Federal employers’ liability law of April 22, 1908, 35 U. S. Stat. 65 (U. S. Comp. Stat. 1913, §§8657-8665), by the administratrix of the estate of Edward M. Walsh, who met his death on the night of February 10, 1913, while engaged in switching cars on the lines of the defendant railway company in the city of Chicago, 111. It is not denied that plaintiff’s intestate was engaged in switching a train of interstate commerce cars, and it is admitted that the jury should, under the Federal statute, apportion the damages between the widow and daughter of the deceased. The trial resulted in a verdict of $4,500 in favor of the plaintiff and $2,500 in favor of her child.
    On the night of the injury, Walsh was one of a switching crew which was composed of Engineer King, Conductor Jones, Head Switchman Wynn, Fireman St. Pierre, and Walsh.
    The claims of the parties hereto with reference to this controversy are clearly stated in the charge of the court as follows:

      “The plaintiff in this case claims that on the night' of February 11, 1913 (that is, it would be the morning of February 11th, or about 1:25 a. m., February 11th), her husband, Edward M. Walsh, was in the employ of the defendant railroad company, and that he was engaged in performing the duties of what is known as a fieldman with a switching crew that was engaged in switching interstate commerce cars on what is known as switch track No. 4 and switch track No. 5, at Park Manor switching yards, in the city of Chicago.
    “The plaintiff claims that in the performance of his duties he was required to open the knuckles on the cars that were sent in from the lead tracks onto switch tracks 4 and 5, so that, when the cars came together, an automatic coupling would close, and thereby couple the cars together.
    “It is claimed on the part of the plaintiff that about 1:25 o’clock in the nighttime (that is, 1:25 o’clock in the morning) of February 11, 1913, the switching crew, who were operating under the direction of Conductor Jones, pulled a string of about 19 cars off of switch No. 5 for the purpose of putting part of the cars in on No. 4 and part of the cars back on No. 5, and that in performing this operation it was necessary for the train to be pulled down on the lead track south of switch 4, and when cars were to be shunted in on side track 4 the switch was to be turned, and when the cars were to be on No. 5 the switch was to be closed on No. 4; the only switch being opened and closed in the operation of the movement of these cars being switch No. 4.
    “It is claimed on the part of the plaintiff that the first 19 cars were pulled down past 4 and one car was thrown in on switch 4, then two were thrown back on 5, and then one on 4, and the next seven cars were to be thrown onto switch track 5. .
    “It is claimed by the plaintiff that Conductor Jones was the man who directed the movement of the train, and was turning the switch during this operation, and that, at the time the train pulled back in No. 4 to throw these seven cars onto No. 5, he signaled the train to come ahead without throwing the switch, and while the switch showed green, and that it was set for No. 4, and that the train went wrong, and that these seven cars were thrown in on switch track 4 with great force, by mistake, and that Mr. Walsh, who was performing his duties in the field of this switching yard, such as opening knuckles on cars on switch track 4 and looking after cars at the time, was then and there instantly killed by these cars coming in on track 4 through this mistake.
    “The plaintiff claims that Walsh’s duties were out in the field, and that he was working at this time out in the field and away from the lead, and away from the switches that communicated these switch tracks with the lead, and that he was not at the switches, and that Conductor Jones was at the switches, and that he turned the switches and gave the signals, had control of the train and immediate operation of the switches. That is the claim of the plaintiff.
    “The plaintiff claims that Walsh was proceeding back into the field, either upon or along by the side of switch track No. 4, knowing that Jones was at the switch and had control of operating the switch, and that his signals were necessary in order to move the train, and that Walsh, knowing that Jones was at the switch, relied upon that and walked back or very near to switch track No. 4, and when he was back in the field — I do not mean to say the plaintiff claims that Walsh walked back from the switch, but he was back in the field on switch track No. 4, knowing that Jones was at the point of switch No. 4, and that while he was back there attending to his duties (such as opening the knuckles on the freight cars that had been shunted in, watching the cars, and observing the spaces and distances from the cars to the switch, how many cars should be put in there), in and about the duties of his work, relying upon Jones to take cars of the switch at No. 4, while in that condition and position these cars came in there without his knowing anything about them, silently and without warning or notice, and ran upon him and killed him, without any negligence .on his part, the negligence being entirely the negligence of Jones, the conductor, who failed to throw the switch, and who gave the signal for the cars to come ahead before the switch had been thrown, whose duty it was, the plaintiff claims, to refrain from giving the signal until the switch had been properly placed.

      “On the other hand, the defendant claims (that is, the railroad company) that Walsh was a member of this switching crew, as well as Jones and Wynn; that Walsh was the fieldman, Wynn was the headman on the train, next to the engine in switching, and Jones was the conductor and the foreman.
    “The defendant claims that' Jones took a position alongside of the lead, on the easterly side of the lead, several car lengths southerly from switch No. 4, where he could signal the engineer, and that Walsh was at switch No. 4; that Walsh was turning the switch, and, when Walsh gave Jones the signal that the switch was right, Jones communicated it to the engineer, and the engineer then took Jones’ signal and operated the train.
    “The defendant claims that Jones was not near the switch, did not operate it for that cut-out or switching of the seven cars, and had not operated it since supper time that night, but that Walsh had stood there by switch No. 4 and operated switch No. 4.
    “The defendant claims on this particular cut-off of seven cars in question Jones was several car lengths distant, southerly, at a position where he stood to receive Walsh’s signals from the switch, and that Walsh was at the switch and gave the signal for the train to come back to cut off seven cars on switch 5, and that Walsh failed to turn switch No. 4, and as he walked back in the field, through his own mistake, he came upon the track or near the track, and was run over and upon by the detached seven cars which were intended for 5, and through Walsh’s mistake went in on 4; and the defendant claims that for that reason the accident, so far as anybody but Walsh is concerned, was wholly unavoidable, an inevitable accident, one that was attributable directly to his own mistake, and that Jones gave the signal that Walsh gave and the engineer relied upon the signal. The engineer could not do anything after the cars had been detached, neither could Jones, and they did not notice it until they had gone in the wrong switch; and for that reason, the defendant says, Jones and the engineer are entirely unblamable, that Walsh was entirely to blame, and it was his own oversight and negligence, and that therefore they are not in any manner to be held liable in this suit.”
   Kuhn, J.

(after stating the facts). There are 29 assignments of error, and the one which is chiefly argued, and upon which principal reliance seems to be based for a reversal of this case, is that the trial judge erred in denying defendant’s motion for a new trial on the ground that the verdict is contrary to the weight of the evidence produced on the trial of said cause, and at variance with the great preponderance of the evidence. A consideration of this assignment of error has necessitated a careful study of the record, and it resolves itself finally into the question whether the testimony of the witness Wynn, who was a member of the crew on the night in question, should be disregarded, and the testimony of Jones, the conductor whose negligence, it is the plaintiff’s claim, was the direct cause of the injury, should be accepted as a truthful statement of the facts surrounding the accident.

We think that the testimony of the members of the crew clearly establishes that on the night in question Walsh was engaged in performing the duties of what was known as a “fieldman.” Jones, the conductor, testified with reference to these duties as follows:

_ “Q. Was Mr. Walsh performing any duties that night, the duties known as fieldman?
“A. Yes, sir.
“Q. What are the duties of a fieldman?
“A. Throwing the switches and coupling up the cars and setting brakes on cars.
“Q. Was he performing those duties that night?
“A. All with the exception of putting the brakes on at that time.”
The engineer, King, said:
“He was acting as fieldman at the time. The duties of fieldman are throwing switches for different cars to go in and opening knuckles so that cars will couple. That is done so that they will couple when they come together. A knuckle can be opened so that, when a car is swung against it, they will close, and the cars will be coupled without a man being present at the coupling operation, and that is what I mean by opening knuckles; that is, throwing up the lever of the automatic coupler, so that, when the next car bumps into it, the coupling will close, and that was a part of Mr. Walsh’s duties. * * *”

Nelson, yardmaster, testified:

“On that night of the accident, he was performing the duty of fieldman. He was performing these duties under the direction of Conductor Jones. * * * The conductor and the fieldman always, as a rule, go together. They work together, and are generally together. The fieldman is ahead of the conductor and opens the knuckles, if there is any openings; that is part of his duties, to open knuckles, and if it becomes necessary to couple up cars, that is part of his duties.”

Wynn, head switchman, testified that Mr. Walsh was not out on the lead at all; that he was in the field when he was killed; that he had talked with him in there as the train pulled back off track No. 4 just before the accident; and that Jones was at switch 4 when he gave the fatal signal.

It was the claim of Conductor Jones (who was acting that night for the first time as conductor of that crew) that he turned no switches during these operations; that he received the signals from Walsh to come back or go ahead, and transmitted the signals to the engineer. It is the defendant’s claim that the testimony of Jones is corroborated by the physical fact that, where these switching operations took place, there was a curve in the track, and that it would have been impossible for the engineer to see Jones, because of the curve, if he had been at switch No. 4, as claimed by witness Wynn. The engineer, however, upon the witness stand, stated that, although he had testified before the coroner, his attention was never called to the question whether there was a curve in that track until he became a witness upon the trial in the lower court. An examination of the plat which was offered in evidence by the defendant further discloses that the curve shown is very slight and was not such as to have obstructed the engineer’s view to such an extent that he could not have seen up the lead track past switches 4 and 5.

A reading of this record shows that there are discrepancies in the testimony of witnesses for both plaintiff and defendant, and these discrepancies and apparent contradictions need not be pointed out here. The jury, who heard this testimony, and who saw the witnesses upon the witness stand, were in a better position to determine what testimony should be discredited than we are. The trial judge also had the advantage of seeing these witnesses on the stand, and in denying the motion for a new trial, alleging, among other reasons, that the verdict was against the weight of the evidence, had the benefit of this in making his determination, and had an excellent opportunity to judge of their truthfulness.

In the recent case of Druck v. Lime Co., 177 Mich. 364 (143 N. W. 59), this court, speaking through Mr. Justice Stone, said:

“The rule is well settled that this court will only reverse a case upon the question of the weight of the evidence when the verdict is against the overwhelming weight of the evidence. The verdict must be clearly against the great weight of the evidence to require this court to overrule the decision of the circuit judge in refusing a new trial. Gardiner v. Courtright, 165 Mich. 54, 62 (130 N. W. 322); Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592). We cannot say that the verdict in this case was against the overwhelming weight of the evidence, in .the light of the record.”

This rule has been repeatedly announced by the court, and we therefore conclude in the instant case that it cannot be said that the circuit judge abused his discretion in refusing a new trial on the ground that the verdict was against the weight of the evidence.

It is also contended by appellant that, even if the testimony of Wynn is to be believed, the act of Jones in omitting to turn the switch was not a negligent act for which an action would lie, for the reason that an injury to Walsh could not have been reasonably anticipated as a result of the act.

The facts in the recent case of Evans v. Railway Co., 181 Mich. 413 (148 N. W. 490), are in many respects very similar, indeed, to the facts in the case now before us. In that case, the action was brought under the Federal statute by a car repairer who was working on a track which was attached to a lead track, and cars had to be shunted in and off this, lead track by the opening and closing of switches; and, while he was working on one of these tracks, the switch was opened and a car thrown in on that track, and he received injuries, from which he died the day after. The only key that would open the switch was found in the possession of the assistant foreman, and it was held that the act of the assistant foreman in opening the switch and throwing the car in on this track, where the deceased was working, was an act of negligence, for which the defendant was liable. We can see no difference in principle between that case and the case at bar. Mr. Justice Moore, speaking for the court in that case, said:

“The respective rights of employers and employed under the Federal statute involved here, and its various amendments, have received the careful attention of the Federal courts, and full discussion may be found in Second Employers’ Liability Cases, 223 U. S. 1 [32 Sup. Ct. 169, 38 L. R. A. (N. S.) 44]; Michigan Central R. Co. v. Vreeland, 227 U. S. 59 [33 Sup. Ct. 192, Am. & Eng. Ann. Cas. 1914C, 176]; St. Louis, etc., R. Co. v. Hesterly, 228 U. S. 702 [33 Sup. Ct. 703]; Central R. Co. of New Jersey v. Young, 200 Fed. 359 [118 C. C. A. 465]; Grand Trunk West ern R. Co. v. Lindsay, 201 Fed. 836 [120 C. C. A. 166]; Louisville, etc., R. Co. v. Wene, 202 Fed. 887 [121 C. C. A. 245]; Pennsylvania R. Co. v. Goughnour, 208 Fed. 961 [126 C. C. A. 39].
“Under the principles of law stated in these cases, especially the last two, we think it cannot be said, as a matter of law, that there was no negligence shown on the part of Mr. Seeburger.”

Under plaintiff’s theory of the case, it was the duty of Walsh, who was working in the field, to open the knuckles on the cars and keep them from drifting back on the lead; and if, through the carelessness and dereliction of Jones, switch No. 4 was not turned, and the cars were shunted in on that track, and as a result Walsh met his death, we cannot say, as a matter of law, that such negligence of Jones was not the proximate cause of the injury. The crucial question in this case seems to be: Who failed to turn switch No. 4? And upon this record that became a question of fact for the jury.

With reference to the contributory negligence of Walsh, the trial court charged the jury as follows:

“As I have already intimated, if you find that defendant is guilty of negligence, as I have explained, then you will determine whether or not the plaintiff’s decedent (that is, Edward M. Walsh) is guilty of contributory negligence (that is, whether plaintiff’s decedent is guilty of any negligence that contributed to his injury). If he was guilty of any negligence that contributed or helped to cause the injury, that is what is known as contributory negligence, and contributory negligence is a want of ordinary care on the part of the person injured by the actionable negligence of another concurring with the negligence and contributing to the injury as a producing cause.
“The act under which this action is brought, as I have already read to you, says that the fact that the employee may have been guilty of contributory negligence shall not bar his recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.
“The act under which this action is brought says that the fact that the employee may have been guilty of contributory negligence shall not bar his recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.
“If you find that the plaintiff is entitled to recover, and that the decedent was not guilty of contributory negligence which contributed in any degree to his injury, then the plaintiff would be entitled to recover full damages (that is, all damages resulting from the negligent acts of the defendant).
“If you find that the decedent, Edward M. Walsh, was guilty of contributory negligence, then the plaintiff will not be entitled to full damages, but you will have to deduct from the plaintiff’s full damages such damages as you may find have been suffered by reason of decedent’s own negligence (that is, if you find that the plaintiff is entitled to damages, you will have to estimate first how much damages the plaintiff has suffered, and then, if you find that the decedent was guilty of some negligence, you will subtract from the entire damages such proportion as you find was caused on account of the decedent’s own negligence).”

We are of the opinion that this properly submitted the question of plaintiff’s decedent’s contributory negligence to the jury, and that there was no error in this regard.

After the argument of the case in this court, it was suggested to counsel that the court would be pleased to hear from them as to whether it can be said that the negligence of a fellow-servant is one of the risks that the employee assumes,' in view of the language of the United States Supreme Court in the case of Southern R. Co. v. Crockett, reported in 234 U. S. 725, 34 Sup. Ct. 897, that:

“By the employers’ liability act the defense of assumption of risk remains as at common law, saving in the cases, mentioned in section 4; that is to say, ‘any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of the employee.’ ”

Counsel for appellee, we think very properly, called our attention to the fact that this question.here suggested was not brought to the attention of the court below in any way, was not considered or ruled upon by that court; that no assignments of error are before us with relation to it, nor was it discussed by counsel in their original briefs; and that therefore the question is not here open for consideration or review. Our attention is challenged to the case of Maclean v. Scripps, 52 Mich. 214 (17 N. W. 815), in which Mr. Justice Campbell, in referring to the right of this court to consider questions not raised by assignments of error and exceptions, said:

. “We have no right, under bill of exceptions, to review anything but such action of the court itself as is excepted to. The power of this court to review the action in circuit courts on trials is one derived entirely from the statute and common-law practice on bills of exceptions.. The law has left all things not legitimately belonging to exceptions to be managed by the circuit courts in furtherance of their own authority. We have no more power to review what they have not passed upon than to exercise original jurisdiction in civil matters. It would be going entirely beyond our authority to notice what has not been ruled on and excepted to below.”

See, also, Wilkinson v. Earl, 39 Mich. 626; Benson v. Bawden, 149 Mich. 584 (113 N. W. 20, 13 L. R. A. [N. S.] 721); Marshall v. Accident Ass’n, 151 Mich. 245 (114 N. W. 1028); Conger v. Hall, 158 Mich. 447 (122 N. W. 1073).

For this reason, therefore, we must decline to pass upon the question above suggested.

We have examined such other assignments of error as are discussed by counsel in their briefs, and those not so discussed must be deemed to have been waived. Supreme Court Rule No. 40; People v. Cole, 139 Mich. 312 (102 N. W. 856); Nissly v. Railway Co., 168 Mich. 676, at page 682 (131 N. W. 145, 185 N. W. 268, Am. & Eng. Ann. Cas. 1913C, 719). Those that were commented upon in the briefs and are not herein specifically referred to we deem without merit.

We find no error in the record, and judgment is therefore affirmed.

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


author: Stone, J.

text:
    McCLOY v. VAUGHAN.
    1. Libel and Slander — Trial—Failure to Instruct — Pleading.
    Where the slanderous words charged in plaintiff’s declaration were not shown to have been uttered as averred, and the language proved to have been used differed materially from the statements set forth in the declaration, the defendant was entitled to have his requests for instructions to the jury given covering the point that there was no evidence in support of certain of the allegations of plaintiff.
    2. Same — Evidence—Witnesses—Bias—Interest.
    Plaintiff’s attorneys, who went upon the stand as witnesses to meet the testimony of one of defendant’s witnesses who claimed to have been offered money to testify in favor of plaintiff, were improperly excused by the trial court from answering interrogatories as to their interest in the action and the amount of their fees, and whether they had the case on a contingent basis: bias or interest of the witness is always a proper subject of inquiry.
    3. Same — Evidence — Reputation as to Wealth — Financial Standing.
    The actual wealth of the defendant in a slander case is not competent as the subject of testimony, although his reputed, financial standing may be material; and where the court failed to exclude from the consideration of the jury evidence offered tending to show the actual wealth or financial ability of the defendant, in so clear a manner that the jury would understand the instructions, it was reversible error to refuse defendant’s requests to the effect that there was no testimony in the case as to his reputed financial standing.
    4. Same — Repetition of Slander — Evidence.
    It was not necessary for plaintiff to prove that a repetition of the slander claimed to have taken place was in the exact words of the original charge: proof of the repetition is intended to bear upon the question of malice in uttering slanderous language. If the statements are substantially similar, calculated to produce the same impression, evidence of such repetition is admissible.
    Error to Wayne; Van Zile, J.
    Submitted January 22, 1915.
    (Docket No. 91.)
    Decided March 18, 1915.
    Case by Flora McCloy against Jay W. Vaughan for slander. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Allan H. Frazer, for appellant.

      McHugh, Gallagher, O’Neil & McGann, for appellee.
   Stone, J.

This is an action of slander against the defendant, who had been the landlord of the plaintiff, for damages for certain statements which it is alleged defendant made of and concerning the plaintiff, on the 10th day of August, 1910, about the time the plaintiff vacated the apartments known as the Vaughan apartments, which she had leased from defendant. The evidence is undisputed that the defendant was the owner of an apartment house in the city of Detroit, which he leased, under a chattel mortgage lease, to the plaintiff, beginning on the 1st day of April, 1910, for a period of five years. It appeared that when the plaintiff rented the Vaughan apart-merits she had purchased different kinds of furniture from five or more furniture dealers in the city of Detroit, in order to fit out the apartments. This furniture had been purchased on the contract installment plan, and only a small amount of cash was paid on account at the time of purchase. The plaintiff continued to occupy this apartment house until the 31st of July, 1910, when she was obliged to vacate owing to an arrearage of rent amounting, to upwards of $1,400. Some of the furniture which had been purchased from the different furniture dealers by said plaintiff remained in the apartment house when she was about to vacate, and a bill of sale was signed and executed by the plaintiff to the defendant, bearing date the 30th day of July, 1910, in and by which she bargained and sold to the defendant “all goods, chattels, furniture and fixtures, including all furniture and furnishings contained in the Vaughan apartments, Nos. 32-34 Watson street, excepting the piano and one dresser belonging to her and now in her possession” at said place. The evidence tended to' show that at the time of the execution of this bill of sale the defendant believed that plaintiff owned outright the furniture which she was transferring to him, when, as a matter of fact, there was considerable money still due the furniture dealers on account.

However, counsel for the plaintiff, shortly after the transfer, did inform defendant that there was a very slight sum still due on the furniture, which the plaintiff would pay without delay, and thereby make defendant’s title to the furniture clear; but the plaintiff did not pay the balance. After the plaintiff had transferred the furniture in the Vaughan apartments to the defendant, and had vacated the same, she left Detroit to visit relatives in London, Ontario. During the month of August and beginning of September, 1910, the respective collectors for these five furniture dealers who had sold furniture to the plaintiff on account came to the Vaughan apartments, which were being conducted at that time by the defendant, and made inquiries of him regarding the whereabouts of the plaintiff and certain aforementioned furniture which their respective firms had sold to the plaintiff. In response to these inquiries of plaintiff’s creditors, defendant gave certain information as to where the plaintiff had gon.e; and it is the claim of the defendant that he tried to give them what information he could. The plaintiff’s declaration alleges:

“That on, to wit, the 10th day of August, 1910, at the said Vaughan apartments, Nos. 32-34 Watson street, in the city of Detroit, with evil, wicked, wanton, wrongful and malicious intent, in a certain discourse which plaintiff is informed and believes said defendant then and there had of and concerning plaintiff, in the presence and hearing of Guy E. Barn-hart, did falsely, evilly, wickedly, wantonly, wrongfully, and maliciously, speak and declare to, and publish of and concerning plaintiff the following false, scandalous, evil, wicked, wrongful, malicious, and defamatory words, to wit (stripped of their innuendoes) : ‘Mrs. McCloy has moved out drayloads of furniture. She has disappeared. She collected rents in the Vaughan apartments. She now claims she has not collected them. She got money from the tenants in the building dishonestly, and left the city with her pockets full of money.’ ”

The plea was the general issue.

Upon the trial the plaintiff introduced as a witness one Guy E. Barnhart, who testified, on direct examination, in substance as follows:

“He said that Mrs. McCloy was not there; she had disappeared, and the probabilities are that the goods were gone with her; that she had taken a good many of the goods out of the apartments. And I wanted to know — he wanted to know — Are the goods all paid for? I said ‘No.’ He said, ‘Well, they ought to be paid for; she had money enough to pay for them. She collected rents there, and ought to have money enough to pay for them.’ I said they were not paid for. He says, ‘Well, I don’t think the goods are in the apartments.’ I asked him if I could go into the apartments and see, and he said no, I could not. He said she had collected rents there and had not paid the rents from the tenants, and had not paid for the furniture, so he understood, or had not paid the rents to him, and he was out some two or three thousand dollars, or something like that, on rents.
“Q. Did he say anything as to her financial condition when she left the city?
“A. He said she had left with all kinds of money.”

On cross-examination the witness further testified:

“I did not go to Mr. Vaughan and ask him first for this lady’s address. I went back there and made a second trip and asked him whether he had found her address. I made two trips there. I did not have any personal knowledge that she was not at the Vaughan apartments at the time of my first trip there. When I got there I found that she was not there. I asked Mr. Vaughan what her address was. He said he didn’t know. I went back there again and asked him for the address. He did not tell me. I do not recall that he told me she was in Canada. I cannot recall as to where he said she had gone. He said she had disappeared, and I don’t think he did say that she had gone to Canada; I don’t know. I think I am safe in saying that he used the word ‘disappeared,’ not that she had gone away. He used some word to that effect. I will positively swear that he used that' word. He stated that at the first conversation. That was all the conversation that I remember took place. On the second conversation there was practically only a few words passed between us, if I remember correctly. He said he didn’t know any more about her than when I was there before. Those were all the interviews I had with him.”

Defendant’s counsel requested the court to charge the jury, among other things, as follows:

“(3) The testimony of the witness Guy Barnhart does not substantiate the statements set forth in the declaration alleged to have been made by the defendant Vaughan to said Barnhart on or about August 5, 1910.”
“(6) There is no testimony in the case, as alleged in the declaration, that defendant Vaughan stated to the witness Barnhart, ‘Mrs. McCloy has moved out drayloads of furniture/
“(7) There is no testimony in the case, as alleged in the declaration, that defendant Vaughan stated to the witness Barnhart, ‘She now claims that she has not collected them’ [rents].
“(8) There is no testimony, as alleged in the declaration, that defendant Vaughan stated to the witness Barnhart, ‘She got money from the tenants in the building dishonestly/ ”

Philip A. McHugh and Francis T. McGann, two of plaintiff’s attorneys, were sworn as witnesses on plaintiff’s behalf; they gave testimony tending to contradict one Hazel Von Meer, who had testified as to certain offers of money to her if she would testify against the defendant. On cross-examination each of these witnesses was asked the following question: •

“Now, upon what percentage do you bring these cases ?”

This being objected to as incompetent, irrelevant, and immaterial, counsel for defendant stated that he sought to show the interest of the witnesses in the case as it might affect their testimony and bear upon their credibility. In the same connection the further question was asked:

“Q. How much is your firm going to get out of the verdict?”

Same objection. Also the question:

“Q. You have got these cases upon halves, haven’t you?”

Objections were sustained by the court to all the above questions, and defendant’s counsel excepted.

The following occurred upon the cross-examination of the defendant:

“Q. Do you own the Vaughan apartments now.? (Objected to as incompetent, irrelevant, and immaterial.)
“The Court: How is that material?
“Plaintiff’s Attorney: To show the standing of the man financially as bearing upon the weight his word would have in the community in aggravation of damages.
“Defendant’s Attorney: I object to it as incompetent, irrelevant, and immaterial.
“The Court: The courts have held that you may show the reputation that he has for property. I think I will allow that. (Exception for defendant.) * * *
“The Court: What is the fact, do you own the Vaughan apartments?
“A. I do not.
“Q. When did you sell it? (Objected to as incompetent, irrelevant, and immaterial. Objection overruled. Exception for defendant.)
“A. Since the forepart of 1910. * * *
“Q. Have you any interest in it now? (Exception for defendant.)
“A. No.
“Q. Did you own it in August, 1910? (Same objection and exception.)
“A. I did not.
“Q. Did you have any interest in it then?
“A. I did not. (Same objection, ruling, and exception.)
“Q. Have you had any interest in this property— if you had no interest in this property, why did you give Mrs. McCloy a lease upon it? (Objected to.)
“A. I owned it at that time.
“Q. In April, 1910?
“A. Yes, sir.
“Q. When did you sell it? (Objected to as incompetent, irrelevant, and immaterial.)
“The Court: You may have an exception, Mr.
Frazer, to all this.
“A. Before August 1st.
“Q. Do you own any property in your own name now?
. “A. I do not.
“Q. When you sold the Vaughan, for what was it sold, for what amount? (Objected to as incompetent, irrelevant, and immaterial.)
“A. I refuse to answer that. (The question was-objected to, and after some argument the objection was sustained on the ground that only the reputed financial standing of the defendant was competent.) * * *
“Defendant’s Attorney: I move to strike out the witness’ testimony.
“The Court: All testimony as to details?
“Defendant’s Attorney: All testimony as to whether he owns it or not.
“The Court: Well, I think that is true, too. It is reputed worth.
“Plaintiff’s Attorney: That is all his testimony?
“The Court: All his testimony as to reputed worth seems to be the rule.”

The defendant’s twenty-third request to charge was as follows:

“There is no testimony in this case as to the reputed financial standing of the defendant, Vaughan, and I charge you that under the testimony, in this case the same cannot be considered.”

In its charge to the jury the court, among other things, said:

“Now, I have been asked to charge you whether these certain statements are slanderous. You will remember: ‘Mrs. McCloy has moved out drayloads of furniture; she has disappeared; she collected rents in the Vaughan apartments, and she now claims she has not collected them; she got money from the tenants in the building dishonestly, and left the city with her pockets full of money.’ Now it cannot be contended that the statement, ‘That she moved out drayloads of furniture, or that she has disappeared, or that she has collected rents from the tenants, or that she went away with her pockets full of money,’ are in and of themselves slanderous. She may have done this legally and rightfully. These statements cannot alone be considered as slanderous; they are to be taken, and may be taken, in connection with the other statements that are alleged, and if they are explanatory of those statements, or if they add to them or detract from them, they are to be considered. ‘She got moneys from the tenants dishonestly, she collected rents of the tenants, and now claims she has not done so.’ These, it seems to me, are the very material statements in this declaration. Charges of dishonest dealing, charges of obtaining money dishonestly in her business, if proven, would be actionable per se.”

Upon the subject of reputed worth, the trial court charged the jury as follows:

“There is one other matter which I am asked to call your attention to; considerable time has been spent here with reference to the question of the financial standing of the defendant. Now, gentlemen, the reputed financial standing of a defendant may be taken into consideration in considering how great weight his statements might have in the community, when considered by others who may have heard it. Now, that is true, but at the same time you must -be told that the financial standing is not to be taken to increase or decrease the damages; that is to say, that simply because a man has money, he is not to be mulcted in damages, or if he has- no money it is no less; it is not to be considered in that light; so you are to be very careful in considering that question. As is said by our court, it should be shown to prove the influence his words would have in the community; but the court says a jury must be cautioned against allowing such evidence to carry too much weight or influence, to swell the amount of damages.”

The record discloses that the jury found a verdict in favor of the plaintiff for $1,000 for injured feelings, and a judgment was entered accordingly.

This renders it unnecessary for us to consider some of the points urged by defendant’s counsel, as there seems to have been no recovery for injury to her business.

The defendant has brought the case hére upon writ of error, and while many errors have been assigned, we shall not find it necessary to specifically consider all of them. The following matters are covered by appropriate assignments of error:

1. In our opinion the defendant was entitled to have the court give his ' third, sixth, seventh, and eighth requests to charge. We find in the record no testimony in support of these allegations in the declaration. They contained the very sting of the charge in the declaration. Where the record is in such a condition, and in a case where the language proven to have been used is not in substance the same language as charged in the declaration, and where the court’s attention has been called to that fact by requests to charge, we think the defendant is entitled to have such requests given.

2. We think it was competent for the defendant to show the interest, if any, which the witnesses, Philip A. McHugh and Francis T. McGann had in the case. They offered themselves as witnesses and testified. The counsel for the plaintiff claim that such testimony was immaterial. We think that they should be estopped from here claiming that their testimony was immaterial and irrelevant. It is well settled in this State that witnesses may be cross-examined as to their interest. The interest or bias of a witness has never been regarded as irrelevant. It goes directly to his credit, and may be considered by the jury in weighing their testimony. Geary v. People, 22 Mich. 220, and cases there cited; Swift Electric Light Co. v. Grant, 90 Mich. 469 (51 N. W. 539); People v. Row, 135 Mich. 505 (98 N. W. 13); Denman v. Johnston, 85 Mich. 387 (48 N. W. 565).

In the last-cited case, while this court held that the statute authorizes a party to agree with his attorney for compensation, and that such agreement is not a material matter to be inquired into upon the trial, it added:

“If the attorney should present himself as a witness, it might be the subject of inquiry as affecting his credibility on the ground of interest.”

In People v. Drolet, 157 Mich. 90 (121 N. W. 291), this court said:

“The bias or interest of a witness is always a proper subject of inquiry, and, if shown, a proper subject of argument by counsel.”'

See Luckhurst v. Schroeder, 183 Mich. 487 (149 N. W. 1009).

3. We are of opinion the court should have given defendant’s twenty-third request to charge. And this upon the theory that the court struck out the testimony of the defendant with reference to his actual financial standing. There is some uncertainty as to just what the court did mean when it used the expression: “All his testimony as to reputed worth seems to be the rule.” We are in doubt whether the ruling of the court was so clear that the jury understood that this testimony was eliminated from the record. It is not necessary to cite cases to the effect that the actual worth of the defendant was immaterial and irrelevant. Reputed, not actual, financial standing of a defendant, is material. Brown v. Barnes, 39 Mich. 211 (33 Am. Rep. 375); Farrand v. Aldrich, 85 Mich. 593 (48 N. W. 628); Sanford v. Houghton, 184 Mich. 44 (150 N. W. 334), and cases cited. From the charge of the court we infer that the testimony of defendant as to his actual financial standing was treated as having been stricken out. We have looked in vain through the record to find any evidence tending to show the reputed worth or standing of the defendant. The record being in that condition, we think the court should have charged the jury as requested by defendant’s counsel. It does appear that a number of the material allegations of the publishing of slanderous words were not proven, and the jury should have been so instructed. The language as testified to was not actionable per se.

Complaint is made by appellant that the testimony of the witness Becker, and others, did not show a repetition of the alleged slander. Proof of repetition of slander does not mean a verbatim repetition. The evidence is intended to show malice in repeating charges of a substantially similar nature, and calculated to produce the same impression on the community. Brown v. Barnes, supra.

We do not find it necessary to discuss any other of the many assignments of error. The questions raised are not likely to arise upon a new trial, in view of what we have said.

For the errors pointed out, the judgment of the court below is reversed, and a new trial granted.

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