author: Moore, J.

text:
    PEOPLE v. HOWARD.
    1. Criminal Law — Evidence—Assault With Intent to Kill— Title of Property in Dispute.
    Upon the trial of a prosecution for assault with intent to kill, evidence offered hy respondent to show that he owned certain hay, which had been the subject of dispute between him and the complaining witness, was properly excluded, although the fact of the dispute and its origin was admissible and was shown by the testimony.
    2. Same — Assault and Battery — Intent.
    In order to constitute assault with intent to kill and murder, an intent to do serious injury must be established and it must be shown that the accused intended to do such serious or permanent bodily harm as the means he employed and manner of using them would naturally effect; but he need not have contemplated the exact result which he in fact caused.

      3. Same — Homicide, Attempted.
    Where the accused claimed that he shot at the complaining witness to frighten him and did not intend to hit him, aiming low, with the purpose of frightening him, also that he was acting in defense of his property rights in certain hay which the witness had carried away, the court should not have instructed the jury that the respondent was guilty of either assault with intent to murder or assault with intent to do great bodily harm, but should have given a request to charge that the jury might find respondent guilty of the offenses named or of assault and battery, or find him not guilty. McAlvay, C. J., and Kuhn, J., dissenting.
    4. Same — Trial—Misconduct—Argument.
    It is the duty of counsel for respondent to accept and acquiesce in the rulings and instructions of the trial court; it was improper to argue to the jury that they might decline to follow the instructions of the circuit judge: the remedy is by exception to the ruling.
    Exceptions before sentence from Van Burén; Bridgman, J.
    Submitted November 7, 1913.
    (Docket No. 166.)
    Decided March 27, 1914.
    John L. Howard was convicted of assault with intent to do great bodily harm less than murder.
    Keversed.

      Grant Fellows, Attorney General, Earl L. Burhans, Prosecuting Attorney, and Lynn J. Lewis, Assistant Prosecuting Attorney, for the people.

      W. J. Barnard, for respondent.
   Moore, J.

An information was filed against re-

spondent. In the first count he is charged with making an assault with intent to kill and murder. Thé second count charged :

“On the said 22d day of June, A. D. 1912, at the township of Bloomingdale, in the county aforesaid, he, the said John Howard, with force and arms, in and upon the said M. F. Burgett, in the peace of the people of the State of Michigan then and there being, did then and there make an assault, and him, the said M. F. Burgett, then and there did beat, bruise, wound, and ill treat, with intent then and there to do unto him the said M. F. Burgett, great bodily injury less than the crime of murder.”

The respondent was convicted of the offense charged in the second count. The case is here upon exceptions before sentence.

The assignments of error are discussed by counsel for respondent under, eleven heads. We think it sufficient for the purpose of this case to consider: First, whether there was error in admitting certain testimony and excluding other testimony; and, second, did the court err in refusing to give certain requests to charge preferred by respondent, and in charging the jury as he did.

1. Without setting out the evidence in detail, it is apparent from the record the court attempted, and we think succeeded, in admitting all the testimony germane to the issue. He allowed it to be shown what was said and done in the hay field just prior to the shooting, and what was said and done at the time of the shooting, and also allowed a full examination as to what the complaining witness had testified before the examining magistrate. He permitted it to be shown that there was a dispute as to the ownership of the hay, but declined to go into the question of allowing the ownership to be decided in this litigation. We do not think there was any reversible error in relation to the admission or rejection of testimony.

2. Was there error in refusing certain requests to charge and in the charge as given? It now becomes necessary to state briefly the salient facts disclosed by the record. As before stated, there was a dispute between the complaining witness and respondent as to the ownership of hay which was in bunches in a field about eight rods north and in sight of respondent’s house. The. complaining witness and his men were loading the hay, when the wife of respondent came to the field and ordered them to desist, and sat upon some of the bunches of the hay. The complaining witness paid no attention to her and continued to load the hay. The respondent saw what occurred and, taking a loaded shotgun, started down the highway toward the field, declaring he would shoot the man, calling him all sorts of names. He was persuaded by some of the neighbors to desist from carrying out his threats and returned to his house. After the hay was loaded, the men drove the team and wagon with the hay past the respondent’s house. The complaining witness stopped at a sto're for some purpose, and after a little delay started to go on home, keeping the opposite side of the highway from the house of the respondent. When he got nearly opposite the house, respondent called him vile names. At this point there is some dispute as to what occurred. At this time the load of hay had passed out of sight. Respondent either went into his house or reached in and got his shotgun and pointed it at complaining witness and attempted to discharge it. It failed to discharge. He again made the attempt, and the second time it went off and lodged a quantity of shot in the legs, thighs, and one of the arms of the complaining witness.

There was plenty of testimony offered on the part of the people, if believed, to justify a verdict under either count of the information. The respondent was sworn. Among other things, he testified:

“I saw Mr. Burgett up in the hay field, and I directed my wife and Mr. Moore to go up there, and while they were in the hay field I was sitting up on the west side on the porch. I could see what was taking place in the hay field. I saw them loading hay, and I saw, after my wife got up there on the hay. I seen them pitch hay regardless of her; didn’t seem to notice her. * * * About that time my wife came back from the hay field and came in the house. She told me what had occurred in the hay field. After that I saw Mr. Burgett. It was not very long until he came by, or’ the hay came by. He came over towards me, and he got pretty near me. I says, ‘Burgett, I want you to bring back my hay.’ I jumped up or got up and went into the house and got the shotgun. I have heard these witnesses testify that I did not go inside of the door; I say I did. I got the gun from the south side of the incubator. I went out with it. I shot at Burgett in that direction. I aimed it low.
“Q. What was your purpose in shooting at him?
“A. I wanted to scare him from coming back and getting any more hay. I wanted to get it settled some way, if I could, and stop him from coming because I had no other way.
“Q. Did you have any intentions to hit him?
“A. No, sir; I didn’t expect to hit him. I expected to shoot close and scare him, make him think I would hurt him.. * * * Mr. Burgett pointed a gun at me that day; yes, sir.
“Q. You may state whether or not he made any effort to draw any gun before you shot?
“A. Well, sir; he came along up there. When he waved his hand, he had his hand up there (illustrating.) Could you see this — that is the place where he carried his gun.
“Q. Had you seen him with this gun on him?
“A. I had.
“Q. Could you tell that he had that gun in the holster from where you stood?
“A. I thought he had. When he came up there that day he was coming across, crossing the road to come across. There is a path along by the hotel that leads down to the sehoolhouse, an old path rather abandoned. Coming across he came over in the direction where the path had been. I cussed him. I think I was mad; I couldn’t have been any madder. I think I called him everything I could think of. After I shot him, I told him to shoot; that he was a coward and afraid to shoot, and a son of a bitch and everything else. I talked as loud as I can. When I get excited I talk loud. I can’t hardly walk at all. I am a cripple in the right leg. When I went towards the blacksmith shop, I had the gun and my cane. Before I shot him, I think I called him a thieving son of a bitch. Burgett kept muttering to me saying things I could not understand. * * *
“Q. Did you have any intent of hitting Mr. Burgett with any of those shot at the time you aimed that gun?
“A. No, sir.
“Q. Did you have any intent to inflict any severe injury on him?
“A. I did not.
“Q. You shot simply to scare him?
“A. I did.”

Upon the cross-examination he testified, among other things, as follows:

“I was looking down that way and saw him come along. After he came out of the shop, he came on south, west side of the road and the side opposite my property. When he addressed me, he came about parallel across from the greenhouse. He came across the road across the track, right to the edge of the track where the stone was. He came on the east side of the beaten part of the road. He was on the east side of the worn part of the highway. I don’t remember just the words I called him, but I done my best.
“Q. Did you notice several witnesses around there?
“A. There was something like a circus day. They was all out on the parade. I didn’t consider it a circus. It was a pretty serious affair with me, a man taking my bread and butter, and I had nothing to live on. * * * When I saw Burgett, he was standing in that position (illustrating) looking back towards me.
“Q. Trying to get his gun out?
“A. He was making work with his hand in there.
“Q. You could see him reaching and pulling, could you?
“A. I saw him doing something of that kind and took it he was getting out his gun.
“Q. At that moment you fired your shotgun?
“A. I did, sir. I shot the gun, as I said before, to scare him, keep him from going any farther. I saw him at the time he reached for his gun. It occurred to me he was reaching for his gun. He carried a gun all the time.
“Q. You concluded it was about time for you to use your gun if you were going to use it?
“A. Get my bluff in if I could.
“Q. And you claim this act of shooting was an act done in self-defense, don’t you?
“A. Yes, sir.
“Q. Well, just before you raised your gun, you saw Mr. Burgett making an effort to get something out from under his wamus?
“A. Yes,-sir.
“Q. And you have told us that it occurred to you at that time that he was making some effort to remove a gun from his person ?
“A. Yes, sir. I knew he carried a gun on his person. At the time I shot, I didn’t think I was in any danger. I thought he was reaching for his gun; he was going to play a bluff. I didn’t think he was game enough to shoot.
“Q. Did you think you were game enough to shoot yourself?
“A. I did.
“Q. Didn’t you claim at that time you shot,in defense of your person?
“A. I said I shot in defense of my property and what belonged to me, because it was mine. I didn’t include my person. I didn’t care anything about that. * * * I brought the gun out again after I shot Burgett, and it was after I called him a black-hearted son of a bitch. I saw Summy go by on the load of hay. The hay was out of my sight at the time I shot; I don’t think I could see it. I said to Burgett, T want you to bring back my hay.’ It was going around the corner. I waited to see the hay start west to see if he wasn’t going to bring it to me. I saw it wasn’t going near my barn. * * *
“Q. You were collected enough at the time you shot to realize and intended to shoot low?
“A. Yes, sir. I did shoot low. If I had wanted to hit him in the head, I would have shot higher.
“Q. You shot at Mr. Burgett and accidentally hit him, according to your theory?
“A. I shot back, aimed about his ankles or feet so as to give him a scare that I would shoot if he had kept pushing me. I aimed at his ankles. I shot low, yes, sir; about the height of his feet or legs or knees.
“Q. If you aimed it at the height of his feet or legs, that shot would hit that portion of his body?
“A. I don’t know where the shot would go.
“Q. I am asking you this question. You say you aimed the gun at his legs and feet. Now, if it was aimed at his legs or feet it would hit that portion of his body, wouldn’t it?
“A. Down along here (indicating). I aimed the gun low.
“Q. And some of the shot hit where you aimed, isn’t that true?
“A. Yes, I guess so. I ain’t seen him and don’t know whether I hit him or not; just got his word for it, and that don’t amount to nothing.
“Q. You didn’t care, did you?
“A. Care for what? I aimed to hit him, and that shows what I intended to do.”

One of the witnesses for the people testified:

“When I first seen Mr. Howard, he came out with the gun in his hand and rested it on the porch, and he was not back in the house until after the shot was fired; I don’t think he was.
“Q. If he came (Burgett) over towards the cinder path, he had to come over on Howard’s side of the road?
“A. Yes. When Mr. Howard came out with the shotgun, he was quite angry, quite excited, and that condition kept up until the shot was fired. When the gun popped the dust flew; I saw the dust fly from the force of the shot striking the ground. I saw the dust fly right behind Burgett. In justice’s court I testified I saw the dust fly after the shot was fired. Possibly some of the shot went into the dirt. The dust flew right behind Burgett, as though part of the charge had taken effect in the ground; yes, sir.”

The twenty-fourth request to charge was refused. It was very long and dealt with the question of intent as applicable to each count of the information and contained some statements it would not have been proper to give. There was no instruction given by the judge upon the subject of intent as applicable to the second count, except in that portion of the general charge to which we will refer later.

Three of the requests to charge deal with the subject of assault and battery. The last one reads:

“You may return any one of these four verdicts as you find the facts to be from the evidence in the case, that is: First. Assault with intent to murder. Second. An assault with an intent to do great bodily harm. , Third. Assault and battery. Fourth. Not guilty.”

Instead of giving any of these written requests, the trial judge charged in part as follows:

“In all criminal cases the defendant is presumed to be innocent. The legal presumption of innocence is not a mere form to be disregarded by you, but it is a substantive part of the law and continues with the defendant until you are satisfied of the guilt of the defendant beyond all reasonable doubt. The defendant is not required to prove his innocence, but the people must establish the guilt of the respondent beyond every reasonable doubt. And this applies in all criminal cases to every material fact connected with such case. And if, after all the evidence is before you, you still have a reasonable doubt of the guilt of the respondent, it will be your duty to acquit him. * * * Under the evidence in this case, and the testimony of respondent himself in his own words that T aimed to hit him and that shows what I intended to do/ the only important question for you to determine is whether the respondent is guilty of the greater crime of assault with intent to commit the crime of murder, or of the lesser offense of an assault with intent to do great bodily harm less than the crime of murder; and your verdict should be one or the other of those offenses. * * * But, gentlemen, in an assault with intent to do great bodily harm, it is not necessary, if the party had died, that the one making the assault would have been guilty of murder; neither is it necessary, in such offense, that a permanent injury follow such assault. If a person assault another with a dangerous weapon (and the gun that has been exhibited here is a dangerous weapon), he is guilty of assault with intent to do great bodily harm. That is, if a man wilfully and intentionally fires a gun, loaded with shot, at another under the facts shown in this case, and admitted by respondent, he is guilty of assault with intent to do great bodily harm; and he would be guilty even if he had not hit Burgett with the shot.”

In People v. Griffin, 77 Mich. 585 (43 N. W. 1061), the respondent was a witness in his own behalf. The court said:

“The felonious intent was a question of fact for the jury, to be inferred by them from all the facts and circumstances disclosed by the testimony.”

Referring to the testimony of the respondent, it was said:

“The whole statement must be received; but the credit due to it, and to each part of it, must be determined by the jury, who may believe one portion of it and disbelieve another. They may give it such credit as they deem it worthy of.”.

See People v. Gordon, 100 Mich. 518 (59 N. W. 322).

In People v. Miller, 91 Mich. 639 (52 N. W. 65), it was said:

“The court correctly instructed the jury that the result of the blow or kick should not be used as evidence to show the intent with which such blow or kick was given, unless they found, beyond a reasonable doubt, that such result was contemplated by Miller when he made the assault.”

The following was characterized as a fair charge:

“With reference to this subject I charge you that, to constitute the offense charged in the information, the defendant must have intended to do Mr. Dickinson great bodily harm — serious and permanent bodily injury — and he must have intended to do such serious and permanent bodily injury as was within the natural result of the means he employed, and his manner of using those means. But he need not have contemplated with mathematical precision or intended to do only the precise thing which actually followed his assault; as, if one rib was broken, and that the eleventh, he need not necessarily have intended to break the eleventh rib * * * and the injury to the kidney, but he must have had in contemplation an injury of that general character, and an injury serious and permanent; otherwise he could not be said to have intended to have done great bodily harm, as is charged in this case.”

See People v. Ross, 66 Mich. 94 (33 N. W. 30).

In People v. Troy, 96 Mich. 530 (56 N. W. 104), Justice Long, speaking for the court, said:

“We see no difficulty about the definition to be given to the offense. The Iowa court in Cokely v. State [4 Iowa, 479], supra, found no difficulty in defining it, or in holding that the case under consideration came within the statute. It is the intent with which the injury is inflicted that aggravates the assault, and brings it within the statutory definition of an assault with intent to do great bodily harm. It must be an intent to do a serious injury, of an aggravated nature. The trial courts seem heretofore to have had no difficulty in defining the offense, or in making a jury comprehend when a case falls within the statutory definition.”

In People v. Ellsworth, 90 Mich. 442 (51 N. W. 531), it is said:

“It is claimed that under the ruling of this court in Turner v. Circuit Judge, 88 Mich. 359 [50 N. W. 310], assault and battery is not included within the statutory crime of assault with intent to do great bodily harm less than the crime of murder; and that the information was bad because it joined a felony with a misdemeanor, and charged two distinct offenses in one count. But this case is ruled by Hanna v. People, 19 Mich. 316. It was there held that:
“ ‘Assaults, with various degrees of aggravation, must include the inferior degree of simple assault, or, if the higher degree is charged, including a battery, as in the present case, the simple assault and battery are included, and that the defendant may he • convicted of the included offense.’
“In Turner v. Circuit Judge, there was no battery charged, and we held that the information could not be amended to include a battery after verdict. It was not intended to hold that a person tried for assault with intent to do great bodily harm, less than the crime of murder, could not be convicted of assault and battery, if such assault and battery were properly alleged in the information.
“In the case before us the information is not as-clear and precise as it might have been, but it evidently was intended to charge an assault and wounding and beating with intent to do great bodily harm, less than the crime of murder. No injustice is done the respondents, in treating the allegation of beating and wounding as if the information had charged as follows:
“ ‘With force and arms, in and upon Edward Patnode and Prank Jewell, in the peace of the people of the State of Michigan then and there being, did make an assault, and the said Edward Patnode and' Prank Jewell did then and there beat, bruise, wound, and ill treat, with intent to do them, the said Edward Patnode and Prank Jewell, great bodily harm, less than the crime of murder.’
“Thus stated, the information would not have been open to objection, and a conviction of assault and battery could have been had under it. Hanna v. People, 19 Mich. 322; State v. McAvoy, 73 Iowa, 557 (35 N. W. 630); State v. Welsh, 73 Iowa, 106 (34 N. W. 765). We consider the information as one charging an assault and beating and wounding with intent to commit the greater crime therein alleged.”

In People v. Neumann, 85 Mich. 98 (48 N. W. 291), it is said:

“Whenever there is no question of intent in a criminal case, and no inferences, about which reasonable men might differ, to be drawn from the facts, and where, upon the admitted facts, the only question to be determined is whether, under the law the statute has been violated, the trial judge may, with perfect propriety, state to the jury that the law applied to the facts, which are undisputed, shows the defendant to be guilty of the offense charged, and that it is their duty so to find under the facts and the law. But it has been repeatedly held that he cannot in so many words direct them that they must bring in a verdict of guilty; and that they are at liberty to find otherwise, if they see fit, under the Federal Constitution, which guarantees to every accused person ‘the right to a speedy and public trial by an impartial jury of the State and district' wherein the crime shall have' been committed/
“And verdicts have often been set aside when directed by courts in opposition to this right. See United States v. Taylor, 11 Fed. 470, and cases there cited. But in this State, where a judge has directed a verdict of guilty, and the jury have followed such direction, and the facts are admitted or undisputed, and the only question is one of law, applied to such facts, a new trial will not be granted, if the judge was right in his application of the law. No injustice can be done the accused in such case, as it is not to be presumed that a jury will find in opposition to the law from mere whim, caprice, or prejudice, although they may have the right to do so.
“In this ruling we do not intend to encourage the practice of directing a verdict against the accused in criminal cases. In all such cases the jury should be permitted to retire to the jury room, and there deliberate, and the trial judge should content himself by stating the law as applied to the facts, and with an admonition to the jury of their plain duty in the premises.”

We think the court erred in directing, as a matter of law, that the jury must either convict him of assault with intent to murder, or assault with intent to do great bodily harm. We think the last request of respondent should have been given.

The argument made by the attorney for respondent, and which in his brief he attempts to defend, asked the jury to disregard the instructions of the circuit court. The argument was unprofessional and outrageous and merited immediate discipline at the hands of the trial court.

It is the duty of the jury to follow the direction of the court as to the law of the case, and it is the duty of counsel to acquiesce during the trial in the rulings and instructions of the court. By exceptions to what occurs the rights of his client can be protected.

For the reason stated, the verdict must be set aside, and a new trial granted.

Brooke, Stone, Ostrander, Bird, and Steere, JJ., concurred with MOORE, J.

McAlvay, C. J. Under the facts in this case, I am of the opinion that it should be affirmed.

Kuhn, J., concurred with McAlvay, C. J.


source: Caselaw Access Project

license: Public Domain

text:
    BLANCHARD v. RIDGEWAY.
    Bills and Notes — Evidence — Parol Evidence — Fraud — Negotiable Instruments.
    It is competent, in an action between the original parties to a note, to offer testimony to show that the maker signed, the instrument without examining it, in reliance on the representation of the payee that it was for an amount agreed upon between them, and it was in fact for a larger sum. The testimony is not subject to the objection that it contradicts a written instrument.
    Error to Missaukee; Lamb, J.
    Submitted November 4, 1913.
    (Docket No. 68.)
    Decided March 27, 1914.
    Assumpsit by Thomas J. Blanchard against Arthur S. Ridgeway upon certain notes. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Gaffney, Miltner & Millington, for appellant.

      .Arthur W. Penny, for appellee.
   Moore, J.

The plaintiff sued defendant upon three notes. One of them reads:

“$241. Sand Lake, Mich., Oct. 1st, 1909.
“On or before March 25th, 1910, after date I promise to pay to the order of T. J. Blanchard, the sum of two hundred forty-one dollars, and the sum of........dollars on the........day of each month thereafter until this note is paid in full to the amount of........dollars. This note is given for the purchase of........one pair of grey gelding colts four years old, one double harness, one new Holly wagon complete which is to remain the property of said T. J. Blanchard until this note is paid in full. It being optional with said T. J. Blanchard upon default of payment, to take possession of said property or to collect by process of law, and in case he shall take said property, said T. J. Blanchard shall not be liable to refund any moneys theretofore paid by the purchaser thereof; and in case of default in any of the payments at the time specified, then the whole amount shall become due.
“Value received, with interest at 7 per cent.
“Postoffice................County..............
“Town...................Section..............
“Arthur S. Ridgeway.”
Indorsed on back as follows:
“Oct. 23, 1910. Rec’d by Borst, $19.77.
“March 12, 1910. Rec’d by Borst, $125.00.
“Aug. 13, 1910. Rec’d by Borst, $25.00.
“Sept. 12, 1910. Rec’d by Borst, $29.73.”

The other two notes read the same, except the amounts and time of payment.

The defendant filed several pleas, one of which was the general issue, with a notice that defendant would—

“Insist in his defense that on or about October 1, 1909, this defendant purchased from the plaintiff one team of horses, one new lumber wagon, one set of double harness at the aggregate price of $420, and that upon that date plaintiff claimed an open store account of $8.65, making a total of indebtedness of $428.65; that this defendant delivered and indorsed over to plaintiff sale notes to the amount of $329, and which notes, together with accrued interest thereon for one year, amounting in all to $352, were to be received by the plaintiff as part payment of said indebtedness ; that this defendant then paid to plaintiff the sum of $25.65 in cash, and executed his note for $51 due October 1, 1910, making a total payment of $428.65; that said plaintiff then and there assured this defendant that said note of $51 was all he would have to pay, but that, inasmuch as notes were indorsed over, he desired to retain collateral title notes for said $352, which he would hold until said sale notes of this defendant were due, and that it was agreed that notes were to be prepared and executed as aforesaid for said sum; that this defendant, because of said representation, relied thereon, and signed three notes without knowing the amount 'thereof, but supposing that the amounts agreed with the amounts of his notes maturing on said dates, respectively, as had been represented to him by said plaintiff; that the notes indorsed over by defendant to plaintiff amounting to the sum of $352, including interest, have all been paid or the time of payment extended by said plaintiff, and said defendant released for any liability thereby, and that the time for the maturity of the same is long since passed, and that said notes did mature on or about March 25, 1910, and on or about April 1, 1910; that said sum has been paid to the plaintiff, and that the notes described in declaration of said plaintiff for the sum of $190 and $241, as there set forth, are not the notes executed and delivered by this defendant as collateral security to the sale notes herein mentioned; that said notes are void and without consideration; and that said indebtedness has been fully paid.”

From a judgment in favor of the plaintiff, the case is brought here by writ of error. We quote from the brief;

“This case is brought before the court on two general grounds: First, that the court erred in refusing to admit testimony as to the consideration for the notes; and, second, that the court erred in increasing the amount of the verdict by the sum of $54.75.”

1. The defendant attempted to show by the cross-examination of the plaintiff for what consideration the notes were given, and that they'were drawn by plaintiff, and were for a larger amount than the debt of defendant. Defendant also attempted to show by his own testimony that the facts stated in the notice under his plea, which we have quoted, were true. That plaintiff drew the notes for a larger amount than he should, and shoved them over to the defendant, who signed them, relying upon the statements of the plaintiff that they were drawn for the proper amount. This testimony was excluded, upon the theory that the amounts stated in the notes must control, and that to permit the testimony would be to allow a written instrument to be contradicted or varied by parol. It must be remembered that the plaintiff is the payee. No third party is interested.

The testimony was competent under Anderson v. Walter, 34 Mich. 113; Soper v. Peek, 51 Mich. 563 (17 N. W. 57); Maltz v. Fletcher, 52 Mich. 484 (18 N. W. 228); Macomb v. Wilkinson, 83 Mich. 486 (47 N. W. 336); Phelps v. Abbott, 114 Mich. 88 (72 N. W. 3); Brown v. Smedley, 136 Mich. 65 (98 N. W. 856), and the many authorities cited in the last-named case.

As this conclusion must reverse the case, it will not be necessary to refer to the other assignments of error, as the same situation cannot arise again.

The judgment is reversed, and a new trial ordered.

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


text:
    KIRCHBERG v. UNION TRUST CO.
    Insurance — Life Policy — Evidence—Forgery.
    On review of the testimony in support of a bill of complaint praying for the delivery of a policy claimed to have been assigned to complainant, it is held that the decree of the lower court finding that, an assignment of insurance was valid was supported by sufficient evidence.
    Appeal from Wayne; Mandell, J.
    Submitted November 11, 1913.
    (Docket No. 44.)
    Decided March 27, 1914.
    Bill by William M. Kirchberg against the Union Trust Company, as special administrator of the estate of Christian Kirchberg, deceased, to secure the delivery of an insurance policy, pursuant to an assignment of decedent. From a decree for complainant, defendant appeals.
    Affirmed.
    O. E. Angstman (Alfred Lucking, of counsel), for complainant.

      Frederic T. Harward, for defendant.
   Moore, J.

The complainant is the son of Christian Kirchberg, deceased.' He claimed to be the owner by assignment of a life insurance policy upon the life of his father, deceased, which policy was in the possession of the defendant. ' The defendant claimed the assignment was a forgery, and refused to give up the policy. From a decree in favor of the complainant the case is brought here by appeal.

There is no question of fraud, duress, or incompetency involved. The simple question is, Was the assignment made by Mr. Kirchberg, or is his signature a forgery? Mr. Christian Kirchberg had been for many years a successful business man in Detroit. His first wife, the mother of complainant and three others, died in April, 1909. In March, 1910, when he was nearly 70 years old, he married a woman who had been in his employ, who was 24 years old. The record discloses that the policy in controversy Was for $5,000, and was taken out in 1887; it was payable to his wife, or, in the event of her death, to his estate. There is evidence that he decided to drop this insurance some years ago, and his son William urged him not to do so, and the son paid the insurance premium for that year. Afterwards until the time of the assignment of the policy in April, 1910, the father paid them. April 26, 1910, after the marriage of Mr. Kirchberg to his young wife, they sailed for Europe. On April 22, 1910, he made his last will, in which, among other things, he referred to this policy of insurance, and directed the proceeds to be held by the executor, the Union Trust Company, and the income, together with other sums, to be paid to Mrs. Kirchberg. It is the claim of the complainant that for upwards of 20 years he had done a great deal of work for his father without pay, and that after his second marriage, his father expressed a desire to assign the policy in question, and that by direction of his father he procured from the company blank assignments, which complainant dated and filled out April 12, 1910, and delivered to his father, and that on the 25th day of April, 1910, the latter went before a notary public, and executed and acknowledged the assignments in duplicate, and delivered them to complainant. Before his death Mr. Christian Kirchberg bought and gave to his wife a home, and put his bank account in her name, enabling her to draw about $5,000 in cash, and, as before appears, provided for her in his will.

Counsel for appellant have referred to two cases heard in this court, in which complainant is a party, and argues the court may take judicial notice of what developed in those cases. There was sworn an expert, who pronounced one of the assignments a forgery. Counsel in his brief of upwards of 60 pages discusses under a large number of groups the evidence which he says confirms the testimony of the expert.

The record was a long one; the witnesses were examined in open court. Scores of signatures of Mr. Kirchberg were introduced in evidence. The notary before whom the assignments were executed swears positively to their execution. The circuit judge was right in saying in his written opinion:

“It seems to me that if this assignment was not actually made by Christian Kirchberg, then a conspiracy must have existed between William Kirchberg and William Rogers, not only looking toward the commission of a forgery, but also to be followed by perjury in court proceedings, and the very fact that there are discrepancies in their testimony lends, in my opinion, truth to the main contention that this assignment was in truth and in fact executed by Christian Kirchberg.”

Men who were familiar with Mr. Kirchberg’s signature swore they were his. Experts also so testified. We think a comparison of the signatures also establishes that fact.

It would profit no one to go over in detail the testimony. We are satisfied, however, from a careful examination of this voluminous record and a comparison of the signatures, that complainant has established his case.

The decree is affirmed, with costs.

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


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    BERRY v. FERRELL.
    Adoption — Jud&ment—Equity Jurisdiction — Fraud—Demurrer.
    On. demurrer to a bill of complaint averring that defendants entered into an agreement to leave an infant with its mother and grandparents, and that in breach of the arrangement, defendants conspired together and by fraud and perjury secured an order of adoption in-the probate court, and that complainant, the mother, had no notice of the proceedings, it was erroneous to dismiss the bill on the ground that equity had no jurisdiction and the sole remedy was by appeal.
    Appeal from Lenawee; O’Mealey, J.
    Submitted November 18, 1913.
    (Docket No. 149.)
    Decided March 27, 1914.
    Bill by Irene Berry against Allen H. Ferrell and Floyd Ferrell to set aside adoption proceedings and an order of the probate court of Lenawee county confirming the adoption of Wylan A. Ferrell. From an order sustaining a demurrer to the bill of complaint, complainant appeals.
    Reversed.

      Wallace Westerman, for complainant.

      Baldwin & Alexander, for defendants.
   Moore, J.

The bill of complaint was filed in this case February 11, 1911. Omitting its formal parts, it states in substance as follows:

“That Floyd Ferrell and Allen H. Ferrell are brothers and defendants herein. Complainant married Floyd Ferrell on or about the 20th day of October, 1901, and was divorced from him on the 15th day of December, 1906. She was married to Allen H. Ferrell, the brother of said Floyd, on the 24th day of December, 1906, and secured a divorce from him on the grounds of extreme cruelty op the 2d day of March, 1908. She is the mother of one child, Wylan A. Ferrell, of the age of four years. That each of said defendants have repeatedly stated to complainant and to others that said child was a bastard, and that neither of them was its father. That, at the time of the granting of said decrees of divorce, each of said defendants refused to recognize said child as his child, and denied the paternity thereof, and made an agreement in writing with complainant that she should have the care and custody of said child, and that she would not call upon them, or either of them, for any financial help in the care and support of said child; it being understood that the father and mother of complainant, Albert Cheesbro and Olive Cheesbro, would assist complainant in rearing said child. She further represents that she has, ever since the granting of said decrees of divorce, faithfully carried out her agreement, and never at any timé asked for, or received, any assistance whatever from either of said defendants for the care, support, or clothing of her said child. That she and her father and mother are abundantly able to care for, maintain, and support said child without their interference, and will do so. That said child has been in the care, custody, and control of complainant ever since it was born, except when visiting its grandparents, Albert Cheesbro and Olive Cheesbro, at Devils Lake. Said child is well cared for in every way, bountifully provided for in the way of food and clothing, and is treated kindly, and is being reared in proper surroundings, has never been abandoned by this complainant nor its said grandparents. That Allen H. Ferrell, * * * without the knowledge or consent of this complainant, made what purports to be a declaration of adoption of said child on the 11th day of November, 1910, falsely and fraudulently charging in said declaration that complainant had abandoned her said child, Wylan A. Ferrell; said declaration being signed by each of said defendants. That on the 9th day of November, 1910, the county agent, Howard Hopkins, made his certificate and certified that the moral character of said Allen H. Ferrell was good, after investigation, also certified his approval of the adoption of said child by the said Allen H. Ferrell. Some time during the month of November, 1910, the defendant Floyd Ferrell made an affidavit that complainant has abandoned her child, Wylan A. Ferrell, also that the mother of defendants is a good woman to have the care of, and will make a home for, said child, and that the said Allen H. Ferrell is of good'character. That the jurat to said last-mentioned affidavit does not bear any date; this complainant is not therefore informed as to the exact date thereof. That all of said papers hereinbefore referred to were filed with the probate court of Lenawee county on the 13th day of January, 1911. On said date an order was, by the judge of probate, made, confirming the adoption of the said Wylan A. Ferrell by the said Allen H. Ferrell and ordering that the said Allen H. Ferrell stand in the place of parent to said child. That complainant has never had any notice whatever of any of the proceedings hereinbefore referred to taken by the said defendants, or either of them, to have her said child, Wylan A. Ferrell, adopted to the said Allen H. Ferrell. Had she been so notified, she would have appeared and opposed any such proceedings and shown by competent witnesses that said affidavits were false and a fraud upon the rights of this complainant and the grandparents of said child. On the 1st day of February, 1911, said defendants, or one of them, complainant is informed and believes, sent one of the deputy sheriffs of said county to the home of complainant’s father and mother, Albert Cheesbro and Olive Cheesbro, who reside at Devils Lake, said county, where said child was stopping, to demand and take said child, claiming that Allen H. Ferrell has legally adopted said child and was therefore entitled to his custody and possession. The request of said officer to deliver said child to him was refused. That the date when said demand for the custody of said child was made, February 1, 1911, was the first information of any kind whatever that the grandparents or this complainant had that such adoption proceedings had been taken. That neither of the defendants» nor their mother are fit nor proper persons to have the care and custody of said child, for the reason that the mother of defendants is an old person and feeble and lacks the required judgment to care for a child of tender years. She is informed and believes that the said Allen has not improved in conduct or morals since she secured a divorce from him upon the grounds of drunkenness and cruelty. That he is a very profane man, using frequently the most vile, vulgar, and profane language, and is not particular in whose presence he indulges in such conduct. That he is not fit to live with nor be in the presence of any decent woman or child any length of time. That he was divorced at two different times, besides he is not truthful, and complainant believes will lie at any time or on any occasion when deception and prevarication will serve his purpose best. That the said Floyd Ferrell is not much more truthful than the said Allen. * * * That she believes from the acts and conduct of said defendants that they jointly and severally entered into a conspiracy to get possession of her said child without her knowledge or consent, and * * * deliberately, wilfully, maliciously, and falsely, by their false statements so made under oath in the declaration of adoption and affidavits made by them, * * * misled and deceived the judge of probate and the said county agent, and by reason of and on account of .said false and misleading statements the said Allen H. Ferrell secured the order of said court confirming said adoption. That since the confirmation of said adoption by said court the said Allen has threatened to remove said child, Wylan A. Ferrell, from the custody of complainant and his said grandparents, and bases his right to such possession and custody upon the order so falsely and fraudulently obtained from said judge of probate. * * * That she has, on account of said proceedings so taken as aforesaid, been -obliged to seek the aid of this court of equity to get relief from said order of adoption and to retain the custody and control of her said child, and has been put to great and unnecessary expense on account thereof, in employing counsel, officers’ fees, court expense, and witnesses, in addition to the loss of complainant’s time.”

And complainant alleges that she has no relief in the premises except in this court of equity, and prays as follows:

“(1) That defendants may answer this bill of complaint, but not on oath (their answer on oath being hereby waived).
“(2) That all of the proceedings in said 'probate court hereinbefore referred to, relating to the adoption of said infant child Wylan A. Ferrell, including the order of confirmation of adoption, be set aside and annulled.
“(3) That said defendants Allen H. Ferrell and Floyd Ferrell, their attorneys, agents, and servants, be restrained, by the order and permanent injunction of this court, from in any way or manner interfering with or molesting said child, Wylan A. Ferrell, at any time, or in any way or manner interfering with or molesting him while in the custody or control of complainant or his grandparents, Albert Cheesbro and Olive Cheesbro, and that said injunction be issued by this court under the seal thereof, in accordance with this prayer, directed to said defendants, and each of them commanding them, restraining and inhibiting them, as herein prayed.
“ (4) That said defendants and each of them jointly and severally may be, by the order and decree of this court, required to pay to complainant, or to her solicitors for her, a reasonable sum of money for her expenses and loss of time in making this her defense, including solicitors’ fees, witness and officers’ fees, and other court expenses.
“(5) And for such other and further relief as to this court in equity deems necessary.”

Upon the filing of the bill of complaint, a temporary injunction was issued as prayed.

The defendants answered the bill of complaint, admitting some of the averments of the bill of complaint.

(3) “And they answer this paragraph and admit that complainant is the mother of Wylan A. Ferrell, and admit his age; they deny the remainder of the statements in said paragraph.”

(4) “They answer this paragraph, and they deny that they refused to recognize said child and denied the paternity thereof. As to what the agreement in writing was for, they are without information, so leave complainant to her proof, and they say the same in reference to the balance of said paragraph.”

(5) “They answer this paragraph and admit that complainant has not called upon the father of said child to help support the same. They have no information as to the ability of her parents to care for and maintain and support the child, so leave complainant to her proof. But they state that her father is about 60 years old, has a small house and lot, and works out by the day’s work, which is all he has.”

They deny other statements of the bill of complaint. They deny any fraud.

(19) “They deny that she has been obliged to seek the aid of this court for relief, and they state that she has a complete remedy at law; as to what money she has spent or what she has become liable for, if anything, they have no information, so leave complainant to her proof.”

(20) “They deny that complainant is entitled to any of the relief prayed.”

(21) “And they ask the same advantage of this bill as though they had pleaded or demurred thereto, and they show that the same does not make or state such a case as entitles complainant to relief in this court of equity, and they state that if complainant has been in any manner wronged, which they deny that she has, she has a complete remedy in the law, and by making an appeal from the order of the court. And the said Floyd Ferrell disclaims in the case and states that he did nothing towards the adoption except that he gave his consent to the adoption of the child as the statute required. And he asks .to be hence dismissed with his costs required.”

On the 15th of April, 1913, a little more than two years after the case was begun, the complainant appeared in court with her witnesses and solicitor ready for trial. The solicitor for the defendants objected to proceeding with the hearing for the reason that the court did not have jurisdiction, as the matter was settled by the order of adoption made by the probate court, from which order no appeal had been made. The court sustained this objection, declined to take any testimony, and dismissed the bill of complaint. The case is brought here by appeal.

The solicitors for the appellees say the complainant has mistaken her remedy, citing section 669, 1 Comp. Laws; Peninsular Sav. Bank v. Ward, 118 Mich. 87 (76 N. W. 161, 79 N. W. 911); and Burgess v. Stribling, 134 Mich. 33 (95 N. W. 1001). We think these cases are not controlling of the instant case.

The bill avers an agreément between the parties that the infant should be left with its mother and grandparents, and a performance of that agreement by the mother and grandparents. It avers an evasion and breach of that agreement by the defendants by means of a fraudulent conspiracy supported by perjury. We think the trial court should have proceeded to take testimony.

The case is remanded to the court below, with directions to hear the case upon its merits. The complainant will recover costs.

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


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    FARMERS’ SUPPLY CO. v. INGLEWRIGHT.
    1. Evidence — Contracts—Saees.
    Parol testimony is admissible to show that tbe defendant signed a writing in tbe nature of a receipt, without reading it, because be did not bave bis spectacles witb him, and that tbe agent wbo read tbe terms to him omitted one clause wherein bis satisfaction with the engine sold to him was expressed.

      2. Same.
    Where the parties to an oral contract for sale later executed a writing, which, however, was not intended to take the place of the original agreement, it did not control so as to exclude parol testimony relating to the original parol agreement.
    Error to Grand Traverse; Mayne, J.
    Submitted November 20, 1913.
    (Docket No. 114.)
    Decided March 27, 1914.
    Assumpsit in justice’s court by the Farmers’ Supply Company against William H. Inglewright. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for defendant and plaintiff brings error.
    Affirmed.

      John W. Patchin, for appellant.

      Parm C. Gilbert, for appellee.
   Moore, J.

This case was brought in justice’s court. The case was appealed to the circuit court. At the conclusion of the testimony plaintiff asked for a directed verdict. This request was denied. The case was submitted to a jury, which returned a verdict in favor of defendant. From a judgment upon this verdict, the case is brought here by writ of error.

It is the claim of the plaintiff that its case is based upon two notes, one of which reads:

“Traverse City, Mich., Oct. 24, 1910.
“No. 14.
“November 30th after date, for value received, I promise to pay to Farmers’ Supply Company or order one hundred and ten dollars, payable at First National Bank, Traverse City, Mich., with interest at seven per cent, per annum.
“The consideration for which this note is given is one 6 h. p. Olds gasoline engine.
“And it is hereby agreed that the title to said property shall remain in said Farmers’ Supply Company until said amount and interest thereon, or any renewal note taken in lieu thereof, or.any judgment rendered thereon, are paid in full. And it is further agreed that, in case of default in any payment of this note at the time above mentioned, or in case this debt shall become insecure, or in case of any attempt to dispose of said chattels, said Farmers’ Supply Co. is hereby authorized to take possession of said chattels where-ever found, and all payments made thereon shall be forfeited as stipulated damages, and, in case of such seizure, said Farmers’ Supply Co. may, at its option, sell said chattels at public or private sale, such sale, if public, to be on like notice as is required by law for constable’s sale on execution. The net proceeds of any such public or private sale, over the costs of said seizure and sale, to be applied on this note, and said note to be in force for any unpaid balance.”

The other note reads just the same except as to the amount thereof.

It is the claim of the plaintiff that an order was given to it for the engine which reads:

“Farmers’ Supply Company,
“Dealers in Agricultural Implements and Machinery.
“Traverse City, Mich., 9 — 19—10.
“I hereby agree to purchase from Farmers’ Supply Co. one 6 h. p. Olds gasoline engine, with friction clutch pulley. To be delivered at Bendon on or about, soon.
“Freight to be paid by Farmers’ Supply Co.
“Upon arrival of said engine I agree to receive it and settle for it on the following terms:
“Note, due Nov. 15, 1910, $110.00
“Note, due Nov. 15, 1911, $110.00.
“Note, due Nov. 15, 1912, $110.00.
“All notes to draw interest at seven per cent, per annum from date, until paid. Said engine warranted as per manufacturer’s warranty.
[Signed] “W. H. Inglewright.”

It is not claimed that a copy of the manufacturer’s warranty was then or at any time delivered to defendant.

It is the further claim that the entire contract is represented by the above-described writings, that afterwards the engine was delivered to defendant, who complained that it did not work, and that after some work had been done upon it defendant signed and delivered to the plaintiff a paper reading:

“Seager Engine Works.
“Bendon, 7 — 22—11.
“Your Mr. F. H. Myer called upon me and completed today the following adjustments and repairs on type A, size No. 6 h. p. No. I) 1277, that I purchased in October, 1910, of you. Adjusted spark timing and valve lift, and put in new gasket under intake valve.
“These adjustments and repairs make this engine entirely satisfactory to me.
“W. H. Inglewright.”

The manufacturer’s warranty reads as follows:

“We warrant that this engine is made of good material and workmanship, and if any part of this said engine shows defects in either material or workmanship within one year from this date of shipment, we agree to replace such defective parts free of charge at factory. Seager Engine Works.”

Defendant denies that this contract with the plaintiff is represented by these writings. His claim, briefly stated, is that plaintiff agreed to furnish him an engine that would actually develop 6 horse power, and would run certain specific pieces of machinery which were described, and that this bargain was an oral one, and in pursuance thereof the engine was ordered; that later a representative of the plaintiff company came to him and said that the engine had been ordered and was on its way, and a. written order was desired, which plaintiff wanted in its dealings with the SeagerEngine Works, and for that reason he signed the order. He claims this written order was not intended to take the place of the bargain that had been made between himself and the plaintiff, but was simply to be used between the plaintiff and the Seager Company.

The cross-examination of the principal owner of the plaintiff company tends to support defendant’s contention. It is in part as follows:

“Q. Now, this engine was shipped to him, or ordered shipped by the Farmers’ Supply Co. to Mr. Inglewright, before you took that written order, wasn’t it ?
“A. I wouldn’t say just the date.
“Q. Let me ask this: When you came along by his place and asked him to sign that order, didn’t you tell him then that the engine was on the way, had been sent on, and would be right there, but you wanted something to show the company that you had sold that engine; isn’t that true?
“A. I think possibly it was; yes, sir.
“Q. And that the engine really was ordered by him at the store from you, and that he himself ordered it from you, and that he wanted a 6 horse power engine?
“A. He didn’t tell me that; he told one of the other clerks.
“Q. Well, it was ordered here, in Traverse City, at your store?
“A. Yes, sir.
“Q. And the shipment was made on account of what he had said here, and then you went down there and took this order?
“A. Yes; that’s the way it occurred.
‘Q. So when you took this order, Exhibit C, at that time, the engine was on the way, and was expected to come to Bendon?
“A. I wouldn’t be positive whether it was on the way.
“Q. Well, didn’t you tell him so?
“A. I wouldn’t say positively; but anyway the engine was ordered.
“Q. And he had been in the store before that, and had told the clerks what he wanted, and he understood that the engine was to be ordered for him on that?
“A. Yes; that is right.
“Q. Well, that was to be a 6 horse power engine?
“A. Yes.
“Q. That is what he talked?
“A. Yes.
“Q. And what you ordered for him?
“A. Yes.
“Q. And wasn’t there talk in that connection — that he told you what he wanted to do with the engine, that he wanted it for cutting wood and running bean thresher?
“Mr. Patchin: We object to that; whatever the talk was was merged in this order, and a special order was given for a special engine. If the terms of it are unambiguous, it couldn’t be varied or altered by what had gone before.
“The Court: Objection overruled. Answer the question. (Plaintiff excepts.)
“Q. He even talked with you people about getting him a threshing machine, and you told him that you could not supply him with one that fall?
“A. Yes, sir.
“Q. And that was here, in Traverse City, at the store, when he was in talking about the engine, and when it was arranged that you should order one for him?
“A. Yes, sir; he was talking about it at that time, but later we found out we couldn’t get him a thresher.”

It. is the further claim of defendant that he never. heard of the manufacturer’s warranty until the trial. It is admitted by plaintiff none was shown him.

Defendant further claims that when the engine came it would not do its work according to the representation made to him, and that he notified plaintiff, and that from time to time it sent a man out to his place who did some work upon the engine, but that it would never develop six horse power, or do the work it had been agreed it should do.

Mr. Wynkoop gave testimony tending to show his company did not rely upon the manufacturer’s warranty:

“I told him we didn’t want him to pay for the engine until it was satisfactory; we wanted to make it satisfactory,” etc.

Again:

“These different complaints of his had been coming in along in different forms and at different times ever since lie had the engine up to that time [July, 1911], and we [Farmers’ Supply Company] had met those complaints by sending other people. I took an expert with me every time I went. Mr. Hall and Mr. Myer and Mr. Sessions had gone from my company. That is the way we had answered his complaints. My company was trying to get the engine to running to satisfy him that it would run, to make it satisfactory to him,” etc.

It is the claim of the defendant as to the paper of July 22, 1911, accepting the repairs on the engine, that at the time it was signed he could not see to read without his spectacles, and that he so told the man who made the repairs, and that his spectacles were at his house, and the man stated he would read the paper to him, and that in doing so he omitted to read these words:

“These adjustments and repairs make this engine entirely satisfactory to me.”

His testimony in that regard is sustained by the testimony of one of his neighbors who was present.

We think the cross-examination of the man who procured the paper tends to sustain defendant’s version:

“Before I left Mr. Inglewright’s, Mr. Wynkoop asked him to pay the note. I asked him to pay it. He said he would not pay it; that, if we thought we ought to have payment, we could take the engine. He signed this paper, saying this was satisfactory, and then turned around and refused payment.”

The defendant gave further testimony tending to show that the engine would never do the work it was agreed it should do, that it was of no value to him, and that he had offered to return it to the plaintiff.

It will be seen that the claims of the parties were very diverse.

The jury was instructed in substance that, if the writings contained the contract made by the parties, they should control, and plaintiff would be entitled to recover, but that, if the contract was oral, and the writings made later were not intended to take the place of the oral contract, if this and the other testimony justified them, they might find in favor of defendant.

The charge was a long one, and, if. there was not to be a directed verdict, it fairly represented the conflicting claims of the parties.

The appellant .insists the .oral testimony was incompetent, that the writings control, and that the verdict should have been directed, citing Nichols, Shepard & Co. v. Crandall, 77 Mich. 401 (43 N. W. 875, 6 L. R. A. 412); M. Rumely & Co. v. Emmons, 85 Mich. 511 (48 N. W. 636); Dowagiac Manfg. Co. v. Corbit, 127 Mich. 473 (86 N. W. 954, 87 N. W. 886); Williams v. Manufacturing Co. 169 Mich. 676 (135 N. W. 954).

A reference to these cases will show they are distinguishable because, if defendant’s claim is true, the parties never intended to merge the actual contract in the written one.

For the same reason, the case is unlike the case of Minor v. Walker, post, 645 (146 N. W. 305).

Judgment is affirmed.

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


text:
    BRUSH v. GRAND TRUNK RAILWAY CO. OF CANADA.
    1. Railroads — Obstructing Crossing — Animals—Evidence.
    Evidence tending to show that defendant’s servants left • a freight car standing at and partly over a crossing of the track and a public highway, and that plaintiff’s horses took fright at the obstruction and ran away, injuring him, although the evidence as to which side track at such intersection the car was placed upon, was conflicting, held, to present a question for the jury; and the trial court properly charged that if the car was on either side track at the crossing, plaintiff could recover.
    2. Same — New Trial — Evidence.

      Held, also, on review of the evidence, that the verdict was not contrary to the weight thereof.
    Error to Macomb; Law, J., presiding.
    Submitted November 19, 1913.
    (Docket No. 152.)
    Decided March 27, 1914.
    Case by Henry Brush against the Grand Trunk Railway Company of Canada for personal injuries. Judgment for plaintiff, and defendant brings error.
    Affirmed.

      Harrison Geer, for appellant.

      W. T. Hosner (Erskine & Lungerhausen, of counsel), for appellee.
   Moore, J.

The plaintiff sued the defendant, seeking to recover damages for personal injuries he claims to have sustained in May, A. D. 1909, in the village of Armada, at the intersection of Fulton street and defendant railroad, through his team becoming frightened and running away because of a freight box car which he claims stood foul of the west end of the crossing plank on the siding, which car obstructed the crossing for more than five minutes. From a verdict and judgment in favor of the plaintiff, the case is brought here by writ of error.

We quote from the brief of appellant:

“We rely upon the following errors in this brief:
“(1) Error on the part of the trial judge in refusing our requests to charge numbered 1 and 2, to the effect that the position of the car on the northerly siding west of the planking was immaterial, for the reason that the undisputed evidence showed this car did not frighten plaintiff’s team, and did not obstruct his passage over said track. Further, the jury were permitted to find defendant guilty of negligence if they found by a preponderance of the evidence that a car stood either on the north or south siding for a period longer than five minutes in such a position as to appreciably obstruct the traveled portion of the highway.
“(2) Error upon the part of the trial judge in refusing our motion for new trial, for the reason that the verdict was clearly against the great weight of the evidence introduced on the trial of said cause.”

It becomes necessary to quote from the testimony of the plaintiff:

“I am 46 years of age now. I was driving my team on the day of the accident. One was 10 and the other 7 years of age. I had owned them since they were born. I used them on the farm. They were quite gentle, and had no bad habits, and had never run away. They had never shied at anything ordinary. The children drove them back and forth, and like that, on. the farm. My boy was about 6 years old at the time, and the girl was about 12 years old. The girl dragged with them, and like that. There were planks on the wagon that I was driving, with side pieces to it. It is in the shape of a wagon box. I was sitting in the center of the seat. I had some bags which were filled with other bags for a seat. I had my feet braced against the bolster stakes. * * * After I left there I turned around to go to Stump’s elevator for some seed oats. Fulton street was the road that led to the elevator. There was no other crossing to the elevator. I was driving along, and of course I didn’t pay any attention to anything, only my team; and the nearer I got up to the crossing I noticed the car was there, and when I was right up onto it I didn’t have the chance to go back, as I had to go right ahead. No chance to back in around between them tracks. It was a box car, and stood on the west side of the road. I had driven over the crossing a good many times. It was a plank crossing, and there was plank in between the tracks. In my judgment it was all planked over the crossing; but I couldn’t say. I should judge the planks were 15 or 16 feet wide. I never measured them.
“Q. This box car that you say you saw, where was that in reference to the planking?
“A. It was standing over the plank.
“Q. About'how. far, would you say?
“A. I should say about 2 feet; somewheres along there. When I observed the box car I firmly braced myself, so that my horses would not run away. They shied and got scared, and I braced myself with all my might. They were just opposite the car, going up to the car when they shied. They stuck their heads out and took the lines away from me and jumped, and that threw me back on the wagon. I tried to pick myself up as soon as I could to hold them, and they made the second jump and a swift turn, and the wagon went so fast around the corner that the two wheels was off the ground, and that left one side lower, and with that force it knocked me off the wagon. I struck my forehead on the front wheel. I struck the ground, and the wheel ran over me, and then I don’t remember anything. * * * I came to Armada a day or two afterward. I believe I drove the same team. I can’t remember; it has been quite a while, and my memory isn’t as good as it was before I was hurt.”

He gave a detailed statement of the result on his wagon and upon himself.

He was cross-examined at great length, and in the cross-examination appeared the following:

“ * * * Q. I am asking you whether you saw that car when you stopped back there 300 or 400 feet from the track?
“A. I couldn’t see the whole car because there was another one on the north crossing that kind of prevented me from seeing the whole car on the south side.
“Q. The car on the north crossing is the one that your team took fright at?
“A. No, the one at the south; the one on the north wasn’t out as far as the other one.
“Q. The car on the north switch wasn’t at the planking?
“A. I couldn’t say for a fact which one, which was the closest.
“Q. It wasn’t the car on the north -planking that your team got frightened of, was it?
“A. I guess it was, come to think; my memory isn’t as good as it used to be since I have been hurt.
“Q. Where was this car on the north siding?
“A. On the west side.
“Q. How (far was it west of the planking, that is, the car that wasn’t so close to the planking as you say; how far west of that planking was that car — as much as 8 or 10 feet?
“A. No, I don’t think it was.
“Q. Was it as much as 6 feet west of the planking; that would be your best estimate?
“A. This car that my horses got scared of?
“Q. I am not talking about that; I want to know this car that you say obstructed your view from the car that your horses did get scared of. You say that car was on the north siding; how far west of the planking?
“Mr. Ershine: I don’t think that is his testimony.
“Mr. Williams: He knows I haven’t misstated it, and I take exception to the interruption at this time.
“The Court: Go ahead with your questions. (Question repeated.)
“A. The one on the north was about 6 feet, I should think.
“Q. That would be the east end of the car you think was about 6 feet west of the west end of the planking?
“A. Six to 8 feet. The car that my horses got frightened at was on the south siding, and on the west' side of the road. That car came up onto the planking. The other one didn’t. My horses didn’t shy at this car on the north siding. They passed that all right, and took no fright at it. I am positive of that, and am not mistaken. There was a car on that south switch, a box car. I didn’t have time to look to see what color it was. As I drove along I was watching out to see what was ahead of me, and I didn’t see that the car was up so close. My horses began to get frightened when they approached this south siding. They hadn’t been frightened up to that time, and had walked over the tracks. I am not mistaken about that.
“Q. They walked over the first siding, and didn’t even prick up their ears?
“A. No, sir.
“Q. And continued to walk over the main line?
“A. Yes, sir.
“Q. When they came to this south siding they got scared?
“A. Yes, sir; I was coming from the north going south. The car that my team got scared at stood on the south track. I had a tight rein on them. They got frightened at the car as it stood so close, arid they were getting the start of me, or going to start with me. I always kept a tight rein with them when I drove over a railroad. I was pulling right on them this day, and had a good stiff hold. They started to pull when I wanted to make them go across the track where the car stood. That was the southerly track of the three that I was passing over. I took the tight hold of them when I saw they were going to start with me. I didn’t want them to run away'.
“Q. They never had run away?
“A. No, sir.”

It was doubtless because of the result of the cross-examination that the first and second requests to charge were offered. They read:

“(1) I charge you that there is no evidence in this case which would warrant you in finding that plaintiff’s team took fright as it was passing over defendant’s tracks at Fulton street other than the testimony of plaintiff himself to such effect, and you will remember that plaintiff repeatedly, upon cross-examination, stated and reiterated that his team did not take fright at a box car which stood on the northerly siding to the west of the driving portion of Fulton street, but that it took fright at a box car standing on the southerly siding, and foul of the west end of the planking' at Fulton street.
“I charge you, therefore, that you cannot in this case give, a verdict for plaintiff should you find by preponderance of the evidence that the box car standing on the northerly siding, and upon the westerly portion of Fulton street, was so situated or placed that it might obstruct the passage of vehicles over said crossing, because, under the admissions of plaintiff, that box car, regardless of where it may have stood on the day in question, did not obstruct his passage over said crossing, and there is in this case no testimony to show, or tend to show, that his team took fright at the car on the northerly siding.
“(2) I charge you that you cannot give plaintiff a verdict against his own testimony and against his own case as he makes it out; there being no evidence to show that his team took fright at a box car standing upon the northerly siding, and at the westerly portion of Fulton street. You cannot give him a verdict in this case regardless of the preponderance of evidence as to where said car stood.”

The judge declined to give these requests, but instructed the jury:

“ (4) The court will now state to you the questions of fact you are to decide and determine. You have the right to consider these issues in any order you please; but the -court recommends that you take them up in the following order: First. You should first' determine whether, on the 3d day of May, 1909, there was a box freight car standing on either defendant’s north side track or on defendant’s south side track, and westerly from the center of the highway, and in the highway, and in such a position as to obstruct the traveled part of the highway, and in this position for more than five minutes. If there was no such car in such a position for more than five minutes on either of these side tracks as to obstruct the traveled portion of the highway, which at this particular place you should consider as the width of the planked crossing, your verdict must be for the defendant, and it will not then be necessary for you to consider any other questions. Before you are justified in finding that any car obstructed the traveled part of the highway on this crossing, you must find that some part of the easterly end of the car extended over some part of the westerly end of the crossing so as to obstruct the planked crossing for travel to an appreciable extent.
“I charge you that, if you find the easterly end or portion of the box car which stood on the northerly or southerly siding, and at the westerly side of Fulton street, did not extend to and upon the crossing planks which had been laid for teams to pass over defendant’s right of way at that point, then the defendant is guilty of no negligence in the premises, and your verdict will be for defendant. If you do find by a preponderance of the evidence that a car on either side track obstructed the westerly end of the planked crossing as I have described, and for a longer time than five minutes, you will then take up the next question, which is: * * * ”

Counsel say in the brief:

“There is no téstimony in this record warranting the submission to the jury of whether plaintiff’s team took fright at a car which stood on the northerly siding foul of the planking. The record is absolutely barren of testimony to show such fact. Plaintiff’s admission that the car on the northerly siding did not cause his injury is uncontradicted. It is not proper to permit a jury to give a plaintiff a verdict against his own admissions and his own case, as he makes it out, with no other evidences. Karrer v. Railway Co., 76 Mich. 400 [43 N. W. 370]; Jenks v. Colwell, 66 Mich. 420 [33 N. W. 528, 11 Am. St. Rep. 502].”

We have examined both of these cases, and do not think them controlling here. The declaration stated the negligent act to be:

“And at said time and place said defendant placed a box or freight car on its said right of way, and extending into said Fulton street in such a careless and negligent manner as to seriously incumber the said highway, and to so encroach upon the track which horses, wagons, and other vehicles had been accustomed to take as to leave insufficient room for teams to pass and repass on such traveled track, and left said car in said highway as aforesaid for a great and unreasonable length of time, to wit: * * * ”

This is stated in various forms, and does not undertake to say whether the car was on the north or south railway track.

The doctor who was called to attend the plaintiff testified:

“Some one telephoned to my office that there was a man hurt at the depot. I went there with Mr. Powell, who drove up to my office with his pair of mules. I found Mr. Brush on the south side of the railroad track. He was bleeding from his ears, nose, and mouth, and in a nearly unconscious condition. He was muttering, but not intelligently. With the assistance of two or three men that happened to be there, I put him in my buggy, took him to my office, and put him on the couch.
“Q. Did you notice in crossing the crossing in question a box car standing there?
“A. I did.
“Q. Where was that standing?
“A. It was standing over the edge of the plank of the driveway.
“Q. About how far would it extend over the plank, in your judgment?
“A. Well, I don’t know about how far. It would be far enough so as the team, the whiffletree of the off mule got on the drawbar of the car. We drove by, and it slipped up over, and we went on, and so that much of it was in over the planks of the drive.
“Q. Would you say it was as much as 2 feet?
“A. I should say so. I took Mr. Brush up to the office, put him on the couch, and administered to him about four hours before he regained consciousness.”

The witnesses were not agreed as to where the car was that obstructed the highway, nor were they agreed as to whether there was a car on only one siding. It may or may not be significant that the employee or employees of the defendant company who knew were not called.

The record shows plaintiff was badly hurt, and at once became unconscious; The cross-examination shows that he was confused, and that his memory was not good. If defendant negligently placed a car so as to give a cause of action, it does not matter very much whether it was on the north siding or the south siding.

2. Did the trial judge err in refusing a new trial? It is the contention of counsel that plaintiff testified that the car at which his team took fright stood foul of the southerly siding; while the testimony that there was a car foul of the planking at the southerly siding is contrary to the great weight of the evidence. They also claim that, while—

“There is some testimony that a car on the day in question stood foul of the westerly end of the planking on the northerly siding. This, however, would not warrant a jury in finding a verdict for the plaintiff, since it is not enough that they might find a car stood on the northerly siding foul of the planking, but they must find from the evidence that it was the cause of the injury. The testimony of the plaintiff is undisputed that the car on the northerly siding did not cause the injury. There is no testimony which would warrant the jury in finding otherwise. They could do no more if they found the car on the northerly siding was foul of the planking than to guess, having determined the location of the car, that it was the cause of the injury to plaintiff. There is no testimony to support any finding that the car on the northerly siding caused any injury to plaintiff, regardless of where it may have stood on the day in question.”

In disposing of the motion for a new trial, the judge said in part:

“The theory on which plaintiff recovered a verdict is that the team of horses which he was driving through the village of Armada became frightened at a box freight car which defendant had negligently left on the highway at a place where defendant’s right of way crosses such highway, and in such a position that a portion of the car extended into and over a part of the traveled portion of the highway, to wit: Over a portion of the plank crossing construction for the passage of teams and vehicles over the defendant’s railway tracks. Plaintiff also claims that when his horses became frightened at this car they became uncontrollable and ran away, injuring him.
“A considerable number of witnesses were sworn on the trial, and there was much conflict in the testimony as to the car and its position; some of the witnesses even testifying that they saw no car at all in the highway at the time plaintiff claims he was injured. However, there is substantial testimony in the record tending to prove that defendant had left the car in the position as claimed by plaintiff, and that this car frightened his horses, causing them to run away, and thereby injuring him. All this conflicting testimony was submitted to the jury, and the jury found that there was a car in the highway extending into the traveled portion, and that this car frightened plaintiff’s horses, and produced an injury.
“I do not think the verdict rendered by said jury was contrary to the weight of evidence. At least, not sufficiently so as to justify the trial court in setting aside the verdict. This disposes of the first two reasons assigned by the defendant in its motion.”

The court, in his charge to the jury, explained, in a manner that does not receive criticism from counsel, what constitutes negligence. He also told the jury that, in order to find defendant liable, they must find that the team took fright from a car negligently placed in the highway, and that plaintiff was free from contributory negligence. The testimony is clear that the team was frightened because of a car which was in the highway. It is not so clear as to which siding the car was on.

Some portions of what we said in relation to the first assignment of error applies to this one. If the negligent act of defendant caused the injury, and plaintiff was free from contributory negligence, then there was liability. We find no reversible error.

Judgment is affirmed.

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