text:
    JEFFREY v. DETROIT, LANSING & NORTHERN RAILROAD CO.
    1. Railroad Companies — Sidewalk Crossings — Liability eor Personal Injuries.
    It is the duty of a railroad company to maintain the sidewalk crossings over its tracks in a city in a reasonably safe and suitable condition for the usual and ordinary pur- . poses of the public, and its failure to do so renders it liable to one injured by reason thereof while making a proper, reasonable, and necessary, though possibly an unusual or hazardous, use of the walk.
    2. Same — Use oe Snow-Plow.
    It cannot be said, as a matter of law, that the removal of snow from a sidewalk by means of a snow-plow drawn by horses, pursuant to a custom of long standing, is not a proper, necessary, and reasonable use of the walk.
    •3. Same — Right oe Action — Liability op City.
    A railroad company is not relieved from liability for its own negligence by the fact that a right of action may also exist against the municipality for the same injury.
    Error to Ingham; Person, J.
    Submitted December 6, 1895.
    Decided January 16, 1896.
    Case by Alexander J effrey against the Detroit, Lansing ■& Northern Railroad Company for personal injuries. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Black & Dodge, for appellant.

      M. V. & B. A. Montgomery, for appellee.
   Hooker, J.

The defendant owns and operates a railroad which crosses Larch street, in the city of Lansing, upon a curve, one rail being some inches higher than the other. A sidewalk has crossed said track for many years, and the defendant has been accustomed to keep it in repair. Between the rails, planks, laid upon the ties and flush with the top of the rails, constituted a portion of the walk built and maintained by defendant shortly before the accident complained of. The defendant’s servants removed from between the rails the two planks lying nearest to the higher rail. The ground was soon after covered with snow, and the plaintiff, while engaged in cleaning the snow from the walk with a team and snowplow, as usual, attempted to cross the track, when the point of the plow struck the rail, by reason of the absence of the two planks, and he was injured. The court directed a verdict for the defendant, upon the ground that the defendant owed no duty to» the public to keep the sidewalk within the rails of its track in such repair as to enable the plaintiff to draw a snow-plow with a span of horses over said walk across its track, and therefore was not guilty of negligence in removing the planks from said walk.

The safety of the public requires that the maintenance of the railroad track be exclusively within the control of the railroad company, and crossings are by our law required to be constructed by them. This, we think, is not merely to relieve the city from the expense, but is to insure the safety of the public, as well those who ride upon the trains as travelers upon the highway. It is the uniform practice of railroads to attend to these crossings, both of the wagon road and sidewalk, to the exclusion of the municipal authorities, so far as the track itself is concerned. This is recognized by the law, and is one of the reasons for holding that the statute which requires a proper restoration of the highway at the time of the building of the railroad by implication imposes the duty of maintaining it in prpper condition. This is but declaratory of the common law. See Maltby v. Railway Co., 52 Mich. 110. The right of the plaintiff to recover is not given by the statute authorizing actions against municipalities which fail to keep highways in a condition reasonably fit and safe for travel, though it is possible that such statute may have a bearing on the extent of the defendant’s duty. * We think that railroads must maintain crossings between tracks and rails reasonably fit and safe for the usual and ordinary purposes of the public, and the fact that a right of action might possibly exist against the cities does not affect their liability. In case of a failure, the railroad would be liable, whether the city were or not. Maltby v. Railway Co., 52 Mich. 111. In this case a sidewalk had long been provided. If removed, and the street left in a dangerous condition, as measured by the gauge of the ordinary uses and purposes of the highway, it was. negligent, and a cause of action would lie upon behalf of any person injured while making a proper, reasonable, and common use of the way. It is claimed that this was the usual way of cleaning walks, and had been for years, and was a proper use of the highway. While we do not intimate that such practice imposed any additional or greater duty upon defendant, a question not before us, if it appears that the accident was caused by reason of a failure to keep the crossing in a reasonably safe and suitable condition for ordinary uses, the plaintiff should not be denied redress because it was an unusual or hazardous use of the walk, it being, as already said, a proper and necessary use.

The judgment must be reversed, and a new trial ordered.

Long, Grant, and Montgomery, JJ., concurred. McGrath, C. J., did not sit.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    REED v. CITY OF DETROIT.
    1. Personal Injuries — Damages—Unskillful Treatment by Physician — Evidence.
    In an action for personal injuries, evidence that the plaintiff did not receive proper medical treatment is immaterial, unless it is also shown that he did not use reasonable care in the selection of a physician.
    2. Same.
    Evidence that a physician had practiced for 18 years, and was a graduate of the Michigan University, is prima facie proof of the exercise of due care on the part of the person employing him. '
    Error to Wayne; Carpenter, J.
    Submitted January 7, 1896.
    Decided January 28, 1896.
    Case by Anne Reed against the city of Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John J. Speed, for appellant.

      James H. Pound, for appellee.
   Hooker, J.

The plaintiff was injured by stepping into a defective culvert, for which she recovered a judgment against the city. The record shows but two questions: (1) Whether the denial of a motion to continue by reason of the absence of a material witness was error; (2) whether certain testimony was admissible, court and counsel having treated the matter as an offer of testimony, which was excluded.

The first question need not be discussed, for the reason that, if there was no error in excluding the offered testimony, the defendant suffered no injury from the denial of the motion. It was proposed to show that—

“Dr. H. 0. Walker had been sworn on the former trial, and then testified that he had made a personal examination of the plaintiff; and that, if permitted to do so, defendant desired and intended to prove by him on this trial that the treatment plaintiff had received was insufficient and improper, and if she had been treated properly, and the treatment continued, she would then be in a much better condition than she then was; that the proper medical treatment would probably have alleviated or prevented some of the difficulty under which she suffers; that there was some adhesion in the joint, which would have been prevented by proper surgical treatment; that Dr. Walker was a surgeon, practicing in Detroit.”

It was competent to show that the injury was aggravated or increased by want of proper treatment, provided it was also shown that it was due to the willfulness or negligence of the plaintiff; but, where a person sustains personal injury through the negligence of another, he is not to be deprived of his full damages because of the failure of his surgeon to administer the best remedies or treatment. There is no obligation to employ the best medical or surgical skill. Collins v. City of Council Bluffs, 32 Iowa, 324 (7 Am. Rep. 200). It is sufficient if one employs a physician believed to be competent, and reasonable care is used in the selection. City of Crete v. Childs, 11 Neb. 252. In Rice v. City of Des Moines, 40 Iowa, 644, it was held that, if reasonable care is used in the selection of the physician, and his employment is not unreasonably deferred, the damages will not be diminished because the most skillful is not employed.

In Stover v. Inhabitants of Bluehill, 51 Me. 441, this subject is dicussed at length. It was there said:

‘ They employed a competent surgeon. This was all they, unprofessional persons, could do. The necessity to do this was imposed upon them, not by their own fault, but by the fault of the defendants. If they had neglected to procure the services of a competent surgeon, having the ability to do so, or employed an incompetent one, whereby the injury had been aggravated, it is clear that they could not recover damages for the injury thus increased. The law does not permit a party thus to take advantage of his own negligence or misconduct. Yet, upon the theory of the party excepting, the same legal consequences result to them from their diligence as from their negligence, — from their discharge, as from their neglect, of a duty imposed by law, — if the surgeon employed, however competent, happens to increase the injury by unskillful treatment. It is difficult to discover the soundness of that principle which requires a party injured, without fault on his part, to insure, not only the surgeon’s professional skill, but also his immunity from accident, mistake, or error in judgment, and which precludes such party from recovering of the original wrongdoer damages arising from no fault on his part, and from causes beyond his power to control. On the contrary, there seems to be good reason for holding the party originally in fault responsible for the damages resulting to the innocent party under such circumstances. Indeed, the liability of a competent surgeon to mistake, accident, or error in judgment, as well as that of the party complaining to an increase of his injuries from other causes beyond his control, are among ‘the mischievous consequences,’ referred to in Rigby v. Hewitt, 5 Exch. 240, ‘ that may reasonably be expected to result under ordinary circumstances from the defendants’ misconduct,’ and for which they are responsible. The unskillful treatment of a surgeon, itself, if any there was, arose as a consequence of the original fault of the defendants. In the present imperfect state of medical science, and amidst the conflicting theories of medical men, as well as the uncertain reliance to be placed upon the different modes of treating injuries and diseases, it would not be difficult to make it doubtful, in a given case, if the professional treatment might not have been improved, or was unskillful; and thus a way of escape might be prepared for wrong-doers from the legitimate and legal consequences of their negligence or misconduct. The principle, therefore, of holding the defendants responsible, is founded in sound reasons of public policy.”

In Rice v. City of Des Moines, supra, it was further held that the plaintiff was bound only to employ a person of such reputed skill and reputation as persons of reasonable care and prudence were accustomed to employ in such, cases. In Bardwell v. Town of Jamaica, 15 Vt. 438, it is said that, when the primary cause of the damage is the fault of the defendant, the plaintiff recovers the whole damage resulting, unless it is increased by his own negligence or misconduct.

On the other hand, it is the law that a plaintiff should not be allowed increased damages where such increase is ascribable to his own want of reasonable care. Allender v. Railroad Co., 37 Iowa, 264; Smith v. Baker, 22 Blatchf. 240. The evidence showed that a physician and surgeon of 18 years’ practice, and a graduate of the University of Michigan, was called and treated the plaintiff, which was prima facie proof, at least, of reasonable diligence and care in the selection of a surgeon, although, in answer to counsel for defendant, he said that he did not make such cases a specialty. Unless, therefore, the testimony offered would have tended to show the contrary, or was accompanied by an offer to show negligence of the plaintiff, its exclusion was not injurious to the defendant. We discover nothing in the testimony offered that would have had such tendency, and the judgment must therefore be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    STRANG v. HILLSDALE CIRCUIT JUDGE.
    Appeal prom Probate Court — Notice to Adverse Party.
    Residuary legatees are entitled to notice of an appeal from an order of the probate court admitting the will of their decedent to probate, under 2 How. Stat. § 6781, providing that notice shall be given to the adverse party; and where an appeal has been taken without notice to such legatees, it is not error for the circuit court to require that notice be served upon them.

      Mandamus by Enoch Strang to compel Victor H. Lane, circuit judge for Hillsdale county, to vacate an order requiring the giving of an additional notice of an appeal from an order of the probate court admitting a will to probate.
    Submitted January 7, 1896.
    Denied January 28, 1896.

      Watts, Bean & Smith, for relator.

      Fellows & 0 handler, for respondent.
   Moore, J.

The will of William H. Merritt was admitted to probate in the probate court of Hillsdale county. The will, after providing for the payment of all debts, funeral expenses, and expenses of administration, gave to Julia Richmond $600, and the residue of the estate to the children of the sisters of the deceased. The relator, Strang, claimed to be a legatee under a prior valid will, and obtained an order allowing him to appeal from the probating of this will. In allowing the order, the probate court determined that Julia Richmond was the adverse party, and made an order of personal service of the papers upon her. Personal service was had upon her, and the case, as the relator claims, was removed to the circuit court. In the circuit court, Fellows & Chandler appeared specially as attorneys, claiming to represent the children of some of the sisters of William H. Merritt, deceased, and moved to dismiss the proceedings, for the reason that their clients had not been served with notice of the appeal. The circuit court ordered that said cause be dismissed, unless the relator caused to be served upon the residuary legatees, referred to in the last will of said Merritt, notice of said appeal, or cause the same to be published in a newspaper of said county. The order so made by the circuit court is sought to be reversed in this proceeding.

The statute authorizing the appeal provides that “the appellant shall give notice of such appeal to the adverse party, with his reasons therefor, in such manner as the probate court shall direct.” 2 How. Stat. § 6781. It is certain that Julia Richmond was an “adverse party,” within the meaning of this statute; and as to her the appeal is well taken, and the circuit court obtained jurisdiction of this case. It having been suggested to the circuit court that the residuary legatees were adverse parties interested in the appeal, it was not error to require thrit they should have notice.

The writ is denied.

The other Justices concurred.


author: Long, C. J.

text:
    STRANG v. BRANCH CIRCUIT JUDGE.
    Pleading — Amendment of Declaration — New Cause of Action.
    An amended declaration which counts upon the same contract as the original, and sets up the same damage, although it alleges the breach in a different manner, does not state a new cause of action. So held where, in an action for the breach of a contract for the sale of a patent right, the plaintiff alleged that defendant had no title to the patent, and, in an amended declaration, alleged that the patent sold did not cover the article represented by the defendant.

      Mandamus by Charles Strang and B. Frank Warner to compel George L. Yaple, circuit judge for Branch county, to strike an amended declaration from the files.
    Submitted January 7, 1896.
    Denied January 28, 1896.

      John B. Shipman (Champion & Champion, of counsel), for relators.

      E. E. Palmer arid H. H. Barlow, for respondent.
   Long, C. J.

Suitwas brought in the Branch circuit court by Zebina H. Wallace against the relators. The declaration contained four special counts, with the common counts in assumpsit added. The special counts were upon a breach of warranty of title to a patent hose-coupling device in certain territory bought by Wallace of relators, and paid for with personal property, in the counts described. They are all upon the breach of the warranty, although two sales, each involving different property, are declared on; and in two counts it is claimed that the warranty was that both defendants owned the patent right to the territory’ described, and in the other counts it is alleged that B. Frank Warner owned the patent in that territory. The plea was the general issue. The cause went to trial; and during the trial the plaintiff submitted to a nonsuit, with leave to move to set the same aside. This was set aside, and the court permitted the plaintiff to file an amended declaration. Relators moved to strike the amended declaration from the files, for the reasons (1) that the same was not an amendment of the original declaration in said cause, but a declaration upon another, different, and new cause of action; (2) because it sets out and claims upon another and different cause of action, inconsistent and antagonistic to the claim and cause of action contained in the original declaration in the cause. This motion was denied by the trial court, and petition is filed in this court to direct the trial court to set aside such order and strike the declaration from the files.

The original and the amended declarations are returned here. The amended declaration contains two counts. They are alike, except as to the property obtained of the plaintiff. These counts aver that—

“The said defendants then and there undertook and faithfully promised and agreed that they had a patent right upon the hose-coupling device then and there shown to plaintiff, and that they were the sole and unconditional ownei’s thereof for the territory above named; * * * that they had no patent upon the hose-coupling device so shown and exhibited to the plaintiff; that they did not transfer and assign to the plaintiff any patent right to the article so sold and exhibited to him, * * * but, on the contrary, transferred and assigned to him a patent right upon an entirely different article, then and there promising and agreeing with this plaintiff that the article contained in such patent right * * * was the same as the article shown and exhibited to plaintiff; and that the defendants had no patent upon the article so shown and exhibited to the said plaintiff; and that the plaintiff has suffered great loss and damage,” etc.

The court below was of the opinion that there was no different cause of action stated in the amended declaration than that set out in the first, and that the statements contained in the amended declaration were not antagonistic to the original declaration. In this, we think, the court was correct. Under the original declaration, the plaintiff sought to recover the value of.the personal property alleged to have been fraudulently obtained from him. The fraud charged was that defendants did not have title to the patent right which they exchanged for the personal property of plaintiff. There was no allegation in that declaration'that the plaintiff received a patent right upon a different article, but sole reliance was placed upon the transfer to him of a patent to which defendants had no right or title. Under the amended declaration, the plaintiff now seeks to recover the value of the identical property, which, it is alleged, was obtained from him by the fraud of the defendants. The fraud alleged is that while defendants did transfer to him, in exchange for such property, a patent right, yet it was not for the article shown and bargained for, and that the defendants had no patent right upon the article bargained for. The action under both declarations was for the value of the same property. It is the'same controversy as the original, but more fully and differently laid.

The rule is well stated in 1 Enc. Pl. & Prac. p. 564, tit. 7, as follows:

‘ ‘ As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, — another subject of controversy, — or the same matter more fully or differently laid, to meet the possible scope and varying phases of the testimony.”

The learned author cites in support of this rule: Daley v. Gates, 65 Vt. 591; Stevenson v. Mudgett, 10 N. H. 338 (34 Am. Dec. 155); Coxe v. Tilghman, 1 Whart. 282; Strong v. State, 75 Ind. 440; Smith v. Railway Co., 5 C. C. A. 557; and several other cases. From an examination of the cases, we think this is the settled rule. In Ball v. Claflin, 5 Pick. 303 (16 Am. Dec. 407), the court followed the general rule, and, in deciding the question, said:

“¡The subject-matter of the new count must be the same as of the old. It must not be for an additional claim or demand, but only a variation of the form of demanding the same thing.”

Counsel for relators, however, contend that the case falls within the rule laid down in Connecticut Fire Ins. Co. v. Monroe Circuit Judge, 77 Mich. 231, and is governed by it. In that case the original declaration was in the usual form upon a fire-insurance policy. The policy contained a guaranty on the part of the insured that “there shall be a clear space of 200 feet between staves and heading and mill.” There appeared to be no such clear space. The plaintiff then sought to amend his declaration by amending the counts upon the policy, and by declaring that he did not read the policy, and did not know that it contained that clause, and that it was written in the policy by mistake or fraud, and without the consent or knowledge of the plaintiff, and also by averring that a verbal agreement was entered into by which the property was to be insured as it then was, and that the company knew at the time that some of the staves and headings were within 200 feet of the mill, and that there was no such clear space, and, knowing this fact, fraudulently inserted in the policy the condition referred to. It was said in that case that “the only question to be considered is whether or not this alleged mistake or fraud in the writing of the insurance policy can be corrected in a court of law in the manner here sought to be done. We are satisfied that it cannot be so corrected.” It was therefore ordered that the amended declaration be stricken from the files. It is clear that the present case is not within the principle stated. There the plaintiff brought suit on the written contract. Failing to recover, he then sought to amend by striking out a part of the contract, which he claimed had been fraudulently inserted ; that is, he sought to sue on the contract, and in the same action at law to eliminate a part of the writing.

Counsel also cite the case of Ogden v. Moore, 95 Mich. 290, in support of their contention. That was a bill filed to enforce specific performance of a land contract. The substantive allegations of the bill were that O. and M. entered into an agreement in writing respecting the sale and purchase, a copy of which was attached to the bill; and that M. at the same time entered into an oral agreement with O.; and that M. “refused to stand to and abide by the terms and conditions of the oral contract entered into on his part with 0.; ” and that O. relied upon the oral promises made by M., and fully believed that said oral covenants and agreements were as forceful and binding as though in writing and signed by both. By the amendment it was sought to set up in the bill that 0. relied, not upon the oral promises, but upon the written agreement, from which, by mistake or oversight, certain covenants were omitted. It was said: “The rule is well settled that matter which constitutes a new bill, or matter inconsistent with or repugnant to the substantive allegations of the original bill, cannot be introduced by' amendment,” — citing Jenn. Ch. Prac. 97; 1 Daniell, Ch. Pl. & Prac. (5th Ed.) *402, § 8, note 8; 1 Barb. Ch. Prac. 207; Freeman v. Bank, Har. (Mich.) 311; Chancery Rule No. 21. It will be seen that the above case is not analogous in principle to the present.

The writ must be denied.

The other Justices concurred.


text:
    BEEBE v. BIRKETT.
    Equity Practice — Appeal—Statutory Construction.
    Act No. 186, Pub. Acts 1895, extending the time for settling cases in chancery, deals with procedure only, and therefore applies to both pending and future cases
    Motion to dismiss appeal.
    Submitted January 7, 1896.
    Denied January 28, 1896.
    N. Maria Beebe filed a bill in the circuit court for the county of Livingston, in chancery, against Thomas Birkett, to procure the discharge of certain mortgages. The cause was heard before Judge Dodds, and a decree entered for complainant, from which defendant appealed.
    Complainant moves to dismiss.

      Edwin E. Oonely, for the motion.

      Dennis Shields, contra.

   Hooker, J.

A decree in favor of complainant was signed July 28, 1895, and filed July 31st, proofs having been taken in open court. On November 2d the case was settled under circumstances which we think justified the circuit judge in settling the same, unless the statutory period had expired. This depends upon which of two statutes is to govern the case.

Under 8 How. Stat. § 6647, the circuit court had power to extend the time within which to settle a case for a period not exceeding three months from the date of entering the decree. At its 1895 session the legislature passed an act entitled “An act to provide for the examination of witnesses in open court in causes in chancery, and for the settlement of the evidence taken upon such examination and hearing; and for the settlement of a case where the evidence is taken before a circuit court commissioner,” — being Act No. 186, Pub. Acts 1895. The important changes made by that act were — First, to provide for the settlement of a case where proofs were not taken in open court; second, to increase the period for settling a case to four months, instead of three. This act took effect on August 29, 1895, and it is claimed by counsel for the appellee that it has no application to this case, and that it was necessary that the case should be settled within three months, as provided by the former statute, and he has therefore moved to dismiss the appeal.

The new act does not in express terms repeal the old, but it seems to cover the same ground as the old, with the exception mentioned. In our opinion, it was intended to supplant the other; and the only question here is whether it extends to pending cases, or whether they shall be governed by the former practice. It is certain that this act of 1895 should not be given retroactive effect, if vested rights were to be thereby affected; but a particular remedy is not necessarily a vested right. Costa Rica v. Erlanger, 3 Ch. Div. 69; Berry v. Clary, 77 Me. 482. It is a general rule that an act dealing with procedure, only, applies, unless the contrary intention is expressed, to all actions falling within its terms, whether commenced before or after the enactment. Singer v. Hasson, 50 Law T. (N. S.) 326; In re Koch's Estate, 5 Rawle, 338; City of Indianapolis v. Imberry, 17 Ind. 175. An act giving appeals from certain enumerated judgments and orders applies to such judgments and orders made prior to its passage. McNamara v. Railway Co., 12 Minn. 888. The following cases seem to support this rule: Bensley v. Ellis, 39 Cal. 309; Willis v. Fincher, 68 Ga. 444; Slocum v. Fayette Co., 61 Iowa, 169; Larkin v. Saffarans, 15 Fed. 147; Rosenthal v. Wehe, 58 Wis. 621; Gill v. Wells, 59 Md. 492; Walston v. Com., 16 B. Mon. 15; State v. Manning, 14 Tex. 402; People v. Mortimer, 46 Cal. 114.

Our conclusion is that the act, being one affecting procedure merely, is of general application to pending as well as prospective cases. This view maintains uniformity of practice, and we think it in keeping with the weight of authority.

The motion is denied, with costs.

The other Justices concurred.


text:
    SAGINAW, TUSCOLA & HURON RAILROAD CO. v. BORDNER.
    1. Railroad Companies — Condemnation Proceedings — Service op Notice.
    Under 3 How. Stat. § 3332, providing for the service of notice on nonresidents in condemnation proceedings, it is optional whether notice be served on the agent within this State, or on the owner within or without the State.
    2. Same — Necessity.
    In proceedings by a railroad company to condemn a gravel pit, the fact that the company already owns large quantities of gravel, and that it has sold a number of car loads, is not conclusive against its right to condemn, but is proper to be considered by the jury, in connection with testimony tending to show that the land in question is necessary to enable the company to operate its existing beds with economy and safety.
    3. Same — Province of Jury.
    The jury having determined the necessity, the appellate court will not review the question further than to ascertain that there was evidence to support the verdict.

      Appeal from the probate court of Huron county; John Lange, Judge.
    Submitted January 8, 1896.
    Decided January 28, 1896.
    Condemnation proceedings by the Saginaw, Tuscola & Huron Railroad Company against David R. Bordner and Henry H. Bordner. Respondents appeal.
    Affirmed.

      George W. Clark (T. W. Atwood, of counsel), for appellants.

      W. T. Bope, for appellee.
   Hooker, J.

The petitioner, a railroad company, built its railroad across section 13 in the township of Colfax, Huron county, about 1886, most of the deeds of right of way being procured in 1885. At that time, David R. Bordner owned the N. £ of the S. W. of section 13; also a strip of land one rod wide off the west side of the S. E. i of the S. W. ^ aforesaid. Bordner claims that a highway existed on the line between sections 13 and 24; but, if there is any evidence of such existence, it is a bare scintilla. Certainly, there has been none there since, for petitioner’s railroad and right of way are upon that line, and the brief for respondents states that such highway was vacated at the time said railroad was built. The accompanying plat shows the situation of the premises.

The petitioner has acquired the entire S. i of the S. W. i for a gravel pit, which, as will be seen from the diagram, was cut in two about the middle by respondents’ strip of land. The testimony shows that the gravel is about 22 feet deep, and the petitioner’s tracks could not run through both pits, connecting with the main track at both ends, by reason of their inability to cross respondents’ strip. It has therefore been compelled to use short spurs. Proceedings were had by which that parcel was condemned, and the respondents bring the case here for review.

Two questions are raised. The first goes to the jurisdiction. Respondent David R. Bordner claims and shows that in January, 1886, he deeded the W. \ of the N. \ of the S. W. i of section 13 to his brother, Henry

H. Bordner, who lived in Pennsylvania at the time, and has ever since, and that his said brother also held a mortgage upon the parcel sought to be condemned at the time these proceedings were instituted. Proof was made by affidavit that a copy of the petition and the statutory notice were mailed to Henry H. Bordner, by registered letter, in due season, and that his registry return receipt, signed by him, was received by the affiant in due season. As the record stands, it shows personal service out of the State, the signature to the receipt being proved. It is contended that service upon Henry H. Bordner at his home cannot be treated as sufficient, unless the record shows that he had no agent in Michigan upon whom it could be served. We think the statute permits personal service out of the State, or service upon an agent, if there be one, at the option of the petitioner. See,3 How. Stat. § 3332.

The second question goes to the merits of the proceeding. It is said that the record does not show that the petitioner needs this land for gravel, that it appears that it has but 66 miles of track, and that it has 85 acres of gravel in the vicinity of Bad Axe, some of which is in beds 22 feet deep, and there is no evidence as to the amount needed for railway purposes. Again, it is contended that the company is seeking to acquire gravel for speculative purposes, it appearing that it has sold large quantities of this gravel in Bay City. It is also said that the petitioner seeks to condemn this land merely for its convenience, so that it may unite the two spurs; and it is argued that .the land of the respondents cannot be taken under the right of eminent domain when sought by the petitioner for mere convenience or gain. It is a well-known fact that gravel is essential for ballast upon railway tracks. The record shows that these parcels comprise the most of the gravel that petitioner owns. It also shows that the excavation and removal of the gravel would be attended with less danger if the track could be connected with the main line at both ends, and that it could be removed more cheaply. This testimony is proper to be considered by the jury as bearing upon the question of necessity. The statute (3 How. Stat. § 3323) authorizes the condemnation of gravel beds. In this case the jury have determined the necessity, upon testimony tending to show it, and a view of the premises, and we will not review the question further than to ascertain that there was evidence to support the verdict. Toledo, etc., R. Co. v. Dunlap, 47 Mich. 467; Port Huron, etc., R. Co. v. Voorheis, 50 Mich. 511. It is doubtless true that the railroad company would not be willing to pay $250, the amount of the award, for half an acre of land, were it not for the fact that its possession would facilitate the use of the pits now belonging to it; but that fact is not conclusive, nor is the fact that it has sold some hundred car loads of gravel. They were proper subjects for consideration by the jury, to whom they were doubtless presented.

We find no error in the proceedings, and the order of the probate court will therefore be affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    DEAN v. ELLIS.
    1. Statute op Frauds — Promise to Pay Debt op Another.
    A verbal promise made by the purchaser of a stock of goods to a creditor of the vendor to pay the latter’s indebtedness is void under the statute of frauds.
    3. Novation — What Constitutes.
    The assent of the original debtor is necessary to create a novation.
    Error to Livingston; Dodds, J., presiding.
    Submitted January 8, 1896.
    Decided January 28, 1896.

      Assumpsit by Sedgwick Dean and another against Alva P. Ellis to recover a balance due upon an account for goods sold. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      John CummisJcey and Claude A. Brayton, for appellants.

      Dennis Shields and Francis J. Shields, for appellee.
   Grant, J.

In the spring of 1891, one H. W. Ellis opened a small retail grocery store in Livingston county, and purchased of the plaintiffs a bill of groceries. On August 30th, Mr. Ellis took one Hoysington into partnership with him, the firm name being Ellis & Hoysington. On the 1st of October of the same year, defendant bought out this firm, and carried on the business. Plaintiffs sold goods to Ellis & Hoysington. At the time defendant purchased, both H. W. Ellis and Ellis & Hoysington were in debt to the plaintiffs. On October 13, 1891, one of the plaintiffs went to the defendant’s store, and presented an account as follows:

“Ellis & Hoysington,
“ In account with Dean & Co.
“ October 9. To amount of statement this date____$83.04.”

Mr. Dean testified that defendant then said that he had bought out Ellis & Hoysington; that he asked him about the account they owed Dean & Co., to which defendant replied, “I will assume that account.” Defendant then paid him $36.33, which was credited on Ellis & Hoysington’s account. He afterwards made two other payments, of $10 each, on November 9th and December 7th. There was nothing upon the face of the account to show that it included plaintiffs’ claim against H. W. Ellis, nor was it mentioned in the conversation. In fact, defendant assumed in his purchase the debts of the firm of Ellis & Hoysington, but did not assume the debt of H. W. Ellis. Plaintiffs made no change upon their books on these accounts, did not notify H. W. Ellis that he was released, and there was nothing on their books to indicate any release. Mr. Ellis did not know that the plaintiffs claimed that the defendant had promised to pay his debt, nor did Ellis at any time have any knowledge of such claim. Defendant denied any promise to pay it.

Under these facts, the court properly directed a verdict for the defendant. There was no evidence of a novation. To constitute a novation, the assent of the three parties was necessary. There can be no novation to which the original debtor does not consent, and to which he is not a party. Glover v. First Univ. Parish, 48 Mich. 595. Under plaintiffs’ own version of the arrangement, the defendant did no more than to promise to pay the debt of another, which, not being in writing, is invalid, under the statute of frauds. Gower v. Stuart, 40 Mich. 747.

The judgment is affirmed.

The other Justices concurred.


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    JAYNE v. SEBEWAING COAL CO.
    Master and Servant — Negligence—Improper Use op Appliances.
    Where appliances are suitable and in . proper condition for the purpose for which they are intended, the master is not liable in damages to an employé who is injured while unnecessarily using them for some other purpose. So held where a miner, while ascending from the mine in a cage constructed for that purpose, was injured by using as a hand-hold part of the apparatus provided for hoisting the cage from the mine.
    Error to Huron; Beach, J.
    Submitted January 8,1896.
    Decided January 28, 1896.
    Case by William T. Jayne against the Sebewaing Coal Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      John E. Simonson and W. T. Pope, for appellant.

      Olin Pengra, for appellee.
   Grant, J.

The defendant was engaged in coal mining. The mine was about 125 feet deep. Its employes were let down into the mine, and taken out, through a perpenclicular shaft, by means of a cage. The coal was raised in the same manner. The shaft had two cages. When one went down the other came up. The bottom of the cage contained a track upon which cars loaded with coal were run from the level for hoisting. The'se cages were raised a,nd lowered by means of a drum and engine upon the- surface. Each cage was about 4 feet 1 inch wide, 5 feet 7 inches long, and 4 feet 7 inches high, to the crossbeam, which was 7& by inches. An eye-bolt goes through the crossbeam at its center, and is fastened on the underside by a nut, and is attached to a wire rope on -the upper side. The sides of the cage are uninclosed. There are three iron rods on each side of the cage, two angling and one perpendicular. This cage is one in common use in coal mining. The plaintiff was an experienced miner, had been employed in this mine for 11 days previous to the accident, and had gone up and down on this cage four times a day. Four men usually occupy the cage, though oftentimes more men go up and down on it. Upon the day in question four men, of whom the plaintiff was one, stepped upon the cage to go up. He was the last one upon it. One of the number then gave the signal to ascend by pulling the wire. Each miner had a lighted lamp upon his hat. When plaintiff stepped upon the cage he placed his hand around this nut. It is claimed that there was a space between the nut and the plate on the crossbeam of about three-fourths of an inch. Into this space he placed one of his fingers. As the cage ascended, the nut was drawn up, and his finger crushed. It is claimed that, in some manner, this eye-bolt became loose, so that, when the cage rested upon the bottom, the bolt dropped down for about three-fourths of an inch. This is the negligence charged, and upon which recovery was had. The court correctly instructed the jury that the cage was properly constructed, that this bolt and nut were not put there as a hand-hold, and that by the existence of the space between the nut and the crossbeam the cage was not out of repair for the original purpose for which it was constructed; but left it to the jury to determine (1) whether it was negligence to leave this space, and (2) whether it was proper care upon plaintiff’s part to put his hand upon the nut.

In our opinion, the court should have directed a verdict for the defendant. The nut was not intended as a handhold, and there was no necessity for the plaintiff to use it as such. The defendant was not chargeable with knowledge that its employes would use the nut for that purpose. Parties are not liable for negligence where their machinery and appliances are in proper condition for the use for which they were intended. When employés use them for a purpose and in a manner for which they are not intended, they alone are chargeable with fault, if injury results.

The judgment will be reversed, and, inasmuch as no different state of facts can be shown on a new trial, none will be ordered.

The other Justices concurred.


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    VYN v. KEPPEL.

    1. Fraudulent Conveyances — Evidence.
    Evidence that an alleged fraudulent vendor of chattels was- . in ill health, and required a change of climate, is admissible to show the good faith of the transaction.
    2. Same — Hearsay.
    Evidence as to what was said by the son of an alleged fraudulent vendor with reference to where he obtained property subsequently sold by him is inadmissible in a suit between the vendee and an execution creditor of the vendor, being mere hearsay.

      3. Same — Statements of Vendor.
    Statements made by a vendor of chattels after the sale, tending to impeach its validity, are inadmissible as against the vendee.
    Error to Ottawa; Padgliam, J.
    Submitted January 9, 1896.
    Decided January 28, 1896.
    Replevin by Derk Vyn against Bastían D. Keppel. From a judgment for defendant, plaintiff brings error.
    Reversed.

      George A. Farr (O. H. Gleason and Arthur Lowell, of counsel), for appellant.

      Walter I. Lillie, for appellee.

       Rehearing denied March 12, 1896.

   Moore, J.

The plaintiff brought replevin to secure the possession of a quantity of personal property he claimed to have bought of one Rankans, in November, 1893. The defendant claimed to hold the possession of the property as sheriff by virtue of a fi. fa. issued in the case of Rice v. Rankans, and he further claimed that the sale from Rankans to Vyn was a fraud against the creditors of Rankans. The defendant had judgment against the plaintiff.

It is evident that the good faith of the sale from Rankans to Vyn was an important question in the case. The plaintiff sought to show that, at the time of his purchase, Rankans had the bronchitis; that a change of climate was needed by him; and that this was one of the reasons for making the sale. The learned judge excluded this testimony. In doing this, we think, he erred, as the testimony was competent as bearing upon the question of good faith. Angell v. Pickard, 61 Mich. 570, and cases there cited.

The defendant was allowed to introduce testimony, against plaintiff’s objection, that' a son of Rankans, subsequent to the sale, had sold oats to one Kimball, and what he told Kimball as to where they came from. This was hearsay testimony.

The defendant was also allowed to give testimony to the effect that Rankans had said, subsequent to the sale, and not in the presence of Vyn, that the sale was all moonshine, and that he had not made a sale. To allow this testimony was error, for the rule is well settled that the vendee is not bound by statements made by his vendor subsequent to the sale. Vyn could not be bound by these statements. Ganong v. Green, 71 Mich. 10; Merritt v. Stebbins, 86 Mich. 342; Blanchard v. Moors, 85 Mich. 380.

It will not be necessary to consider the other assignments of error.

For the reasons stated, the judgment is reversed, with costs of this court, and a new trial ordered.

The other Justices concurred.


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    FENTON v. MILLER.
    1. Estate in Expectancy — What Constitutes — Deed—After-Acquired Title.
    To constitute an- estate in expectancy, under 2 How. Stat. § 5524, some legal title must exist, possession under which is postponed to a future period. Therefore, a deed purporting to convey all interest, “as well in possession as in expectancy,” in and to a certain parcel of land, executed by the owner of an undivided interest in fee, will not operate to vest in the grantee an interest thereafter devolving upon the grantor by inheritance, the same not constituting an “estate in expectancy,” within the meaning of the statute.
    2. Tenancy in Common — Adverse Possession — Evidence.
    Testimony by the wife of a tenant in common of land, to the effect that her claim of adverse possession is based upon her continuous possession from the time of her marriage, is insufficient to establish title by adverse possession as against her husband’s cotenants, there being nothing to indicate that such possession was hostile to their rights.

      3. Same — Ejectment—Proof of Ouster.
    In ejectment by a tenant in common against his cotenant, a plea of adverse possession, interposed by the defendant in another suit between the parties, is competent evidence of an ouster as of the date when the plea was filed; but the averments of fact contained in the plea are not conclusive upon the plaintiff.
    Error to Mackinac; Adams, J.
    Submitted January 10, 1896.
    Decided January 28, 1896.
    Ejectment by Charles B. Fenton against Anna M. Miller and others. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.

      James McNamara (T. E. Tarsney, of counsel), for appellants.

      Henry Hoffman (C. JR. Brown & Son, of counsel), for appellee.
   Grant, J.

The history of this litigation, and the facts connected therewith, are sufficiently stated in Fenton v. Mackinac Circuit Judge, 76 Mich. 405, and Fenton v. Miller, 94 Mich. 204. After the decision in 94 Mich., the defendants took a new trial under the statute, were again defeated, and again bring the case to this court for review. We find no evidence in the present record to change the results then reached.

1. It is again urged that the deed from George T. and Jacob A. T. Wendell of their undivided interest to their sister Eliza created an estate in expectancy, and therefore destroyed the relation of tenancy in common. This same question was before us in the former hearing, and decided against the defendants. It is therefore stare decisis. George and Jacob each possessed an undivided interest. Neither had any estate in expectancy to convey. An estate in expectancy is defined in the statute to be “ where the right to the possession is postponed to a future period.” 2 How. Stat. § 5524. In order to create such an estate, some legal title must exist to which the right of possession is postponed to some future period. George and Jacob each owned in fee an undivided interest. This alone they purported to convey. The expression “ as well in possession as in expectancy ” had sole reference to the title conveyed, and not to anything which they might subsequently acquire, by purchase or otherwise.

2. For the purpose of showing ouster, the plaintiff introduced the files in the partition suit, including the plea, which set up a claim of adverse possession, and also the testimony of defendant Miller taken in that case, in which she testified that her claim was based upon her continuous possession from her marriage down to the date of bringing this suit. There is nothing in her testimony inconsistent with the theory that her possession was the same as her husband’s possession, and that both were in possession as tenants in common. The testimony, being entirely consistent with the possession of a tenant in common, did not tend to establish the fact of adverse possession. The truth of the plea was not admitted, and its averments were not binding upon the plaintiff in this suit. It was competent evidence of a denial of the plaintiff’s rights at the time the plea was filed, and therefore of an ouster at that time. This point was in fact decided in the former opinion. See paragraph 3, p. 211, 94 Mich.

We find no error in the record, and the judgment must be affirmed.

The other Justices concurred.


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    MORIARTY v. MORIARTY.
    1. Wills — Testamentary Capacity — Instructions.
    An instruction that, “in order to possess testamentary capacity, it is not necessary that one should know the number and condition of his relatives, or their claim upon his bounty, or that he should know or understand the reason for giving or withholding his bounty to or from any relative,” is erroneous. Spratt v. Spratt, 76 Mich. 395, distinguished.
    2. Same — Burden oe Proof.
    Where'a will is presented for probate, the burden of proving the mental capacity of the testator rests upon the proponent throughout, and it is error so to instruct the jury as to lead them to infer that it devolves upon the contestant to establish the invalidity of the will.
    Error to Muskegon; Russell, J.
    Submitted January 17, 1896.
    Decided January 28, 1896.
    Michael J. Moriarty and Patrick A. Ducey presented for probate the will of Daniel J. Moriarty, deceased. The will was disallowed upon a contest made by Mary Ann Moriarty, and proponents appealed to the circuit, where the will was admitted to probate. Contestant brings error.
    Reversed.

      J. E. Sullivan (James O'Hara, of counsel), for appellant.

      Smith, Nims, Hoyt & Erwin, for appellees.
   Moore, J.

Daniel J. Moriarty died, leaving a will, which was offered for probate, but was disallowed by the- probate court. The. case was appealed to the circuit court, where the will was found to be the last will of said Moriarty.

A careful examination of the record shows that the case was properly heard by the circuit judge in the main, but some errors in the charge require consideration. Among other things, the learned judge charged the jury:

“In order to possess testamentary capacity, it is not necessary that one should know the number and condition of his relatives, or their claim upon his bounty, or that he should know or understand the reason for giving or withholding his bounty to or from any relative.”

It is argued by the proponents that this charge was warranted by the decision in the case of Spratt v. Spratt, 76 Mich. 395. The difficulty with that position is that the portion of the charge above quoted is not, even in substance, the law as laid down by Judge Champlin. His statement was: “It is not required that a testator should know and understand the number and condition of his relatives, nor their relative claims upon his bounty, nor that he should know and understand the reason for giving or withholding his bounty as to any and every relative,” which means quite another thing from the charge as given in this case. The rule in relation to the degree of legal capacity required to make a valid will is so well settled in Spratt v. Spratt, supra, Kempsey v. McGinniss, 21 Mich. 142, Fraser v. Jennison, 42 Mich. 221, and cases therein cited, that it is not necessary here to restate it.

The circuit judge, in his charge, made use of this language:

“Now, gentlemen, it is for you to say whether Mr. Daniel J. Moriarty had that kind of capacity. If he had that kind of capacity, why, it will simply be your duty to say that you find the paper here presented for probate as a will was the last will and testament of Daniel J. Moriarty, and that he was mentally competent to execute it on the 10th day of February. If you find that he had not such a capacity, by a fair preponderance of the proof, why, it is your duty to say that it is not his will and he was not competent to make it.”

Mr. W. E. Hoyt, for proponents, requested the court to explain to the jury what is meant by “preponderance of evidence.” The court did so in the following language: “A preponderance is a fair weight of the testimony,” and then fairly stated to the jury the law as bearing upon that question, and then he added:

‘ ‘ If there is more evidence tending to show that this party was capable to make a will, why, the proponents have the preponderance; if there is more of the evidence, taking the paper and everything into consideration, on the side of the contestant, then the weight of the evidence is on the other side, and the will ought to he overruled.”

~W.e think this was error. It is likely the jury understood from this statement of the judge that the contestant must establish the invalidity of the will by a preponderance of testimony. The law has long been settled in this State the other way.

The other assignments of error, we do not think, were well taken.

The case is reversed, with costs, and a new trial granted.

The other Justices concurred.


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    WILL v. VILLAGE OF MENDON.
    1. Defective Sidewalks — Liability of Municipality.
    It is no defense to an action against a village for injuries received from a defective sidewalk that the walk was constructed upon private property, if the care and control of the walk had in fact been assumed by the village.
    2. Same — Evidence—Control of Walk.
    Evidence that a witness had repaired the walk for the village, and the proceedings of the council in relation to such repairs, are admissible as bearing on the control of the walk.
    3. Same — Notice of Defects.
    Evidence as to the generally defective condition of the walk for a distance of four or five rods in either direction from the place of the accident is competent to charge the municipality with notice, even though the particular defect which caused the injury may not have been apparent to ordinary observation.
    4. Same — Bias of Witness.
    It is not error in such case to permit plaintiff’s counsel, upon the cross-examination of a witness for the defendant, to show that such witness has assisted in looking up testimony, and that he is a large taxpayer in the village. ■
    5. Personal Injuries — Evidence—-Pain and Suffering.
    In an action for personal injuries, evidence as to pain experienced in other parts of the body than those alleged in the declaration to have been injured is competent, if the pain is directly traceable to the injuries alleged.
    6. Same — Exclamations of Pain.
    Exclamations of present pain and suffering by the person injured, together with his statements as to the location, nature, and extent thereof, are admissible as original evidence.
    7. Same — Physical Condition of Patient.
    A witness who attended the injured person may testify to a numbness of the patient’s limb as a fact within his observation.
    8. Same — Competency of Juror — New Trial.
    In an action against a municipality for injuries sustained by reason of a defective sidewalk, a juror testified, upon his voir dire, that, while plaintiff had told him that she had been injured upon the walk, he knew nothing about the circumstances, had formed no opinion, was not prejudiced in her favor, and could try the case impartially; whereupon he was accepted as a juror. Verdict having passed for the plaintiff, defendant’s counsel moved for a new trial, and, in support of his motion, submitted affidavits showing that, when advised as to the cause of the inj ury, such j uror had asked the plaintiff why she did not sue the village, to which the plaintiff replied that she had brought suit, although she had deferred action for some time on the ground that the village had promised to settle. Held, that there was no error in denying the motion.
    Error to St. Joseph; Loveridge, J.
    Submitted December 4, 1895.
    Decided February 7, 1896.
    Case by Mary Will against the village of Mendon for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      H. P. Steioart and Howard & Boos, for appellant.

      B. E. & L. F. Andrews and George L. Ydple, for appellee.
   Hooker, J.

The plaintiff recovered a judgment for an injury suffered through a fall on a defective sidewalk by reason of being tripped by the tipping up of a board on July 4, 1889. The defendant claims that the place where the accident occurred was land owned by a railroad company, which was used as a street, and that the city was not responsible for the injury. There was testimony that the city assumed to control and use this land as a public street. The court charged the jury as follows:

“I instruct you that if you are satisfied from the evidence that the defendant assumed care and control of the walk, and that it was in the care and control of the defendant at the time of the alleged accident, then, notwithstanding the fee of the soil over which the walk in question is constructed may have been in the railroad company, that fact alone would not prevent the plaintiff from recovering in this action. If the village assumes the control of a sidewalk, it is its duty to keep it in repair.”

This instruction was warranted by the cases of O'Neil v. Village of West Branch, 81 Mich. 547; Detwiler v. City of Lansing, 95 Mich. 484. The testimony of Stevens that he repaired this walk in 1886 for the city was proper evidence upon this subject. The same may be said of the council proceedings of December 10, 1888, with reference to repairs, If the resolution did not cover the identical piece of walk, it tended to show that the city had assumed control of this railroad land for the highway.

The testimony of several witnesses as to the condition of the sidewalk in the vicinity of the place where the accident is alleged to have occurred was taken, subject to objection. Mr. Young, the city lamplighter, testified that he went over it early in 1889, and that he notified the council of the bad condition of the walk in this vicinity, and in this particular place. Witnesses were allowed to testify with reference to the condition of the walk for the distance of four or five rods north and south of the crosswalk. It is contended that this was improper, inasmuch as the accident was shown to have occurred at a point from 16 to 20 feet south of the cross-walk; that the nature of the accident, being occasioned by the tipping up of a plank, was consistent with the theory that the walk at that place was in good repair, and that the plank first became loose at the time of the accident, and, therefore, that the walk might have been in fairly good condition, and the cause of the tipping of the board might have been a defective or rusted nail, not apparent to observation. We think that this testimony was properly admitted. It may have tended to show the age and general condition, as to decay, of this piece of walk, showing that it did or did not require inspection and repair. If these boards were loose, with nails rusted and broken; if stringers and boards showed age, — -it might indicate a bad condition of the walk, or at least be evidence tending to show notice of its actual condition to the city authorities. Strudgeon v. Village of Sand Beach, 107 Mich. 196.

Error is assigned upon the refusal of the court to give several instructions to the jury. An examination satisfies us that the points were covered by the charge given.

We-think there is nothing in the point that a witness was cross-examined as to his interest in the case,- both in relation to aiding the defendant, and the fact that he was a large taxpayer of the village.

The plaintiff testified to pains in her head and stomach, and it is claimed that this was not admissible, for the reason that the declaration did not include injury to either. Her testim'ony was as follows:

‘ ‘ I am worse in respect to my hip and spine. My spine, from the back of my neck clear down, is sore, and it is very sore in places, and I have a great deal of pain in my head and in my hip; and sometimes there is something that seems as if it catches me in the bottom of my foot, and it seems to wind, and it seems to go to the back of my head, and it makes my head ache.
“(Mr. Howard: We object to any testimony in regard to the head, for there is nothing of that kind in the declaration.
“(Overruled, and exception taken.
“(Mr. Yaple: So far as recovery is concerned, we are limited to the declaration.)
“It makes me very sick. It commences in that way, and it causes me to be very sick with pain, and it causes me to be very sick at the stomach. There are a good many times, if I go to church, that I have to go out because I am sick. (Same objection as before. Same ruling, and exception.) The sickness that I spoke of in church would be a sharp pain in my hip and side, and it strikes to my stomach.”

The declaration alleges injury to feet, legs, side, back, spine, and womb, by which she became sick, very lame, diseased, and disabled, and suffered great pain. The evidence was not admitted to prove injuries to the head and stomach, but as showing the pain suffered from the injury to other members. We think it was not error to admit this testimony.

The plaintiff’s husband was permitted to testify to the complaints and statements of the plaintiff as to the location, nature, and extent of her pain and suffering. This was objected to as hearsay. He was present at the time of the accident, and cared for her afterwards. Unless her exclamations and statements upon this subject were admissible, her own testimony was the limit; and we think his testimony was within the rule laid down in Hyatt v. Adams, 16 Mich. 200. Mr. Justice Christiancy there said:

“The court did not err in admitting the evidence of exclamations of pain and suffering uttered by the deceased, and her complaints as to the nature of her suffering during and after the operation, though some of them were in the absence of the defendant. This is the natural and ordinary mode in which physical pain and suffering are made known to others, and the only mode by which their, nature and extent can be ascertained. Such exclamations and statements are therefore original evidence; but it was, of course, open to the defendant to show, or to raise an inference, if he could, that they were feigned, or intended to deceive. They were clearly admissible as tending to show the malpractice of the defendant, though not for the purpose of aggravating the damages.”

The testimony of the witness refers to statements of present, rather than relations of past, suffering.

In Johnson v. McKee, 27 Mich. 473, Mr. Justice Campbell said:

“A number of errors are alleged upon the reception of testimony showing the statements by plaintiff at various times concerning his pains and bodily sufferings. These are objected to as hearsay statements, and as declarations in his own favor. So far as they were not narrations of past, as well as present, sufferings, it has been well settled that such statements of present feelings are facts which furnish the best, and often the only, evidence of such physical conditions as are not open to discovery by the sight or other senses of witnesses; ” citing Hyatt v. Adams, supra.

In Grand Rapids & Ind. R. Co. v. Huntley, 38 Mich. 543, it is said:

“These statements are admitted only upon the ground that they are the natural and ordinary accompaniments and expressions of suffering. It would be impossible in most cases to know of the existence or extent or character of pain without them. They are received, therefore, as acts, rather than declarations, and admitted from necessity. The rule which admits declarations of present suffering has never been extended so as to include declarations either of past suffering, or of the causes in the past of such suffering, so as to make such statements proof of the facts. Declarations concerning the past are narratives, and not acts. Exclamations of suffering may be, and, if honest, are, parts of the occurrence itself. It is difficult to lay down any very clear line of admission or ex^ elusion, where the exclamation refers to the feelings of the moment. But we think it would not be safe to receive such testimony in any case where it is not the natural and ordinary expression of pain, called out without purpose, or in the course of medical treatment. The unstudied expressions of daily life, or the statements on. which a medical adviser is expected to act, and which, if feigned, he should have skill enough to subject to some test of truth, stand on a footing which removes them, in general, from suspicion.”

See, also, Strudgeon v. Village of Sand Beach, supra, and cases cited.

The husband was allowed to testify to numbness of the leg, which is alleged to have been beyond his knowledge. The testimony given was as follows:

“ There was not any improvement in her condition during this time. She made complaints right along. Some of the complaints were about her private parts, and complaints with regard to injuries, or the way she was feeling in consequence of those injuries. She was suffering all the while in her back, hip, leg, and limb. She complained about the whole length of her back, and up between her shoulders. I don’t know as she complained of any particular points, one more than another. The pain ran up between her shoulders, clear across the back, clear over her hips, and down the back, between the shoulders, and then around here on the hip. I bandaged her foot, and helped her around the room. I bathed her back and sides in the evening. I bathed the whole length of her back. We are doing that yet. I don’t think she has improved at any time in respect to these injuries that I have mentioned. I think she is getting worse, if anything, in respect to the numbness of her limb.
“(Mr. Howard: I object to that, and move to strike that answer out, for the reason that it is a physical impossibility for the witness to tell whether the numbness in his wife’s limb has increased or not.
“( Court: If he was nursing and rubbing, he may have observed it. I think I will deny the motion to strike out.
“(Exception taken to the ruling of the court.)
“There was numbness of her arm, and occasionally she would lose the use of it for a short time, and would drop anything and not know at the time that it left her hand, and losing a part of the sight of the right eye.
“Q. Did she at these times complain, or describe the pains more particularly than you have given?
“(Objected to as indefinite. Overruled, and exception taken.)
“Q. What did she say in that respect?
“A. After she was hurt, she did not complain of the sharp cutting in her foot, as I remember of, but there was pain in her limb, hip, and spine. She complained of that most all the while. She complained of nervousness and sleeplessness through the night, and pain in her right side and through her limb, and a drawing up of the foot, commencing in her foot; and it would go to the top of her head, and wake her up out of her sleep.”

While it may be true that the husband could not testify to a sensation experienced by the wife, he might testify to her complaint's, within the rule above stated, and this appears to be the nature of his testimony as a whole. But “numbness” is a term not limited to sensation. Webster defines the word “numb” as follows: “Infeebled in, or destitute of, the power of sensation and motion; rendered torpid,” etc. Inability to move or to use the limb might be obvious to another. We think the testimony given was proper. In Harris v. Railway Co., 76 Mich. 229, a witness was asked, “Now, from what you have seen of her, can you state whether' she has the full use of her left arm? ” This was held admissible as testimony of a fact which fell within the observation of the witness.

The other assignments of error relate to the denial of the motion for a new trial. The grounds of said motion will he noticed: (1) That the verdict was against the weight of evidence; (2) newly-discovered evidence; (3) incompetency of a juror. The judge denied the motion, giving reasons as follows: (1) That it was not one of the grounds mainly relied upon in the argument of the motion, and he did not consider it. (2) That reasonable diligence would have discovered the-evidence alleged; that the affidavits indicate that the newly-discovered witness is not a person of good repute and credibility, and that the testimony would not be likely to influence a jury upon another trial.

The affidavits in support of the motion for new trial alleged that the juror had stated that Mrs. Will came to his house upon an occasion anterior to the trial, and, seeing that she was lame, he asked her what was the matter, and she said, “Why, don’t you know I hurt my foot in the sidewalk at Mendon? ” Whereupon he said, ‘ ‘ Why don’t you bring suit against the village?” and she told him that she had, and he asked, “Why did you not bring suit sooner? ” and she replied that they had promised to settle, but she was not going to wait longer. He asked who her attorney was, and she told him. He was examined as to competency, and it does not appear that he refused to answer any question asked him. On such examination he said that Mrs. Will came to his house, and stopped, putting her horse in his barn, and said she was in town on business; that he asked her about it, and she told him she was injured by the defective sidewalk; that he knew nothing about the circumstances, had formed no opinion, had no prejudice in her favor, and could try the case impartially. Upon this record, we think the court committed no error in relation to the motion for new trial.

We find no error in the record, and the judgment will be affirmed.

Long, Grant, and Montgomery, JJ., concurred. Mc-Grath, C. J., took no part in the decision.


author: Montgomery, J.

text:
    WILLIAMS v. VILLAGE OF PETOSKEY.
    1. Municipal Corporations — Bridges—Duty as to Maintenance.
    By Act No. 380, Local Acts 1879, incorporating the village of Petoskey, it was provided that all bridges built and to be built across Bear river, within the limits of the village, should be maintained by the township of Bear Creek at large. The village afterwards constructed a race-way for its own use, running parallel with the river. Across the race-way and river a bridge was constructed by private subscription, which bridge was thereafter recognized by both village and township as a public way. Held, that it was the duty of the village to keep in repair that portion of the bridge which spanned the race-way.
    2. Same — Highways—Dedication—Estoppel.
    Where a village has assumed to dedicate land to the public for highway purposes, and use has been made of the land accordingly, it is immaterial, as bearing upon the duty of the village to keep the way in repair, whether or not it ever became strictly a legal highway.
    3. Same — Personal Injuries — Instructions—Recovery Over.
    Where, in an action against . a municipality for injuries sustained by reason of the defective condition of a bridge, the testimony tends to show that the defect causing the accident was due to the negligence of a railroad company, an instruction that, if damages should be awarded against the defendant, it “might have a remedy” against the railroad company, does not necessarily call for a reversal of the judgment.
    4. Personal Injuries — Damages—Instructions.
    In an action for personal injuries, an instruction authorizing the jury to assess damages for “expense of nursing” is erroneous, where there is no evidence that any such expense was incurred.
    Error to Emmet; Adams, J.
    Submitted December 17, 1895.
    Decided February 7, 1896.
    Case by Mae A. Williams against tbe village of Petoskey for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Clay E. Call (Wylie & Clapperton, of counsel), for appellant.

      A. D. Cruickshank and M. E. Guinon, for appellee.
   Montgomery, J.

Action for negligent injury. The declaration avers:

“The said defendant, before and at the time óf the committing of the grievances and negligence hereinafter mentioned, controlled, used, and had jurisdiction of a certain wooden bridge located on Lake street, within the corporate limits of said village of Petoskey, the defendant herein. Said bridge was constructed over and across Bear river, so called, and the water race-way or flume used by said defendant for the purpose of conducting water from said Bear river into the waterworks of said village of Petoskey; said flume or race-way running alongside of said river, and under said bridge constructed across said Bear river and flume, as aforesaid, and being within said village of Petoskey; said bridge being about 60 feet in length, and constructed about 12 feet above the waters of said Bear river, and said Lake street being a public street or highway running through said village of Petoskey; and the said bridge which crosses said Bear river and the water race-way or flume, as aforesaid, being a public bridge located on said street, over said river and flume, as aforesaid, and the said street or highway, to wit, Lake street, being a public street and highway used and controlled by the said village of Petoskey as a public street. And the said bridge, as aforesaid, was owned, controlled, used, and under the jurisdiction of the said village of Petoskey, upon the 24th day of December, 1891, and for a long time prior thereto; and being at that time, to wit, the 24th day of December, 1891, the property of the said defendant, and under the control and management of the said defendant, and being a public highway and bridge, as aforesaid, it was then and there the duty of the said defendant, by and through its proper officers and representatives, to keep said bridge in good, proper, and sufficient repair at all times, and to keep proper railings and guards on said bridge at all times, and to keep said railings and guards in good repair, so that the public might cross, use, and enjoy said bridge in their traveling upon said bridge, with safety to themselves.”

The pleader then.proceeds to aver that the defendant negligently allowed the railing to be removed from the bridge, and that it also allowed the light which was customarily maintained in the night-time to be extinguished, and that the plaintiff, “by reason of the want of the light of said lamp usually kept lighted by said defendant upon said bridge, and the absence of the railing and guard of said bridge, fell over the side of said bridge onto the timbers of said bridge extending out from and over the race-way aforesaid, and was greatly bruised, injured, and wounded thereby in her back, chest, head, neck, and shoulders, and her ribs fractured, her chin cut, and her chest and back permanently injured; and fell from said timbers into said race-way, over which said bridge passed, as aforesaid, into the water of said race-course or flume, being of a depth of four or five feet, with a swift and strong current; and by reason of said stepping off and ■’through the space of said bridge where said railing had been removed and torn down from said bridge, and falling over the side of said bridge onto said timbers, as aforesaid, became insensible from said wounds, cuts, bruises,” etc.

The plaintiff recovered, and defendant brings error.

It is contended — First, that the village of Petoskey is not responsible for the maintenance of the bridge, for the reason that the law of its incorporation imposed the duty of maintaining bridges across Bear river on the township of Bear Creek at large; second, that the bridge in question was not on the public street; and, third, that, if the village be held responsible for the maintenance of the bridge in question, there was error in submitting the case to the jury.

1. By section 4 of Act No. 280 of the Local Acts of 1879, under which the defendant was incorporated, it was provided that—

‘ ‘ The bridge or bridges now built, or that may hereafter be built, across Bear river, within the territory described in section 1 of this act, shall be built and maintained by the township of Bear Creek at large, in the same manner as though the said village was not'incorporated.”

It appears that the bridge in question was not built by either corporation, but its history is as follows: In 1881, a tract of land, embracing the river from its mouth some distance up stream (southerly), was purchased by the village, and used for waterworks purposes. A dam was placed at a sharp bend in the river, and a flume or raceway constructed in a northerly course and about 15 feet west of the river, across the water lot, so called, to the pumping station. A street called ‘ ‘ Lake Street ” extended from the village, in a westerly direction, to the water lot, and a street was also platted on substantially the same line, west of the water lot. In 1885 private parties residing in the village and township contributed the necessary fund, and built the bridge in question, on the line of the street and across the water lot. The common council appropriated $50 for “improvement of Lake St. west, and approaches to the bridge,” and later adopted a resolution relating to the land connecting Lake street with the land west of the water lot, as follows: “ Whereas, certain public-spirited citizens of the township of Bear Creek have built two bridges, for public travel and accommodation, over Bear creek, on ground belonging to the village of Petoskey, and no street or highway having been laid out through said grounds on which said bridges are located, and said bridges being deemed by the council of said village necessary public improvements, therefore, be it resolved by the council of the village of Petoskey, that the following described lands owned by the village of Petoskey be and the same are hereby opened and laid out and dedicated to the public for highway purposes;” and the village also contracted for the placing of a light on the bridge. In 1891 the council gave to the Chicago & West Michigan Bailway Company permission to change the course of the river, and it was ordered that the committee on fire and water take full charge of the work of changing the course of the river and building a stone wall for a new course. It was while the railway company was prosecuting this work that the railing on the bridge was taken off, and left off, and resulted in the injury to plaintiff. It appears that a motion was made that the committee on streets be instructed to confer with the township board relative to the removal of a portion of the Lake Street bridge for the purpose of the improvements contemplated by the railway company, but the record fails to show that any action was taken under this resolution. It also appears that the township board, on the 27th of November, 1885, passed the following resolution:

“Moved and carried that the following resolution be adopted:
Whereas, certain public-spirited citizens of the township of Bear Creek have erected two public bridges on highways crossing Bear river in said township, and signified their intentions to dedicate said bridges to the public for highway purposes; and Whereas, we deem said bridges a necessary public improvement:
“Therefore, be it resolved, by the township board of the township of Bear Creek, that said bridges be, and the same are, hereby accepted by said board, for and in behalf of said township, and that said bridges be, and the same are, hereby dedicated to the public for highway purposes.”

It is not made clear by the testimony whether the bridge in question is one of the bridges referred to, but the inference is a fair one that it is.

In the absence of express legislation, the village, by virtue of its control over the streets and thoroughfares within its limits, is primarily and solely liable for their maintenance. The difficulty here arises out of the statutory imposition of a duty, which would otherwise rest upon the village, upon the township at large. We think, however, it was not within the power of the village to extend the duty thus imposed. When this statute was enacted, there was a stream known as “ Bear River,” which, if crossed at this point, required a bridge perhaps 30 to 35 feet in length. By the construction of the new flume or race-way subsequently, some 15 feet from the river, and itself 12 feet in width, it made it necessary that any bridge spanning the two streams should be about 60 feet in length. Surely it cannot be said to have been within the contemplation of the legislature that a duty would rest upon the township to bridge artificial channels constructed by the village for its own use. Neither the village nor township constructed the bridge in question, but both recognized it, — the village, by building approaches to it and dedicating the street to public travel. We think that the court was right in holding that the defendant village was responsible for any want of repair in that part of the bridge which extended across its own artificial stream, and that the statute imposed no duty on the township to build or maintain any bridge at that point. It is not a defense that the bridge was built by private subscription, as the village afterwards recognized it, built approaches to it, and opened it for travel. Saulsbury v. Village of Ithaca, 94 N. Y. 27 (46 Am. Rep. 122). It is suggested that the declaration is not broad enough to admit recovery on this theory, as but one bridge is referred to; but it is clearly averred that the injury occurred by reason of the absence of the railing across the flume or race-way, and the fact that the duty of the defendant was stated more broadly than the circumstances warranted could not have misled the defendant, inasmuch as the bridge at this point was within a highway under the control of the village, and was a structure which it was its duty to maintain.

2. It is contended that the record fails to show that the locus in quo was a street. It is contended that the village purchased the land for the purpose of maintaining waterworks, and that there is no statutory authority to dedicate it to the public as a street, and that it has not been in use long enough to constitute it a street by user. In the view which we take of this question, we need not determine whether this way was, in strictness, a legal highway. It was certainly a highway in fact, open to the public, and travel was invited over it. It has been held that if a municipality, in opening and working a highway, extends the limits in such a way as to invite travel through land which in fact lies outside of the legal highway, that portion is nevertheless to be considered a portion of the way, in determining the duty to repair. O'Neil v. Village of West Branch, 81 Mich. 544. In Gallagher v. City of St. Paul, 28 Fed. 305, an instruction that it was not essential that there should be any formal acceptance of a street; that if there was a user permitted by the city, and if the public were all invited, without any dissent by the city, to use it as a public street, the city would be required to keep it in repair, — -was sustained. See, also, Village of Mansfield v. Moore, 21 Ill. App. 326; 2 Dill. Mun. Corp. § 1009, and cases cited. We think it should be held that the village, by its action in this case, has estopped itself from asserting, as against those whom it has invited to travel over this bridge, that it is not a public highway.

3. Complaint is made that the circuit judge instructed the jury that the defendant, if held responsible, might recover from the railway company. Though this might well have been omitted, we should hesitate to say that the defendant was damaged by it.

There was, however, one error committed on the trial, which compels us, reluctantly, to reverse the judgment and direct a new trial. The circuit judge charged the jury upon the question of damages as follows: “You must take into consideration the expense to the plaintiff of the resulting illness from said accident, including in this her bills for nursing, medicine, and physician’s services.” There is no evidence whatever that any bill for nursing was incurred; nor were the circumstances such as to imply that those who ministered to her wants intended to make any charge. Within previous rulings of this court, this instruction was error. Cousins v. Rail way Co., 96 Mich. 386; Shippy v. Village of Au Sable, 65 Mich. 494, 502.

Judgment reversed, and a new trial ordered.

Long, Grant, and Hooker, JJ., .concurred. Mc-Grath, C. J., did not sit.


text:
    CLUTTON v. CLUTTON.
    1. Divorce — Jurisdiction—Nonresident Defendant — Cross-Bill.
    Where the court has acquired jurisdiction of a suit for divorce upon a bill filed by a party who has resided within this State for the length of time required by 3 How. Stat. § 6231, the defendant, though a nonresident, may file a cross-bill in the suit, and obtain the relief to which she may be equitably entitled.
    2. Same — Pleading—Amendment—Non-oollusion Clause.
    A cross-bill in a divorce suit should not be dismissed on general demurrer because of the omission of the statutory non-collusion clause from the verification thereof, since the defect may be remedied by amendment.
    Appeal from Wayne; Hosmer, J.
    Submitted January 7, 1896.
    Decided February 7, 1896.
    Bill by Jonathan L. Clutton against Annie J. Clutton for a divorce. Defendant filed an answer in the nature of a cross-bill, to which complainant demurred. From a decree dismissing the cross-bill, defendant appeals.
    Reversed.

      Franklin L. Lord, for complainant.

      John Ward, for defendant.
   Moore, J.

The complainant, Jonathan L. Clutton, a resident of the city of Detroit since January, 1886, brought his suit for divorce against the defendant, Annie J. Clutton, a resident of Ontario, alleging the marriage of the parties in Ontario, and charging, as causes for divorce, desertion and denial of marital privileges. The defendant, Annie J. Glutton, appeared in the suit, and filed her answer, admitting the marriage between the parties, as stated in the original bill, but denying all of the causes for divorce stated therein by complainant; and in her answer charged complainant with having deserted her in 1886, and with having failed to support her. She further charges—

“That complainant, being of sufficient ability, and worth $20,000 or more, as she is informed and believes, has grossly refused and neglected to provide a suitable, or any, maintenance for herself or their said children, and that she claims the benefit of this answer, and the facts and charges set forth therein, as a cross-bill, and prays that she may be granted a divorce from the bonds of matrimony with the complainant, and that she may be released from the obligations thereof, and that she may have such other and further relief,” etc.

This answer and cross-bill were sworn to, but the verification did not contain the statutory non-collusion clause.

The complainant filed a general replication to the answer, and a general demurrer to it as a cross-bill. The court below sustained the demurrer, dismissed the cross-bill, and the defendant appeals to this court. The only questions necessary to discuss here are: First. Was it essential, in order to sustain the cross-bill, that the non-collusion clause should have been stated in said bill? Second. Can a decree .of divorce be granted a nonresident of the State, who is brought in by the complainant, who is and has been a resident of the State for the statutory period required to give the court jurisdiction?

As to the first question, it was held, in the case of Ayres v. Wayne Circuit Judge, 90 Mich. 380, that the requirement that the oath or affirmation administered to the complainant, in swearing to a bill for divorce, shall negative the existence of any collusion, understanding, or agreement whatever between the affiant and the defendant in relation to the application for divorce, is mandatory, and a defect in this regard cannot be waived by any act of the defendant. In Tackaberry v. Tackaberry, 101 Mich. 102, a different rule is stated in relation to a cross-bill. It was there held that the objection, made for the first time on appeal, that the answer to a cross-bill in a divorce case is not sworn to, comes too late. In the case of Daly v. Wayne Circuit Judge, 102 Mich. 392, it was held that it was a proper exercise of the court’s discretion to permit the amendment of the verification of a cross-bill by adding the non-collusion clause, and the filing of a replication, after decree; and it was further stated that, had the questions arisen upon the hearing, the power to do so would probably not have been questioned; that the questions were not raised then, but, when raised, were no more meritorious than they would have been upon the hearing. We think the case before us is one where it would be very proper to admit the verification of the cross-bill, if the facts would warrant it, so as to show non-collusion.

As to the other question, it is urged that the statute forbids the granting of a decree of divorce in favor of a nonresident of the State; citing 3 How. Stat. § 6231, which reads:

“No divorce shall be granted unless the party exhibiting the petition or bill of complaint therefor shall have resided in this State one year immediately preceding the time of exhibiting such petition or bill, or unless the marriage was solemnized in this State, and the complainant shall have resided in this State from the time of such marriage to the time of exhibiting the petition or bill; and when the cause for divorce occurred out of this State, no divorce shall be granted unless the complainant or defendant shall have 'resided within this State two years next preceding the filing of the petition or bill; and no proofs or testimony shall be taken in any cause until four months after the filing of such petition or bill for divorce, except where the cause for divorce is desertion, or when the testimony is taken conditionally for the purpose of perpetuating such testimony.”

Prior to the enactment of this statute, it had been repeatedly held, in this State, that a decree of divorce could be granted where one of the parties was a resident of the State. Is it not true that the complainant’s filing his bill brought the marital relations existing between him and the defendant, and the parties thereto, under the jurisdiction of the court? The defendant, having appeared in said proceeding, was equally interested with the complainant in the subject-matter of the suit as a proceeding in rem, and, having submitted herself to the jurisdiction of the court, its jurisdiction having been first invoked by the complainant, ought she not to be entitled to a final hearing of the case, and to such relief as is equitably hers? Is it not probable that, in enacting the latter portion of the statute, contained in these words, “when the cause for divorce occurred out of this State, no divorce shall be granted unless the complainant or defendant shall have resided within this State two years next preceding the filing of the petition or bill,” the legislature had just such a condition as exists in this proceeding in mind? Section 6231, as an entiretjq has not been construed by this court, but portions of it have been. It has been contended that, under that portion of the statute reading, “no proofs or testimony shall be taken in any cause until four months after the filing of such petition or bill for divorce,” where relief was sought by way of answer in the nature of a cross-bill in a divorce proceeding, no testimony could be taken until four months had elapsed after the filing of the cross-bill. It is possible that a literal interpretation of the statute would sustain that contention; but it was held, in the case, already cited, of Daly v. Wayne Circuit Judge, that a proper construction of this provision would allow testimony to be taken before four months had elapsed after the filing of the answer in the nature of a cross-bill, if four months had intervened after the filing of the original bill. It was stated “that this provision of the statute was to prevent hasty divorces, and that the object is attained in four months from the filing of the petition or bill, as well where a cross-bill is filed as where it is not.”

The question now under discussion has never been determined by the Michigan court. A similar statute was construed in the case of Jenness v. Jenness, 24 Ind. 359. The statute of that State provides that “divorces may be decreed * * * on petition filed by any person who,' at the time, * * * shall have been a bona fide resident of the State one year previous to the filing of the same, and a bona fide resident of the county at the time of filing such petition.” Another section provides the method of notifying the defendant when not a resident of the State, and another section of the statute provides that, “in addition to an answer, the defendant may file a cross-petition for divorce, and, when filed, the court shall decree the divorce to the party legally entitled to the same.” In that case the defendant was a nonresident of the State, and it was urged, as it is here, that the court could not grant her a divorce. The court discussed the question at length, and granted a decree to the nonresident defendant, making use of this language:

“To give the statute any other construction would b¿ to say that, in-two cases precisely alike in their facts, the defendant in one being a resident and in the other a nonresident, the former might result in a decree for divorce on cross-petition, with such alimony as ought to be given where the plaintiff is in fault; while in the latter, that vindication of character, which can often be secured only by a decree, could not be had by the defendant, nor could the alimony be adjusted upon the basis of the fact that the defendant was the party aggrieved. Such a discrimination against nonresident defendants finds no place within the letter of the statute, still less in its spirit; and a construction which would allow it would invite, in the class of cases in which they could be most successfully perpetrated, the very worst abuses.”

It was further added:

“While our statute is intended to prevent nonresidents from making use of our courts to perpetrate frauds upon their unsuspecting wives or husbands, by coming here to petition for divorces, it at the same time arms them with every weapon of defense which is afforded to our own people, when brought into court at the suit of those whose bona fide residence here gives us jurisdiction.”

In Illinois the statute provides as follows:

“No person shall be entitled to a divorce in pursuance of the provisions of this act who has not resided in the State one whole year next before filing his or her bill or petition, unless the offense or injury complained of was committed within this State, or whilst one or both of the parties resided in this State.”

That statute was construed in the case of Sterl v. Sterl, 2 Ill. App. 223. In that case the complainant filed his bill for divorce against his wife, who was a resident of the city of New York. She filed her cross-bill in the cause, charging the appellee with desertion, and also adultery, committed in the State of Illinois. In discussing the case the court say:

“It is insisted by the appellee that, under the provisions of the above section of the statute, the appellant had no right to file her cross-bill, praying, amongst other things, for a divorce, for the reason that she was not a resident of this State, and, that fact appearing on the face of her cross-bill, he could avail himself of such fact of nonresidence by way of demurrer. * * * It is a familiar principle of law that.a court of equity, having acquired jurisdiction of the parties and of the subject-matter of the suit, will retain and exercise such jurisdiction until the equities of all the parties are meted out to them. In this case the jurisdiction of the court is invoked by the appellee, he having, as he had a legal right to do, filed his bill against appellant, praying relief, and summoning the appellant into the court. When she is thus brought in, and, having responded to the claims of the appellee by answering his bill of complaint, being, as it were, then forced into the court, submits herself to its jurisdiction, and asks the court to grant to her certain equitable rights, to which she claims to be entitled, then it is that the appellee challenges the jurisdiction of the court to grant to her any equitable rights, but continues to clamor for his. This position is unconscionable and indefensible upon the principles of equity. But we are told, and it is urged by the appellee, that, by reason of the arbitrary provisions of the statute, there is no escape from this dilemma, and that, as a consequence, the appellant is in the court for the purpose of receiving its mandate and yielding obedience to its orders, but without any equitable rights which the appellee is bound to respect, for the reason, as he claims, that she resided in New York, and not in Illinois, and notwithstanding she is dragged into the court at the suit of the appellee, and, as may be presumed, against her will. We think that, by the plainest principles of equity, the appellee is, under such circumstance, precluded from questioning the jurisdiction of a court which he has himself invoked, and that, the court having acquired jurisdiction of the subject-matter and the parties to the suit at the instance and by the prayer of the appellee, he cannot be heard to question the jurisdiction of the court to hear, consider, and determine all the equities of the parties, to the end that complete justice may be done to all in the same case.”

The court held that the nonresident wife, upon her showing, was entitled to relief.

We think it follows that it would be a reasonable construction of the Michigan statute to say that, where the complainant in a divorce proceeding has resided in the State the full statutory period, and the defendant has appeared in the cause, the court has jurisdiction over the parties, and the right to dispose of the issue between them upon its merits and according to equity, even if, in order to do so, it is necessary to grant a decree of divorce to the defendant for the reasons stated in her answer, filed in the nature of a cross-bill. In the case at issue, the verification of the cross-bill should have been amended as we have indicated, and the demurrer should have been overruled. The cause is remanded for hearing in the court below, with costs to appellant.

The other Justices concurred.