author: Person, J.

text:
    CLARKE v. WAYNE CIRCUIT JUDGE.
    1. Divorce — Appearance—Affidavit of Nonresidence — Time.
    In a suit for divorce, in which the complainant filed an affidavit of nonresidence that was sworn to on the day preceding commencement of the cause, the court could not properly decline to issue an order for appearance for the alleged reason that the affidavit should have been made after the commencement of suit, although the order must not be made until after the suit is commenced. 1 Comp. Laws, § 485, as amended (3 Comp. Laws 1915, § 12449).
    2. Same — Intent—Perjury—Essentials.
    A purported affidavit, on which perjury could not be assigned if it was wilfully false, would not, in law, be an affidavit at all.
    3. Same — Title—Practice.
    As a general rule an affidavit should be entitled in the suit in which it is to be used. If there be no suit pending at the time, it should not be entitled. It was formerly held if a suit was pending and the affidavit was entitled in a suit not pending, it was a nullity.
    4. Same — Entituns Affidavit — Statute.
    That the affidavit was entitled in the contemplated suit was not a sufficient reason for treating it as invalid. It was made to be used in the suit, and was so used, and perjury could be assigned upon the statements made therein, if false. 3 Comp. Laws, § 11308, 3 Comp. Laws 1915, § 14973.
    Mandamus by Cecil Clarke against George S. Hosmer, circuit judge of Wayne county, to require respondent to proceed and dispose of a suit for divorce.
    Submitted June 26, 1916.
    (Calendar No. 27,272.)
    Remanded September 26, 1916.

      McHugh, Gallagher, O’Neil & McGann, for relator.
   Person, J.

This is an application for a writ of mandamus, and grows out of the following facts: Relator, a resident of Detroit, began suit in Wayne county to obtain a divorce from her husband, George Clarke, who, at the. time, was a nonresident of the State. Her bill of complaint was verified on the 23d day of September, 1915, but was not filed, so as to begin the suit, until the following day, that is, the 24th. After filing the bill, and on the same day, she obtained an order for the appearance of the defendant, and this order was duly published; but the affidavit of nonresidence, upon which it was based, had been sworn to on the preceding day, when the bill of complaint was verified, and before the suit was begun. After the time designated in the order for the defendant’s appearance had expired, his default was entered, and the cause came on for .hearing. Plaintiff’s proofs were received, and the circuit judge presiding announced that they were of such a character as to entitle her to a divorce. And this opinion as to the effect of. the proofs he repeats, in substance, in his return to this court. But, having discovered during the hearing that the affidavit of non-residence was entitled in the cause, and that it had been sworn to before the suit was begun, he was also of the opinion that it was a nullity, that the order of publication based thereon was void, and that he was without jurisdiction to proceed with the case. Consequently he declined to sign and enter any decree. In opposition to this latter opinion of the circuit judge, it is insisted on behalf of relator, the complainant, that the affidavit of nonresidence was not rendered ineffective by the facts stated, and it is asked that this court direct the circuit judge to proceed and dispose of the suit.

The statute which provides for service on nonresident defendants reads, so far as quotation' is necessary in this case, as follows:

“After the filing of a bill, the circuit judge or circuit court commissioner shall make an order for the appearance of the defendant, at a future day therein to be specified, as hereinafter directed in the following cases:
“First. When the defendant resides out of this State, upon proof by affidavit of that fact.” 4 How. Stat. (2d Ed.) § 12003 (1 Comp. Laws, § 485, 3 Comp. Laws 1915, § 12449).

The use of the affidavit as proof upon which to issue the order is specifically authorized by the statute, and, while the order itself may not be made until after the commencement of the suit, there is no such statutory prohibition as to the affidavit. Nor is it suggested in the case at bar that an unreasonable period of time had elapsed between the making of the affidavit and the issuance of the order. Adams v. Wayne Circuit Judge, 98 Mich. 51 (56 N. W. 1051).

The circuit judge did not, however, condemn the affidavit because it was made on the day before the order was issued, but because, having been made when no suit was pending, and having been entitled in a cause not yet begun, it could not, in his opinion, even if wilfully false, be made the basis of a prosecution-for perjury. And if this were so, the action of the circuit judge could not well be questioned, for a paper, purporting to be an affidavit, but upon which perjury could not be assigned if it were wilfully false, would not, in law, be an affidavit at all. The opinion of the circuit judge was undoubtedly based upon the remarks of Justice Champlin in Beebe v. Morrell, 76 Mich. 114, 119 (42 N. W. 1119, 1121, 15 Am. St. Rep. 316), where it was said:

# “The general rule is that the affidavit must be entitled in the suit in which it is to be used. If there be no suit pending at the time, of course the affidavit must not be entitled. If a suit be pending, and the affidavit is entitled in a suit not pending, the affidavit is a nullity. It is stated that the reason why the affidavit must be properly entitled is that otherwise perjury cannot be assigned upon it. And it is said that this rule had its origin in England. But an examination of the English cases will show that the rule there laid down was that affidavits for attachments for contempt, and to hold to bail, and others of that class, made when no suit was pending, if entitled, would be nullities, because no suit was pending in which they were entitled, and hence perjury could not be assigned upon them.”

But the point before us now was not in issue nor decided in the Beebe Case, and the Justice was simply referring generally to what has sometimes been said to have been the common-law rule as to entitling affidavits. He refers particularly to affidavits to hold to bail, yet Judge Brady, in City Bank v. Lumley, 28 How. Prac. (N. Y.) 397, said:

“The effect of entitling an affidavit to hold to bail, though said to be a nullity, has never been so declared in any case involving the question which I have been able to find after diligent search.”

And the following statement with reference to the same matter may be found in 1 Tidd’s Practice 180:

“There being no action depending in court at the time when the affidavit is made, it ought not regularly to be entitled in a cause, and in one case the King’s Bench discharged the defendant out of custody on common bail, on account of its being so entitled. But in a subsequent case they thought, as the practice had obtained so long of adding a title to affidavits of this kind, it would be too much to determine that such practice had been erroneous, particularly as this had been a mere question of form, and did not interfere with the justice of the case. A rule of court, however, has since been made in the King’s Bench that 'affidavits of any cause of action before process sued out to hold defendants to bail, be not entitled in any cause, nor read if filed.’ ”

We have no express rule on the subject in this State. And affidavits entitled in the cause, and sworn to before the action was begun, have been held good by several courts. City Bank v. Lumley, supra; Crombie v. Little, 47 Minn. 581 (50 N. W. 823); Becker v. Linton, 80 Neb. 655 (114 N. W. 928, 127 Am. St. Rep. 795). In People v. Fox, 25 Mich. 492, it was said:

At common law “perjury is committed ‘when a lawful oath is ministered by any that hath authority, to any person in any judicial proceeding, who sweareth absolutely and falsely in any matter material to the issue or cause in question.’ 3 Inst. 164; 4 Bl. Com. 137. There must be an oath authorized by law, an issue or cause to which facts were material, and a false statement regarding such facts upon such issue, or in such cause.”

Our statute, however, gives a much broader definition to perjury, and provides that:

“If any person authorized by any statute of this State to take an oath, or if any person of whom an oath shall be required by law, shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, such person shall be deemed guilty of perjury.” 3 Comp. Laws, § 11306 (3 Comp. Laws 1915, § 14973, 5 How. Stat. [2d Ed.] § 14719).

We think this statutory definition of perjury broad enough to include the affidavit in question if wilfully false. The affidavit itself was authorized by statute, and was sworn to on the same day with the bill of complaint by which the suit was to be begun. It was made to be used in the suit, and was so used. And we do not think that it was made void by being entitled in the contemplated cause, and sworn to before the bill had been filed.

From what has been said it is to be presumed that the learned circuit judge will proceed in the suit for divorce and render a final decree therein, and that the issuance of the writ will not be required.

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


source: Caselaw Access Project

author: Stone, C. J.

license: Public Domain

text:
    CINADAR v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Railroads — Negligence—Crossing Accidents.
    Where a young man, familiar with a railroad crossing and in possession of all faculties, and knowing that a fast passenger train was about due, was struck and killed by the engine, and there was testimony of various eyewitnesses who did not see the plaintiff until his vehicle was directly upon the track, and where the ple&ntiff relied in making his ease upon the presumption that decedent was in the exercise of due care, the evidence also showing that his view was almost wholly obstructed until his horse was on the tracks, it could not be held as a matter of law that the deceased did not exercise an ordinary degree of care, and the trial court did not err in submitting the issue to the jury.
    2. Same — Evidence—Negligence.

      Held, also, in passing on the question of negligence in giving the crossing signals, that the testimony of several witnesses, though negative in character, that from a position in which they might have heard they did not hear the signals given, was sufficient to carry the question to the jury.'-

      Error to Oakland; Smith, J.
    Submitted June 19, 1916.
    (Docket No. 34.)
    Decided September 26, 1916.
    Case by Grace Cinadar, administratrix of the estate of Charles Cinadar, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the negligent killing of plaintiffs intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer (W. K. Williams, of counsel), for appellant.

      W. T. Hosner (Felton & McGee, of counsel), for appellee.
   Stone, C. J.

The plaintiff, who was duly appointed administratrix of the estate of her deceased husband, Charles Cinadar, brings this suit against the railway company to recover damages for his instantaneous death, which occurred at the intersection of Sixth street and defendant’s railroad in the village of Royal Oak, Oakland county, on September 22, 1913, at 5:15 p. m., while decedent was driving a single horse hitched to a wagon loaded with coal, in a westerly direction over defendant’s crossing, through being struck by defendant’s north-bound passenger train No. 21. Defendant’s depot, which was a freight and passenger depot combined, was located just beyond the northerly line of Fourth street, and on the easterly side of the main line. Fifth street is a block south of Fourth street, and a block farther south is Sixth street, another block south is Seventh street, and a block still farther south is Eighth street. All of these numbered streets run east and west. They are crossed at right angles by Main street, which is the principal thoroughfare in the village, and is substantially 91 feet in width, and extends due north and south.

Defendant’s railroad runs 15 degrees west of north while passing through Royal Oak. Main street crosses the railroad near the intersection of Main and Seventh streets. The distance from the center of Main street at its intersection of Sixth street west to the center of defendant’s main line track is 115 feet. It is a considerably greater distance from the intersection of Main and Fifth streets to the center of the track, and that distance increases as you go north.

Defendant’s is a single main track railroad, so called. At the time of the accident there were three tracks crossing Fifth street, the easterly and westerly being sidings, and the center one the main line. Decedent was employed as a teamster by the MillenWright Company, lumber and coal dealers at Royal Oak. Their office and sheds faced Fifth street on the south side thereof, and were east of the three tracks of the defendant. A hardware store was located in the northeast portion of the main building. Edward Joyce, foreman for Millen-Wright Company, had his office in a portion of this store. Their buildings and sheds extended north and south the entire distance between Fifth and Sixth streets. Main street ran along the east side of their buildings. Five tracks of defendant crossed Sixth street, namely, the three tracks above mentioned as crossing Fifth street, a track which was most easterly leading from the east siding within the triangle formed by Sixth and Main streets and extending into the sheds of the MillenWright Company. This was a stub track, and used for the purpose of serving that industry. The fifth track was the most westerly crossing Sixth street, and was also a stub track, and was used as a team track. The condition as to the number of tracks at the Main street crossing near Seventh street, was the same as at Fifth street. The distance from the east side of the Millen-Wright Company building at Sixth street to the main track of defendant, was 69% feet. The distance from the crosswalk over Sixth street at the west side of Main street to east rail of the Millen-Wright Company track — the most easterly track on Sixth street— was 38 feet. It was 17% feet from the center of this track to the center of the siding next west, and 14% feet from the center of this siding to the center of the main line. It was therefore 32 feet from the center of the easterly siding to the center of the main line.

A driveway 20 feet wide led north from Sixth street into the Millen-Wright Company sheds. It was near the easterly siding. The distance from the south line of Sixth street to the north line of Seventh street was 245 feet, and the distance from the center of the main line crossing at Sixth street to the center of the railroad crossing at Main street was 239 feet. There was no flagman, gates, or bell at the Sixth street crossing, and never had been so far as the record discloses, but there was a flagman at the Main street crossing near Seventh street. Lawson’s lumber and coal yard was situated east of Main street and at the north side of Seventh street. The Millen-Wright Company siding would hold one box ear between the south crosswalk at Sixth street, and the west crosswalk on Main street. At the time in question a box car stood between Sixth and Main streets, the northerly portion of which car was upon the Millen-Wright Company siding, and the southerly portion of the car was upon the east siding proper. Another box car stood east of the Main street sidewalk opposite Lawson’s coal shed. These cars would, in a measure, obstruct the view of a person driving south on Main street, or west on Sixth street, of a train approaching upon defendant’s main line track from the south.

Train No. 21, a regular train, was scheduled to pass through the village of Royal Oak without stopping at 5:14 p. m. As we have stated, the accident occurred at 5:15 p. m. It was still daylight. Many persons in the village were familiar with the fact that this train passed through every afternoon about 5:15 p. m. without stopping. The decedent had, for upwards of a year and a half before his death lived near the village of Big Beaver, which was northeast of Royal Oak. He Was 26 years of age, and left surviving him the plaintiff, who was 25 years old, and their infant son, 19 months old. He went to work for the Millen-Wright Company about 4% months before the day in question. He was first employed at work about their yard in unloading cars and loading wagons. Later he was given steady employment as one of their teamsters. His pay was $15 per week. After he was employed as a teamster his work required him to deliver coal, lumber, etc., to the customers of this company about the village of Royal Oak. The said employers kept their horses in a barn located west of defendant’s tracks, and it was therefore necessary that the decedent cross these tracks several times daily. It was also necessary for him to cross the tracks whenever he made a delivery west of Main street. Decedent had passed over the various crossings of defendant, among them the Sixth street crossing, many times. He had, at the time in question, loaded his wagon with coal taken from a car standing near Fifth street on the siding east of the main line. Having completed his load, he drove north to Fifth street, turned east upon that street, and proceeded to Main street, where he turned south, and drove to the scales located just east of the west sidewalk at Main street, and between Fifth and Sixth streets. Foreman Joyce weighed the coal for decedent. The latter then proceeded south down Main street as far as Sixth street, where he turned west. As he drove south from the scales the car near Lawson’s coal shed, and just east of the easterly walk along Main street, was in plain view, and when he arrived near the intersection of Main and Sixth streets, the car which stood just south of the south walk on Sixth street was also in plain view. The train was running about 30 miles an hour when it struck and killed decedent. The railroad track was straight from the depot southerly for some distance beyond Eighth street.

Defendant moved the court at the close of plaintiff’s evidence for a directed verdict, for the reasons: First, that plaintiff had failed to show negligence upon the part of the defendant; and, second, that decedent was, as matter of law, guilty of contributory negligence. The motion was denied by the court, and defendant’s counsel duly excepted. The motion was renewed at the close of all the evidence, for the same reasons, and was again denied, and exception taken. The trial court submitted to the jury the one question of fact as to the negligence of defendant, viz., whether a crossing signal had been sounded. It further submitted to the jury the question whether or not decedent had been guilty of contributory negligence in the premises. The jury returned a verdict for the plaintiff for $4,084.87, and judgment was entered accordingly.

The defendant has brought the case here for review, and by appropriate assignments of error it is claimed:

(1) That the decedent was guilty of contributory negligence as a matter of law, and the trial court should so have instructed the jury.

(2) That defendant was not guilty of any negligence in the premises, and the trial court should have thus instructed the jury.

1. Was decedent shown to have been guilty of contributory negligence as matter of law? It is urged by appellant that decedent, a young man in the possession of all his faculties, familiar with his surroundings, knowing that his view was in a measure obstructed, and that a regular scheduled fast passenger train was due, was bound to stop his horse and listen to ascertain whether a train was in close proximity to that crossing. It is said that, had he stopped his horse, he could have heard the noise of the approaching train and avoided this accident. Others some distance north of Sixth street heard the noise of the train when it was still south of Eighth street. We quote from appellant’s brief:

“The law of this State was settled at an early day, and has been repeatedly followed by the decisions of this court, to the effect that a railroad crossing is ever a warning and notice of danger to any person intending to pass over the same. It is the duty of such person to make use of his senses, both of hearing and sight, and if for any reason either of these senses cannot be rendered available, the obligation to use the other is then the stronger, in order that such person may ascertain whether a train is approaching in dangerous proximity to such crossing before he places himself in a position of danger. If such person neglects to take these precautions, and ventures blindly upon the track, it is at his own risk. The law requires a great degree of care to be exercised in making these crossings. Where a person is familiar with the surroundings existing at a railroad crossing, and knows that a regular train is due at that time, he is under the highest possible obligation to observe such precautions as are needful to avoid a collision. In the case at bar a greater degree of care was imposed upon the decedent from the fact that he knew the conditions there existing, knew that a train was due at that time, and that his view to the south was in a degree obstructed. It was clearly his. duty to bring his horse to a standstill while he was yet in a place of safety, in order that the noise made by his wagon as he drove along might cease, and he be given an opportunity to determine whether the fast passenger train then due was in close proximity to the Sixth street crossing. He did not stop, and, under the repeated decisions of this court, was guilty of contributory negligence as matter of law.”

Counsel cite many of our decisions and quote from the following: Haas v. Railroad Co., 47 Mich. 401-407 (11 N. W. 216); Brady v. Railroad Co., 81 Mich. 616-623 (45 N. W. 1110); Shufelt v. Railroad Co., 96 Mich. 327-329 (55 N. W. 1013); Jensen v. Railroad Co., 102 Mich. 176-180 (60 N. W. 57); Phillips v. Railway Co., 111 Mich. 274-276 (69 N. W. 496, 66 Am. St. Rep. 392). Appellant’s counsel further say:

“Counsel for plaintiff may say that there is a presumption of law in this State that a person killed at a railroad track did stop, look, and listen. We admit there is such presumption, but say that when, as in the case at bar, there is affirmative, direct, and credible testimony that deceased went upon the track without stopping to look and listen, such presumption is rebutted and displaced.”

And the following cases are cited: Mynning v. Railroad Co., 64 Mich. 93 (31 N. W. 147, 8 Am. St. Rep. 804); Underhill v. Railway Co., 81 Mich. 43 (45 N. W. 508); Schremms v. Railroad Co., 145 Mich. 190 (108 N. W. 698, 116 Am. St. Rep. 291); Schwartz v. Railroad Co., 153 Mich. 40 (116 N. W. 540, 17 L. R. A. [N. S.] 1253); Baker v. Delano, 191 Mich. 204 (157 N. W. 427).

Upon this point counsel for appellant urge in conclusion that in the instant case there is no presumption that decedent was in the exercise of due care, because the testimony of Frank Reynolds, John McKay, Joseph. Mow, Caroline Mow, Fred C. Anderson, Ed. Truedell, and, Joseph P. Stanch shows clearly that he did not exercise such care as the law required.

It can be said that the plaintiff introduced no testimony showing what care and caution decedent exercised in approaching the crossing, nor was it shown whether he stopped his horse and looked or listened. Upon the testimony as the plaintiff left it, the jury might have inferred that decedent approached the track with due care, or at least they might have relied upon the presumption of law above referred to. Was this presumption overcome by evidence? Upon this subject, and after referring to the witnesses named by appellant, counsel for the plaintiff say in reply:

Tn view of the confident-assertions made by counsel, we are obliged to refer somewhat at length to the testimony of these respective witnesses, and direct the court’s attention to this important question: ‘At what point did these witnesses see the decedent?’ The only time that witness Frank Reynolds saw the decedent was when he was passing through the 20-foot space, as he puts it: T had a view of about 20 feet there while he was passing in front of me. * * * I couldn’t see Mr. Charles Cinadar when he went on the track; he had gone out of my sight.’ The most, therefore, that can be claimed from the testimony of this witness is that Cinadar did not stop while he was passing this 20-foot space. Whether he had stopped before or after is not known, and no one testifies either, way on that question.
“Mrs. Mow is referred to as supporting their contention that Cinadar did not stop. On cross-examination she was asked: ‘And the first you saw of him was on the main track just before he was hit?
‘A. Yes, sir.
‘Q. Now, that is true, isn’t it?
‘A. Yes, sir.’
“This apparently was not satisfactory to counsel, and on redirect examination she was again asked:
‘Q. Now, Mrs. Mow, so that there may be no mistake, where was the horse when you first saw it?
‘A. Well, it was right on the main track walking.
“ ‘Q. How?
‘A. He was on the track, hind feet, and the man was right on the main track when I saw him.’
“In other parts of her testimony this witness declares that the horse had not yet reached the track, but here the question was put to her directly, first on cross-examination, and later by her own counsel, and on both occasions she declared the horse was on the main track when she first saw it. And finally she says: ‘He gave the danger signal just before he struck him. That attracted my attention to the man. * * * When the engineer blew the whistle I knew it was danger. I looked up the track.’ It is apparent, therefore, that this witness was paying no attention until she heard the danger signal and then discovered the horse on the track, as she says.
“Fred C. Anderson says he heard the engineer giving signals the minute he saw the horse coming up. In the conclusion of his testimony he says: ‘The first I saw of the horse it was west of the box car. I couldn’t tell just where it was. I looked and the train came up and hit him.’
“Ed. Truedell testified:
‘Q. Did you testify before the coroner’s inquest the first you saw the horse he was on the main track?
‘A. Yes; just driving across.
‘Q. That was the first you saw of him, just driving across ?
‘A. Yes, sir.’
“Joseph P. Stanch says: T think the first I saw of the horse and man was when the horse was on the track; I mean the main track.’ There is not, therefore, a single line of the testimony of any of these men that Cinadar did not stop and listen for the approaching train. There remains only the testimony of Mr. McKay, the engineer. He could see nothing until he had reached the open space between the two box cars, as he says: ‘When I reached a point where I could see through an open space, I saw him driving up west toward the track.’ It is apparent, therefore, that Cinadar was at the time east of the east side of the box car. Witness then says: ‘I gave six or seven sharp blasts of the warning whistle. I first saw him when he was east of the box ear. The engine was coming up Main street. I was on the right-hand side of the cab. That would be about Seventh street, after I had seen him. I looked at him. The box car was in between us.
‘Q. And the second time you gave the signal that was the last time, you say you were then about 30 or 40 feet of this track where he was hit?
‘A. Yes, sir.
‘Q. He was about 15 feet east of the track?
‘“A. Yes, sir; I only gave one danger signal when I saw him; he was east of the car and was on Sixth street.
“ ‘Q. Then he was east of the track how many feet would you say, 30 or 40, at that time when you gave him the danger signal, when you gave him these signals at Seventh street, these five or six sharp blasts, as you say?
“‘A. I don’t know whether it was right there at Seventh street, it was when I could see him.
“ ‘Q. When you could see him east of the box car?
‘A. Yes, sir.
‘Q. Well, wouldn’t that be about 30 or 40 feet east of the main line?
‘A. Thirty or 40 feet east of the main line.’ ”

We have examined all of the testimony with great care. Some parts of the testimony are inconsistent with other parts. If we should consider the testimony most favorable to the plaintiff upon this question, it must be said that, aside from the time decedent was passing the opening of 20 feet, and when he was on the main track in a place of danger, no one accounts for him. It is decedent’s conduct prior to reaching the danger zone, the track, that is material, and it is urged by plaintiff that there is no direct testimony on that point, and that the presumption of law is that he did stop, look, and listen. It is the claim of the plaintiff that it was impossible for decedent to have seen the train until he had cleared the extreme westerly side of the box car, and then his horse was on the track. While we consider the question of contributory negligence a close one, we are of the opinion that it cannot be said that the decedent did not exercise the care that an ordinarily prudent man would have exercised under like circumstances, and we think that the question was properly submitted to the jury. Schremms v. Railroad Co., supra.

2. Were the crossing signals given? The testimony upon this subject is so voluminous that we cannot quote it here. We have examined it with great care. A number of witnesses testified pro and con upon this issue. There is much discussion by counsel of “negative” and “affirmative” testimony. The claim of the appellant is that plaintiff wholly failed to make out a case, and that there was no evidence that warranted the trial court in submitting the question to the jury; that plaintiff’s proof was negative testimony of no probative force, creating no conflict of evidence, and hence presenting no question for the jury. The real question is: “Were signals given at the time and place?” This question can find its answer from those in a position and under such conditions that they probably would have heard the signal if given.

“The courts have often been asked,” says Wigmore, “to exclude testimony based on what may be called negative knowledge; i. e., testimony that a fact did not occur, founded on the witness’ failure to hear or see a fact which he would supposedly have heard or seen had it occurred. But there is no inherent weakness in this kind of knowledge. It rests upon the same data of the senses. It may even be sometimes stronger than affirmative impressions. The only requirement is that the witness should have been so situated that in the ordinary course of events he would have heard or seen the fact had it occurred.” 1 Wigmore, Ev. 664; 2 Elliott, Ev. 969.

In Crane v. Railroad Co., 107 Mich. 511 (65 N. W. 527), it was held that testimony of persons who were near a railroad crossing at the time of an accident, and whose attention had been directed to an approaching train, that they did not hear the train whistle for the crossing, was sufficient to justify a finding that the whistle was not.sounded, although other witnesses testified positively that the signal was given. The jury are to take all the facts and circumstances into consideration. This rule was again stated in Lonis v. Railway Co., 111 Mich. 458 (69 N. W. 642). The Michigan cases cited by appellant are reviewed in Tietz v. Railway Co., 166 Mich. 205 (131 N. W. 710), and the rule as declared in the Lonis Case approved. See, also, Hinkley v. Railway Co., 162 Mich. 546 (127 N. W. 668).

We are of the opinion that the testimony upon this branch of the case presented a question of fact which was properly submitted to the jury.

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

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


text:
    McDONALD v. HALL.
    1. Action — Pleading—Joinder of Causes — Practice.
    • It is settled practice in this State that a plaintiff may join all of his causes of action in one declaration and have them all tried in one suit, if in separate suits he could recover on each, in the same form of action.
    2. Pleading — Declaration—Notice.
    The object of the declaration being to apprise the defendant and the court of the grounds of the pleader’s claim, to give the defendant fair notice of the case he is called to meet, a plain and clear statement of the facts constituting the wrong complained of is sufficient, if expressed with reasonable certainty.
    3. Same — Evidence.
    It is neither necessary nor proper to allege matters of evidence in a pleading; only ultimate facts should be alleged, not the circumstances which tend to prove them.
    4. Same — Counts.
    The theory of separate counts is that each is a complete cause of action, as distinct from others as if it stood • alone, and the separate counts are as distinct as if they were in separate declarations, consequently they must contain all necessary allegations, or the latter must expressly refer to the former.
    5. Same — Counts—Separate Cause of Action.
    While a single count must cover but a single cause of action, yet where a single and continuous purpose runs through an entire transaction made up of various acts, each of which might alone constitute a cause of action, it is proper to set out all the facts in one count as a single cause of action.
    6. Same — Joinder of Parties — Joint Act — Count.
    Where several defendants are charged in one count of a declaration with having made an assault, it sufficiently appears to be a joint act; certainty to a certain intent in general being all that is required.
    7. Same — Counts—Separate Torts — Joint Act.
    All the torts leading to one damage or object may be joined in one count.
    8. Action — Immoral Contract — Criminal Acts — Fraudulent Misrepresentation.
    Where money has been paid or goods delivered in pursuance of a contract that is immoral or criminal, or in violation of a statutory provision, and the parties are in pari delicto and particeps criminis, the court will leave them where they have placed themselves; but where a party has been fraudulently misled, and the fraudulent misrepresentations are intended to create, and actually do create, in his mind a belief that, under the circumstances represented, the act which he is induced to do is neither illegal nor immoral, he may recover the damages he has sustained notwithstanding a statute mates the act a criminal offense.
    9. Pleading — Excessive Damages — Demurrer.
    Because plaintiff claims too much in his allegation of damages is not ground of demurrer.
    10. Same — Counts—Sufficiency—Evidence.
    Where a count states a cause of action against all of the defendants, whether the evidence will sustain the count is a question this court need not consider on certiorari to review the order of the circuit court in overruling a demurrer to the declaration.

      Certiorari to Shiawassee; Dodds, J., presiding.
    Submitted June 12, 1916.
    (Docket No. 41.)
    Decided September 26, 1916.
    Case by Hugh McDonald against Louis C. Hall, Sr., and others, for conspiracy and malicious arrest. From an order overruling a demurrer to the declaration, defendants bring certiorari.
    Affirmed.

      Lyon & Moinet (John T. McCurdy, of counsel), for appellants.

      A. L. Chandler and Janies H. Pound, for appellee.
   Stone, C. J.

This case is before us upon certiorari to the order of the circuit court in overruling the demurrer to the declaration. The declaration and demurrer were filed before the judicature act took effect. The argument and decision occurred after the act took effect. Some question is raised as to the practice, but, as said act provides that all questions theretofore raised by demurrer may be raised by motion to dismiss, we are disposed to determine the questions raised upon their merits. There is much controversy and disagreement as to the number of counts in the declaration, which is a very lengthy document, covering about 30 pages of the printed record. The determination of the number of counts in the declaration will tend to dispose of some of the questions raised by the demurrer. It is settled practice in this State that the plaintiff may join all of his causes of action in one declaration and have them all tried in one suit, if in separate suits he could recover on each, in the same form of action. Our statute provides (section 10400, 3 Comp. Laws, as amended by Act No. 77, Pub. Acts 1905 [3 Comp. Laws 1915, § 12350]) that the distinction between the actions of trespass and trespass on the case is abolished; and in all cases where trespass or trespass on the case had theretofore been the appropriate remedy, either of said forms may be used, as the party bringing the action may elect; and counts in trespass and trespass on the case may be joined in the same action. While a multitude of words is not necessary in a declaration, yet reasonable certainty is required of a pleader’s meaning. Our practice neither requires nor encourages the needless repetition of allegations. A plain and clear statement of the facts constituting the wrong complained of is sufficient; the object of the declaration being to apprise the defendant and the court of the grounds of the pleader’s claim, to give the defendant fair notice of the case he is called to meet. It is neither necessary nor proper to allege matters of evidence in a pleading; only ultimate facts should be alleged, not the circumstances which tend to prove them. Counts in a declaration have been defined as the different parts thereof, each of which if it stood alone would constitute a ground of action. In an indictment each count should charge a distinct offense.

Another author defines a count in pleading as an entire or integral charge in an indictment, declaration, or other pleading, setting forth a cause of complaint. The theory of separate counts is that each is a complete cause of action, as distinct from others as if it stood alone in the pleading, and the separate counts are as distinct as if they were in separate declarations; and consequently they must contain all necessary allegations, or the latter must expressly refer to the former. 1 Chitty’s Pleading (13th Am. Ed.), p. 413. A single count must cover but a single cause of action. Ives v. Williams, 53 Mich. 636 (19 N. W. 562).

But the above rule should be considered in connection with the following: When a single and continuous purpose runs through an entire transaction made up of various acts, each of which might alone constitute a cause of action, it is proper to set out all the facts in one count as a single cause of action. 31 Cyc. p. 119, and cases cited in note.

In the recent case of Creen v. Railroad Co., 168 Mich. 104, 110 (133 N. W. 956, 959, Am. & Eng. Ann. Cas. 1913C, 98), Justice Steere, speaking for this court, said:

“While this State has no code, and the common-law form of pleading obtains, special pleadings have been abolished, and numerous innovations and modifications which formerly would not have been tolerated have been introduced, tending to relax technical rules and simplify the practice. Many different causes of action may now be joined in one declaration, where it was formerly forbidden. Assumpsit may be brought on waiver of tort, and the action joined in other causes maintainable in assumpsit. In an action for destruction of one’s business and credit, growing out of the breach of a single contract, a series of wrongful acts, aimed at a single result, may be joined in one count. Oliver v. Perkins, 92 Mich. 304 [52 N. W. 609]. * * *
“Extreme niceties and technical exactness in form is not favored, and many other authoritative rulings and suggestions along the same lines, familiar to the profession, clearly indicate the tendency to eliminate the ultra refinements and technicalities of old forms of common-law pleading.”

In our opinion, the declaration in this case should be held to contain four counts. It is too lengthy to be here inserted. We think that part of the declaration charging all of the defendants with an assault and battery upon the person of G. Irene McDonald, the infant daughter of the plaintiff, must be held to constitute one count. It charges a distinct wrongful act which constitutes a cause of complaint. It is the claim of the defendants that the charge that the defendant Louis C. Hall, Jr., debauched the said infant daughter of plaintiff on January 8,1915, constitutes another distinct count against that defendant only. But a careful reading of the declaration leads us to the conclusion that the alleged debauching of the said daughter is introductory only, and is stated by way of inducement to the principal subject of the count, which is an alleged conspiracy of all the defendants to wrong the plaintiff by falsely charging him with a crime in the manner alleged. The declaration states that after the arrest of the defendant Louis C. Hall, Jr., upon the complaint of the plaintiff, and after said Hall was bound over to the circuit court upon the charge of statutory rape upon said daughter, the plaintiff was approached by the defendant Louis C. Hall, Sr., and was told by him that he, the plaintiff, had a right to settle said criminal case, and was induced by the false and fraudulent statements of said defendant Louis C. Hall, Sr., and John T. McCurdy, the attorney of the' latter, to agree to accept a sum of money in settlement of said criminal charge, and any claim which the plaintiff might have for damages on occasion of the premises ; that the plaintiff was ignorantly induced by said defendants Louis C. Hall, Sr., and William F. Gallagher to go to the bank parlors of the latter, and there to accept the sum of $5,000 in settlement as aforesaid, and that said defendants, in pursuance of said false representations, caused to be prepared a statement which the plaintiff in his ignorance, and relying upon such allegations, signed, to the following effect:

‘T, Hugh A. McDonald, acknowledge the receipt of $5,000 from L. C. Hall, Sr., in consideration of which I agree to withdraw the complaint in the case of People v. Louis C. Hall, Jr., charged with statutory rape on my daughter, and that neither I or my daughter will give evidence in said case, and to pay the costs of the case now pending in the circuit court for the county of Shiawassee, in an amount not exceeding $100, and that my daughter shall remain in Canada.”

It is further averred that upon the signing of said paper, and in furtherance of the conspiracy, the said defendant William F. Gallagher then and there handed to the plaintiff $5,000 in cash (here quoting) —

“which this plaintiff then and there put in his pocket, and, after being completely deceived and duped by the various false promises, representations, and inducements offered him and used to induce him to accept said money for the benefit of his child, started to leave the bank parlors, and that said John T. McCurdy then and there in a loud, terrifying voice shputed, ‘Mr. Sheriff, come and arrest this man McDonald for taking money in settlement of a criminal case, and compounding a felony,’ and the defendant Edwin J. Herrick, then and there being hidden somewhere to carry out this criminal conspiracy, and who had been by prearrangement stationed in a convenient place to help to take part in said farce and mockery of getting this plaintiff to take said money and arrest him therefor, stepped forward and seized this plaintiff and told him that he was under arrest, and then and there this plaintiff requested that he might telephone to his brother, or for some legal counsel, and have some friendly witness then and there among the conspirators to protect him and assist him in obtaining his rights under the circumstances; that the said John T. McCurdy then said to this plaintiff, ‘You are not going to have anybody come here until the prosecuting attorney is brought here,’ and then and there coerced, intimidated, and falsely imprisoned this plaintiff until it pleased said McCurdy to let this plaintiff be released; this plaintiff then and there said to said Edwin J. Herrick, ‘Have you any warrant for my arrest?’ to which the said Herrick replied, ‘No’; and this plaintiff then and there started to go towards the door to go about his business; that the said Edwin J. Herrick then clapped his hand on his hip pocket as though reaching for a revolver, and shouted in a loud voice to this plaintiff, ‘Stop,’ and this plaintiff then did stop, and then said McCurdy yelled to this plaintiff in a loud and terrifying voice, ‘You take that money out of your pocket and hand it to the sheriff.’ And this plaintiff was terribly frightened and terrified by said conduct of John T. McCurdy and Edwin J. Herrick, and by reason of the sheriff’s threats and conduct, and the conduct of John T. McCurdy on behalf of said Louis C. Hall, Jr., and of said Louis C. Hall, Sr., and laid the $5,000 upon the table, when, in furtherance of said unlawful conspiracy of said defendants, it was seized and taken from this plaintiff, and a receipt therefor was given to this plaintiff, which receipt was then and there made by said Edwin J. Herrick and delivered to this plaintiff, in words and figures as follows:
“‘Owosso, Mich., April 5, 1915.
“ T acknowledge that upon this day I took Hugh A. McDonald into custody and received from him the sum of $5,000, which I now have in my possession.
“ ‘Edwin J. Herrick, Deputy Sheriff.’ ”

It is further averred that said Herrick, according to the plan and plot, delivered said money back to the said defendant Gallagher; that, in furtherance of said conspiracy, the defendant Louis C. Hall, Sr., falsely, maliciously, and without probable cause went before a justice of the peace of said city of Owosso, and then and there made a false complaint, charging that this plaintiff, having knowledge of the commission of said crime of rape by said Louis C. Hall, Jr., and that said Hall was under arrest charged with having committed said offense, which offense was a felony, did take money, to wit, $5,000, upon an agreement in writing not to prosecute the said Louis C. Hall, Jr., for said offense, and not to give evidence thereof. The said complaint prayed for the arrest of this plaintiff, that a warrant was issued by said justice, upon which this plaintiff was arrested and imprisoned for a space of, to wit, two months, at the end of which time, and after divers adjournments, the said Louis C. Hall, Sr., withdrew the complaint, and the said justice dismissed said cause, and discharged the plaintiff from custody, and that said suit and proceedings are wholly dismissed and at an end. This count concludes as follows:

“Whereby and by reason of said- false arrest this plaintiff was compelled to and did lose all compensation for all damages that he had suffered by the debauching of said daughter, which he otherwise would have received, and also lost a great amount of time from his labor, to wit, a period of two months, and was compelled to and did lay out and expend large sums of money for hiring counsel, procuring witnesses, and preparing his case, to wit, the sum of $200; that said plaintiff was caused great annoyance and vexation, and suffered greatly in his mind and body, by reason of said false and malicious arrest and conspiracy to ruin his reputation; that many people to whom the innocence of this plaintiff was not known in the premises were led to believe, and still believe, that this plaintiff was guilty of a crime of the class known as a felony, to wit, the crime of taking money to settle up a criminal case, as in said warrant alleged; and that his (plaintiff’s) reputation and character have been greatly injured, and he has suffered in his mind and body, and been injured in his feelings by reason of the great humiliation, abuse, and deprivation which he has suffered and been compelled to undergo by reason of the fraud and conspiracy of the said defendants, the false arrest, and malicious abuse of process of the county of Shiawassee, by defendants, and otherwise injured in his person and property by reason of the premises in the sum of $25,000, and therefore he brings suit.”

The third count is a distinct charge against all of the defendants for an assault and battery upon the plaintiff, and for resulting damages.

The fourth count is for the malicious prosecution of the plaintiff by all of the defendants acting together, in and through the defendant Louis C. Hall, Sr.

The joint and several demurrer is based lipón the following grounds:

“(1) The first count undertakes to charge all of said defendants with assault and battery upon one G. Irene McDonald, and does not allege any concert of action or combination in that regard between said defendants.
“(2) For aught that appears in said first count, said plaintiff charges and may seek to recover against said four defendants upon the claim that said defendants at separate and distinct times and places committed separate and distinct individual assaults and batteries upon said G. Irene McDonald.
“(3) It does not appear from the allegations contained in said first count that there is any joint liability of said defendants on account of the various assaults and batteries alleged in said first count to have been committed upon said G. Irene McDonald.
“(4) The second count does not follow the writ, in that it appears that said Louis C. Hall, Sr., Louis C. Hall, Jr., Edwin J. Herrick, and William F. Gallagher have been summoned as defendants in said cause, and said second count purports to be a count against said defendant Louis C. Hall, Jr., alone.
“(5) There is a misjoinder of counts in said declaration in that the first, third, fourth, and fifth counts thereof respectively undertake to state causes of actions against all of said defendants, and the second count thereof undertakes to state a cause of action against only one of said defendants Louis C. Hall, Jr.
“(6) The allegations contained in the third count are so vague, indefinite, uncertain, informal, and insufficient that they do not state a cause of action against all of said defendants.
. “(7) It appears by said declaration that said defendant Louis C. Hall, Jr., was and is an infant within the age of 21 years, and it does not appear that he took any part in the various negotiations mentioned and referred to in said third count, except as if is .alleged that he acted by and through his attorney and agent, and, being an infant, said defendant Louis C. Hall, Jr., cannot be held liable for all or any of the statements alleged to have been made or the acts alleged to have been done by his said alleged agent.
“(8) Said plaintiff is not permitted to so far stultify himself as to be permitted to allege and claim, as he undertakes to allege and claim in said third count that he did not know or understand that he was engaged in an attempt to compound an alleged felony, as in said count stated.
“ (9) Said plaintiff is not permitted to so far stultify himself as to be permitted to allege and claim, as he undertakes to allege and claim in said third count, that he did not know or understand that he was engaged in an attempt to obstruct the course of justice, as in said count stated.
“(10) It appears from the allegations contained in said third count that said plaintiff voluntarily engaged in an agreement to suppress a legal investigation and prosecution concerning an alleged criminal offense and the imposition of due punishment therefor, if such offense had been committed, and was therefore a party to an illegál agreement and cannot base any right to recover upon the results of said illegal agreement, as stated in said third count.
“(11) It appears from the allegations contained in said third count that, if said plaintiff ever had any lawful right of action on account of the alleged debauchery of said G. Irene McDonald he was neither cheated nor defrauded of or lost such right of action.
“(12) It appears from the allegations contained in said third count that, if said plaintiff ever had a right of action on account of the debauching of his said daughter, he-did not lose all or any of the compensation and damages which he was entitled to recover therefor.
“(13) Said third count does not state a cause of action against all or any of said defendants.
“(14) The fourth count undertakes to charge all of said defendants with assault and battery upon said plaintiff, and does not allege any concert of action or combination in that regard between said defendants.
“(15) For aught that appears in said fourth count, said plaintiff charges and may seek to recover against said four defendants upon the claim that said defendants at separate and distinct times and places committed separate and distinct individual assaults and batteries upon said plaintiff.
“(16) It does not appear from the allegations contained in said fourth count that there is any joint liability of said defendants on account of the various assaults and batteries alleged in said fourth count to have been committed upon said plaintiff.
“ (17) The fifth count does not state a cause of action against all or any of said defendants for the reason that it does not charge that said plaintiff was acquitted of or from the offense alleged therein to have been charged against him.
“(18) It appears from the allegations contained in the third count of said declaration that said plaintiff did agree in writing to withdraw the complaint alleged to have been made against said defendant Louis C. Hall, Jr., and also agreed that neither he nor his said daughter would give evidence in said cause against said Louis C. Hall, Jr., and said plaintiff is not permitted to ask for or recover any damages, as claimed in the fifth count of said declaration, growing out of said transaction, for the reason that it appears that said plaintiff entered into an illegal agreement to suppress a legal investigation and prosecution concerning an alleged criminal offense and the imposition of due punishment therefor, if such offense had been committed, and was therefore a party to an illegal agreement, and cannot base any right to recover upon the results of said illegal agreement, as stated in said fifth count.”

The first three grounds of demurrer may be considered together. It is claimed that the wrongs complained of in this count do not appear to be the joint act of all of the defendants. We think, that, where A., B., and C. are charged with having made an assault, it sufficiently appears to be a joint act. Certainty to a certain intent in general, or what upon a fair and reasonable construction may be called certain, is all that is required. We think that it sufficiently appears that the acts complained of were the joint acts of all of the defendants. What the evidence may show to have been the facts we are not here concerned with.

2. The fourth and fifth grounds Will be considered together. They are based upon the claim that the charge that the defendant Louis C. Hall, Jr., debauched the daughter of the plaintiff constitutes a separate count. In this we cannot agree with counsel for the defendants, for the reasons already stated.

The sixth to thirteenth grounds of demurrer, inclusive, treat what we think is the second count as the third count of the declaration. It is urged that the allegations are too vague, uncertain, and informal to constitute a cause of action. In our opinion, a just criticism of this count would be that it is argumentative and sets up the evidence instead of stating the ultimate facts, in many instances. In our opinion, the count states a cause of action. All the torts leading to one damage or object may be joined in one count.

In Antcliff v. June, 81 Mich. 477 (45 N. W. 1019, 10 L. R. A. 621, 21 Am. St. Rep. 533), it was said:

“For every malicious wrong there is certainly in this day and age a remedy; and, under our liberal system of pleading in this State, a plain and clear statement of the facts constituting the wrong is sufficient, and it is but little matter, in actions of trespass on the case, what the action is named or called.”

See Marlatte v. Weickgenant, 147 Mich. 266-274 (110 N. W. 1061).

We recognize the rule stated by counsel for defendants, and well expressed in Walhier v. Weber, 142 Mich. 322, 325 (105 N. W. 772, 773), that:

“It has been uniformly held that, where money has been paid or goods delivered in pursuance of a contract that is immoral or criminal, or in violation of a statutory provision, and the parties are in pari delicto and particeps criminis, the court will leave them where they have placed themselves.”

The pertinent question here involved is whether that rule should be applied in view of the allegations of the second count, to which we invite attention. We are of opinion that the rule contended for does not apply where one party by fraud, deception, and overreaching has induced another party to do some unlawful act, which he would not have done if he had not been misled, or deceived and defrauded into perpetrating it. The correct rule is stated in 20 Cyc. p. 80, as follows:

“A party who has been fraudulently misled cannot recover where he must found his claim in his own violation of a criminal statute. But where the fraudulent misrepresentations are intended to create, and actually do create, in his mind a belief that, under the circumstances represented, the act which he is induced to do is neither illegal nor immoral, he may recover the damages he has sustained notwithstanding a statute makes the act a criminal offense.”

See English and American cases cited in note. See, also, 2 Cooley on Torts (3d Ed.), pp. 965, 984.

It is also urged-that, if plaintiff ever had a cause of action because of the debauching of his infant daughter, he has not lost it by reason of anything stated in said count. Because plaintiff claims too much in his allegation of damages is not ground of demurrer. We think the count states a cause of action against all the defendants.

3. The criticisms of the third count (called the fourth count in the demurrer) have been disposed of in what we have said of the first count.

4. We think the fourth count states a cause of action against all of the defendants. Whether the evidence will sustain the count is a question we need not here consider.

We have considered all of the other questions raised and find no error. We therefore are of the opinion that the order overruling the demurrer should be affirmed.

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


author: Stone, C. J. Brooke, J.

text:
    GORDON v. DRAKE.
    1. Appeal and Error — New Trial — Saving Questions for Review.
    Where the trial court denied the motion for a new trial without filing his reasons therefor, and no request was made to give them, his action in denying the motion cannot be reviewed in this court.
    2. Admiralty — Jurisdiction—Locality—Torts.
    In cases of tort, the test by which to determine whether the wrongful act is one of admiralty cognizance, is locality.
    3. Same.
    Where the tort originates upon the water, but is consummated upon the land, it is not within the admiralty jurisdiction.
    4. Same — Circuit Courts.
    So, where plaintiff was injured by being crushed between the pier and a launch on which he was a passenger, while jumping ashore at the command of the master of the boat, the circuit court, and not the Federal court, had jurisdiction of the action for damages against the owners of the launch.
    5. Master and Servant — Negligence—Trial—Question for Jury.
    Where the question before the court was whether the act complained of was an act of negligence of the master of the launch for which defendants were liable, or was an error of judgment in a case of emergency, it was proper to submit it to the jury for determination. Kuhn, Ostrander, and Brooke, JJ., dissenting.
    6. Same — Negligence—Incompetent Servant — Personal Injuries —Notice—Trial.
    Where there was no evidence that the master had knowledge or notice of the servant’s claimed incompetency, or anything that was sufficient to put him upon inquiry, the court did not err in taking that question from the jury.
    Error to Berrien; Bridgman, J.
    Submitted June 8, 1916.
    (Docket No. 6.)
    Decided September 26, 1916.

      Case by Harry Gordon against Logan J. Drake and another for personal injuries. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      O’Hara & O’Hara, for appellants.

      Cady & Andrews, for appellee.
   Stone, C. J.

This is an action on the case brought to recover damages for an injury sustained by the plaintiff by reason of the alleged negligence of the employee of the defendants. At the time of the injury complained of the defendants were the owners of a gasoline launch known as the Wolverine, with which they were engaged in the transportation of passengers between the dock in St. Joseph and Pottawattamie Park on Lake Michigan, north of St. Joseph about eight miles. The boat was about 46 feet in length, with a beam of 9y% feet. One man operated the boat. The boat on this occasion was in charge of one Porter as master, who was duly licensed. On July 14, 1913, at about 6 o’clock p. m., plaintiff paid the fare and took passage in this-boat to be carried to the harbor at St. Joseph. Ordinarily it took 50 minutes to an hour to make this run. The plaintiff was the only passenger on this trip, and there were but the two persons named in the boat. When the boat left Pottawattamie Park the sun was shining, and there was nothing to indicate a storm. A storm, called by the witnesses a “squall,” struck the boat when it was about five miles from Pottawattamie Park, and about three miles from St. Joseph Harbor. The master, in his testimony, described the storm as follows:

“It was wind and rain, and the rain was so heavy you couldn’t see anything, you couldn’t see 20 feet from you, and it would take — the wind was so strong it would take the water, what little sea there was, and blow it right into the boat. * * *
“Q. How sudden did that come upon you in time, from the time you first noticed a disturbance in the atmosphere until the storm had reached you?
“A. Not over ten minutes.”

He described the wind as a northwest wind, and that he was going a little west of south, as the outer end of the pier at St. Joseph was about 2,000 feet from the shore. About three-quarters of an hour after leaving Pottawattamie Park, the master discovered that he was abreast ■of the Edgewater Clubhouse pier, which was about 2,000 feet north of the St. Joseph pier, and he tried to get out into the lake from the pier. The pier at the Edgewater Clubhouse extended out into the water some 400 feet. The master claimed, in his testimony, that when he discovered he was 40 or 50 feet from the Edgewater Clubhouse pier he tried to turn to go out into the lake and away from the pier, but that the engine began to fail him, and that he could not steer the boat, and that finally the engine stopped, and the wind blew the boat against the Edge-water Clubhouse pier. There was at the trial a sharp conflict in the evidence as to whether the master shut off the power when near the Edgewater Clubhouse pier, or whether the engine failed to operate at that point. It was testified to by the plaintiff that the master shut off the power as the boat came up to the pier. His testimony upon that point was as follows:

“Q. When he discovered the light what did he do?
“A. He pulled in quite a way, and he had to come around to make the turn in order to come out past the edge of the pier. It seems he miscalculated the steering gear, and he struck the end of the pier, which tore off part of the canopy. ,
“Q. What occurred then?
“A. As soon as he struck it, he shut off his engine, threw up the trapdoor, little door on top, and got up on the pier, and he said ‘Jump!’
“Q. Where was he when he told you to jump?
“A. He was on top, one foot on the pier and one foot on the canopy.
“Q. Was the engine going up to that time?
“A. Until the time he — just before, up until the time he struck the pier, he shut his engine off.
“Q. Did you attempt to make a landing then at his command.
“A. When he told me to jump, I jumped for the pier. I had to jump up, and I grabbed a post on the pier — I believe it was a post or board; I don’t remember which now.
“Q. What occurred then?
“A. I hung on. The waves kept dashing the canopy of the boat up against the pier, and I was in between the two; I was used as a pad, and he tried to help me up. And I hung on, and finally I told him: ‘You can’t do any good there; get on the other side of the fence (I believe they have a railing there); that way you may be able to help me, but you cannot do any good there.’ And he got on the other side and got hold of my arm. I managed to get one leg on the floor of the platform, and when I got up there, this side of the fence, he started on down to the clubhouse. I got across the fence and started after him.
“Q. Did he take any tow line ashore with him?
“A. No, sir.
“Q. Did he make any effort to fasten the boat to the pier?
“A. No, sir.
“Q. What did he do with the boat?
“A. He just left the boat at the mercy of the gale.”

The negligence claimed in the declaration was that the defendants put in charge of said boat an inefficient, incompetent, and inexperienced pilot. And, further, that the said pilot or master conducted himself so carelessly, negligently, and unskillfully in the control and management of said boat that by and through his carelessness and negligence in managing and operating the sail boat, and for want of due care, he misdirected and misguided said boat, so that it collided with and against the pier in front of the Edgewater Clubhouse, and that said pilot became frightened, and then and there negligently jumped to the pier and abandoned the boat and the plaintiff therein, and ordered the plaintiff to jump therefrom to the said pier. And it was the claim that, while the plaintiff was acting in obedience to the orders and command of the said pilot the said plaintiff was violently thrown against said pier with great force, and crushed between the said boat and pier by means whereof the plaintiff was greatly hurt, injured, bruised, and wounded. There was evidence tending to support these allegations.

The trial court, in submitting the case to the jury, took from their consideration the question of the incompetency of the master or pilot. Upon that subject he charged the jury as follows:

“And I instruct you, as requested, that there is no evidence in this case that will warrant you in finding defendants negligent, simply because they employed Porter to operate this boat. It is possible, however, for a competent man to be guilty of negligence, but negligence is never presumed, but always must be proved. Having placed Mr. Porter in charge of the launch the defendants would be responsible for negligence, if any, on his part. Negligence is the failure to do what a person of ordinary care and prudence would have done under the circumstances and the situation, or doing what such person under the existing circumstances would have done. The duty is indicated and measured by the exigencies of the occasion. The master of the launch need not be of the highest skill and attainments in his profession, and need possess only the ordinary and usual requirements of those in like position; and, because any results might show that some other course would have been preferable, there would be no liability for negligence, though he had made a mistake, if at the time, under the circumstances, he acted with such ordinary care and prudence as is usually exercised by persons in like position. Ordinary eare depends upon the circumstances of each particular case, and such pare as a person of ordinary prudence and skill would usually exercise under the same or similar circumstances.”

The plaintiff recovered a verdict and judgment of $500.

There was a motion for a new trial, which was denied, but no reasons were filed in writing by the circuit judge in denying the motion, and there is nothing in the record to indicate that he was requested to give his reasons. We cannot therefore review his action upon the motion for a new trial. Griffin v. McKnight, 116 Mich. 468 (74 N. W. 650); McRae v. Lumber Co., 102 Mich. 488 (60 N. W. 967).

The defendants have brought the case here, alleging error.

It is the contention of defendants’ counsel:

(1) That if the plaintiff ever had a cause of action against the defendants, it should have been litigated in the courts of admiralty. This question was raised by defendants in their motion to direct a verdict on the conclusion of the testimony.

(2) It is the claim of the defendants that there was no evidence of negligence on the part of the defendants or their employee Porter. This question was- also raised by motion to direct a verdict, and by requests to charge, which were refused.

1. The first question to be determined is whether, under the facts above stated, this was a maritime tort over which the Federal courts alone have jurisdiction. Locality, by all the authorities, is the test in cases of tort by which to determine whether the Wrongful act is one of admiralty cognizance. Where the active cause of the injury originates upon navigable waters, and the tort is consummated upon land, admiralty has no jurisdiction. 1 Cyc. p. 843, and cases cited. Personal injuries received on shore, although caused by negligence originating on a ship, are not within the jurisdiction of admiralty. Price v. Belle of the Coast (D. C.), 66 Fed. 62; The Mary Garrett (D. C.), 63 Fed. 1009; The H. S. Pickands (D. C), 42 Fed. 239; The Mary Stewart (D. C.), 10 Fed. 137; Billings v. Breinig, 45 Mich. 65 (7 N. W. 722).

“The test of jurisdiction in tort is the locality, not the nature of the act. The tort complained of must have occurred on water to be within the admiralty jurisdiction, so where it arises upon the water, but is consummated upon the land, it is not within the admiralty jurisdiction.” 1 Am. & Eng. Enc. Law (2d Ed.), p. 656, and cases cited in note.

In The Mary Stewart, supra, it was held that an injury done to a person while standing on the wharf, by a bail of cotton which fell upon him from a ship’s tackle alongside, cannot be redressed in admiralty. In The H. S. Pickands, supra, the libelant, who was engaged in repairing a vessel which lay at a wharf, attempted to descend a ladder connecting the wharf with the bulwark of the vessel. The ladder had been protected against slipping by a cleat at the bottom, but had been removed from the protection of the cleat by the negligent act of the master. In descending the ladder, it slipped, and libelant was thrown upon the wharf and injured. It was held that a court of admiralty had no jurisdiction. Brown, J., said:

“I am clear in my opinion that a court of admiralty has no jurisdiction in this case. It has never been doubted since the case of The Plymouth, 3 Wall. 20, that, to enable us to take cognizance of a maritime tort, thé injury must have been consummated, and the damage received, upon the water. The mere fact that the wrongful act was done upon a ship is insufficient. Subsequent adjudications have in no wise tended to limit or qualify this rule.”

See, also, The City of Erie v. Canfield, 27 Mich. 479; The John Spry Lumber Co. v. The C. H. Green, 76 Mich. 320 (43 N. W. 576).

The trend of the authorities seems to be to the effect that if the injury complained of happened on land, it is not cognizable in admiralty, even though it may have originated on the water. This springs from the well-known principle that there are two essential ingredients to a cause of action, viz., a wrong, and damage resulting from that wrong. Both must concur. To constitute a maritime cause of action, therefore, not only the wrong must originate on water, but the damage — the other necessary ingredient — must also happen on water. The injury in the instant case happened on the land. Docks and wharves are but improvements or extensions of the shore. They are fixed and immovable, and are a mere continuation and part of the real estate to which they are attached, and this is the case whether they project over the water or not. Under the facts of this case and the decisions above referred to, we must hold that the circuit court had jurisdiction.

2. It is the claim of the plaintiff in this court, as it was in the court below, that the master or pilot was inefficient and incompetent; also that he was guilty of negligence in not keeping his boat away from the shore and pier; and, lastly, in shutting off the power and permitting the boat to drift against the pier, and in abandoning the boat and putting the plaintiff in a perilous position, which necessitated his jumping from the boat in order to escape the danger of being left in the deserted boat alone.

We think the circuit judge properly submitted to the jury the question of the claimed negligence of the defendants. It was a fair question for the jury whether this was an error in judgment of a competent man, or whether it was an act of negligence on his part. The distinction between an error of judgment, in case of an emergency, of a competent man, and negligence is clearly pointed out in the case of Luka v. Lowrie, 171 Mich. 122 (186 N. W. 1106, 41 L. R. A. [N. S.] 290). As was there said (quoting from The Tom Lysle [D. C.], 48 Fed. 690):

“The distinction between an error in judgment and negligence is not easily determined. It would seem, however, that if one, assuming a responsibility as an expert, possesses knowledge of the facts and circumstances connected with the duty he is about to perform, and, bringing to bear all his professional experience and skill, weighs those facts and circumstances, and decides upon a course of action which he faithfully attempts to carry out, then want of success, if due to such course of action, would be due to error of judgment, and not to negligence. But if he omits to inform himself as to the facts and circumstances or does not possess the knowledge, experience, or skill which he professes, then a failure, if caused thereby, would be negligence.”

There was no evidence that defendants had knowledge or notice of Porter’s claimed incompetency, or of anything that was sufficient to put them upon inquiry, or of any conduct that would have disqualified him for the work he was doing. The court did not err in taking that question from the jury. We think, however, that the question of the claimed negligence of the master in the particulars named was properly submitted to the jury by the trial court.

An examination of the record satisfies us that there was no reversible error therein, and the judgment of the court below is therefore affirmed.

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

Brooke, J.

(dissenting). The record in this case discloses that the distance between Pottawattamie Beach and St. Joe Harbor is 8 miles. The boat in which plaintiff was being transported was capable of covering the distance in about one hour. When approximately 5 miles of the distance had been covered, a sudden squall, accompanied by a heavy rain, developed. It is uncontradicted that the heavy precipitation, accompanied by a clouding of the sun, rendered it impossible for the occupants of the boat to see more than a very few feet ahead of them. The velocity of the wind for a period of ten minutes was between 40 and 50 miles per hour. According to the testimony, not more than ten minutes elapsed between the indications that a squall was coming and its actual breaking. The record further discloses that a line of pound nets was set along the shore between Pottawattamie Beach and St. Joe Harbor at a distance of about 1,000 feet from the shore, and extending out into the lake a like distance. In fair weather it was customary for boats, the size of the one in use on this occasion, to navigate between the shore and the pound nets. In rough or stormy weather they usually proceeded outside said line of nets. There being no indication of bad weather when the trip under consideration was undertaken, the inside passage was chosen. When the storm broke> Porter, the master of the ship, continued on his way, accelerating the speed of his engine to its limit, which was about 9 miles per hour. The wind which came from the northwest had a tendency to drift the boat somewhat toward the shore. The exact amount of the drift it was impossible to determine by reason of the fact that the storm had entirely obscured the shore and all lights.

The Edgewater pier extends out into the lake for a considerable distance near the point where the boat was when the squall struck her. As the master was proceeding to propel his boat in what he believed to be the proper direction, the lights on the Edgewater pier suddenly appeared almost directly in front of him and but a comparatively few feet distant. Both he and the plaintiff agreed that he immediately attempted to turn his boat to the right towards the lake, but was unable to escape contact with the pier. Porter claims that this contact was due to the fact that his engine “died” upon him, probably because in the storm water had interfered with the proper operation of its mechanism. The plaintiff claims that after the boat struck the pier the master tried to clear her, but, being unable to do so, he shut off the engine. In my opinion it is immaterial which narrative accords with the fact. Having struck the pier and being unable to disengage his boat therefrom, Porter climbed out upon the pier and instructed the plaintiff to follow. This the plaintiff did, and was assisted by Porter from the boat to the pier.

The only witness produced by plaintiff to prove negligence on the part of the defendant was the plaintiff himself. . On cross-examination he was interrogated as follows:

“Q. What did this man do on that boat that, in your judgment, he had not ought to have done?
“A. I do not think he should; he should have deserted his launch at the time.
“Q. Well, what else; now, you were there?
“A. That would take in the whole question, I believe, when you ask me, What should not he have done? that he deserted his launch. He deserted his launch, and practically left me there at — on the pier, because after I had got up on the pier, and had a hold of the fence, he started running on down the pier.
“Q. He lifted you up on the pier?
“A. He assisted me on the pier on this side of the fence on the side of the lake; he was on the other side of the fence.
“Q. You got across the fence in some way?
“A. I got across the fence in some way.
“Q. Were you hurt in getting across the fence?
“A. No; I was not hurt in getting across the fence; I was hurt before I got across.
“Q. Tell us something in your judgment that indicated that he did that he had not ought to have done; that you consider negligence?
“A. I consider when we were tossed around in the lake, not knowing where he was at, that it should have been in his place — if he had a compass there he could have turned his boat around and run into towards the shore. I can’t say that he is negligent in that part, in a way. If he had a compass there, why he probably would have known his way to go. * * * He made his turn too short and caught the pier.
“Q. Made what turn too short?
“A. Coming out from around heye where I "showed you before, where we crossed — where the canopy caught the end of the pier. That was negligence on his part. Had he guided his boat right, he would have missed the pier. * * *
“Q. The fact of the matter is, you didn’t .see"the' pier at all until the boat was striking right on the pier.1 That is true?
“A. No, sir; he was shoving the boat from the piey before we struck it.
“Q. After he got up close to the pier he endeavored to save the boat?
“A. Yes, sir.
“Q. How close to the pier were you before you saw; it?
“A. We were almost on top of it.”

I am clearly of the opinion that the situation as disclosed by the uncontradicted evidence was one of emer-: gency, where the master of the ship, confronted by one of the perils of navigation, with full knowledge of such facts as could be obtained under the circumstances,* exercised his best judgment in the extremity which presented itself, and this is true whether we accept the master’s story that the engine “died” upon him or the plaintiff’s story that he shut off the power after the boat had struck.

It is not apparent to me that the master was guilty even of an error of judgment in his conduct after the lights suddenly appeared in front of him. The predicament in which he then found himself was due to an error in judgment as to the direction in which he was steering, caused by the sudden darkness which completely obscured his surroundings.

To the quotation from The Tom Lysle (D. C.), 48 Fed. 690, which, my Brother Stone presents in his opinion, should be added:

“No one can be charged with carelessness, when he does that which his judgment approves, or where he omits to do that of which he has no time to judge. Such act or omission, if faulty, may be called a mistake, but not carelessness” (citing Brown v. French, 104 Pa. 604; Williams v. Le Bar, 141 Pa. 149 [21 Atl. 525]).
“It is the elementary principle that when a man acts according to his best judgment in an emergency, * * * he is not chargeable with negligence” ' (citing Staloch v. Holm, 100 Minn. 276 [111 N. W. 264, 9 L. R. A. (N. S.) 712])

. — but I am unable to glean from this record that defendants’ agent, Porter, when confronted with this emergency, which was not of his own making, acted even injudiciously.

I am of opinion that the judgment should be reversed without a new trial.

Ostrander and Kuhn, JJ., concurred with Brooke, J.


text:
    PRUSSIA v. BAILEY.
    1. Trial— Cross-Examination — Correspondence — Proof — Witnesses.
    A party to a cause, who offered a copy of a letter in which it was represented that some of defendants’ notes were inclosed, might be cross-examined as to whether he actually did inclose them in the envelope.
    2. Same — Payment—Examination.
    In support of a claim of payment, defendant’s wife was properly allowed to testify where the money used in payment came from and to refresh her recollection by referring to a book of account.
    3. Evidence — Hearsay—Correspondence—Letters.
    The trial court was also justified in excluding an explanation given in one of the said letters why the plaintiff returned the papers, on the ground that it was self-serving.
    4. Same — Directing Verdict.
    Evidence, in an action on a certain note that defendant claimed had been paid, considered and held, to justify the court in submitting the issue of payment to the jury.
    5. Same.
    The claim of plaintiff being that the contract on which plaintiff’s notes were based was invalid on the ground that it was entered into on Sunday, the court did not err in refusing to permit a witness to testify where plaintiff was on Monday morning, following the date in controversy.
    6. Amendment — Trial—Plea and Notice.
    When the amendment of a notice of payment was unnecessary the court did not commit reversible error in allowing defendant to correct it.
    Error to Shiawassee; Miner, J.
    Submitted June 13, 1916.
    (Docket No. 56.)
    Decided September 26, 1916.
    Assumpsit by Franklin O. Prussia against Orla Bailey and another on a promissory note. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      A. L. Chandler and E. F. Wilson, for appellant.

      Francis J. Shields (Leon F. Miner, of counsel), for appellees.
   Stone, C. J.

This is an action of assumpsit, the declaration being upon the common counts, to which was attached under the usual notice a copy of a promissory note reading as follows:

“500.00 'Detroit, Mich., June 1, 1910.
“Seven months after date we promise to pay to Ruth E. Benjamin or order five hundred dollars at-, value received, with 5 per cent, interest per annum from above date.
“Orla Bailey,
“Robert Bailey.”

Indorsed on back of note the following:

. “Ruth E. Benjamin, May 5, 1911, received interest on this note to date.
“Franklin O. Prussia.”

Under the plea of the general issue the defendants gave notice of payment of the note “set forth in plaintiff’s declaration”; also the following:

“This notice is given for the purpose of pleading payment in full of all amounts claimed in the declaration to be due plaintiff from defendants, or either of them, all of which statements and averments in the notice contained defendants and each of them will prove as a part of their, and each of their, defenses at the trial of said cause.”

It is undisputed that the note above set forth is one of a number of notes given in the purchase of a farm from Mrs. Benjamin, who was the mother of the plaintiff, and that on May 1, 1911, there remained unpaid and due two notes of $500 each, signed by both defendants, one note of $64 also signed by both defendants, and one note of $61 signed by defendant Orla Bailey alone, and that the plaintiff was the holder of said notes, upon which notes there was interest due. It is also undisputed that defendant Orla Bailey had arranged to meet the plaintiff in Detroit, where the latter resided, on Sunday, May 7, 1911, for the purpose of paying some interest on said notes, and exchanging for the $500 note sued upon two notes, one for $200 and one for $800, payable eight months after date, with interest at 6 per cent, per annum.

The trial of the case took an unusual course for a simple suit upon a promissory note. Instead of introducing the note in evidence and resting, the plaintiff gave evidence tending to show that an agreement had been made with defendant Orla Bailey by which the plaintiff was to surrender the note sued upon for the two smaller notes, to wit, one for $200 signed by Orla Bailey, and one for $300, signed by both defendants; also that the two notes of $61 and $64, respectively, had been paid, and $100 paid and indorsed on the other $500 note, and all interest settled, leaving $900 unpaid upon the farm deal, but that such agreement had been made on Sunday, May 7,1911, and was therefore void, and that he had returned the $200 and $300 notes to defendant Orla Bailey, and that he was entitled to recover upon the note sued upon.

Upon the cross-examination of the plaintiff the following receipt given by him to said defendant Orla Bailey was received in evidence without objection, viz.:

“Detroit, Mich., May 8, 1911.
“Received of O. A. Bailey one eight months’ promissory note dated May 5, 1911, and due January 5, 1912, for three hundred dollars no hundredths (in figures and dollar sign) interest, six per cent, from May 5, 1911, one signed by O. A. Bailey and Robert Bailey jointly. Received one note dated May 8, 1911, for two hundred dollars ($200) no one-hundredths, due January 8, 1912, interest six per cent, from May 8, 1911, and signed by O. A. Bailey. These'notes given to take up a certain five hundred dollar no one-hundredths dollars note that I have of Robert Bailey and O. A. Bailey made June 1, 1910. Received this date one hundred eighty-eight thirty-two one-hundredths dollars to apply on account of O. A. Bailey and Robert Bailey, but not to apply on the above specified notes.
“Franklin O. Prussia.”

It was the claim of the plaintiff that the reason the two small notes and the $500 note sued upon were not surrendered to Orla Bailey at the time was that they were in the bank at Detroit. It was the further claim of the plaintiff that on May 26, 1911, he returned the $200 and $300 notes to the defendant Orla Bailey in a registered letter, a carbon copy of which was offered in evidence, the said defendant not being able to produce the original, and in fact claiming that he had not received such a letter. The carbon copy of the letter was finally received in evidence, except that part which was embraced in the parentheses, which was excluded because self-serving and immaterial, the plaintiff excepting to suth ruling. The entire of said letter was as follows:

“May 26, 1911.
“Mr. Orla Bailey,
“Byron, Mich.
“Dear Sir:
“I presume that you think I have forgotten all about you, or the forwarding of the notes, but I assure you that such is not the case. As I told you the night that you were here, that the notes were locked up in a vault down town and since that time it has been impossible for me to get down town during banking hours, so that I could get same from the vault. I am inclosing herewith the two small notes, that is, the joint note of you and your father for sixty-four dollars which was due February 1st; also the note for sixty-one dollars given by you which was due February 1st. Then you will find the two hundred and three hundred dollar notes that you gave me the night that you were here. (The reason that I am returning the last two notes to you is this: I have been thinking over the matter, and I could not quite understand why I should take your note for $200.00 without any security, when your father objected to signing same. Now, don’t misunderstand me, because I believe you are strictly honest and upright, but I am in a rather peculiar position. My means are limited. The property that you bought was bought jointly and if anything should happen to you I might have a pretty hard time to. collect the $200.00 note. I can’t understand why your father would object to making new notes at this time to cover less amount than he first signed for. Furthermore, personal notes without an indorser are very hard to convert into money, if I should ever be pressed for same. You know a good many people who are well to do that live near where you do that undoubtedly would be glad to sign the $200.00 note providing your father would not, or possibly they would be willing to loan you the money. You and Mr. Luther C. Kanouse are very good friends, and I would be willing to accept Mr. Kanouse as an indorser on your note.)
“I hope that my decision in this matter will not cause you any annoyance, as I have not intended to do so, but I believe that you will see the position that I am placed in regarding this matter. You can tell your father that I have credited one of the notes with one hundred dollars payment on the same, and also credited both of them with the interest up to the date you were here. That leaves a balance of nine hundred dollars due me, besides what interest that may accrue from the time you were here until they are paid. You said that you expected within thirty days from the time I saw you to pay some more on these notes, and I trust that you will be able to do so, as I wish to get this matter cleared up as fast as possible. In fact, when you gave me these notes, if you remember, you expected to have them all taken up by February 1st last, and I had planned upon this money to use, so that I have been inconvenienced quite a little by not getting same, as money cannot be borrowed as readily here as in a small place or in the country. Please let me hear from you at your earliest convenience, and make another payment as soon as possible. With kindest personal regards, I beg to remain,
“Yours truly,
“Franklin O. Prussia.
“(P. S. — I also inclose 9.68 refund as per agreement on check.)”

The plaintiff not only testified that no part of the $500 note sued upon had ever been paid, but he also testified as follows in answer to the following question by his counsel:

“Q. After you returned these notes to Mr. Bailey in the letter which you have spoken of, and those that were shown you, has he ever returned those notes to you, or any payment on them, in any way?
“A. No, sir.”

On the part of the defendants it was claimed, and they gave evidence tending to support the claim, that the meeting between plaintiff and Orla Bailey in Detroit occurred after midnight Sunday night, that plaintiff was in Ann Arbor, and absent from Detroit until nearly midnight, and that the business between them was all transacted after midnight and on the 8th day of May, and that the receipt was properly dated on May 8, 1911, or on Monday, and that there was no truth in the claim that it was a Sunday contract. Defendants also denied that the $200 and $300 notes were returned to defendant Orla Bailey in the claimed letter of May 26, 1911, but claimed that the carbon copy was a subterfuge, in so far as the notes were concerned.

Both of the defendants, and the wife of defendant Orla Bailey, testified positively and circumstantially to the payment to the plaintiff of the $200 and $300 notes, with interest, amounting in all to $523, in the spring of 1912 at the house of defendant Orla Bailey, and that the plaintiff at the time produced and surrendered said notes; that defendant Robert Bailey objected to payment being made until the $500 note here sued upon was surrendered, but that plaintiff said it was covered by the said receipt. There were therefore two sharply contested questions of fact presented to the jury, viz.: Did the exchange of notes at Detroit occur on Sunday, and were the $200 and $300 notes paid? These questions were fully and properly presented to the jury in a clear charge, in which we find no error.

The trial resulted in a verdict and judgment for the defendants, and the plaintiff, without moving for a new trial, has brought the case here upon writ of error. By 50 assignments of error the plaintiff complains of divers rulings of the court in the reception of evidence and in the charge. We have examined all of the assignments of error, but find it necessary to specifically refer to the following only:

The first assignment of error relates to the cross-examination of the plaintiff as to whether or not he inclosed the $200 and $300 notes in the envelope, and the following occurred:

“Q. Did you inclose anything else in that letter?
“A. I don’t remember.
“Q. I am asking you for your recollection. Do you know whether you did or not?
“A. I told you I think so, but—
“Mr. Chandler: I think the letter would.be the best evidence.
“The Court: He is not asking for the contents of the letter. He is asking what he did.
“Mr. Chandler: Then I will make the objection he is entitled to see the letter before he is cross-examined upon it.
“The Court: He may answer.
“Exception.”

We think the defendants were entitled, under the circumstances, to inquire of the plaintiff what he did at the time of mailing the letter, and that it was not necessary before doing so to show plaintiff the letter. The important question was whether the notes were actually inclosed in that letter, as claimed by the plaintiff.

The wife of defendant Orla Bailey was permitted to .testify where the money came from that was used to. pay the two notes in the spring of 1912, and was permitted to refresh her recollection by reference to an account book. The book was not put in evidence. The issue was a sharp one, and we think that the evidence: was admissible as bearing upon the probabilities. See cases cited in Neal v. Neal, 181 Mich. 114-128 (147 N. W. 624).

Error is assigned upon the refusal of the Court to receive in evidence the entire letter of plaintiff of May 26,1911, above set forth. The vital part of the letter, to wit, that he inclosed the $200 and $300 notes, was received in evidence. The self-serving statements why he returned the notes were excluded, and we do not think that the ruling constituted reversible error. It is significant that the reason there stated was not the reason he gave at the trial.

Error is assigned because of the following ruling in the direct examination of the witness Lamont as to where the plaintiff was on May 8, 1911:

“Q. Do you know where Mr. Franklin O. Prussia was on the 8th day of May, 1911?
“Mr. Shields: I object to it as incompetent, immaterial, and irrelevant.
“The Court: Objection sustained.
“Exception.
“Mr. ChandlerIf your honor please, that is. when this paper is claimed to have been dated.
“The Court: Anything that occurred, if he knows anything abo,ut who was with him at the time these papers were executed, he may answer. You are covering a whole day. Confine it to the time they were making that contract and bargain, if this witness knows anything about it.”

The plaintiff had already testified that the transaction occurred on Sunday night, May 7th, just before midnight. That was the occasion that was important. Manifestly where the plaintiff was during the day of Monday, May 8th, was not material. This witness was permitted to testify that Mr. Bailey was not at the factory where plaintiff was employed on May 8th, and that he did not know what time plaintiff reached the factory on that day; that he usually got there by 9 o’clock.

The court permitted the defendants to amend their notice under the general issue by claiming payment of the $200 and $800 notes.

The plaintiff having testified that those notes had never been paid, in whole or part, we think that an amendment of the notice was not necessary, but no error was committed in permitting the amendment. A careful reading of the entire record satisfies us that the important and controlling questions involved were questions of fact, which were properly submitted to the jury, which found that the note sued upon had been paid and satisfied, and that there is no reversible error in the record.

The judgment below is therefore affirmed.

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