author: Ostrander, J.

text:
    GALLON v. HOUSE OF GOOD SHEPHERD.
    1. False Imprisonment — Charitable Institutions.
    An institution of a general charitable character, which by statute is designated as a place of detention to which girls may be committed by certain courts, is not such a governmental agency that it is relieved of liability for false imprisonment of an infant not so committed.

    2. Same.
    A corporation organized for charitable purposes, administering a charitable fund by providing a shelter for girls who may be exposed to corrupting influences, is liable for the torts of its servants in unlawfully detaining inmates, as for the breach of a non-delegable duty.

    3. Same.
    The corporation is not excused from liability to pay such an inmate damages by the fact that a trust fund would thus be diverted.
    4. Same.
    The question of the validity of a release signed by plaintiff’s ward, who stated that she executed it in ignorance of the contents because she was afraid, was for the jury.
    5. Damages — False Imprisonment — Excessive Amount.
    A judgment of $2,500 for unlawfully detaining a girl of 16 years in a charitable, institution for seven years is not excessive.
    6. False Imprisonment — Evidence—Motive.
    To show motive not of a charitable kind, testimony is admissible in such action tending to prove that the labor of the inmate was profitable to the defendant, that advertisements were inserted in the papers toascertain her whereabouts, and other efforts made by her relatives to find her.'

      . Error to Macomb; Erskine, J.
    Submitted June 23, 1909.
    (Docket No. 72.)
    Decided October 4, 1909.
    Case by Millie Gallon, guardian of Mabel Wellington, against the House of the Good Shepherd for false imprisonment of plaintiff’s ward. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Franz G. Kuhn, Seth W. Knight, and Allan H. Frazer (Edwin Henderson, of counsel), for appellant.

      Thomas A. Gonlon (J. 6r. Tucker, of counsel), for appellee.
    Defendant was incorporated in the year 1884 under the provisions of Act No. 20, Laws 1855 (3 Comp. Laws, §§ 8264-8270), under the name “The Monastery and Asylum of the Good Shepherd.” Amended articles of association were filed in the year 1889 in which the name of the society is “ The House of the Good Shepherd,” and the object of the organization is stated-to be:
    “The moral reformation of girls and women, and the preservation in a state of purity of girls and women whose virtue is exposed to danger.”
    The property of the association embraces some four acres of land, with buildings, situated pn West Fort street in the city of Detroit, valued, according to reports filed with the secretary of State, in 1905 at $200,000, in 1906 at $100,000, in 1907 and 1908 at $50,000. The religious order in charge, a cloistered order, is that of “ Our Lady of Charity of the Good Shepherd.” It is one of 300 houses maintained in different places throughout the world, and the Mother House, so called, is at Angiers, in France. The institution is supported by contributions and by the earnings of the inmates. The women who are in charge receive no pay — no wages or salary — for services; their lives being devoted to charity. The rules of the order are promulgated from the Mother House, to which reports are made, but each house is, in business management and financial condition, independent. The institution admits, irrespective of the religious training or beliefs of the applicant, three classes of women. A more accurate statement is that it classifies, those received as:. (a) Magdalens; (b) reformatory class, which includes wayward girls in danger of being led to evil; (c) preservation class, or innocents, children two years old and upwards. Inmates reach the institution through various channels. Some go there voluntarily. Some are received upon the request of parents, or those standing to them in the relation of parents. Officers of the law, as policemen and truant officers, bring some. By Act No. ¿71, Pub. Acts 1887 (1 Comp. Laws, § 2222), it is provided that police justices of the city of Detroit, justices of the peace of the county of Wayne, and the recorder’s court of the city of Detroit shall have power, after the conviction of a girl over 7 and under 17 years of age of an offense for which she might be sent to the State industrial school for girls, when requested by a parent or guardian, to commit her to imprisonment in the House of the Good Shepherd, but not at the expense of the State. In such cases, except where sentence is imposed in the recorder’s court, the commitment must be approved by a circuit or probate judge of the county, and the approval be indorsed upon the commitment before it is executed. Authority is conferred upon those in charge of the house to determine whether reformation warrants the discharge of the girl so committed, and to bind her out for the term of her commitment to suitable persons, reporting their action in the premises annually to the recorder’s court. The number committed to the institution by the orders of the courts is very small. It does not appear that otherwise than as just stated is there reposed anywhere any public visitatorial power, or that reports are required to be made, or are made, to any State or other public authority, of the number, condition, cause, or time of detention of girls received into the institution. The real name of an inmate is not divulged, unless by herself, to other inmates, but upon entering the institution each is given a name by which she is called so long as she remains there. Since the institution was opened, some 2,000 girls have been received in the reformatory class, and at the date of the trial of this case there were about 230 in that class. A rather extensive business is done in the laundry of the institution and in sewing. Four wagons are employed in. collecting and distributing the work of the laundry to persons outside the institution. More than 200 girls and women are employed in the laundry. The inmates are not paid for their labor.
    In her declaration the plaintiff avers that her ward and sister, Mabel Wellington, in June, 1898, being then 16 years of age, strong, well, and of good character and reputation, was induced by a person named in the declaration, under promise of procuring for her a place to work as a domestic in a small family, to go to the House of the Good Shepherd, in which institution, against her will and notwithstanding her repeated protests and requests, without the knowledge of her relatives, she was confined until some time in October, 1905, when her release was procured by her sister and brother, both of whom had during the period lived in Detroit; they having learned of her whereabouts from an escaped or discharged girl acquainted with the family. It is alleged, also, that she was compelled to work, was ill treated in various ways, and her physical and mental health much impaired. To the declaration the defendant pleaded the general issue.
    Upon the trial the jury were instructed to allow no damages for impaired health, nor for injuries inflicted by other inmates of the house, and to give nothing by way of punishment of defendant or exemplary damages. They were told, in substance and effect, that the issue to be determined by them was whether Mabel was unlawfully restrained of her liberty by the defendant (Smith v. Sisters of Good Shepherd, 27 Ky. Law Rep. 1107 [87 S. W. 1083]), either from the time she entered the institution, or, if she entered voluntarily, then from a later time, and, if she was unlawfully restrained, to give her such damages as she had suffered for loss of time, physical discomfort, mortification, disgrace, as they found the facts to be. The jury returned a verdict of $4,000 in her favor, upon which judgment was entered. A motion for a new trial was made and heard. It was ordered that a new trial be awarded unless plaintiff would consent to remit $1,500 of the judgment. Plaintiff consented. Errors are assigned upon rulings refusing a directed verdict for defendant, admitting and rejecting testimony, upon the conduct of counsel for plaintiff, upon the charge given and refusals to charge as requested by defendant, and upon the refusal to order a new trial. As they are considered, and as is necessary, references will be made to the testimony.

       As to liability of eleemosynary institution maintained by State or municipality for personal tort of agent or servant, see note to Leavell v. Western Kentucky Asylum for Insane (Ky.), 4 L. R. A. (N. S.) 269.
      As to liabilities of incorporated institutions belonging to the State generally, see note to State, ex rel. Little, v. Board of Regents of University of Kansas (Kan.), 29 L. R. A. 383.

       As to liability of charitable institution for negligence, see note to Williamson v. Louisville Industrial School (Ky.), 23 L. R. A. 200.

   Ostrander, J.

(after stating the facts). A contention is made which goes to the right of the plaintiff to recover, assuming it to be established that her ward was unlawfully deprived of her liberty — imprisoned—by defendant. It is said (a) that defendant is a governmental agency; (&) that it is a public charitable institution. If it is either, it is not liable to plaintiff for the torts of its officers or servants. The notion that it is a governmental agency is predicated of the statute which has been referred to, which permits certain magistrates and courts to commit offenders to the institution. Assuming that defendant might legally detain a girl committed to its institution by one of the magistrates or courts named in the statute, it does not follow that the institution becomes, by force of this statute, a State institution or, within any definition applicable in this discussion, a governmental agency. In a sense, girls so committed are wards of the State (Hunt v. Wayne Circuit Judges, 143 Mich. 93 [105 N. W. 531, 3 L. R. A. (N. S.) 564]), confided to the custody of the defendant, upon the request of a parent or guardian, as they might be committed by State authority to the custody and care of an individual. Whatever the relation thus created between the State and the institution may be called, and whatever rights and duties would or might arise out of such relation of the institution to the girl, it is clear that the general character of the institution is not changed. It remains, in fact and in law, the institution described in its articles of association.

The statute under which defendant is organized does not define a charitable purpose, but only that any three or more persons who may desire to become incorporated for any charitable purpose may do so. Societies organized under the provisions of the act, whose purposes are charitable, are charitable societies. The avowed object of the defendant is charitable. For the purposes of this case, it may be treated as occupying, in the view of the law, the position of a public charitable institution, administering a charitable fund. Bruce v. Methodist Episcopal Church, 147 Mich. 230 (110 N.W. 951, 10 L. R. A. [N. S.] 74). It administers the fund according to rules of its own adoption, by methods of its own choosing. It shelters, clothes, feeds, and instructs the inmates, requiring of them such labor in return as they can perform. Its buildings and premises are erected and arranged with the purpose of detaining those whom it desires to detain. It is intended that girls confided to the institution shall remain until discharged. While it appears that avenues are sometimes open by which an inmate may go out, it also appears that one who thereby goes out escapes. It is a place of detention. Concerning these matters, the record leaves no one in doubt. The rule that one who enters voluntarily may leave at pleasure, said to be in force in the institution, is a rule in recognition of the duty not to detain one not authoritatively committed to the care of defendant.

Upon the facts, the question presented is not one of the responsibility of defendant to those who voluntarily accept the shelter of the institution, to those committed to it by magistrates or courts, or to those detained at the request or by the consent of parents or guardians. It is not pretended that Mabel Wellington was there by order of court or by consent or at the request of parents or of relatives. It is admitted that after she went to the institution she was not outside its inclosing wall or fence until her release was applied for by her relatives. The jury were instructed that if she voluntarily entered the institution, or voluntarily remained there, thereby subjecting herself to its rules and discipline, she could not recover, and a verdict must be returned for defendant. The question, then, is one of the liability of defendant to one unlawfully detained in its institution — to one deprived of liberty without authority of the law.

To this question there can be but one answer. And liability may not be affirmed or denied upon any application of the doctrine of respondeat superior, if, indeed, upon the facts there is room for its application. The duty not to imprison a citizen in defendant’s institution without lawful authority is not one which may be delegated to servants or agents so as to relieve the principal from responsibility. The argument that a trust fund will be diverted if used to indemnify the injured person, and therefore the defendant is not liable, was answered in Bruce y. Methodist Episcopal Church, supra. See, also, Kellogg v. Church Charity Foundation, 128 App. Div. 214 (112 N. Y. Supp. 566).

We come, then, to the consideration of errors alleged to have been committed in the conduct of the trial and in refusing a new trial. It was the theory of plaintiff, first, that Mabel was an involuntary inmate of the institution, held there against her will; second, that her treatment while there was improper and resulted in injury. As to the second proposition, it should be said that the specific objections to the admission and the exclusion of testimony upon that subject have become unimportant, for the reason that the whole matter was withdrawn from the consideration of the jury. Whether it should be said that defendant was prejudiced generally by receiving some of the testimony offered, the prejudice being reflected in the verdict which was rendered, is a separate matter, which will be later referred to. As to the first proposition, and whichever way one may conclude the truth to lead, the testimony presents a very unusual condition of things. Assuming the girl to have been healthy, moral, of good reputation, with relatives in the city of Detroit interested in her welfare, to whose house she was free to go, a Protestant, with no particular religious tendencies,. a girl who had by her own efforts found employment at various places, receiving and disposing of her earnings, the natural inference would be that she did not willingly immure herself in this institution for seven years as one of a class of girls supposed to need reformation. The facts assumed were supported by the testimony produced by plaintiff. We find nothing in this testimony which requires particular notice. None of these facts are seriously disputed by defendant, although testimony was offered tending to prove that upon entering she stated that she was a Catholic, and it is claimed, upon the whole record, that plaintiff is now manifesting an interest in her ward which is in marked contrast to the lack of interest displayed in her sister before she entered defendant’s institution. A peculiar circumstance is that the relatives of Mabel who were witnesses discredit her mental soundness while presenting her, as they are obliged to do, as the principal witness for plaintiff. The sister discredits, not her truthfulness, but her mental competency, in having herself appointed to be her guardian. The brother discredits her in testimony such as the following:

“At present her mind is not what it should be, though she is improving. She is not completely competent to take care of herself, but far from it, and in some particulars she does not know the difference between right and wrong. I cannot say whether she knows the difference between the truth and a lie.”

Whether, having proved the character of Mabel and her detention for seven years in an institution arranged and used as a place of detention, it was incumbent upon plaintiff to prove an involuntary detention, or whether it was then incumbent upon defendant to prove that she was a voluntary inmate, was a question not debated at the trial. Plaintiff assumed, and it seems was compelled to carry, the burden of proving an involuntary detention. It is admitted that she went to the institution with Mrs. Goldsmith, who was at the time in charge of St. Mary’s Home. Mrs. Goldsmith testified, in substance, that Mabel Wellington came to the home with a man whom she said she had met in a park, and had asked to show her the way, gave her name as Mabel Wright, said she had neither home nor relatives and that the man she was with had agreed to get her a position in some hotel if she would go .that evening; that she considered that the girl was not very bright; that she needed protection, and told her she would take her to a home where she would be protected. She took her to the defendant’s institution, and turned her over to one of the sisters, saying, “Here is a child I have brought to be looked after.” She gave them no further information. Mary Howe has first charge of the reformatory class. Mabel, she says, was brought to her in the classroom by one of the sisters, and gave her name as Mabel Wellington. Later she talked with her, and made an entry of facts in a memorandum book. The entries are her name, the name of her father and mother, who she said were dead, and the name of her oldest sister, Mrs. A. H. Gallon, residence, 977 Russell street, Toronto, religion, Catholic. Mabel testified that Mrs. Goldsmith promised to give her a place as domestic in a family of three, that she took her to the defendant’s institution, on a street car, late in the afternoon. Nothing was said to her there, and no one told her the name of the institution. She was taken to the classroom about supper time, was invited to eat, did so, went out in the yard after supper, and with other girls sat for an hour. Prayers were said, and she went to bed. She heard no conversation between Mrs. Goldsmith and those in charge of the institution. Two or three days later questions were asked her, and she signed her name in a book. She told where she was born; that her father and mother were dead; the name of her sister, Mrs. Gallon; her address on Riopelle street in Detroit. She was asked nothing about her past life. In Canada, Mabel had gone to school to a convent. She knew that those in charge of the institution to which she was taken were members of some religious order. She disagrees with Mrs. Goldsmith in many respects, among others in respect to the time she was at St. Mary’s Home. She says she had been there some days, and, having no money to pay for board and lodging, she assisted about the work; that her trunk was there, and she afterwards sent for it, and it was brought to defendant’s institution.

If Mabel had known the character of this institution, and that she would not be permitted to leave it at her pleasure, there would be reason for the conclusion that she entered, and for a time at least, remained voluntarily —at least she did not enter protesting or because forced to do so. The point is not controlling here, however much the fact, if it exists, may be thought to explain or excuse the subsequent conduct of the defendant. There is abundant testimony, met by counter testimony on the part of defendant, tending to prove that, being there, those in charge proposed that she should remain whether she desired to remain or not, and her own testimony is to the effect that she soon sought to go away, and discovered the purpose of those in charge to prevent her doing so. Without entering into details, it is sufficient to say that the jury were warranted in finding that she was restrained of her liberty against her will. It is true that, after leavthe institution, and after an attorney had advised defendant that a claim for damages would be made, she signed and attested a document in which it is stated that while there she was treated with kindness; left at the request of her sister, and reluctantly; held the sisters in high regard; and released the convent and the Order from “any claim whatsoever I might have by reason of remaining or being detained prior to my majority.” But the manner in which this writing was procured, and the evidence as to whether it was voluntarily and intelligently made, was all before the jury. The court was not in error in refusing to direct a verdict for defendant, and the verdict rendered was supported by testimony. The recovery is not excessive. If it is assumed that the persons in control of this institution believed they were acting for the best interests of this girl, it is nevertheless intolerable to the law that a person, sui juris, shall be restrained of liberty, without authority of law, by a stranger, because, in the judgment of the stranger, such person will thereby be morally or financially improved. The charge of the court was favorable to defendant, and neither in requests to charge refused, nor in the charge as given, do we discover any error.

The errors based upon rulings admitting and rejecting testimony have been examined, with the result that we find none of them well assigned. We are of opinion, and this answers most of the objections not already answered, that plaintiff was entitled to testimony which tended to prove a motive other than a merely charitable one upon the part of defendant for receiving and detaining this girl, and that it was proper to show the labor to which she was put, and the fact, if it was a fact, that her work was profitable to the institution. It was proper, also, to show that the disappearance of this girl was soon known to her relatives, and that persistent and continued efforts were made, by employing detectives and by advertising in the Detroit daily papers, without success, to ascertain her whereabouts. We have examined the record, too, to learn if it is probable that, in admitting testimony relating to issues of fact finally withdrawn from the jury, the defendant was prejudiced, and whether the conduct of counsel for plaintiff which is complained about should result in granting a new trial. We are not satisfied that prejudice to defendant resulted.

Finding no reversible error, the judgment of the court below must be, and it is, affirmed.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
      In re LOREE’S ESTATE. LOREE v. VEDDER.
    1. Wills — Undue Influence.
    Error was committed by the trial court in excluding evidence of violent conduct of the testator’s wife towards him and of mastery over him by her, offered to show undue influence in the making of his will, and rejected on the ground that it occurred more than six years previous and was too remote.
    2. Same — Evidence—Attorney and Client — Privileged Communications.
    In a contest for the probate of a will between parties interested in the estate, communications between the testator and his attorney relating to the preparation of the will are not privileged.
    3. Same — Previous Testamentary Arrangements — Evidence.
    It is proper to show in such a case the contents of a previous will made by the testator.
    4. Same — Hearsay Rule-Statements of Proponent.
    Statements of the proponent, who is charged with undue influence, are admissible to show motive, though not made in the testator’s presence.
    5. Same — Husband and Wife — Privilege.
    Conversations between husband and wife in the presence of third persons, and statements made by either to third persons relative to the disposition of the property, are relevant to the issue of undue influence.
    6. Same — Undue Influence — Circumstantial Evidence — Burden of Proof.
    While the burden of proof in contesting a will is on the contestants, a verdict should not be directed where undue influence is inferable from all the surrounding circumstances.
    7. Same — Revengeful Motive — Husband and Wife.
    Circumstantial evidence of an intent to procure a change in testator’s will against the interest of contestants, based on an unjustifiable revengeful motive in the mind of his wife, with other corroborative testimony, warrants the submission of the question of undue influence to the jury.

      Error to Livingston; Miner, J.
    Submitted June 16, 1909.
    (Docket No. 112.)
    Decided October 4, 1909.
    Catherine Loree presented for probate the last will and testament of Joseph Loree, deceased. The will was allowed in the probate court, and Alma Yedder and others appealed to the circuit court. A judgment for proponent on a verdict directed by the court is reviewed by contestants on writ of error.
    Reversed.

      Louis E. Howlett and Edmund C. Shields, for appellants.

      William P. Van Winkle, for appellee.
   McAlvay, J.

Contestants and appellants are the granddaughters of deceased, being children of his deceased daughter, Mrs. Nettie Wooden. Prom the allowance of a will to probate by the probate court of Livingston county two appeals were taken to the circuit court of said county — one by the contestants above named, the other by two daughters of deceased. These appeals, by consent of the parties and an order of the court, were combined at the trial, and tried as one case before the court and a jury. The contest of the will was made upon several grounds; but only one relied upon, namely, the alleged undue influence which was claimed to have been exercised over the testator by his wife. At the close of the case the court instructed the jury to return a verdict for proponents, and a judgment was duly entered thereon sustaining the will. Prom this judgment all the contestants joined in removing the case to this court by writ of error.

The testator, Joseph Loree, was 79 years of age at the time of his death, on March 2, 1908. He left surviving him, his widow, who was 12 years younger than he, three daughters, two sons, and two granddaughters, who are the principal contestants. The testator’s estate consisted of about 1,000 acres of farming lands, and personal property, all of the claimed value of $75,000. An instrument hearing date August 17, 1903, as modified by a codicil attached, bearing date July 30, 1906, was offered for probate by the widow, Catherine Loree, proponent, as the last will and testament of Joseph Loree. The record of the trial upon the contest of this will shows that the testator, although coarse and rough, was a man of ability and shrewdness in business matters. He was addicted to the use of intoxicating liquors, and often became intoxicated. He had been admitted to the bar of Livingston county, and had tried some justice’s court cases. He was a kind man, and affectionate toward his family. During the last 10 or 12 years of his life he became weak physically, and did no labor. His mind was somewhat weakened, and, on account of his condition, he required care and attention from members of the family. His wife, the proponent, was a woman of strong individuality. She was a good business woman, strong willed and domineering. The deceased often consulted her in business transactions, and deferred to her judgment. She retained the full vigor of her mind and body during his lifetime, taking care of him and doing all of the housework without assistance. In the year 1899 the mother of contestants, who at the time were of the ages of 16 and 13 years, respectively, left her husband and began proceedings for a divorce on the ground of extreme cruelty. On hearing in this divorce case in May, 1900, these two children were produced in court as witnesses by the father, and gave testimony favorable to him. There is no dispute but that this circumstance greatly angered the proponent. She always insisted in the presence of the testator and others that they had committed perjury. That the girls testified truthfully is established by this record, and is not contradicted.

In support of their claim that the will was procured by undue influence exercised over testator by Catherine E. Loree, his wife, contestants produced evidence to show her hostility toward them, which was introduced as tending to establish the following facts: The mother of contestants died within a week after her divorce was granted. At the time she was dying the question as to whether the two daughters should be sent for was discussed. The grandfather asked to have it done, but the grandmother declared they must not come. An uncle protested that such conduct would be a disgrace and went after them. The grandmother would not allow the daughters to place a wreath upon their mother’s coffin. She requested the minister who officiated at the funeral to speak disparagingly of these girls, and insisted that they must not appear as chief mourners. The reason she gave for this conduct was because the girls had been witnesses for their father, and had testified falsely. There is evidence in the record tending to show that she for the same reason expressed a determination to prevent the girls from getting anything left by their mother. It also appears soon after the death of her daughter that she said in the presence of the testator that, on account of the girls’ testimony, there would be a new will, and they would be cut off. The instrument offered for probate was executed August 17, 1903. It appears that it was similar to a former will executed June 21, 1900, with the exception of two changes. In this will contestants Alma and Elvira were given 40 acres in fee and $500 in cash to share the same equally. The codicil revoked the devise of the fee to them in the land, and made it a life estate.

Evidence was also introduced for the purpose of showing the. expressed intention of testator to divide his property by will equally among his children, and that he intended to give these two contestants a certain farm of 100 acres, and, also, after the will was made, that it was not according to his wishes; also, that during his last sickness he expressed a wish to change it, but proponent objected, saying he was too sick, and it was then too late.

On behalf of proponent no witnesses were offered except to make a prima facie case to admit the will to probate. Proponent was not produced as a witness, nor was evidence offered on her behalf contradicting the proofs of contestants. The case is somewhat unusual, in that the undue influence claimed was not exercised in favor of proponent herself, but against these contestants.

Upon the trial, contestants, to show undue influence, were not permitted to introduce evidence of facts which occurred more than six years before this will was executed, on the ground that it was too remote. Eleven of the assignments of error are based upon this ruling of the court. Contestants claimed, and offered to show, that proponent had assumed control and mastery over testator’s mind; that she had, more than six years before the execution of this will, used extreme personal violence towards him, and from that time had controlled and dominated him. In Beaubien v. Oicotte, 12 Mich. 488, the court said:

“ In all cases of this character it has been customary, as the reports show, to allow a wide range of inquiry into the family relations, and the terms upon which they have lived. It would be impossible to obtain a clear idea concerning motives and probabilities without it. These cases, as before intimated, are determined generally upon circumstantial evidence; and it must be received upon all points tending to throw light upon the various family relations.”

No good reason is apparent wny proof of the relations of these parties relative to the dominance of proponent over testator should be arbitrarily limited to the term of six years. To show when this began and its continuance up to and including the time of the execution of the will and codicil was material and relevant to the issue as a part of the evidence necessary to establish undue influence. The testator for several years had given up physical labor, and had grown gradually weaker. The wife was vigorous, and the claim made was that for a series of years she had dominated him, and had exercised undue influence in procuring this will. It was a question of fact whether this was true or not, which could only be determined upon all the material evidence which could be produced. Potter's Appeal, 53 Mich. 112 (18 N. W. 575); Rivard v. Rivard, 109 Mich. 110, 111 (66 N. W. 681, 63 Am. St. Rep. 566). See, also, Waters v. Reed, 129 Mich. 135, 136 (88 N. W. 394). The court was in error in excluding such evidence.

The court, on cross-examination of the attorney who drew the will, excluded and struck out all testimony relative to a former will drawn by him and executed by the testator, on the ground that, by reason of the relation of attorney and client, communications between the witness and testator were privileged. On direct examination this witness, who was called by proponent to establish this will, had testified that the will sought to be probated was copied from a former will, which he had drawn, with but two changes. The contents of this former will and the statements of the testator made at the time it was being, considered were material to the case. Relative to the materiality of the contents of a former will, this court has said in Beaubien v. Oicotte, supra:

“The former wills, and other pecuniary arrangements for Mrs. Beaubien, connected with them, were properly received in evidence. It is true, of course, that making one will does not, of itself, render it at all unlikely that another will may be substituted; but previous preferences and plans may have a plain bearing upon an issue, where the question arises whether the testator has understandingly, and of his own free will, changed his settled views. No case has been cited holding such proof inadmissible. It is of very frequent occurrence in the cases reported.”

The court refused to allow the attorney to testify at all concerning the former will. The great weight of the authorities and the text-writers is that communications between attorney and client during the preparation of a will are not privileged. This rule, where the contest is between parties not strangers to the estate, appears to be universal, except where a statute controls. In re Young, 17 L. R. A. (N. S.) 108, and notes (33 Utah, 382, 94 Pac 731, 126 Am. St. Rep. 843). The court was in error in excluding this evidence.

The court also refused to allow this witness to testify to statments made by Mrs. Lores relative to what disposition of the property in regard to children or grandchildren would be made by the testator, unless they appeared to have been made in her husband’s presence, or she had been connected with the case. The first ground is not tenable, and the second went merely to the order of proof, to which no objection had been made. In Be Young, supra, it is held that the attorney could testify as to statements made by the wife who is present and takes part in conversations with respect to a proposed will. Statements made by her at other times, whether in testator’s presence or absence, were material upon the question of undue influence and her attitude towards these contestants. The witness should have been permitted to answer them.

As to other errors assigned upon the exclusion of evidence we need say but little. We have, we hope, clearly indicated that all evidence which tends to prove or disprove the main contention that this will was procured by the undue influence of Mrs. Loree should be admitted. This includes conversations and statements made by testator or his wife to others, or to each other in the presence of others. We do not consider that the quarrels with the sons appear to be material in this case, as it is narrowed to one proposition, which does not require restatement.

The remaining question relates to the verdict instructed for the proponent. The verdict was so directed, because, in the opinion of the court, no evidence of undue influence had been produced. A consideration of all of the evidence in the case does not support the conclusion of the court. An analysis of the cases discloses that in contesting a will on account of undue influence the burden of proof is always upon the contestant. The case must be determined generally upon circumstantial evidence. This is necessarily so by reason of the secret and insidious means by which such influence is usually exercised. Rivard v. Rivard, 109 Mich. 111 (66 N. W. 681, 63 Am. St. Rep. 566); Walts v. Walts, 127 Mich. 611 (86 N. W. 1030; Waters v. Reed, 129 Mich. 136 (88 N. W. 394); Wilson v. Parker, 130 Mich. 641 (90 N. W. 682).

In Walts v. Walts, supra, where all the testimony as to undue influence was taken from the consideration of the jury, the court, after giving a brief outline of this testimony, said:

“All this testimony was subject to explanation, * * * but it was admissible, and was for the jury to weigh.”

And further:

“ There was also testimony of admissions by Mrs. Peter Walts that she had tried to prejudice deceased against his son William. There was testimony of statements of deceased, prior to the making of the will, showing his state of mind, and indicating that efforts were being made to influence him. These facts and circumstances, when taken in connection with testimony showing the weakened condition of decedent, are sufficient to carry the case to the jury upon the question of undue influence.”

The evidence in this case, in certain particulars, is very similar to that in the case at bar, and we also have, in the case under consideration, substantive proof tending to show the attempt to exercise undue influence.

Counsel for proponent put great reliance upon cases where the courts have held that the wife may exercise certain influence over the husband in the matter of the disposition of his property, even to the point of argument and persistent urging. An examination of such cases discloses that the influence exercised was from a proper motive, and with a proper purpose. We are referred to no case like the case at bar, and we are unable to find any such case where the motive was a revengeful one, and the purpose to wrongfully injure those who', in fact, were innocent of any wrongdoing. The weight to be given to the evidence in the case is for the jury to determine, and this court expresses no opinion upon its probative value. We simply determine that the case should have been submitted to the jury under proper instructions.

The judgment is reversed, and a new trial ordered.

Blair, C. J., and Grant, Montgomery, and Brooke, JJ., concurred.


author: Blair, C. J.

text:
    DIEM v. DROGMILLER.
    1. Estates of Decedents — Executors and Administrators — Appointment.
    A recovery by an administrator in trover for personal property which remained in the possession of testator’s son for thirteen years, subsequent to his death, is barred by testimony which shows that the other persons interested in the property by virtue of the testator’s will acquiesced in the possession by the son and had entered into a compromise with him of their rights under the will, and that the administrator was appointed for the purpose of instituting an action on the petition of a daughter who had no interest in the estate.
    2. Same —Petition for Appointment of Administrator — Probate of Wills.
    One having no interest in the estate of a deceased has no right to petition either for the probate of the will or the ap- ' pointment of an administrator.
    8. Same — Probate Courts — Collateral Attack on Appointment of Administrator.
    Where plaintiff’s own evidence discloses that he has no right to recover i as administrator, it is not a collateral attack upon the order appointing him to direct a verdict for the defendant.
    Error to St. Clair; Tappan, J.
    Submitted June 16, 1909.
    (Docket No. 116.)
    Decided October 4, 1909.

      Trover by Henry Diem, administrator of the estate of Henry Drogmiller, Sr., deceased, against Henry Drogmiller, Jr. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      Moore & Wilson, for appellant.

      Walsh & Walsh, for appellee.
   Blair, C. J.

This is an action of trover for the conversion by defendant of certain personal property alleged to belong to the estate of his father, Henry Drogmiller, who died testate March 11, 1894. Under his plea of the general issue, defendant gave notice of the statute of limitations ; undisputed ownership since the death of testator under a claim of ownership acquiesced in by the heirs, devisees, and legatees of testator; estoppel to contest his ownership because of a division of the property and acquiescence in his acts of ownership thereafter; a settlement by the parties in interest.

Henry Drogmiller, Sr., executed the will in question October 28, 1888. After giving 40 acres of land to defendant he devised the homestead 40 to his wife, Marie Drogmiller, for life, remainder in fee to defendant, with the condition that he pay $500 to his sister Emma.

Third. The personal property that is or may be on the farm after my death shall belong to my wife, Marie, and to Henry, my son, half and half, and after the death of my wife, Marie, it shall all belong to my son, Henry.

Fourth. Having paid my son, Charlie, and my daughter, Louise Guldenstein, their share, they shall not receive any more of the property after my death. But if my son, Henry, should die before my wife, Marie, then the homestead shall belong to said my wife and she shall have the right to dispose of it as she likes best.”

A couple of weeks after the father’s death the widow handed the will to defendant, with a request that he probate the will. He took no steps to probate the will, in' consequence of something the executor named therein told him, and handed it back to his mother. Some three years after Mr. Drogmiller’s death the widow left the farm, and went to live with her daughter Emma, then Emma Wilde. In 1902 the parties interested in the estate met, and settled their entire interests in the real estate, and the others executed quitclaim deeds thereof to defendant. Nothing was said at that time about,' and no express settlement was made with reference to, the personal estate. The bequest of $500 to Emma was paid by defendant. In 1905, Emma Wilde petitioned for the probate of the will, and the same was duly probated.

The principal, and substantially the only, question of fact submitted to the jury was whether, under the evidence, an executed gift of the personal property had been made by the father in his lifetime to the defendant. It is, in my opinion, not necessary to determine whether there was sufficient evidence to go to the jury on the question of a gift of the personal property by the testator to the defendant. The testator died possessed of two 40-acre lots. By his will he bequeathed one lot to the defendant, the other, his homestead, to his wife during her life, and after her death to the defendant; but if he died first, then the homestead to belong to his wife in fee. He bequeathed the personal property that may be on the farm at his death to his wife and to Henry, half and half, and after her death it should all belong to Henry. The will was not probated. Henry, with the knowledge of the other heirs, paid funeral expenses, physicians’ bills, and the other debts, and erected a monument at his own expense. Subsequently the parties, by a settlement, carried out the provisions of the will and executed deeds for that purpose. The will also provided that Henry should pay his sister Emma $500 when she should marry or become of age. This was paid. Subsequently the widow left the homestead and home of Henry and went to live with her daughter.

At the time of the settlement, in consideration of $750 and an agreement to pay $60 per year during her lifetime for her support, the mother conveyed her interest in the homestead to Henry. Meanwhile Henry had carried on the farm, and had had the control and use of the personal property, small in amount. His mother had made no demand on him for her part of the personal property, and had evidently acquiesced in his use thereof. At this settlement nothing was said about the personal property. Eleven years after the death of the testator, the daughter filed a petition in the probate court for the probate of the will. She had no interest in the personal property. She had received her entire share under the provisions of the will.' The only parties interested in the personal property were, and still are, the defendant, Henry, and his mother. Thirteen years after testator’s death this suit is brought. There is nothing to settle except the personal property, in which, as already stated, Henry and his mother are alone interested. The record is barren of any competent evidence that she makes any claim to the property, or that she has any knowledge of this proceeding. Under this record the daughter Emma, having no interest whatever in the estate, secured the probate of the will, and the appointment of an administrator with the will annexed, for the sole purpose of having the administrator bring this suit. There is no pretense whatever of any other reason for securing the probate of the will. One having no interest in the estate of a deceased has no right to petition either for the probate of the will or the appointment of an administrator.

A considerable portion of the personal property, hogs, chickens, cows, etc., would, in the nature of things, be used up upon the farm, and, in the course of time, utterly disappear. It was undoubtedly contemplated by all parties concerned, including the testator, that the son and mother would live together upon the farm. Presumably she had the benefit of this property while she lived at home, some four or five years, after her husband’s death. She left it there when she preferred to go and live with her daughter. In lieu of the provision made by the will for her, she chose to sell and convey all her interest in the real, if not in the personal, property, and to take $750 for her life interest and $60 a year for her support. I think it a fair conclusion, from the testimony of the daughter, the moving spirit in this litigation, that it was understood that all these matters were settled. She testified:

“When I had given Henry the deeds, and had gotten my $100, and mother got her $600,1 went home and nothing was said about anything left unsettled. So far as anything was said, everything was settled between our folks, my mother, myself, and Henry, and it remained settled until I filed this petition in the probate court some three or four years afterwards.”

For 13 years prior to the bringing of this suit the mother acquiesced in his possession and use of the personal property, and, for anything here appearing, still acquiesces in it. The court should, as requested, have directed a verdict for the defendant. See Beardslee v. Reeves, 76 Mich. 661 (43 N. W. 677); Harris v. Bow, 156 Mich. 28 (120 N. W. 17).

This holding is not a collateral attack upon the decision of the probate court appointing an administrator. It appears from the plaintiff’s own showing that he had no interest whatever in this property, its possession, use, or control. Where the absence of any right to maintain a suit appears from plaintiff’s own evidence, he cannot recover. The question is raised here precisely as it was in the cases above cited.

The judgment is affirmed.

Grant, Montgomery, McAlvay, and Brooke, JJ., concurred.


author: Hooker, J.

text:
    BETTERLY v. BOYNE CITY, GAYLORD & ALPENA RAILROAD CO.
    1. Negligence — Railroads — Automatic Coupling Devices — Master and Servant — Assumption oe Risk.
    A logging train, which consists in part of cars with couplers more than 25 inches above the rails, must have automatic couplers in compliance with Act No. 234, Pub. Acts 1907; not being within the exception which excludes trains consisting of standard logging cars having couplers not over 25 inches above the rail.
    2. Same — Statutory Duty — Risk not Assumed.
    A servant does not assume the risk of a violation of such statutory duty.

    3. Same — Proximate Cause — Concurrent Causes — Defective Equipment — Railroads.
    Where it appeared that the drawhead of one of the cars which plaintiff attempted to couple was broken and the coupler lower than that of the other cars, it could not be said, as a matter of law, that plaintiff was injured while lifting it up because of the defective car rather than by the neglect to comply with the statute.
    4. Same — Contributory Negligence.
    The evidence disclosing that plaintiff had been previously informed of the high car and of the defective coupling, warranted the inference that his entering between the cars contributed to his injury and was negligence, and rendered a charge erroneous which stated that plaintiff had the right to enter between the cars, but was required to exercise due care in making the coupling.
    Error to Otesgo; Sharpe, J. Case by Fletcher Betterly against the Boyne City, day-lord Sc Alpena Railroad Company for personal injuries. A judgment for plaintiff is reviewed by defendant on. writ of error.

      Submitted June 21, 1909.
    (Docket No. 97.)
    Decided October 4, 1909.

      Reversed.

      Harris & Buegsegger, for appellant.

      De Vere Hall, for appellee.

       As to servant’s assumption of risk of master’s breach of statutory duty, see note to Denver, etc., R. Co. v. Norgate (C. C. A. 8th C.), 6 L. R. A. (N. S.) 981.

   Hooker, J.

Defendant is the owner of a steam railroad which it operates chiefly for logging operations, though some of its trains carry passengers, freight, mail, express, and baggage. All of its logging cars have link and pin couplers, and on all but four the centers of such couplers are 25 inches or less above the top of the rail. On these four cars they were about 27f inches above the top of the rail. The plaintiff, an experienced brakeman, was employed by defendant as conductor of its logging-train, and had served as such a year or more before his injury in coupling cars belonging to such train, which led to his bringing this action. Upon the trial plaintiff recovered, and defendant has appealed.

The plaintiff relied on three acts of negligence, viz.:

(1) Violation of Act No. 234, Pub. Acts 190?, in the equipment of its cars.

(2) The use of a car with an injured coupler.

(3) The use of cars, with link and pin couplers, of heights wanting in reasonable uniformity.

The statute referred to provides:

“ It shall hereafter be unlawful for any common carrier owning or operating any portion of a railroad, wholly or partly in this State, to haul or permit to be hauled or used on its line within this State any car used in moving traffic not equipped with couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the cars: Provided, that nothing in this act contained shall apply to trains composed of four wheeled cars or to trains composed of eight wheeled standard logging cars where the height of such car from the top of the rail to the center of the coupling does not exceed twenty-five inches, or to locomotives used in hauling such trains when such cars or locomotives are exclusively used for the transportation of logs.”

Section 2 of the act provides a penalty for violation.

The train in question consisted of several standard logging cars, conforming to the requirements in the exception, and one or more logging cars of similar type, but which did not comply with it in the matter of height to the centers of the couplings, being 27§ inches. The plaintiff attempted to couple the last car in the train to a car standing on the track. The former was a car with the high coupling, the other one with a 25-inch coupling when in repair, but, owing to a bent or broken strap made to hold up the drawhead, it (the drawhead) was dropped down. He did not notice this until he stepped in between the cars, then a foot or two feet apart, the train being in motion, backing up. He testified that this drawhead was two or three inches lower than it would have been had it been in good repair, making a difference (he said) between the couplings of six or seven inches in height. In trying to make the coupling by lifting it up his hand was injured. The plaintiff admitted that his brakeman informed him the previous day of a broken car in the train, but did not tell him what car it was or where it was.

Counsel for defendant contend:

(1) That the defendant did not violate the statute, and consequently plaintiff assumed the risk of making the coupling; it being one incident to his employment.

(2) That, if the defendant did violate the statute, such violation — i. e., the absence of automatic couplers — was not the proximate cause of the injury, and therefore plaintiff should not have been allowed to recover on that ground.

(3) That the court erred in his instruction relating to contributory negligence.

Assumption of Risk. We have held that one injured through the violation of a statute cannot be said to have assumed the risk. Defendant’s claim is that this was a logging train, all of the cars in which, save one, complied with the requirements of the exception. If that be admitted, it certainly was not a train to which the exception applied, for it is not the kind of a train described therein. The legislature made an exception in favor of logging trains — not cars — where (all) cars complied with its requirements. All other trains must be made up of cars equipped with automatic couplers. It cannot be said, therefore, that plaintiff contracted to assume the risk of coupling cars with link and pin couplers, in a train not within the exception.

Proximate Cause. Counsel say that, had the high car been equipped with an automatic coupler, it would have required the same going between the cars, and lifting up the low drawhead. Therefore it was not the absence of the automatic coupler on the high car, but the low drawhead upon the defective car, which was the proximate cause of the accident. This is more plausible than accurate. Suppose the low car had been perfect and the high car had been equipped with an automatic coupler, still the defendant would not have complied with the law, which required all logging trains using any link and pin couplings to have drawbars not exceeding 25 inches. We may reasonably assume that this requirement of uniformity was for the purpose of obviating the dangers of coupling with link and pin peculiar to the use of uneven drawbars. We find nothing in this law indicating an intention to except a train of logging cars using link and pin and automatic couplers indiscriminately, at least where some of the cars have couplers exceeding the lawful height, which is all that we need say in this case. If there is any merit in the claim that the violation of the law was not the proximate cause of the injury, it rests on the fact that the low car was defective, by reason of which the drawbar was two inches below the height of 25 inches, but who can say that the proximate cause was necessarily either one of two concurring acts, negligent or otherwise. If a jury might have so found, we discover no request that they be instructed upon the subject.

Contributory Negligence. The question of contributory negligence was certainly in the case. The court so understood it, and left it to the jury. We are asked to hold that he erred in limiting the jury to acts done after plaintiff entered between the cars. The defendant claims that the plaintiff as conductor had authority, and that it was his duty, to set out the high car from the train, and should not have attempted the coupling for that reason; also, that he knew of the broken car the day before the accident, being informed thereof by his brakeman from whom he took its number; further, that with this knowledge he should have discovered the difference between the couplers, and the defective coupler, before entering between the cars, and that the jury should have been allowed to find that it was negligence on his part to go between the cars, where he would be compelled to attempt the coupling or take serious risks of injury.

It also contends that if was negligence for plaintiff to enter between cars, one of which was approaching the other and in close proximity to the other, without ascertaining whether they were in a condition of good repair, and that in this case by not attempting to ascertain the condition of the cars, and without signaling the engineer and stopping the train, he was guilty of contributory negligence, and therefore the court erred in instructing that:

I believe it to be the law, and now charge it to you as the law, that when a railroad company is required to equip cars of this class that I have spoken of with the automatic coupler, and they fail to do it, that then the entrance of the conductor between the two cars for the purpose of trying to make the coupling is not such an act on his part as assumes the risk connected with the danger involved in that work. The statute steps in and releases him from assuming the risk incident to that work, but, if he gets in between the cars, then a duty devolves upon him, and that duty is to use such care, such reasonable care and precaution in endeavoring to make the coupling, as is incident to the danger involved. ■ While he has the right, as I have said to you, without assuming the risk connected with it, to enter in between the cars for the purpose of making the coupling, the law still devolves upon him the duty of using care in the performing of that work. And, if his injury in this case was occasioned in consequence of any carelessness on his part while he was endeavoring to make this coupling, then he cannot recover in this case. He is guilty of what we term in law ‘ contributory negligence.’ ”

The effect of-this was to preclude the jury from finding that there was any contributory negligence except such as occurred after plaintiff’s entry between the cars. It is obvious that this cannot be the correct rule. The jury might have found that it was negligent to go between these cars, in view of the patent want of uniformity of couplers and the depressed drawbar, without stopping the train to ascertain conditions, or raising and supporting the. low drawbar before allowing the cars to collide.

We are therefore constrained to reverse the judgment and direct a new trial. It is so ordered.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.


text:
    BIRDSALL v. SMITH.
    1. Malicious Prosecution — Probable Cause.
    An employé of the dairy and food department, who makes a complaint, at the direction of the commissioner andón the faith of a certificate of analysis, against a milk dealer for selling adulterated milk, and who had no connection with' the case prior to making the complaint, has probable cause to institute the prosecution, in the absence of malice or oppression.
    2. Same — Statutes—Certificate of Analysis of Adulterated Pood.
    No duty rested on such employé to make a further investigation of the facts; the certificate being prima facie evidence of adulteration under 3 Comp. Laws, § 11424, and Act No. 268, Pub. Acts 1899.
    3. Same — Malice.
    A citizen who sends suspected milk to the State dairy and food commissioner, and who has no further part in a prosecution for selling such milk, performs his duty, and is not chargeable with a malicious prosecution, although it appeared that he had ill feeling toward the plaintiff.
    4. Constitutional Law — Malicious Prosecution — Action under Unconstitutional Statute.
    Malicious prosecution does not lie for instituting criminal proceedings under a statute which has not been judicially declared unconstitutional.
    5. Malicious Prosecution — Pleading—General Issue.
    Want of probable cause is put in issue by a plea of the general issue under Circuit Court Rule 7
    Error to Kent; Perkins, J.
    Submitted June 23, 1909.
    (Docket No. 77.)
    Decided October 4, 1909.
    Case by Martin P. Birdsall against Eldon Smith, Ormond C. Howe, and Edward A. Havens for malicious prosecution. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Elvin Swarthout (Clapperton & Owen, of counsel), for appellant.

      John E. Bird, Attorney General, Thomas A. Lawlert Assistant Attorney General, Moses Taggart, City Attorney, and B. M. Ferguson, Assistant City Attorney, for appellees.
   Hooker, J.

The plaintiff, a vendor of milk, was prosecuted upon the complaint of defendant Howe for selling adulterated milk. Being acquitted upon a trial, he brought this action for malicious prosecution against Howe and two other defendants. The learned circuit judge directed a verdict for defendants upon the grounds:

(1) That the plaintiff had failed to prove a want of probable cause for the complaint.

(2) That there was no evidence tending to show a conspiracy between the defendants to wrongfully prosecute.

(3) That, there being no proof of a want of probable cause, the question of defendant’s motives was unimportant.

Defendant Howe was employed in the office of the dairy and food commissioner at Lansing, the other defendants were local food inspectors acting under appointment by the commissioner. Howe had no acquaintance with either of the other defendants. His connection with the case began with a direction from the dairy and food commissioner to go to Grand Rapids and make a complaint against plaintiff, based upon a report of an analysis of a certain quantity of milk sold by .the plaintiff, and stated in the report as contained in a half-pint bottle, which said report, made by the State analyst, showed to be adulterated. His action in the matter ended by his drawing, subscribing, and swearing to the complaint and filing it with the justice, who presumably took such testimony as may have been presented, and issued the warrant upon which plaintiff was arrested. There is an absence of testimony tending to show Howe’s connection with any conspiracy to wrong plaintiff, and there is no testimony indicating that he did any further or other act in the premises than as hereinbefore stated, or that he had or took any personal interest in the matter. As to him, the only question that need be considered is whether the undisputed evidence shows that there was probable cause. As there is no conflict in relation to the facts, this was a question for the court to decide, and he correctly held that it failed to show a want of probable cause. See Rankin v. Crane, 104 Mich. 6 (61 N. W. 1007); Fine v. Navarre, 104 Mich. 93 (62 N. W. 142); Rogers v. Olds, 117 Mich. 368 (75 N. W. 933). Moreover, it conclusively appears that Howe did not act maliciously or oppressively. James v. Sweet, 125 Mich. 132 (84 N. W. 61).

' It is contended that the report of the analyst was based upon a half-pint bottle of milk, while the proof shows that plaintiff’s milk submitted to him was contained in a pint bottle; that Howe, being employed in the dairy and food commissioner’s office, should have ascertained these facts. We do not think so. In the first place, while the report does state that the sample was submitted in a half-pint bottle, it states that it was under a seal numbered H. 696. Havens, Smith, and the analyst agree that the sample so numbered and sent was a pint bottle that was procured from Birdsall. Birdsall says it was a pint bottle, and he does not testify as to the number, except as he produces a receipt bearing a different number, which he said he received from Havens for one bottle. The evidence is clear that an error was made in the report as to the description of the bottle analyzed. But, furthermore, the law requires an analysis to be made, and 3 Comp. Laws, § 11424, makes the certificate prima facie evidence of adulteration. See, also, Act No. 268, Pub. Acts 1899, § 6. We are of the opinion that, in the absence of information or belief to the contrary, such a certificate justifies an officer in making a complaint under these statutes.

The only act done by Havens and Smith was the procuring and sending of the two bottles of milk for analysis. This was lawful under the statute. There is no testimony indicating any bad faith in this on the part of Havens. Counsel do claim, however, that Smith was actuated by spite, the only reasons alléged for it being plaintiff’s refusal to advertise in a certain newspaper when requested by Smith, and an alleged controversy over the alleged unsanitary condition of plaintiff’s premises and milk cans. If it be admitted that Smith caused samples of milk to be obtained and sent for analysis, he did no more than the law required, if he knew, believed, or suspected it to be impure, whatever his feelings toward plaintiff may have been. There is no testimony tending to prove that he did more than this, and therefore no evidence that he had any part in the prosecution, which appears to have been based, solely upon the analysis of the milk which came from the plaintiff’s dairy, under the clear proofs in the case.

Counsel contend that the act under which this plaintiff was prosecuted is unconstitutional, and therefore defendants’ prosecution was necessarily without probable cause. If the defendants could have been shown to know that such act was unconstitutional and would be declared so, it is possible that some weight might attach to such claim; but inasmuch as they could not have known it, it cannot be said that the making of a complaint to a proper officer was without probable cause upon such a ground.. Every statute should be considered valid until there is a judicial determination to the contrary, and these defendants had a right to act upon such assumption. The question whether they had probable cause for making this complaint cannot depend on what may be held.as to the validity of the law. We can therefore omit a discussion of the question of constitutionality.

It is also contended that the pleas of the general issue, without any notice of the defenses made, were insufficient, under Circuit Court Rule 7, to support the proof. The general issue is a denial of all things that a plaintiff must establish to maintain his action. Want of probable cause is one of these. Sweet v. Negus, 30 Mich. 406; Hamilton v. Smith, 39 Mich. 222; Smith v. Austin, 49 Mich. 286 (13 N. W. 593); Spalding v. Lowe, 56 Mich. 366 (23 N. W. 46); Le Clear v. Perkins, 103 Mich. 131 (61 N. W. 357, 26 L. R. A. 627).

Counsel claim that defendants did not consult the prosecuting attorney, and therefore the court erred in directing a verdict. No attempt was made to excuse an improper prosecution, under the advice of counsel. The question is unimportant.

The judgment is affirmed.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.


author: Per Curiam.

text:
      In re LANGLEY’S ESTATE. WHITEHEAD v. SUNLEY.
    Appeal and Error — Extension op Time to Sue Out Writ.
    Delay in suing out a writ of error must be excused by a sufficient showing in order to warrant an extension of time beyond the year.
    Almeron Whitehead and John Moore, executors, presented for probate the last will and testament of Thomas Langley, deceased. The will was allowed in probate court and Nellie L. Sunley and others, heirs at law, appealed to the circuit court where judgment was entered for proponents: On motion for an extension of time to sue out writ of error.
    Submitted September 21, 1909.
    (Calendar No. 23,539½.)
    Motion denied October 4, 1909.

      Charles Engelhard, for the motion.

      Oafill & Whitehead and Rockwell & Zimmerman, contra.

   Per Curiam.

Judgment was rendered April 23, 1908. Appellants have shown no valid excuse for the delay. The caséis ruled by Bliss v. Caille Bros. Co., 157 Mich. 258 (121 N. W. 756), and In re Thorington’s Estate, 157 Mich. 513 (122 N. W. 116).

Motion denied, with costs.


author: Moore, J.

text:
    ULLMAN v. SANDELL.
    1. Appeal and Error — Dismissal of Writ.
    On motion to dismiss a writ of error the writ will he dismissed and the payment of costs will be required of an appellant who voluntarily withdraws the writ of error after having given notice of the settlement of his bill of exceptions.
    2. Same — Certiorari—Mandamus—Motion to Dismiss.
    In a proceeding to review by writ of certiorari the decision of the lower court in mandamus, the writ will not be dismissed for the failure to give notice of settling the return, where printed records and briefs have been filed and the return can be properly made.
    Mandamus by Josepb Ullman, Daniel L. Ullman, and Gabe Ullman, copartners as J. Ullman Sc Company, to compel Andrew Sandell, treasurer of Ironwood township, to pay the amount of an order: On motion to dismiss writs of error and certiorari.
    Submitted September 21, 1909.
    (Calendar No. 23,399.)
    Motion granted as to writ of error and denied as to writ of certiorari October 4, 1909.

      Curtis Buck and George O. Driscoll, for the motion.

      Julius J. Patek (Thomas, Cummins & Nichols, .of counsel), contra.

   Moore, J.

This is a motion to dismiss a writ of error, and also a motion to .dismiss a writ of certiorari. Relators made application for a writ of mandamus to compel payment to the relators of a negotiable order. The writ of mandamus was denied because of a purported judgment rendered against the township of Ironwood by a justice of the peace in a certain garnishment proceeding determined before him. This order was entered February 23, 1909. At the same time a consent order was made giving the relators until May 17, 1909, to perfect an appeal upon certain conditions which were complied with. April 24, 1909, relators sued out a writ of error, and also filed a petition for a writ of certiorari. Notice of the issuance was served. A further extension of time to perfect the appeal was made.

Respondent objected to the settlement of a bill of exceptions for several reasons, among others, that the mandamus proceedings should be reviewed by certiorari, and not by writ of error. Thereupon the circuit judge declined to settle the bill of exceptions. June 7th, a writ of certiorari was allowed against the circuit judge returnable June 29th. Personal service was had upon the circuit judge, who made a return to the writ of certiorari, which return was filed in this court June 22d. On June 26th the relators withdrew their writ of error and gave notice thereof to the respondent, and also then for the first time served notice on the attorneys for respondent of the issuance of the writ of certiorari, of the return and the filing thereof in this court. Printed copies of the record and briefs have been filed in this court in the certiorari proceeding.

Is the respondent entitled to have the writ of error dismissed? It is said he is not, as he objected to the settlement of a bill of exceptions, because the writ of certiorari, and not the writ of error, was the proper method of reviewing mandamus proceedings, and that, as relator has acted upon that suggestion and voluntarily withdrawn the writ of error, respondent cannot complain.

In Birch v. Brown, 5 Mich. 31, the party suing out the writ of error asked leave to dismiss it on the payment of costs, and the court granted leave, saying it was in accordance with the former practice.

In Bliss v. Caille Bros. Co., 157 Mich. 258 (121 N. W. 756), the defendants attempted a voluntary dismissal of writs of error. Justice Hooker, in speaking for the court, said:

“We understand that such attempt was made after learning that plaintiff had already made, or would soon make this motion [a motion to dismiss the writs]. Whatever the fact, we think the motions should be granted, with costs of the motions, and it is so ordered.”

We do not think that the relator can sue out his writ of error and notify the respondent of the time and place of settling a bill of exceptions, and, when objection is made thereto, withdraw his writ of error without giving the appellee the opportunity, to recover costs. The motion to dismiss the writ of error is granted, with costs.

The respondent queries as to the writ of certiorari as follows:

“ Where a writ of certiorari is issued out of the Supreme Court to review a mandamus proceeding in a circuit court, and the writ is directed to the judge of the circuit court, is the appellee not entitled to have a return set aside and stricken from the files which is made more than ten days after the issuance of the writ, but before any notice has been served upon the appellee or his attorneys under Supreme Court Rule 5, where the appellee has been given no opportunity to examine the return or make any suggestions or objections as to its contents, and has been served with no copy of the affidavit. upon which the writ of certiorari was issued ? ” — and answers the query in the-affirmative.

Undoubtedly the appellee was entitled, under Supreme Court Rule 5, to notice of the issuance, the date, and the return day of the writ, but it does not follow that the writ must be dismissed for want of said notice. Supreme Court Rule 9 provides that, when a motion is made to dismiss a writ of certiorari, the court may grant or deny the same on such terms and conditions as the justice of the-case may require. It has been the contention of the appellee that the mandamus proceeding should be reviewed by certiorari. If the return to the writ is not sufficient a proper return may be had, but now that the case is here with printed records and briefs, we do not think the writ should be dismissed, in the interest of justice.

The appellee will recover costs of this motion.

Blair, C. J., and Grant, McAlvat, and Brooke, JJ., concurred.


text:
    BELMER v. BOYNE CITY TANNING CO.
    Appeal and Error — Extension oe Time — Dismissal oe Writ— Advice oe Counsel.
    In a case where a motion for a new trial was made and heard several months after the judgment, and not denied until five days prior to the expiration of a year, the attorneys not receiving notice of the denial of their motion until after the year had elapsed, the defendant, which relied on their opinion that the motion would be granted, should not lose its right to appeal because of the neglect or oversight of its attorneys in not talcing out a writ of error.
    Case by Frederick Belmer, by next friend, against the Boyñe City Tanning Company for personal injuries: On motions of plaintiff to dismiss a writ of error, and of defendant for an extension of time for the issuance of the writ.
    Submitted October 5, 1909.
    (Calendar No. 23,586.)
    Motion to dismiss denied, and motion for extension granted October 19, 1909.

      Knowles & Converse (J. M. Harris, of counsel), for appellant.

      George E. Nichols and H. A. Jersey, for appellee.
   Per Curiam.

Two motions are before us in this case; ■ one made by the appellee to dismiss the writ of error because it was issued more than one year after the date of the judgment, and one made by the appellant to extend the time for issuing writ of error. The statute under which both motions are made is as follows:

“All writs of error upon any judgment or final determination, rendered in any cause, in any court of law and of record in this State, shall be brought within one year after the rendering of such judgment or final determination made and not after, except in cases specified in the next two sections: Provided, The time in which writs of error may be taken out may be extended not exceeding six months by the Supreme Court or by one of the Supreme Court Justices at chambers, when any party has been prevented from taking out the same by circumstances not under his control. Such extension shall only be made on special motion, and after a proper showing.” 8 Comp. Laws, § 10492.

The facts upon which appellant relies are, briefly, as follows: Plaintiff obtained judgment for $6,000 in the circuit court for the county of Charlevoix, August 21, 1908. A stay bond was filed. Within 20 days a transcript ordered, and a motion for new trial was made and noticed for hearing on December 4, 1908. The hearing on the motion was continued, from time to time, until April 24, 1909, when it was argued and taken under advisement by the court. The motion was denied by the court, and an opinion filed August 16, 1909. A writ of error was sued out of this court August 28, 1909, returnable September 15, 1909. On filing his opinion at Charlevoix the circuit judge mailed a copy thereof to counsel for defendant at Boyne City, Mich. The petition shows that Mr. Knowles, of the firm of Knowles & Converse, and Mr. Harris (of counsel), were, at the time said notice was mailed, absent from Boyne City, and in actual attendance upon a regular session of the court at Charlevoix, and that Mr. Converse was necessarily absent from his office at Boyne City attending the deathbed and funeral of a niece. Under these circumstances, the notice of the denial of the motion did not actually reach Knowles & Converse until August 23d, and did not reach Mr. Harris until the 25th.

The petition shows that the motion for new trial was made in good faith, and that defendant’s counsel believed it would be granted. Pc further shows that petitioner had employed and given full charge of the trial and proceedings to Messrs. Knowles & Converse as its attorneys, and J. M. Harris, of counsel. It is apparent, from the facts stated in the petition, that the petitioner itself is without fault in the premises, and that the failure to sue out a writ of error within the statutory period is attributed solely to the neglect of its counsel, or, at any rate, to the fact.that they, without warrant, relied upon their judgment that the circuit court would determine the motion for a new trial in favor of the appellant. While the fact that a motion for a new trial is pending does not extend the time during which a writ of error may issue (see Hill v. Hill, 114 Mich. 599 [72 N. W, 597]), we are of opinion that appellant in its showing has fairly brought itself within the rule laid down in Merriman v. Jackson Circuit Judge, 96 Mich. 603 (55 N. W. 1021), where this court said:

“The showing made before the respondent was suffix cient to excuse the omission of Mr. Merriman, unless it be held that he is chargeable with the default of his attorney ; but we think that where an appellant employs an attorney in regular standing, and does all that he is required by the advice of his attorney to do to perfect an appeal, he ought not to lose his right to an appeal, where justice requires a revision of the case, through the neglect or oversight of the attorney” — citing cases.

The motion to dismiss is denied, with costs to the mover. The motion to extend the time three months is granted, with costs against the mover.


text:
    MILLER v. PRUSSIAN NATIONAL INSURANCE CO.
    1. Insurance — Actions—Pleading—Denial op Execution.
    Evidence that the policy of insurance set forth in the declaration did not permit other concurrent insurance, as alleged, is inadmissible unless the defendant in pleading denies the execution of the policy under oath.
    2. Same — Defenses—Sole and Unconditional Ownership.
    It is proper to refuse to direct a verdict for a defendant, who is sued upon an insurance policy, on the ground that the plaintiff was not the sole and unconditional owner of the property insured, where he testified that he fully informed the agent of the true situation.
    3. Same — Increase of Hazard.
    The defendant has no ground to complain of the action of the trial court in submitting to the jury, as a question of fact, the increase of hazard claimed by defendant to have resulted from the failure of plaintiff to take out a license to conduct his retail liquor business.
    4. Trial — Conduct of Attorneys — Improper Argument.
    Where attorneys for both sides indulged in extravagant argument, the court disposed of the matter in a proper manner by instructing the jury to disregard it.
    Error to Mecosta; Palmer, J.
    Submitted April 3, 1909.
    (Docket No. 3.)
    Decided November 5, 1909.
    Assumpsit by Kirby Miller against the Prussian National Insurance Company on a policy of insurance. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Jason E. Nichols, for appellant.

      R. A. Hawley, for appellee.
   McAlvay, J.

Plaintiff brought suit upon a Michigan standard insurance policy of $1,000 issued by defendant to him insuring certain personal property, to wit, $350 on certain liquors, tobacco, and cigars, $350 on saloon furniture and fixtures, including a safe and cash register; and $300 on his household goods, etc., situated in a building occupied by him as a saloon and dwelling in Mill-brook, Mich. The policy issued for one year, and was dated November 21, 1903, and was written upon an oral application. The declaration was in the form permitted by rule in this State. The execution of the policy declared upon was not denied under oath.

The defendant pleaded the general issue, with certain notices that by the terms of the policy the same would be void (a) if other insurance was placed without permission, (6) if the hazard was increased by any means within the control or knowledge of insured, (c) if the fire was set or caused at the instance and request of plaintiff; alleging in said notices that other insurance had been procured without defendant’s consent, that the hazard had been increased, and that the fire had been set by plaintiff or at his instance.

Plaintiff recovered a judgment for the full amount of the policy, with interest.

The errors upon which defendant relies under its writ of error and which are discussed will be considered. The plaintiff, after the policy in suit was issued, bought other property consisting of a pool and billiard table, and placed other insurance upon them and the property included in defendant’s policy. Error is assigned upon the refusal of the court to charge:

If you find from the evidence in this case that the policy in suit did not permit the plaintiff to procure additional insurance upon the property in question, or any part of it, the plaintiff cannot recover, because it is admitted by the plaintiff that he did procure such additional insurance ”— and also a request that there was no evidence tending to show any authorized waiver of the conditions of the policy.

The allegations of the declaration, among other things, stated that, by the terms of this policy, other concurrent insurance was permitted, and specifically alleged the subsequent insurance, giving the name of the company and the amount of the policy. Defendant company by pleading to this declaration without denying under oath the execution of this policy of insurance declared upon, admitted the execution of the instrument in manner and form as alleged. Peoria Marine & Fire Ins. Co. v. Perkins, 16 Mich. 380; Simon v. Insurance Co., 58 Mich. 278 (25 N. W. 190).

The policy was burned at the time the fire occurred, but the only dispute as to its stipulations was relative to the concurrent insurance clause. Plaintiff objected to testimony that the policy issued prohibited concurrent insurance, for the reason that no denial of the execution of the policy sued upon was made under oath. It was received by the court to be ruled upon later, and finally the court refused to strike it out. Under this ruling much testimony is improperly in the record. The rule in this State is well settled by the cases above cited, and numerous others cited and digested in footnotes to Union Central Life Ins. Co. v. Howell, 101 Mich. 335 (59 N. W. 599). By this testimony a question of fact was raised, but the issue was not in the case under the pleadings, and the refusal of these requests or the charge of the court in this respect will not be considered. Whatever of prejudice there was on account of the action of the court was not against defendant.

It is next urged that the court was in error in not instructing a verdict for defendant because it appeared that plaintiff was not the sole and unconditional owner of all the property insured. It did appear in the case that the front and back bar in the saloon were purchased by plaintiff upon a conditional sale, and the purchase price had not been paid. The application for this insurance was oral. Plaintiff testified that at the time of effecting the insurance he informed the agent of defendant of the conditional character of his title to part of the property insured. This testimony was denied by the agent. This raised a question of fact for the jury to determine. It was properly submitted for such determination; the court charging substantially that plaintiff’s interest in the part of the property in question was an insurable interest, and he would have a right to insure it if, as a matter of fact, he notified the agent of defendant of his conditional title at the time he effected the insurance. This did not mislead the jury, which found the fact favorable to plaintiff. No request upon this question was presented by defendant other than a request for an instructed verdict. In view of the dispute between the parties upon this material fact, the court would have erred had a verdict been instructed as requested.

The policy contained a clause as follows:

‘ ‘ This entire .policy shall become void if the hazard be increased by any means within the control or knowledge of the insured.”

The insurance was placed upon the property heretofore mentioned “while contained in the frame shingle-roofed building and adjoining and communicating additions thereto, while occupied as a saloon and dwelling house and situated,” etc. After the current year, during which plaintiff might engage in the business of a retail liquor dealer, had expired, he did not pay the annual tax upon the business . for the ensuing year, nor did he pay the United States special tax, by reason of which defendant claimed that the hazard had been increased, and also that he had been conducting the business of a retail liquor dealer contrary to law. The evidence upon this issue was submitted to the jury to determine as a question of fact. Defendant contends that the court erred in refusing to direct a verdict against plaintiff “because, by the uncontradicted evidence, the hazard at the time of the fire was increased contrary to the condition of said policy.” The evidence did not warrant a directed verdict. The text-writers agree that the question of increase of hazard is usually a question of fact, although there may be such a state of facts, established by uncontradicted evidence, as would require a court to decide it as a matter of law. Defendant in this case presented no request upon the question except the one quoted. The action of the court was as favorable as defendant was entitled to.

Errors assigned as to other portions of the charge are not discussed in appellant’s brief. We have examined errors assigned relative to the admission and rejection of testimony, and find that none of them were prejudicial to defendant.

Certain portions of the argument of plaintiff’s counsel were excepted to. Some of these statements might well have been omitted. From the charge of the court, it would appear that both sides had indulged in extravagant language, and the court charged the jury as to its impropriety, and that it must be stricken from consideration. We think the learned trial judge properly disposed of the matter.

We find no prejudicial error in the case.

The judgment is affirmed.

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


author: Montgomery, J.

text:
    SEWELL v. DETROIT UNITED RAILWAY.
    1. Street Railways — Carriers—Negligence.
    In an action against a street railway for injuries sustained by a passenger, evidence of a collision between the car on which plaintiff was riding and a car which was standing still, whereby the latter was forced ahead 75 feet, furnishes proof of negligence.
    2. Same — Presumptions—Evidence.
    It cannot be said, as a matter of law, that the inference of negligence is fully met by a witness who is contradicted by other evidence, and who testifies that he was the motorman of the car which caused the collision, that he was unable to use the hand brake or air brake and that the fuse burned out when he tried to reverse the current.
    3. Same — Evidence—Burden of Proof — Presumptions.
    It was error for the trial court to charge the jury that the burden was on the defendant to rebut the presumption of negligence which the evidence raised.

    4. Same — Burden of Proof.
    The burden of proof in an action for negligent injuries'does not shift to the defendant upon proof of a collision, but remains ■ with the plaintiff.
    Error to Wayne; Brooke, J.
    Submitted May 6, 1909.
    (Docket No. 61.)
    Decided November 5, 1909.
    Case by Charles A. Sewell against the Detroit United Railway for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Corliss, Leete & Joslyn (Benjamin 8. Pagel, of counsel), for appellant.

      Thomas Hislop, for appellee.

       As to presumption of negligence from injury to passenger, see note to Barnowski v. Helson (Mich.), 15 L. R. A. 33.

   Montgomery, J.

The plaintiff on the morning of January 23, 1907, boarded a car of the defendant company near his residence, and proceeded towards the downtown section of the city. At the intersection of Clifford street and Park Place the car in which plaintiff was riding collided with a car ahead of it, which had stopped to let off passengers. The force of the collision threw the plaintiff forward, and caused injuries which resulted in a permanent stiffening of the knee. The testimony on the part of the plaintiff tended to show that the cars came together with considerable force, and that the forward car was pushed ahead a distance of 75 feet.

The defendant introduced the testimony of the motorman in charge of the car in which the plaintiff was riding. He testified that he was following up the car ahead of him; that he remembers bringing his car around the curve on Clifford street, which was a block west of Bagley avenue, and the car at that time was running less than half speed; that when he got around the curve he applied his brakes to the car, and at that time the car ahead of him was on the nest curve on Clifford street, which is at the intersection of Park Place, and when he started to stop the car, he was a block and a half away from the car ahead of him; the blocks at that place not being full-sized, blocks; that when he applied his brakes the car started to stop, and “then there seemed to be something let go, and she started ahead all of a sudden;” that he then wound up his hand brake and tried to operate it, and found that that was entirely gone, so that it would not wind up; that after he tried the hand brake he reversed the current, the car still progressing towards the other car on the track; that it was slowing up a trifle; that when he tried the hand brake he was nearly a block back; that when he found the hand brake would not work, he reversed the current, and the fuse wire blew out; that he was therefore left without any power or brakes either; that he then attempted to put another fuse wire in, but did not succeed in getting it in before the car struck. He also testified that the car ahead was pushed forward, he should judge, 12 or 14 feet.

He further testified that while going down Clifford street he had let his car run along up to the car ahead of him, as he was endeavoring to have the conductor on the car ahead of him let him out when the opportunity afforded.

“Q. Didn’t you keep coming up to.the car ahead of you every little while all the way down Clifford street ? Didn’t you keep coming up within 50, 60, or 75 feet of it ?

“A. When he would stop, I would let my car run along up to him. I was late, trying to get him to let me out. I asked him to let me out — the conductor.”

He also testified that the car was going less than half speed when the collision occurred, and in answer to what he meant by half speed, he testified, “ about five miles an hour or something less than that.” On cross-examination he testified that he had a new fuse wire on shortly after the car struck. The defendant asked that a verdict be directed in its favor, which was refused. The case was submitted to the jury, and a verdict of $2,500 was rendered in plaintiff’s favor. The defendant brings error, assigning as grounds of error that the court erred in refusing to grant a continuance, in not directing a verdict for the defendant, and in instructing the jury that the burden of proving lack of negligence was on the part of the defendant.

It is the settled rule of this State that negligence of the defendant must be proved, and that an inference of negligence is not to be drawn from the mere fact of an accident. But it has also been held in numerous cases that the circumstances attending an injury may be such as to justify an inference of negligence. As in the present case, if all that appeared had been that the plaintiff was riding in a car of the defendant under the control of its servants, and the car in which plaintiff was riding continued its course until it collided with another car ahead of it standing still, with sufficient force to push the still car ahead 7 5 feet, the inference that some one had blundered prima facie would be the most natural one to be drawn, and that inference is so clear that it would not require further proof of negligence on the part of the defendant. It is not very important as to whether this be termed a presumption arising from the peculiar facts of the case, •or an inference of fact amounting, when not rebutted, to a positive inference of law. The result would be substantially the same. For cases bearing upon this question, see Stoody v. Railway Co., 124 Mich. 420 (83 N. W. 26); Thurston v. Railway, 137 Mich. 231 (100 N. W. 395); Howell v. Railway Co., 136 Mich. 432 (99 N. W. 406).

This inference, however, is open to rebuttal; and, if it appears that appliances of the railway company were in proper order and condition, and that the servants of the company did all that a high degree of care and prudence required in the conduct of the business, the plaintiff’s case by inference is fully met. Dolph v. Railway Co., 149 Mich. 278 (112 N. W. 981); Rouston v. Railway, 151 Mich. 237 (115 N. W. 62).

It is contended that the present case comes within this rule. We, however, agree with the circuit judge that this was a proper case for a jury, and depends in large part upon the credit given the statements of this witness. It is a most remarkable combination of accidents which he details. Of course it is possible that all these accidents might have occurred almost simultaneously — the inability to use the air brake, the inability to use the hand brake, and the burning out of the fuse which prevented his using the current. But the witness does not stand undisputed upon other points in the case. His testimony shows him at variance with other witnesses upon the question of the speed at which this car was moving. There is a most marked difference between a force that would carry a still car ahead 75 feet and that which would propel it only 12 to 14 feet. The jury had a basis upon which to discredit the testimony of this witness, and we think the question of his truthfulness is one for them to determine, and not for this court.

The circuit judge treated the inference which - was drawn from the fact of the collision under the circumstances detailed as something more than a mere inference or proof of negligence, but assumed that it threw the burden of proof upon the defendant. He charged the jury:

“ The presumption of negligence attaches in this case, and the burden of proving that there was no negligence in fact rests upon the defendant.”

And again:

“If it was purely accidental, such an accident as no ordinary care and prudence could have prevented, then the defendant would not be liable. Accidents do occur for which there is no liability, * * * and it is for you to determine whether this accident comes within that class or not. The burden of proving that the defendant’s comes within that class is, as I say, upon the defendant; the presumption being that there was negligence.”

We think this instruction went too far. A similar question has been presented in numerous States, and we find that the authorities sustain the contention of the defendant that, even where the presumption of negligence exists from a collision, the burden of proof does not shift, but the presumption is to be weighed with the testimony offered by the defendant, and if, as a whole, the evidence does not preponderate for the plaintiff, there can be no recovery. See Klunk v. Railway Co., 74 Ohio St. 125 (77 N. E. 752); Kay v. Railway Co., 163 N. Y. 447 (57 N. E. 751); Gibbs v. Bank, 123 Iowa, 742 (99 N. W. 703); and Scott v. Wood, 81 Cal. 400 (22 Pac. 871).

It is possible that the learned circuit judge did not intend to convey the impression to the jury that the defendant must have the greater weight of testimony, but rather used the term to imply a shifting of the case from the plaintiff to defendant, making it incumbent upon the defendant to meet the inference to be drawn from the facts shown by the plaintiff. If this were clear, there perhaps would have been no error in the case. But we are constrained to hold that the jury would be justified in assuming that the defendant must do more than furnish sufficient testimony to meet the presumption arising from the facts shown by the plaintiff, and overcome them by a preponderance of evidence. This is not in line with the authorities.

In view of the conclusion reached upon this branch of the case, it becomes unnecessary to consider the question of the application for a continuance.

The judgment is reversed, and a new trial ordered.

Blair, C. J., and Ostrander, Hooker, and McAl-VAY, JJ., concurred.