text:
    SKINNER v. COMMERCIAL TRAVELERS’ MUTUAL ACCIDENT ASSOCIATION.
    Insurance — Injuries—Cause—Evidence.

      Held, on review of the evidence in an action on an accident policy, that the question whether death resulted from violent and external injuries or from a chronic distemper was for the jury; also, that recovery could not be refused on the ground that the insured had a disease produced by the injury or any complaint that did not proximately cause his death.

      Error to Wayne; Hosmer, J.
    Submitted October 27, 1915.
    (Docket No. 174.)
    Decided March 30, 1916.
    Assumpsit by Minnie Skinner against the Commercial Travelers’ Mutual Accident Association, a foreign corporation, upon a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Walters & Hicks, for appellant.

      Abbott & Abbott (Selling & Brand, of counsel), for appellee.
   Moore, J.

This is an action on an accident and health insurance certificate issued to Harold Hv Skinner, now deceased. The certificate was issued January 22, 1904. It insured “against personal, bodily injuries effected during the continuance of membership and this insurance through external violent and accidental means,” to wit:

“(1) In the sum of twenty-five dollars per week, against loss of time, not exceeding 52 consecutive weeks, resulting from bodily injuries effected through means as aforesaid, which shall, independent of all other causes, immediately, wholly, and continuously disable him from transacting any kind of business. =i= * *
“(6) Or if death shall result from such injuries alone, and within three calendar months, the association will pay the sum of five thousand dollars to his wife, Minnie Skinner. * * *”

It is the claim of the plaintiff that the insured had an accident on the 14th day of July, 1913, which caused his death on the 28th day of September, 1913. This suit was brought upon the certificate of insurance. From a verdict and judgment in favor of the plaintiff, the case is brought here by writ of error.

The errors assigned may be grouped as follows:

(1) A verdict should have been directed because there is no evidence that the death of the insured was caused by his injuries.

(2) That a new trial should have been granted becaúse the verdict was against the weight of the evidence.

(3) Because of errors in the admission of testimony.

(4) Because of the argument of counsel.

(5) Errors in the charge of the court.

Groups 1 and 2 may be considered together. The record discloses that from the time the certificate of insurance was taken in January, 1904, until July 14, 1913, Mr. Skinner was in good health and had required the services of a doctor but once, and then for an illness that lasted but two days. This was in 1906 or 1907. Deceased wrote the defendant as follows:

“Detroit, Mich., 7/23/13.
“The Com. Travelers’ Mut. Acct. Ass’n of Am.,
“Utica, N. Y.
“Gentlemen:
“On Monday, July 14, 1913, I was packing my samples. The cases weighing about forty to fifty lbs. In. lifting one of them, I slipped and strained myself. I noticed afterward it pained me severely and caused a swelling in my left groin. It was so bad I could not stand it. I called on Dr. L. J. Lennox, 32 Adams Ave. West, Detroit, Mich. He has been tending my case ever since. He says it is a rupture. Kindly write him for full particulars.
“Yours very truly,
“Harold H. Skinner.”

Dr. Lennox was sworn as a witness. His testimony was in part as follows:

“I am 64 years old. * * * I have known Harold Skinner since he was a boy, over 35 years. I have no distinct recollection of treating him, unless it was previous to that time, until last July 14, 1913, when he came to see me at my office and I made an examination of him. He complained of suffering a great deal of pain and located the region of the pain, and I consequently made an examination. I examined him at my office. I examined his abdomen and hip. There was a swelling in the left region of the abdomen, low down, and also some bruises on the left hip — discoloration. The bruises must have been caused by something which' struck him or that he struck against something — by some external violent force. There was a swelling on the left inguinal region as large as a hen’s egg, I should say, or possibly a little larger — not of course exactly that shape. That was a rupture. A rupture is an opening forced through the wall as the cavity in this case, allowing the intestines to protrude through, causing the swelling. He complained of pain near the lower^part of the abdomen and in the bladder and perineum. The perineum is the lower or bottom or floor of the lower pelvis; that is, the space between the rectum and the testicles, and the prostatic gland. I don’t remember that I took his temperature. I was examining the skin. I saw no evidence of any rise of temperature. I do not think it was necessary to take his temperature because of his condition. I did not think he had a temperature. I do not know that I would say that I could positively tell whether that was a recent hernia or an old one. I don’t know that I could positively swear that there had not been a pre-existing trouble from the examination had at that time, although when I found that rupture there I asked him if he had ever had any trouble of that kind. I informed Mr. Skinner at that time that it was a rupture. I told him to rest and keep quiet. I think I ordered some cold applications on there for a little while, and as soon as the soreness was out to get a truss put on. He explained to me how the condition which I discovered arose and when it arose. He was an exceedingly emaciated man and always had been as long as I had known him,' since boyhood. He was very, very thin and bony, very light, no fat, and very slim muscles.
“Q. Assuming, doctor, that Mr. Skinner was a traveling man for a clothing house and carried his samples in a trunk and that his samples were packed in telescopes weighing from 40 to 50 pounds each, and that those telescopes were packed one against the other in a trunk, and that it was necessary for him to lift these telescopes and put them in the trunk, and that in doing so one of these telescopes fell or that in doing so he slipped, and he either struck himself against the edge of the trunk or one of the telescopes fell on him in the region of his groin, would you say that the appearance that you discovered there on the 14th day of July, 1913, could'be caused in such a fashion as that? (Objected to as immaterial.)
“The Court: I don’t want to bring the doctor back; note an exception.
“A. I would say that without any doubt his discoloration and bruises could be caused in that way by the falling of a telescope.
“Q. How about the hernia?
“A. Well, I consider that it is quite probable that if he slipped and fell that in so doing he might strain himself in such a way as to produce that rupture the same as from overlifting; not from the direct blow of the telescope as much as from the strong effort to save himself from the fall.
“The Court: That is, the strain on his part?
“A. Yes, sir.
“Mr. Selling: From what you saw that day could you say in your opinion whether Mr. Skinner had suffered an injury — a bodily injury through strain and violent means? (Objected to as incompetent and immaterial.)
“Q. Solely upon what you saw?
“The Court: I think that is proper, unless you have some authorities to the contrary.
“The Court: It is not possible that it could have occurred from internal means, is it, doctor?
“A. No, sir.
“Q. It could only have occurred from external means?
“A. In my opinion.
“Q. And with some violence?
“A. Yes; to produce that.
“Q. In your opinion, doctor, was this injury through the strain and violent means to which you testified because of the condition that you found on that day?
“A. Why, yes; I would consider it very plausible that that accident as he described it could cause that condition.
“Mr. Walters: I object to that — the portion of it that the accident as he described it — as incompetent and immaterial and move to strike that portion out.
“Mr. Selling: I am willing that portion should go out. I will put it this way: Could the accident, as I have described it, cause the injury such as you found?
“A. Why, yes; it would be the same thing — no matter who I got the information from.
“Q. From what you yourself saw, what in your opinion was the cause of the discoloration or bruise that you have described and the hernia — eliminating anything that was said to you?
“A. My opinion was that the bruises were caused by some external injury or violence and rupture from some severe strain, not knowing anything about how it was caused; that would be my guess.
“Q. You have told us that he had difficulty in urination?
“A. He told me; yes, sir. Of course I had only his word for that.
“Q. And also you referred to tenderness in the perineum?
“A. Well, that is also what he told me, that is all. * * *
“Q. The evidence so far in this case established, doctor, that he died on September 28, 1913, and that prior to his death there was an abscess in the perineal cavity and that the immediate cause of his death was septacemia or blood poisoning as a result of absorption from that abscess., * * * In your opinion
would there be a relation between the death from septacemia as the result of the abscess in the perineal region, the death occurring on or about the 28th of September, 1913, and the conditions which you found in July previous?
“A. Well, the fact that there was pain, as I said before, and soreness in that region when he came to me after the accident, it would look very probable that that would be the first history of the condition resulting — whether it resulted from that I could not positively state.
“Q. You of course could not state that, you did not see him after the 30th of July.
“A. No, sir.
“Mr. Hieles: I move to strike out the doctor’s words as incompetent and immaterial — the words ‘after the accident.’
“Mr. Selling: I will consent to that. I will put it . — after injury — after the condition that you saw?
“A. Yes, sir.
“Q. On the 14th day of July. You have an opinion on the subject have you not, doctor, of whether his death from septacemia following an abscess in that region — the perineal region, was directly connected . with the conditions that you found in July?
“A. Well, my opinion would be that it was reasonable to think that it might be — that it might be traced back to that point.”

Cross-examination, by Mr. Hicks:

“A. * * * I did not know at the time that I examined him that there was a stricture of the urethra. He had a bruise, a discoloration of the upper part of the left thigh, a slight discoloration. It was quite black and blue.
“Q. Just a black and blue spot?
“A. On the upper part of the leg and on the point of the hip.
“Q. There were a couple of black and blue spots, one on the side of the leg?
“A. Possibly there were more. There were spots on the left enlargement of the abdomen, the upper part of the left thigh and the point of the hip that was discolored.
“Q. That was all the evidence that there was of any bruise?
“A. That was the only evidence of the bruise that I saw.
“Q. How large an area was discolored?
“A. Well, it was in several small areas, altogether enough to cover approximately the palm of my hand combined.
“Q. The skin was not broken in any place?
“A. The spots extended over the upper part of the thigh, up near the joint, not quite up to the top of the pelvic bone or the hip bone. There was no abrasion there; there was just a little discoloration on the left margin of the abdomen, low down near the groin (indicating) . It was discolored blue. This tumor that I found there at that time stood out there a little larger than half a hen’s egg.
“Q. I believe you stated in your direct examination that there was no way that you could tell whether that tumor had existed prior to the time that you saw him or not?
“A. No; I don’t think anybody could possibly tell whether it- existed previously or not; it did not have the evidences of an old rupture, but still it might have occurred previously; there might have been a weak point there previously and I could not tell, nor nobody else.
“Q. Nobody else could tell whether it was a recent hernia or whether it was an old one?
“A. No; I don’t think anybody could tell positively.
“Q: I believe you also said, doctor, that by no possibility could that hernia have been caused by a direct blow coming against the abdomen?
“A. Well, I did not quite put it that strong, I think.
“Q. It more probably came from a strain, as I understood him?
“A. Yes; more probably came from a strain than from a direct bruise. There is nothing about a hernia which will cause death, unless it becomes strangulated. The hernia standing alone, unless there is a history of strangulation, could not by any possibility have caused the death?
“Q. There is nothing about those bruises that you saw on the hip nor this bruise that you saw in the groin that by any possibility could have caused death?
“A. I would not expect it probable from them. He complained of pain all through the lower part of the abdomen, and also in the bladder and perineum. * * *
“Q. And would not the pain which you noticed in the perineum at that time be a great deal more likely to be due to the cancer than it would be due to any injury across the abdomen — any such injury such as he complained of?
“A. No; I would not think so; I would think the injury he received was such, as he described it to me, would produce the pain that he had — from the description of the injury which he described to me I would consider that could produce all the pain — not saying that it did, but I say it could produce all the pain he complained of.
“Q. And the other condition which I have just outlined to you might have caused the same pain, might it not?
“A. It might have caused a part of the pain; yes, sir.
“Q. It might have caused a part of the pain?
“A. Yes, sir; it might.
“Q. And if the cancer had been well developed at that time it might have caused the entire pain, might it not?
“A. Well, it would have to be pretty well advanced to affect the lower part of the abdomen and the side, of course.
“Q. Now the stricture of the urethra might also have caused that pain, might it not ?
“A. Well the stricture of the urethra does not usually cause much pain, except as it holds back the urine in the bladder, and then it causes pain.
“Q. It might have caused a pain, except that which you found in the immediate locality of the black and blue spot, might it not?
“A. It might have what?
“Q. Have caused all the pain which you saw evidence of except that in the immediate vicinity of the black and blue spots that you have named?
A. Well, the black and blue spots and the rupture which I found would cause a lot of that pain down in the lower part of the abdomen.
“Q. They caused pain and the stricture might have caused pain also, might it not?
“A. Not up there.
“Q. Not up there?
“A. No. * * *”

Redirect examination, by Mr. Selling:

“Is there any branch of medicine that doctors know less about conclusively than cancer ?
“A. Well, I guess it is among the branches that we have to learn a great deal about yet. From the appearance of a cancer, no one, so far as I know, is able to tell its duration or what its cause actually is. The principal cause of cancer is supposed to be either a constitutional condition or a local injury or bruise— something of that kind as the starting point. They are often traced, in getting a history of them, to some trauma, not always. Quite often — perhaps not as often as some other causes — unknown causes.”

Several witnesses who had known Mr. Skinner intimately testified to his general good health. His wife, an actress, who had lived with him for a long time, was sworn as a witness. She testified to his general good health, that the last time she saw him prior to his injury was in May at their home, and that prior to that time Mr. Skinner— '

“did not have a rupture that I know of. If he had, I think I should have known it. With reference to his having any injury or any trouble which would cause painful urination, he never made any complaint of that sort to me prior to the 14th of July,. 1913. I,never knew of his using any instrument of any kind to help himself in that regard prior to July 14, 1913. I certainly should have known of it if he had.”

It was the claim of defendant that the death was not caused by the injury, but that deceased was suffering from syphilis, that the hernia had in all probability existed for some time before the injury, that the injury and death both occurred while Mr. Skinner was affected by disease, and that “the death was due to the combination of difficulties set up by the cancer and prostatic abscess which resulted in pus absorption and terminal broncho-pneumonia.” Testimony was introduced tending to support this claim.

Dr. Brownell, as a witness for the plaintiff, testified as to the cause of the death, and that in his opinion the injury might have caused it. On his cross-examination occurred the following:

“Q. I will ask you this, doctor: You distinguish between a prostatic abscess and a perineal abscess, don’t you?
“A. ‘Yes.
“Q. They are entirely distinct and separate things ?
“A. Yes, sir.
“Q. * * * All that you have said about the cause of death of this man would be entirely wrong if it developed upon the post mortem, which was held after his death, there was no perineal abscess?
“A. Yes, sir.”

It is strenuously insisted that as the autopsy showed there was no perineal abscess, but that deceased was suffering from a prostatic abscess, that the testimony of doctors Brownell and Lennox was valueless, as to the cause of death, and their testimony should have been stricken out. It is also claimed that the testimony disclosed the existence of a cancer not only at the time of death, but at the time of the injury.

The record discloses a diversity of views on the part of the doctors as to when a perineal abscess ceases to be one and becomes a prostatic abscess, and vice versa.

The claim that deceased had cancer which caused his death is largely dependent upon the evidence of what was disclosed by an analysis of tissues removed from the body after it was. embalmed, which analysis was made after Mr. Skinner’s body was. cremated. The doctors for the plaintiff, and some of those for the defendant, did not diagnose the case as one of cancer. Dr. Sill, who assisted in the autopsy, and was a witness on the part of the defendant, testified on the cross-examination :

“I never knew about there being any claim of cancer in the case of Harold Skinner until after his body had been burned at the Crematorium. So far as I ain concerned, I did. not discover during that autopsy that there was a cancer, and so far as I know there never was any suggestion on the part of anybody, physician or layman, that there was á cancer, until after Mr. Skinner’s body had been destroyed by fire.”

In disposing of the motion for a new trial the learned circuit judge expressed himself as follows:

“The testimony in this case would tend to show that Harry Skinner, deceased, was a commercial traveler, and that he pursued his occupation until a comparatively short time before his death. Save that he was and had been for a long timé emaciated, there is no evidence whatever to suggest that he was in ill health until shortly before he called upon Dr. Lennox. None of the firm or corporation by whom he was employed, none of the customers upon whom he called from time to time, and none of his associates were called to show that there was such a condition otherwise than normal in the deceased up to the time that it is. claimed he suffered an accident. From the time of his. calling upon Dr. Lennox, to the time of his death, his. condition grew rapidly worse. It does not seem to me probable, under the circumstances, of the case, that there should have been such a rapid decline had not the primary cause been some kind of an accident; and under the circumstances as given by the witnesses upon the stand, I am satisfied that there was evidence which should carry the case to the jury. It is. possible that if it had been submitted to me, that I might have reached another conclusion. I do not say that I would; but where the case belongs, to the jury I am not prepared to say that the weight of the evidence is so great in the case at bar that the court should now set aside the verdict and grant a new trial.”

To justify a directed verdict it would be necessary to discredit the testimony offered on the part of the plaintiff, and to assume that the téstimony of defendant’s witnesses was true. This feature of the case was for the jury. The claimed errors in the admission of testimony and the argument of counsel have been examined. We think them without merit.

Did the court err in his charge to the jury? The judge was requested to charge:

“(2) If you find from the evidence that the insured, Harold Skinner, at the time of the claimed accident, that is, on July 14, 1913, was suffering from a preexisting disease of any kind, then under the terms of the policy of insurance sued upon, the plaintiff is not entitled to recover.
“(3) If you find from the evidence that the insured, Harold Skinner, on July 14, 1913, and prior to the time of the claimed injury, had a hernia, then under the terms of the contract of insurance, the. plaintiff is. not entitled to recover, and your verdict must be no cause of action.”

These requests are based upon the language of the policy contract reading:

“The insurance under this contract shall not extend to or cover disappearances, or injuries whether fatal or disabling, of which there is no external visible mark on the body of the insured; nor extend to or cover accidental injuries or death resulting from or caused directly or indirectly, wholly or in part, by hernia, fits, vertigo, somnambulism, or disease in any form, or while affected thereby.”

Counsel concede they have been unable to find where this particular provision has been before the court for construction, but insist that the provisions of the certificate in terms prohibit recovery if the insured at the time of the injury was affected by disease, and. cite many cases to show that it is no part of the function of the court to make contracts for the parties.

As to this feature of the case the judge charged the jury as follows:

“If you find that Mr. Skinner was not suffering from any disease at the time he was injured, and that he was actually injured while he had a predisposition toward a disease, the fact that as a result of the injury and the predisposition to such disease Mr. Skinner died, your verdict would be for the plaintiff.
“Any disease which Mr. Skinner may have had at the time of the injury or previous which did not cause directly or indirectly or in any way contribute to his death should not be considered by you in determining the issues in this case. I think that is so, gentlemen of the jury, with reference to the question of syphilis because the testimony of all the medical witnesses, I think, is that syphilis, if you find that it existed, in no case or question produced the death. The theory on the one hand is that he died of a cancer — of ah ulcer or abscess in the prostatic gland which had been infiltrated by a cancer — the theory of the defense, and the theory of the plaintiff that he died of an ulcer or abscess which was caused by the injury which he received at the time he fell, if you find that he fell or was struck accordingly as you find it to be, and so I charge you, being I think the plaintiff’s twenty-fourth request : Any disease which Mr. Skinner may have had at the time of the injury or previously which did not cause directly or indirectly or in any way contribute to his death should not be considered by you in determining the issues in this case. * * *
“If you find from the evidence that the abscess on the prostate gland was caused from an infection coming through the walls of the intestine, then under the undisputed evidence in this case such infection would be caused by the hernia, and the plaintiff would not be entitled to recover. That is unquestionably so, gentlemen of the jury, if you find that the abscess was caused by cancer and not by the blow, if you find he received a blow, if you find from the testimony that whatever abscess there was that caused death was the direct result of the accident, why unquestionably in that case the plaintiff would be entitled to recover, if that was the sole cause; but if the cancer which is claimed by the defendant to have existed prior to that time existed and contributed to his death unquestionably, gentlemen, you must find a verdict for the defendant, because then it would not be the sole cause, and any blow he received would not be the sole cause, and he can only recover where the accident was the sole cause.
“Mr. Walters: I think, your honor, the jury might get the impression from what you said before, and from what you say now, that in order for the defendant to make out a defense it would have to show that a cancer existed prior to the time of the alleged accident; and I do not think it would be necessary to show that. If death resulted from the cancer and if the accident did not bring on the cancer — in other words, it is not necessary for the defendant to show as a matter of fact that it antedated July 14th, if it caused death.
“The Court: Well that doubtless is so, gentlemen of the jury, but I think that is rather academic.
“A Juror: Has it been shown by the testimony that cancer existed before?
“The Court: The testimony I think with reference to that was that he thought it existed prior to that time.
“Mr. Selling: Dr. Morse made a microscopical examination, and that is the first he found of the cancer, and he gave an opinion as the test turned out; that is all the evidence there is. Dr. Ballin never saw the cancer, never knew it, except by a hypothetical question as to that.
“The Juror: The examination of Dr. Morse was made after death, was it not?
“The Court: The examination of Dr. Morse was made after death.
“Mr. Walters: Other physicians testified in answer to a hypothetical question that that cancer as it was described from the result of the post mortem would exist for several months, placing it back of July 14th.
“The Court: That is undoubtedly so. It is not for me to say whether or not there was a cancer or how long the cancer was there.
“The Juror: He could not tell by the naked eye, he had to have a microscope to tell about the cancer— after the body was burned.
“Mr. Selling: It was made after the burning of the body, but he took his sample at the post mortem just before cremation.
“Mr. Walters: A small sample of the tissue for testing purposes.
“If, under all the testimony in this case, including the testimony of the medical experts, you reach the conclusion that the evidence introduced is as consistent with the claim of the defendant that the death of the insured was not due wholly and entirely to accidental injuries received on July 14, 1913, but was contributed to by illness as it is to the theory of the plaintiff, viz., that the death was due wholly to injuries received from accidental means on July 14, 1913, your verdict will be for the defendant of no cause of action. * * *
“If the plaintiff is entitled to recover at all, she would be entitled to recover the sum which the counsel has claimed, namely $5,352.09, but whether she is entitled to recover at all is, gentlemen of the jury, wholly and peculiarly a question for you.
“Mr. Selling: If the court please, in order that there may be no error in the case and' to give the defendant the benefit of any doubt upon the question of law, we are willing your honor should instruct the jury that unless the cancer was the result of the accident and the cancer caused the death, that we are not entitled to recover. But if the cancer was the result of the accident, we are.
“The Court: I think I have substantially covered that.
“Mr. Selling: I want to be sure of that. ^
“The Court: All right, you are sure of it now I think.”

In Vernon v. Traveling Men’s Association, 158 Iowa, 601, 606 (138 N. W. 699, 700), the policy contained the provision:

“Nor shall this association be liable * * * for any * * * benefit for accidental death, loss of limb, sight, disability resulting wholly or partially, directly or indirectly, from any of the following causes, conditions or acts, or when the member is under the influence or affected by any such cause, condition or act, to wit, disease, bodily or mental infirmity, etc.”

In affirming a judgment in favor of the plaintiff, the court said in part:

“While what is known as article 6, section 6, of the contract is somewhat obscure, it would not do to hold that no recovery could be had on the certificate if the-assured was afflicted with any disease or bodily or mental infirmity, either at the time he received his injuries or at the time of death. Very few persons are free from some form of disease or bodily infirmity, and if a condition of that kind, without reference to its causal connection with death, should be held a bar to recovery, the proposed insurance would be a delusion and a snare. Such conditions as we here find are to be construed »most strongly against the insurer; and, taken together, we think they must be held to apply to such diseases or bodily or mental infirmity as in some manner contribute, directly or indirectly, either to the injury or to the death. Unless there be such contribution, then the death, loss of limb, etc., cannot result either wholly or partially, directly or indirectly, therefrom. In other words, the disease or bodily infirmity must be a cause or one of the causes of the injury or death, and it is not enough to defeat recovery to show either disease or bodily or mental infirmity. Binder v. Association, 127 Iowa, 25 [102 N. W. 190]. For this reason the trial court did not err in the instructions given or in refusing to give the third instruction asked.”

In Illinois Commercial Men’s Association v. Parks, 179 Fed. 794 (103 C. C. A. 286), the by-laws were made a part of the contract; one of them provided there should be no liability in case the injury occurred “while the injured member was under the influence of or affected by * * * disease,” etc. In construing this language the court said:

“We are of opinion, therefore, that the ultimate issue of liability under this contract, in the event of a finding of accidental injury, is not whether such injury was the proximate cause of death, but whether it was the efficient cause, without the intervention of pre-existing disease or bodily infirmity as a co-operative cause of death — within the extended line of authorities cited under analogous provisions, whereof the following are deemed sufficient examples: National Masonic Acc. Ass’n v. Shryock, 73 Fed. 774, 775 (20 C. C. A. 3); Commercial Trav. Mut. Acc. Ass’n v. Fulton, 79 Fed. 423, 426, 430 (24 C. C. A. 654); Sharpe v. Com. Trav. Mut. Acc. Ass’n, 139 Ind. 92, 93, 95 (37 N. E. 353); Binder v. National Masonic Acc. Ass’n, 127 Iowa, 25 (102 N. W. 190, 194); White v. Life & Acc. Ins. Co., 95 Minn. 77 (103 N. W. 735, 736, 884, 5 Ann. Cas. 83). An issue of fact under these provisions was presented by the evidence, and instructions in conformity with the foregoing view, became ■ needful for its submission entirely apart from the primary question whether the fall resulted 'from accident or disease. If the jury found from the evidence that the immediate injury was not caused accidentally, such finding would leave no further inquiry open under the policy, requiring a verdict against recovery. If they found, however, that the evidence upon that question was in favor of accidental cause for the fall, the other above-mentioned issue of fact was not involved therein, but remained for determination under conflicting evidence upon one and the other phase of contract liability; so that explicit instructions of law were essential, both for interpretation of the contract and for application of the testimony thereunder in accord with these propositions which are deemed applicable: That the burden of proof was on the beneficiary under the policy, not only to establish that the injury from which death ensued was accidental, but that such accidental injury was the sole cause of death, independently of any pre-existing disease or bodily infirmity as contributory cause thereof; that if the testimony further established that the assured was then affected by disease or bodily infirmity, which caused his death, either directly therefrom, or indirectly, as its natural result ensuing such accidental injury, so that the accident would not have caused his death without such preexising disease or infirmity, the contract exempted the association from liability therefor; that recovery was not authorized under the contract for death caused partly by disease and partly by accidental injury (National Masonic Acc. Ass’n v. Shryock, supra; Commercial Trav. Mut. Acc. Ass’n v. Fulton, supra) ; that if the evidence, however, established not only the fact of accidental injury, but the sufficiency thereof to cause the death independently of other causes, and the testimony in reference to pre-existing disease or infirmity failed to establish such disease or infirmity as indirect or contributory causes of such death, liability therefor was within the contract terms, and recovery was authorized.”

The case was carefully tried. We find no reversible error.

Judgment is affirmed.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    SCHOOL DISTRICT NO. 3 OF CHESTER TOWNSHIP v. GREEN.
    1. Schools and School Districts — Statutes—Alterations.
    Under the provisions of sections 4646, 4653, 4654, 4657, 2 Comp. Laws (2 Comp. Laws 1915, §§ 5648, 5655, 5656, 5659), which apply to the alteration of school districts, and create a right of appeal from the determination of the township board, detaching property from one district and attaching it to another, in behalf of taxpaying electors who have taxable property within the school district to which the property is attached, the status of the taxpayer is changed by enlarging the district so as to include more property, and it authorizes those so affected to appeal.
    2. Certiorari — Relief—Appeal and Error — School Districts.
    Under 1 Comp. Laws, § 948 (3 Comp. Laws 1915, § 14434, note), the court is required to give judgment as the very right may appear without regarding technical omissions, imperfections or defects in the proceedings below, and so the appellate tribunal will not refuse to affirm the judgment of the circuit court on certiorari to review the action of the town board in detaching property from one district and adding it to another because two acres were erroneously included, no question as to the correct description having been raised before the board.
    Error to Eaton; Smith, J.
    Submitted April 8 1915.
    (Docket No. 21.)
    Decided March 30, 1916.
    Certiorari by School District No. 3 of Chester Township against Cynthia A. Green and Harry H. Partlow, as a board of appeals, to review the action of said board in decreeing the transfer of certain lands from plaintiff school district to another school district. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Elmer N. Peters, for appellant.

      Russell R. McPeek, for appellees,
   Moore, J.

Some time previous to the 22d day of April, 1913, Fred King, a freeholder of school district No. 3 of the township of Chester, petitioned the township board of Chester township to have certain property owned by him detached from said district and attached to school district No. 10 of the township of Roxand, both townships being in Eaton county. On the 22d day of April, 1913, the township clerk of Chester township gave the requisite legal notice, calling a joint meeting of the township boards of the two townships to be held on the 20th day of May, for the purpose of considering the petition of Mr. King. In this notice the land was described as the northwest fractional quarter of section 1, township 3 N., range 5 W., excepting the east 40 acres; also excepting a parcel commencing at the northwest corner of said northwest fractional quarter, running south 82 rods, east 16 rods; north 40 rods, west 8 rods; north 42 rods; thence west 8 rods to the place of beginning; also excepting a parcel commencing 8 rods east of the northwest corner on section 1, thence south' 42 rods; east 8 rods; north 42 rods to the section line; thence west along the section line to the place of beginning. At the meeting of the joint boards of the two townships the members of the board proceeded to vote upon the question, which vote resulted in a tie. The next step in the proceedings was an appeal to the defendants in this action as the statutory, board of appeals, Cynthia A. Green being the county commissioner of schools for the county of Eaton, and Harry H. Partlow being one of the circuit court commissioners of said county. This appeal was filed on the 24th day of June, 1913, it being signed by six persons, three of whom were not taxpaying electors having taxable property within district No. 3 in the township of Chester, but were taxpaying electors having taxable property in district No. 10 of Roxand township. In this notice of appeal the lands described were the same as the description contained in,, the notice of the joint meeting of the township boards, except that.the description of the lands in said appeal included a parcel commencing 8 rods east of the northwest corner of section 1, township 3 N., range 5 W.; thence . south 42 rods, east 8 rods, north 42 rods to the section line; thence west along the section line to the place of beginning. This last description of land belonged to Charles D. Huber, who is the treasurer of school district No. 3 and constituted a part of his home. On the 28th day of June, 1913, the defendants served upon the township clerk of Chester and Roxand townships statutory notice of the hearing on said appeal, the time and place fixed for said hearing being the 12th day of July, 1913, at the office of the county commissioner of schools, and at the time and place fixed proceeded to hear said appeal, and later rendered their decision that the lands described in said claim of appeal should be transferred from district No. 3 of Chester township into district No. 10 of Roxand township. To review this action of the defendants as such board of appeals, the plaintiff school district procured from the circuit court a writ of certiorari. The certiorari proceedings were heard, and the circuit judge decided that none of the objections of the appellant were fatal to the proceedings; that the lands of Dr. Huber were detached from school district No. 3 and attached to school district No. 10; that these lands were first included in the proceedings, in the claim of appeal; that they were included by mistake; that the defendants did not consider Dr. Huber or any land he might own; that he as a citizen or as a landowner was never thought of; that the defendants had no authority over Dr. Huber or his land,- and that the including of his land in their decree or order was of no force whatever as against him or his lands; and that he, not being a party to the suit, can in no way be bound by the action of the board in including his land in the decree or order as made. The court was further of the opinion that, as to the King lands, they being directly involved, the action of the board should not be set aside because of .the inadvertent action of the board in including in its order the Huber land. The court thereupon entered a judgment, in which the order and decision of the defendants was affirmed, and that said order be held as not affecting or applying to any lands described as belonging to Charles D. Huber and dismissing the writ of certiorari. From this judgment and decision the appellant brings this case to this court by writ of error.

We quote from the brief of the appellant:

“For the purpose of argument, the questions will be presented under three heads:
“(1) Whether any person had any right of appeal from the action of the joint boards of the townships of Chester and Roxand at their meeting held on the 20th day of May, 1913.
“(2) If there was such right of appeal, whether taxpaying electors of district No.- 10 of Roxand had such right of appeal.
“(3) In case there was a right of appeal, and in case, further, that the appeal was properly perfected, what is the effect of the error in including the land of Dr. Huber in the notice of appeal, and in the order and decision of the board of appeals.”

It is argued that the statute, while authorizing an appeal from a decision of the township board with reference to the formation or any revision or consolidation of said school districts, does not give the right to appeal from any action, order, or decision, with reference to the alteration of a school district, by detaching property from one district and attaching it to another. The statutory provisions relating to the instant case are found in 2 Comp. Laws, § 4646 et seq. (2 Comp. Laws 1915, § 5648 et seq.). The chapter is entitled “Formation, Alteration, Meetings and Powers of Districts,” and in its terms provides for the different ways of altering districts (sections 1, 8, 9, 12). Without stopping to quote these provisions, as they are so easily accessible, we content ourselves with saying they apply to alterations of school districts.

Under this head counsel contend (we again quote from the brief):

“It appears from the affidavit for the writ of certiorari and the admission and answer of the respondent that Henry King, Orley Maxson, and E. B. Arnold, three of the six appellants, were not taxpaying electors having taxable property within school district No. 3 of Chester township, but they were taxpaying electors having taxable property within school district No. 10 of Roxand. It is the contention of the appellant that the statute authorizing appeals from the decisions, orders, and actions of township boards in these matters does not give the three parties above named the right to join in an appeal. The action of the township boards in this instance could not, in any way, aggrieve these' three parties, and their rights could not, by any. possible means, be affected by the failure of the township board to grant the original petition. This failure to grant the prayer of the petition took nothing from these three appellants, neither did it add anything to their burden. The inaction of the board rendered the proceedings, so far as these appellants are concerned, a matter of no importance whatever. Their status as citizens and taxpayers was in no way changed. They were no more affected by the procedure than they would have been had they lived in any other school district in their township. It is quite clear that the legislature never intended to give such party the right to appeal.”

There is nothing in the statute sustaining this contention, and counsel, cite no case. We cannot agree with counsel that the status of the taxpayer would not be changed by having the district enlarged by taking in more property.

Counsel contend that the inclusion of the two acres of land owned by Dr. Huber was so harmful that the writ of certiorari should not have been dismissed. The return to the writ discloses that in the claim of appeal, and also in the decision of the board .of appeals, there were included something like two acres of land belonging to Dr. Huber which were not included in the notice of the joint meeting of the township boards; that no question as to the correctness of the description, or as to the fact that it included other than the King lands, was raised at the public hearing, attended by the director of district No. 3 of Chester and the four members of the Chester township board, who at the time opposed the transfer asked in the petition; that the board’s attention was never called to the error before filing its decision; that the board supposed, at all times prior to the service of the writ of certiorari, that all of the lands described in the claim of appeal belonged to Fred and J. A. King, and that if the lands described as belonging to Dr. Huber did not belong to the Kings, their inclusion in the order of transfer was due solely to the error of their being included in the claim of appeal, and that it was not the intention of the board of appeals to transfer any other lands than those of Fred and J. A. King. The judge found the return to be true. The statute providing for review of certiorari is as follows:

“The court shall proceed to give judgment in the cause as the right of the' matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before the justice, which did not affect the merits; and may affirm or reverse the judgment, in whole or in part, and execution shall issue thereon, as upon other judgments rendered in the circuit or district court.” Section 948, 1 Comp. Laws (3 Comp. Laws 1915, § 14434, note).

See, also, 4 Enc. Pl. & Pr. p. 302; McClatchie v. Durham, 44 Mich. 435 (7 N. W. 76); Wattles v. Moss, 46 Mich. 52 (8 N. W. 567); Gray v. Wilcox, 56 Mich. 58 (22 N. W. 109); People v. Parsons, 163 Mich. 329 (128 N. W. 225).

We do not think any injustice was done by the circuit judge.

Judgment is affirmed.

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

The late Justice McAlvay took no part in this decision.


author: Brooke, J.

text:
      In re CURTIS’ ESTATE. GRAVES v. NORTHROP.
    Wills — Evidence—Incompetency—Conclusions.
    One who is not an experienced medical witness may not express an opinion whether or not the testator was insane, upon the trial of a will case, unless the witness is able to specify circumstances in support of the conclusion, which tend to show an unsound mind. And, held, that the evidence was insufficient to present any issue of fact.

    Error to Genesee; Wiest, J., presiding.
    Submitted January 7, 1916.
    (Docket No. 57.)
    Decided March 30, 1916.
    John C. Graves presented for probate the last will of Alvira M. Curtis, deceased. From an order admitting the same to probate Mable A. Northrop appealed to the circuit court. Judgment for appellee. Appellant brings error.
    Affirmed.

      John F. Baker and James S. Parker, for appellant.

      John C. Graves (Brennan, Cook & Gundry, of counsel), for appellee.

      As to opinion evidence by non-expert as to the contractual or testamentary capacity of another, see note to 37 L. R. A. (N. S.) 591.

   Brooke, J.

In this case the contestant seeks to avoid the will of her adopted mother upon two grounds: First, that the mother at the time the will and codicil were made was of unsound mind; and,» secondly, upon the ground of undue influence.

It appears that the testatrix had one child of her own, which died in infancy, and that thereafter she and her husband adopted the contestant when the contestant was about 4 or 5 years of age.' ..The testatrix lost her husband some years before her death, and in that interim had resided in the city of Flint with her daughter, the contestant. She was possessed of an estate of some $6,000 or $8,000, and on June 15, 1910, she made the will in question, adding a codicil thereto on February 12, 1913. She died on March 16, 1914. The terms of the will are unimportant. It is sufficient to say that a very meager provision was made therein for the adopted daughter, and that the bulk of the estate was left by the testatrix to her nephews and nieces, with whom she had not sustained very intimate relations during the latter years of her life.

The record shows that in the fall of 1908, the contestant, then about 17 years of age, became acquainted with one Edward Northrop; that Edward Northrop, apparently with the consent of the testatrix, paid his attentions to the contestant until the following spring. The record further discloses that on March 8, 1909, the contestant clandestinely married said Northrop in the city of Windsor, Canada; that the fact of said marriage was made known to the testatrix about a week thereafter, and that at that time testatrix drove said Northrop from her house, and refused to permit contestant to live with him as his wife. Contestant, however, did go to her husband and after a few months testatrix again received her in her home, and for a time the testatrix and the contestant lived together. There is no doubt that the marriage of the contestant with Northrop was against the wishes of the testatrix and that she resented such action on the part of her adopted daughter. The record clearly discloses the fact that while at times the testatrix treated Northrop pleasantly, at other times she treated him badly. The will in question was made something more than a year after the marriage, and the codicil thereto about four years thereafter.

The proponents of the will introduced the several witnesses to the will and the codicil, who all testified that in their opinion at the time the two instruments were signed the testatrix was of sound mind. Various friends and neighbors of the testatrix were then placed on the stand by the contestant. They severally related conversations with the testatrix and incidents in her life which had come under their notice. The learned trial judge declined to permit any of the witnesses sworn for the contestant to express an opinion as to the mental capacity of the testatrix, upon the ground that they had testified to no facts inconsistent with mental competency. We are of opinion that the ruling was correct. The rule is settled in this State that nonexpert witnesses may not express opinions that a testatrix was mentally incompetent when they testify to no facts inconsistent with sanity. Hibbard v. Baker, 141 Mich. 124 (104 N. W. 399); Leffingwell v. Bettinghouse, 151 Mich. 513 (115 N. W. 731), and cases there cited.

Exception is taken to the conclusion of the court that the testimony introduced on behalf of the contestant, taken as a whole, was not sufficient to present a. question of fact as to the mental competency of the testatrix for the determination of the jury. No purpose could be served by reviewing the testimony of the various witnesses. It is sufficient to say that in our opinion the learned trial judge reached a proper conclusion.

It is the contention of appellant that error was committed by the trial court in refusing to submit to the jury the question of undue influence. The only proof bearing upon that question was given by Guy Morse and his wife, Mrs. Morse, both of whom testified that the testatrix had told them that Jennie Harris, one of the beneficiaries named in the will ,and a niece of testatrix, asked her, the testatrix, to give her the piano, and that she had refused, saying that she intended to give it to Mabel, the contestant. The will in fact does leave the piano to the contestant, but contains a bequest to Jennie Harris in the sum of $500. There is no evidence in the record tending to show that Jennie Harris sought to influence the testatrix to leave her $500, or any other sum. There is evidence that the only request made by Jennie Harris of the testatrix was refused. Under these circumstances we are of opinion that the trial court properly withdrew this question from the consideration of the jury, and upon all the testimony directed a verdict in favor of the proponents.

The judgment is affirmed.

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


text:
    GUTOV v. CLARK.
    1. Damages — Building Contracts — Breach.
    When a substantial compliance is made with the provision of a contract for the construction of a building which proves to be one that is adapted to the purpose for which the owner intended it, and only slight additions or alterations are required to finish the work according to contract, the' defects being remediable at a reasonable expense, and without interfering with the rest of the structure, the measure of damages is such a sum as is necessary to make it conform to the plans and specifications. But when there are defects that cannot be remedied without the entire demolition of the building; and it is worth less than it would have been if it had been constructed according to contract, the measure of damages is the difference between the value of the building actually tendered and that which was required to be. constructed.

    2.. Same — New Trial — Verdict.
    And on motion for a new trial a verdict of 51,900 for failure to comply with the provisions of the construction contract is held, to be supported by evidence for the plaintiffs.
    S. Evidence — Appeal and Error — Harmless Error.
    Where counsel asked a question that was proper enough, and the witness, in answering, did not offer a responsive answer, which the court declined to strike out, the error, if any, not being prejudicial, was not a ground for reversal.
    4. Same — Contracts.
    The court did not err in excluding an answer to the question whether or not the defendant had any trouble or if a threat was made by the people-in the street to prevent him from putting up the building as specified by the construction contract, where the issue was whether or not the, building conformed to the plans and specifications, and, if not, what were plaintiffs’ damages.

      5. Same — Irrelevant Questions.
    It was not error to exclude an Interrogatory as to tlie amount of insurance plaintiffs carried, or one covering-bow much rent plaintiffs got for the building.
    Error to Wayne; Mayne, J., presiding.
    Submitted January 12, 1916.
    (Docket No. 110.)
    Decided March 30, 1916.
    Assumpsit by Nathan Gutov and others against Walter H. Clark for breach of a building contract. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Covert & Campbell, for appellant.

      Bauble & Bauble, for appellees.

      As to measure of damages for defects or omissions in the performance of a building contract, see note to 39 L. R. A. (N. 5. ) 591.

   Brooke, J.

The following statement of fact is quoted from brief of counsel for the appellant:

“On May 31, 1913, the three plaintiffs, who are themselves all carpenters and builders, executed a contract with the defendant, by the terms of which the defendant was to furnish all material and erect for the plaintiffs for the sum of $5,800, according to the plans and specifications,-a four-family frame flat building on a lot 40x112 feet owned by the plaintiffs on Crane avenue, Detroit. The plaintiffs deeded this lot to the defendant who was to negotiate a construction loan, and, after the erection of the flat, give a land contract back to the plaintiffs for the purchase of the premises at $6,700, the value of the lot being put at $900. The defendant at once began the construction of the building and had it practically completed, when, on November 14, 1913, the plaintiffs took possession of the building and moved into the flat, occupying continuously since then three of the four apartments- themselves, and renting continuously since then the fourth apartment for the first two months at $16 a month, and thereafter at $14 a month. The plaintiffs took possession of the building under protest, claiming that it was not properly completed according to plans and specifications, but that the defendant had threatened to sell the building and they were obliged to move in to protect their rights.
“The contract provides that the building should be completed by September 1, 1913, but no claim is made for delay, the entire claim of the plaintiffs being based on alleged defects in material and workmanship. There is no serious dispute but that the building substantially fulfills the purpose for which it was intended —that is, a four-family flat building to be used entirely for residential purposes.
_ “The defendant claims that the building is substantially what the plans andN specifications call for, and that any variances were caused by changes made at the request of the plaintiffs. The contract provides that Mr. Swirsky, the architect, was to be the superintendent of construction, but the plaintiffs did not furnish an architect, claiming that the defendant said, that he didn’t need an architect. The defendant claims that the plans and specifications were faulty, and did not clearly indicate what was to be done and that this fact caused some of the alleged variances from the plans and specifications. The defendant also claims that the plaintiffs definitely accepted the building as complying with the plans and specifications when they moved into it. The defendant claims further that certain extras were used for which he has not been paid, but he has withdrawn these from consideration in this case.
“The defects claimed by the plaintiffs are chiefly as follows: The pier foundations under the building are 9x9 in size and made of cement instead of 12x12 of brick, and the pier foundations are not deep enough causing the building proper to settle 1% inches to 1% inches, and causing the front porch to slope back toward the building 2 inches to "3 inches, instead of sloping away from the building. The cement used is not properly mixed and crumbles. The inside finish was not properly sandpapered. Some of the siding was put on crooked, and much of it is poplar instead of white pine. Single-coil heaters were used instead of double-coil, and two-piece sinks instead of one-piece. The joists are not bridged. Four windows and frames in the front of the building are left out. The roof sags in the middle. A decorative wooden circle is left off the front of the building, and the cornice returns are not properly extended, and there is artificial stone instead of cut stone used for chimney coping. The front doors are 1% inches pine instead of 2 inches oak, and double strength American glass was used instead of plate glass. The water pipes are exposed in one kitchen. The back porches have a cheaper grade of flooring than specified, and the back stairs were flimsy and had to be removed. The doors are left off the closets. The water pipe connection with the water main is a % inch instead of 1 inch. The studding are 22 feet instead of 24 feet.”

Plaintiffs secured a verdict and judgment for $1,900. Defendant reviewing said judgment in this court, discusses the following questions:

(1) The charge of the court on the rule for the measure of damages was misleading.

(2) The verdict is contrary to the great weight of evidence, and a new trial should have been granted on this ground.

(3) The verdict is grossly excessive, and a new trial should have been granted on this ground.

(4) There was error in the ruling made on the admission and rejection of certain testimony.

Excerpts from the charge of the court upon the measure of damages follow:

“If the building varied from the plans and specifications to such an extent that the building would have to be destroyed and rebuilt practically so as to make it conform to the terms of the contract, including the terms and specifications, then the rule of damages would be as follows:
“The plaintiff would be entitled to recover (the difference between) the value of the building actually taken possession of by the plaintiffs on November 14, 1913,' at a value not exceeding the contract price and the value of the building as it would have been had it been completed in accordance with the contract which includes the plans and specifications not exceeding the contract price.
“Now the plaintiffs in this case do not claim that the building when completed would exceed the contract price, consequently the contract price will determine the value of the building which should have been furnished by the defendant to the plaintiffs. If you find that there was a breach of contract on the part of the defendant, the plaintiffs in this case will be entitled to recover under their theory or claims the difference between the value of the building not exceeding the contract price actually furnished,; that is, the building as it was on the grounds on November 14, 1913, and the building which would have been there had the contract been literally complied with.
“In other words, it is practically the difference between what the value of the building would have been , had it been built in accordance with the terms of the contract for them actually at the contract price, and the building which was actually presented, which they actually took'possession of November 14, 1913, and you could not consider the value of the building of which they took possession as being worth more than the contract price. Plaintiffs claim it would be worth much less than the contract price; the defendant claims that it was worth the contract price. It is the claim of the defendant that even under the rule given you as the measure of damages, if you find for the plaintiffs, that the building they actually furnished the plaintiffs was equal in value to the contract price of it, that the house which plaintiffs took possession of was worth the contract price for the house.
“Now under this law so as to comply with the position of the defendant, inasmuch as the defendant has elected, not to take a verdict at your hands for extras, having determined the value of the building of which they took possession, you will subtract, if you find for the plaintiffs, the amount of extras, the' value of the extras as you find them to be from the present value hr the value on November 14, 1913, of the house or building of which the plaintiffs actually took possession. * * *
“If you find that there was a substantial compliance, that it would not be necessary to demolish the house, that changes could be made without destroying practically the building and having to rebuild it again, then the amount that would be necessary to make these particular or several items comply with the terms of the contract, would be the proper measure of damages in accordance with the charge I have given you.”

At the conclusion of the charge, the following colloquy took place:

“Gentlemen, on account of the length of time it has taken to try this case, I want to be very careful in submitting my charge to the jury. Have I covered all the points that are necessary as you think, Mr. Baubie ?
“Mr. Baubie: I think so, but I will take a formal exception to the general charge, is all.
“Mr. Covert: If your honor please, it just occurs to me -at this time—
“Mr. Baubie: Are not the plans and specifications and contract to be handed to the jury for inspection in case they want to refer to them?
“The Court: I will hear Mr. Covert now.
“Mr. Covert: If the jury should find, if they get to the point of damages, if they should find the value of that building, having moved into it — that plaintiffs having moved into it, that it was worth $5,800, the verdict must be for the defendant.
“The Court: That is what-I have charged them. It may be stated in that way. You are to take the last statement of Mr. Covert as the law, because while it is stated in other words it is what I intended to charge you.”

Counsel for appellant say, with reference to the charge of the court, that:

‘We admit that the court in the case at bar gave the proper rule for the measure of damages, but we -claim that it was stated in such a way that it was clearly misleading to the jury; that the jury got the idea that they were to allow plaintiffs the necessary expense of tearing down certain parts of the building and reconstructing it.”

We are unable to understand exactly why counsel should make this contention. From the quoted portion of the charge, supra, and from an examination of the charge as a whole, it would seem that the court below submitted the question of damages, carefully and instructed the jury properly as. to the applicable law. The rule is that where the contract is substantially complied with, and the building is such a one as is adapted for the purpose for'which it was constructed, and only slight additions or alterations are required to finish the work according to the contract, the defects being remediable at a reasonable expense, and without interfering with the rest of the structure, the measure of damages is such a sum as is necessary to make the building conform to the plans and specifications. But, where the defects are such that they cannot be remedied without the entire demolition of the building, and the building is worth less than it would have been if constructed according to the contract, the measure of damages is the difference between the value of the building actually tendered, and the: reasonable value of that which was to be built. Eaton. v. Gladwell, 121 Mich. 444 (80 N. W. 292). See, also, Blakeslee v. Holt, 42 Conn. 226; School Directors v. Robertson, 65 Ill. App. 298; Clark v. Inhabitants of Russell, 110 Mass. 133.

It is the claim of appellant that the verdict is grossly excessive and against the great weight of the evidence. A motion for a new trial was made upon these and other grounds, and was denied by the trial court. In denying said motion the trial court said:

“The amount of the verdict, though possibly somewhat liberal, is within the limits of the testimony of both expert and layman.”

We have examined the record with care and find that there is testimony, which, if believed, would have warranted a much larger verdict than the' one 'rendered. It further appears that the jury upon the request of both parties visited the premises and made a careful inspection of them after having heard the testimony as to the alleged defects. We are unable to say from this record that the verdict is either grossly excessive or against the weight of the evidence.

There are 57 assignments of error based upon alleged erroneous rulings touching the admission or exclusion of testimony. The first of these assignments discussed in the brief for appellant arises out of the following:

“Q. From the examination that you made at that time can you tell this court and jury what you consider the difference between the building, a building of this kind that should be furnished under the plans and specifications and the building you found there that day, I ask you what the difference was?
“A. Well, the difference would be over $2,000 to replace it.”

An exception was taken to this question and answer, upon the ground that it was not based upon the proper measure of damages. The court said: “Let it stand for the present.” The question, it seems to us, was entirely proper, though it may be said that the answer was not responsive: The witness was not asked what it would cost to replace the building, but was asked the difference in value between the one constructed and the one required under the specifications. In view of the charge upon the measure of damages, we are of opinion that the ruling, if erroneous, was not prejudicial to defendant’s rights. Many other assignments of error grow out of somewhat similar questions.

Error is assigned upon the exclusion of the following testimony:

“Did you have any trouble or any threat made by the people of the street there to prevent you from putting up that kind of a building?
“A. I did.”

It is the contention of the appellant that the rejection of this testimony and other testimony upon the same question was erroneous and prejudicial because it prevented defendant from putting his case

“before the jury in the best light, and they had an important bearing upon the question as to whether or not defendant was trying to put up the building according to contract.”

We are unable to see how the answers to these questions had any bearing upon the issue between the parties. Defendant did in fact erect a building. The question at issue was whether the building conformed to the plans and specifications, and, if not, what plaintiffs’ damages were by reason thereof.,

The court excluded an inquiry made of plaintiffs as to how much insurance was carried upon the building, and as to how much rent was being received from the building. The ruling was proper — neither question had any bearing upon the issue presented.

The other assignments under this head of the argument have been examined, but are not meritorious.

Upon review of the entire record, we are satisfied that no reversible error was committed, ahd the judgment is therefore affirmed.

Stone, C. J., and Kuhn, Bird, Moore, Steere, and Person, JJ., concurred. Ostrander, J., did not sit.


text:
    SANFORD v. GRAND TRUNK WESTERN RAILWAY CO.
    Railroads — Negligence — Contributory Negligence — Duty to' Stop, Look and Listen.
    Where plaintiff approached the track of the defendant railroad company in an automobile, at a speed of seven miles per hour, and was unable to discover whether or not a train was approaching because of obstructions near the track which prevented him from taking an observation, and just- as he was about to enter upon the tracks he observed the approach of an engine which he was too late to avoid, though he stopped his car and tried to back off the tracks, and it appeared that he might have seen the train coming if he had looked at a point ten to fifteen feet from the rails, being familiar with the crossing and its surroundings, he was guilty of contributory negligence precluding him from recovering for injuries that he and his wife sustained. It was his duty to stop the car at the point where he might have obtained a view of the track and ascertained whether or not it was safe, before attempting to cross.

    Error to Calhoun; North, J.
    Submitted January 10, 1916.
    (Docket No. 80.)
    Decided March 30, 1916.
    Case by John S. Sanford against the Grand Trunk Western Railway Company, a corporation, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

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

      F. W. Clapp and W. S. Powers, for appellee.

      As to care required of driver of automobile at railroad crossing, see notes to 21 L. R. A. (N. S.) 794; 29 L. R. A. (N. S.) 924; 46,L. R. A. (N. S.) 702.

   In this action, plaintiff seeks to recover damages resulting from a collision between an automobile in which he and his wife were driving, and a train belonging to the defendant. The accident occurred at a few minutes past 6 on July 30, 1913, at the intersection of South avenue with the defendant’s railroad tracks in the city Of Battle Creek. The physical situation may be briefly described as follows: South avenue, one of the principal streets of Battle Creek, runs north and south and is an unpaved street 66 feet wide. The traveled part of the roadway is practically level with the rails of defendant’s railway. The railway does not cross the highway at right angles, but runs slightly to the north of west and to the south of east. Defendant maintains upon its right of way at this point two tracks, the northerly one of which carries the west-bound traffic. From the north rail of the north track to the northerly limits of the right of way there is a distance of approximately 14 feet 5 inches; from the northerly limit of the right of way and extending southerly toward the rails, a distance of 5 feet, approximately, there is a bank about 2 feet 2 inches in elevation above the height of the rail. Upon this bank in July, 1913, commencing at a distance 40 or 50 feet east of the easterly limits of South avenue, there grew weeds about' 5 feet high, which to some extent obstructed the view to the east from South avenue. Near the easterly curb of South avenue there were the following obstructions: At a distance of 7.65 feet from the north rail stood a pole; at a distance of 11.25 feet from the north rail stood a second pole; at a distance of 15.65 feet from the north rail stood a third' pole; and at a distance of 19.45 feet from the' north rail stood a tree. Each of the three poles and the tree were approximately 1 foot in diameter, but there was an open space of approximately 4 feet between the tree and the first pole, and between the first pole and the second. Located at the northeast corner of South avenue and the railroad right of way is a one-story building standing parallel with the street, and 24 feet east of the limits of the highway. The southwest corner of the building which is nearest the track is about 14 feet and 5 inches distant from the north rail thereof. Main street^lies east of South avenue and is distant therefrom 1,195 feet. Defendant’s passenger depot is located about 200 feet east of Main street.

On the day in question, the defendant operated a train consisting of an engine, tender, and caboose over the track in question from its station westerly across South avenue. The train stopped at the station to receive orders, and after a delay of a minute or two, very shortly after 6 o’clock in the evening, started on its journey west. The point from which it started after receiving orders to the point of the collision was approximately 1,400 feet.

The plaintiff, a man 62 years of age, many years ago had himself been an engineer, and in that capacity had operated trains over this particular road. He had lived in Battle Creek many years and was familiar with the South avenue crossing. Approaching the crossing from the north, as plaintiff did, it was impossible to secure a view of the tracks to the east for a distance of 100 feet or more north of the railroad, by reason of intervening buildings located east of the highway. It was the claim of the plaintiff that the defendant operated its train westerly over the crossing where the accident occurred at a high and unlawful rate of speed (20 to 25 miles an hour), and that it failed to give warning of its approach either by the blowing of a whistle or the ringing of a bell. The evidence introduced by plaintiff tending to show negligence in these respects was contradicted by testimony introduced on behalf of the defendant. Counsel for defendant, while not exactly conceding that there was evidence to go to the jury on the question of defendant’s negligence, assert that they do not desire to argue that question in this court, but rest their case solely upon the proposition that they were entitled to a directed verdict upon the ground that plaintiff, under his own testimony, should have been held guilty of such contributory negligence as precluded recovery.

Plaintiff’s testimony regarding the manner in which the accident occurred follows:

“As I came down near the Grand Trunk, I slowed up, looking and listening. I could see the flagman’s house across the way. When I have been up there before, it was always in the daytime, and there was always a flagman there; but I did not see any there at this time. I looked and listened both ways, and, as I got past where they build the monuments there close down by the track, I think I was running along about six or seven miles an hour, and I see a smokestack through the weeds. There is-high weeds there. There was an elevation there from the road up, I should judge two or three feet, and on top of the bank must have been five feet of weeds. I just seen the smokestack there, and when I saw that I put on the emergency brake and stopped. I should judge — we were close to the tracks.' The pilot runs over the rails, and the cylinders run further over yet, and I released the emergency brake and grabbed the reverse lever', and got it over as far as neutral toward reversing it, when the engine hit me. I suppose the pilot hit the machine and threw it against the engine. Of course, I don’t just recollect, for I was dazed for a few minutes I guess, and then they took us downtown to a doctor. I looked and listened to ascertain whether a train was coming. My view was obstructed by the monuments and tall grass the other side of the monuments and three poles and a tree.
“Q. How far north of the track could you see through and observe freight cars?
“A. It was a long way up towards Main street, and you could see those cars up through there; I don’t know exactly. .•
“Q. Now, as a fact, from 100 feet or so north of the track to within a very few feet of the track, isn’t the view entirely shut off?
“A. Yes, sir.
“Q. From 100 feet north of the track to within a few feet of the track, can you see to the east?
“A. You cannot see anything; no, sir. Your view is obstructed by the monument building and the houses along there. This monument building I think is a one-story building; I would not swear to that. There are trees in front of the houses. They were in leaf at that time. When you get to the end of the monument building toward the track, there is a tree and three telegraph poles. I don’t know how far apart they were. They are not in a straight line, but in a diagonal position. * * * The west corner of the monument building is about 14 feet from the north rail of the track on which this engine was running. The weeds were between the track and the corner of the building. The weeds came right close to the corner of the building. The bank comes within six or seven feet of the track and then runs off this way (indicating) . I should judge the engine was about 75 feet away when I first saw it. I have had experience in judging of the speed of trains. The opportunity I had of judging of the speed of this train was from the time that I saw it and put my foot on the brake and applied the emergency brake, and then threw the machine into neutral. This could not have been more than 2% seconds anyway. In my opinion the train was running between 20 and 25 miles an hour. It consisted of an engine, tender, and caboose.
“Q. Now, state whether or not there was any whistle blown.
“A. No, sir; there was not.
“Q. State whether or not any engine bell was rung.
“A. No, sir; there was not.
“Q. Did it make any noise or exhaust steam?
“A. No exhaust steam. Had there been any exhaust of steam, I could have seen it and heard it. * * * The bank south of the monument building was between 2 and 3 feet in height, I should judge. The weeds were on top of that bank and within a few feet of the rail. I should judge it was sweet clover. They were thick weeds, tall and rank. I should judge they were about 5 feet high above the bank. There was a sidewalk on the east side of South avenue. The weeds extended probably 30 feet east. As I am sitting in a machine driving, my eyes are 5 feet 4 inches above the level of the street. From where I would naturally sit in that machine as I am driving, to the end of the springs, is just 7 feet. The springs would extend 19 inches beyond the end of the radiator. * * * I commenced to slow my machine down when I was about 40 feet from the track. I was, at that time, going at a rate of 13 or 14 miles an hour. Then I slowed down to 6 or 7 miles an hour, and I saw the engine.”

On cross-examination, he testified:

“A. I knew the crossing, yes. I had crossed there several times.
“Q. And you knew what view you had of a train approaching from the east at that crossing, didn’t you ?
“A. I knew as much as any one would know. * *
* I have never made any test to see how far, standing in the center of South avenue, I could look to the east and see an engine coming along the west inbound main line. I think the street runs north and south. The railroad does not cross the street at right angles. The railroad runs south of east and west of north. I know that the easterly end of the marble works building is considerably further from the rail of the west-bound main line than the west end of that building is. The weeds which I have spoken of were north of the embankment. There were none in the roadbed. They were within 6 or 7 feet of the track. They commenced about two-thirds, or halfway, along this building.
“Q. Now, didn’t you know, sir, that before you get .halfway along that building that there is a side track that leads off that west-bound main line extending in an easterly direction, the side track extending in an easterly direction? . ,
“A. Yes, sir.
“Q. I want the distance between the south side of the building and where the embankment starts.
“A. Some places 6 or 7 feet to the rail.
“Q. Is it as much as 6 or 7 feet at the nearest point?
“A. Yes, I think so; along about that.
“Q. From the building to the embankment?
“A. No, from the rail to the embankment. * * *
“Q. You knew that your view to-the east was more or less obstructed, didn’t you?
“A. Yes, I knew that I could not see a very long way.
“Q. You knew that fact as you were coming down this street?
“A. Yes.”

One Roy Knowles, a witness sworn for the plaintiff, who was on the defendant’s right of way at a point about 300 feet west of the point of collision, testified as follows:

“I could see the engine coming, I could not tell how fast it was coming. I saw the 'automobile before the collision. I could not say how fast it was going. I saw Mr. Sanford reach for his lever. The automobile was quite a ways from the track when I first saw it, but I could not say how far. The machine was about on the track when he reached for his lever. * * * I saw Mr. Sanford reach for the lever of his machine when it was right on the track, or right up to the track.”

At the conclusion of all the testimony, the defendant moved for a directed verdict in the following language:

“Now, if your honor please, I move that ybur honor direct a verdict in favor of the railroad company for reason that the plaintiff, as a matter of law, was guilty of' contributory negligence in the manner in which he came up to the crossing on the evening in question. I do not care to argue the question as to whether the defendant was guilty of any negligence, because that is of no importance if the plaintiff was guilty of negligence. There are no allegations of any gross negligence of defendant, and if the plaintiff was guilty he cannot recover.”

The motion was denied by the court, who said:

“I want the record to show that after counsel on the respective sides on a motion to direct a verdict, my opinion is that the case should go to the jury. While there is nothing in the proof of this case that raises that question, it seems to me that the court ought to take judicial notice of the fact that an automobile cannot be handled nor in such a case governed by the same rules of law that apply to a pedestrian; and that it ought to be a matter of which the court could take judicial notice that it is not a thing that is done by an ordinarily careful and prudent man in driving an automobile to stop in approaching a crossing of this kind; that is not a practical thing to do, or a safe thing to do, because it is a well-known fact that in starting his engine from a standstill there is a great risk of his killing his engine and being left on the track. While that does not appear in this case as shown by the evidence, I think the court might take judicial notice of it to the same extent that it enters into the matter of riding a bicycle and other things of that sort; and so the motion will be overruled, and an exception may appear in behalf of the defendant.”

The court submitted the case to the jury under a charge which permitted them to find that the defendant was guilty of negligence under the evidence, and that the plaintiff was free from negligence. With reference to the gross negligence, he charged:

“The question of gross negligence, I take it, is not properly alleged in the declaration, in this case, and certainly there is- no proof which would justify recovery upon that theory. So I charge you to entirely disregard the question as to gross negligence, which means, of course, wilful and deliberate injury to a party, because there is no testimony in the case which would justify recovery of the plaintiff upon that theory.”

The jury returned a verdict in favor of plaintiff in the sum of $650. Judgment entered thereon is now before this court for review.

Brooke, J.

(after stating the facts). The concession of counsel for defendant narrows the issue. It' will therefore be assumed that, in the operation of the train at and prior to the moment of the collision, defendant was guilty of such negligence as would warrant plaintiff in recovering if he himself was free from any negligence which contributed to his injury.

The view of the trial court is sufficiently stated in his reasons for denying the motion to direct. In their brief for plaintiff, counsel say:

“We contend that the facts in this case bring it within the rule, and the line of authorities, that it became a question of fact upon which opinions might reasonably differ, and therefore proper to submit to the jury, whether the plaintiff exercised the common prudence necessary in such cases and might have reasonably believed that it was safe for him to attempt to cross the track under the circumstances as they appeared to him at the time as shown by the evidence in this case.
“We submit it is not the law in this State that a person can be lured to his destruction by the failure of the defendant to give any of the usual and legal requirements to warn such person of the approaching danger, and, when he has used proper precaution to ascertain whether it was safe to cross, that he should be charged with contributory negligence, whether operating an automobile, a pedestrian, or crossing in any manner. If such is the law, the requirement that a railroad company should give any warning is a useless and idle requirement.”

Many cases are cited in support of plaintiff’s contention. Most of them, however, relate to a situation where the plaintiff, having made an observation while in a place of safety, has seen the on-coming car or train, and has reasonably believed that he could cross the zone of danger in safety in front of the car or train. A good example of this class of cases is McQuisten v. Railway Co., 147 Mich. 67 (110 N. W. 118). Another class of cases cited and relied upon by the plaintiff relates to accidents where horse-driven vehicles have come in collision with trains. A good example of this line of cases is Wilbur v. Railroad Co., 145 Mich. 344 (108 N. W. 713). In the prevailing opinion it is there stated:

“We have the question, then, before us, whether it can be said as a matter of law that, because at a point 21 feet south of the south rail the observer could see in the daytime (when he was there for the express purpose of seeing how far away he could see an approaching train) one could see it, as some of the witnesses say, 12 or 15 rods, and others say perhaps 40 rods, the husband of the plaintiff was guilty of contributory negligence, which may be imputed to her, because upon a cold, stormy night he did not at this point stop his horse and avoid the accident. Account should be taken of the fact that some men do not think as quickly as others. It should not be forgotten that the horse was afraid of the cars. At this point his head was within 10 or 12 feet of where it would be struck by a passing train — a trying situation indeed for both driver and beast. I am not prepared to say that, under such circumstances, we can say as a matter of law the husband was guilty of contributory negligence, because he did not then stop his horse and avoid the accident. The question presented is not one of law, but it is one of fact, namely: Did the driver do what a reasonably prudent person would have done under like circumstances? The circuit judge in a very fair and impartial charge left the question to the jury.” (Citing cases.)

The question really presented for determination in this case is whether in approaching a” railroad track, a place of known danger, the operator of an automobile should be held to the same degree of care which must be exercised by a pedestrian under the same circumstances. This rule the learned circuit judge frankly declined to apply in the case at bar, and, if he was wrong in that determination, the case should be reversed.

The question is not new in this court. In Colborne v. Railway, 177 Mich. 139 (143 N. W. 32), which grew out of the collision between an automobile and a street car, but which in principle cannot be distinguished from the case at bar, this court, speaking through Mr. Justice Steere, said:

“He could and should have made sure of the safety of proceeding, by looking just before entering upon the track,, and at such a point that he could stop his machine if necessary in order to avoid a collision. This rule should be as strictly applied to an automobile as to a pedestrian, and the reasons for its application are more impelling. Usually the careless pedestrian only imperils his own safety.
“In the light of common knowledge, courts can well take judicial notice of the automobile, not only as a most useful and pleasing means of swiftly transporting persons and property for pleasure or business, when properly controlled and cautiously driven, but as a vehicle in its possibilities so destructive, when in the hands of careless and reckless drivers, as to spread over the land the maimed and dead until it has belittled the cruelties of the car of Juggernaut.” (Citing cases.)

See, also, Weil v. Railway, 186 Mich. 614 (152 N. W. 959).

The now almost universal use of automobiles has in recent years resulted in many collisions between such vehicles and street cars or trains, and these in turn have resulted in legal complications which have found their way into the courts. A very recent and well-reasoned case is New York Central, etc., R. Co. v. Maidment, 168 Fed. 21 (93 C. C. A. 413, 21 L. R. A. [N. S.] 794). The court there said:

“With the coming into use of the automobile, new questions as to reciprocal rights and duties of the public and that vehicle have and will continue to arise.' At no place are those relations more important than at the grade crossings of railroads. The main consideration hitherto with reference to süch crossings has been the danger to those crossing. A ponderous, swiftly moving locomotive, followed by a heavy train, is subjected to slight danger by a crossing foot passenger, or a span of horses and a vehicle; but, when the passing vehicle is a ponderous steel structure, it threatens, not only the safety of its own occupants, but also .those on the colliding train. And when to the perfect control of such a machine is added the factor of high speed, the temptation to dash over a track at terrific speed makes the automobile, unless carefully controlled, a new and grave element of crossing danger. On the other hand, when properly controlled, this powerful machine possesses capabilities contributing to safety. When a .driver of horses attempts to make a crossing and is suddenly confronted by a train, difficulties face him to which the automobile is not subject. He cannot drive close to the track, or stop there, without risk of his horse frightening, shying, or overturning his vehicle. He cannot well leave his horse standing, and, if he goes forward to the track to get an unobstructed view and look for coming trains, he might have to lead his horse or team with him. These precautions the automobile driver can take, carefully and deliberately, and without the nervousness communicated by a frightened horse. It will thus be seen an automobile driver has the opportunity, if the situation is one of uncertainty, to settle that uncertainty on the side of safety, with less inconvenience, no danger, and more surely than the driver of a horse. Such being the case, the law, both from the standpoint of his own safety and the menace his machine is to the safety of others, should, in meeting these new conditions, rigidly hold the automobile driver to such reasonable care and precaution as go to his own safety and that of the traveling public. If the law demands such care, and those crossing make such care, and not chance, their protection, the possibilities of automobile crossing accidents will be minimized. In the case of trolleys crossing railroads at grade, the practice is general for the conductor to go ahead and from the track signal the halted car to advance. This would, of course, be impracticable ás a rule for automobiles; but it illustrates the trend of the law, as the size of crossing vehicles, makes collision with them more serious, to enforce greater safety precautions. * * *
“The duty of an automobile driver approaching tracks where there is restricted vision to stop, look, and listen, and to' do so at a time and place where stopping and where looking and where listening will be effective, is a positive duty, and these safeguarding steps the plaintiff failed to take. He stopped where stopping served no purpose, and failed to stop where stopping would have disclosed danger. He made chance, and not sight, the guaranty of his safety.”

See, also, Glick v. Railway Co., 124 Md. 308 (92 Atl. 778); Delaware, etc., R. Co. v. Welshman (C. C. A.), 229 Fed. 82.

It„ is entirely clear from this record that there was a point between 10 and 15 feet from the north rail of the north track where the plaintiff could have observed the on-coming train for a distance of upwards of 1,000 feet. It is equally clear from his own testimony that he did not operate his car in such manner as would enable him when he reached that point to stop his car before it reached the track. Under such circumstances, and under the authorities cited, we are of opinion that the motion to direct should have been granted.

The judgment is reversed, and there will be no new trial.

Stone, C. J., and Kuhn, Bird, Moore, Steere, and Person, JJ., concurred. Ostrander, J., did not sit.