author: Steere, C. J.

text:
    GOODYEAR v. DETROIT UNITED RAILWAY.
    1. Street Railways — Boarding Car — Negligence.
    Testimony in plaintiff’s behalf that the decedent attempted to board defendant’s car while it was standing, that, as he put his foot on the steps, the car started with a jerk, throwing him under the wheels and fatally injuring him, although defendant’s testimony tended to contradict the claim that the car was standing still, sufficiently presented a question for the jury.
    2. Same — Carriers—Weight of Evidence.
    The testimony of the witnesses, being in dispute, was for the jury to weigh and the court rightly denied a motion for a new trial on the ground that the verdict was contrary to the weight of evidence.

      3. Same — New Trial — Cumulative Evidence.

      Held, also, that the court properly refused a new trial on the ground of newly discovered evidence which appeared to be merely cumulative and was not likely to change the result.
    4. Same.
    The discretion of the trial Court in denying a new trial for the reason that new evidence has been discovered, will not be disturbed, on appeal, unless a clear abuse thereof appears.
    Error to Wayne; Murphy, J.
    Submitted June 10, 1913.
    (Docket No. 63.)
    Decided September 30, 1913.
    Case by Arthur A. Goodyear, as administrator of the estate of Albion A. Goodyear, deceased, against the Detroit United Railway for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Joslyn (Wm. G. Fitzpatrick, of counsel), for appellant.

      Choate, Webster, Robertson & Lehmann, for appellee.
   Steere, C. J.

Plaintiff, as administrator, brought this action to recover damages for 'the estate of his father, Albion A. Goodyear, who sustained injuries, from which he subsequently died, while attempting to board one of defendant’s cars while transferring at the intersection of Clay and Oakland avenues, in the city of Detroit. Oakland avenue runs north and south and is crossed by Clay avenue running east and west, in said city. Defendant maintains a double-tracked line on Oakland and a single-tracked line on Clay, connected with the two tracks on Oakland by a double switch. Some of the cars going north on Oakland run through to the city limits, while others turn at Clay and proceed easterly along that avenue, Passengers going south on-Oakland and wishing to go east on Clay make connections and transfer at that street intersection.

Deceased was a woodworker by trade, employed by the Wilson Body Works, earning $2.75 per day; he lived on Harmon avenue, north from Clay near Oakland, and traveled the route mentioned in going to and from his place of employment. He was 67 years of age, vigorous, a member of a long-lived family, and in perfect health at that time. On the morning of December 6, 1910, at about 6 o’clock, starting to his work, he took a south-bound Oakland avenue car which made its stop at Clay about opposite the north curb of the latter avenue. Deceased, with other passengers, left it by the rear door, crossing the tracks and switches on Oakland, to board the east-bound Clay car which stood waiting to the south of the switch on Oakland at the regular stopping place for transfer. At this time of the day workmen were going to their places of employment and the Clay car was crowded; it being somewhat difficult to get even standing room. A number of passengers got upon the car bath at the front and rear platforms. The operators of this car were both extra men, not on regular runs. After stopping at the place of transfer the motorman set the switch for Clay avenue and resumed his position at the front, and the conductor stood on the rear platform to attend the trolley as the car swung around the curve onto Clay avenue. At the time of the transfer passengers crowded the platforms around both men. About the time the motorman, on signal from the conductor, started the car, deceased wag attempting to get upon the front platform.

It is'the claim of plaintiff that the car was standing when deceased attempted to get on board of it, but that it was suddenly started just as he was in the act and before he had opportunity and reasonable time in which to complete such act, throwing him down so that he fell partially under the car; his right foot was crushed and he received fatal injuries. Immediately after the accident he was taken to a hospital where his injuries were attended to and his mangled foot was amputated; but he died that afternoon.

On behalf of defendant it is contended that deceased made the attempt to catch the car after it had started, meeting it when it swung around the curve onto Clay from its stopping place on Oakland, as he came southeast from the rear of the Oakland car he had just left, and was therefore guilty of such negligence on his own part as precluded recovery.

Plaintiff recovered a verdict and .judgment for $2,500. Defendant thereafter moved for a new trial, on the ground of newly discovered evidence, because the verdict was against the weight of evidence and because the cpurt had erroneously denied defendant’s previous motions, made during the progress of the trial, both at the conclusion of plaintiff’s testimony and of all the evidence, for a directed verdict in its favor. This motion was also denied.

The errors argued in defendant’s brief and relied upon are:

“(A) Overruling its motion for a directed verdict made at the close of plaintiff’s evidence.
“(B) Overruling its motion for a directed verdict made at the close of all the evidence.
“(C) Overruling its motion for a new trial on all the grounds, but particularly on the ground of newly discovered evidence.”

While negligence is said to be a mixed question of law and fact, the mixture is less confusing and the lines more distinctly drawn in cases of this nature, where the standard of duty and responsibility is not variable and shifting according to the circumstances of each particular case; here it is fixed and well defined.

When street railway companies are furnishing transportation along their lines to the public for hire, starting and stopping at frequent intervals to receive and discharge passengers, the respective rights and duties of each at such times are definite. The law is well settled and its application positive when the facts are once ascertained. The trial court distinctly and correctly stated it to the jury in plain language, which could not be misunderstood. The jury was told that:

“Where a car operated by a company is standing still, and a passenger, or a prospective passenger, seeks to board that car, it is the duty of the company, through its employees in charge of the car, to keep the car standing still until a reasonable opportunity is afforded the person seeking to board it to get on and come to a position of safety upon the car; and if, while a car is standing still, one of those seeking to board the car is prevented from completing the act of getting on it, by reason of the car being moved forward, and the person thus prevented be thrown to the pavement and injured, for any such injuries received in such manner as that the defendant company would be liable. * * *
“The defendant claims, as I stated, that Mr. Goodyear attempted to board the car while it was in motion. If this is shown to your satisfaction, then the defendant would be entitled to a verdict. One who attempts to board a moving car under the conditions shown in this case, if he be injured, cannot hold the company responsible for any injury. * * *
' “The sole ground upon which the plaintiff may recover under the declaration filed, and under the testimony given before you, is that Mr. Goodyear began the act of boarding the car when the car was stationary, standing still, and that when he was in the process of getting on the car, and before he had reasonable opportunity to complete the act, it was started forward, precipitating him to the pavement. That is the sole question presented under the plaintiff’s case for your decision.”

No complaint is made of the charge of the court provided the case should have been submitted to a jury. Refusal to direct a verdict is the error assigned and argued.

Of the eight witnesses who gave testimony relating to the accident, including the conductor and motorman, but one, Duford by name, was an eyewitness to deceased’s attempt to board the car. He was on the ground and gave the alarm. The others were on the car and first learned of the trouble when the alarm was given. Another witness, named Errick, who was on the rear platform and looked around, saw deceased in the act of falling but says he did not know whether he was getting on or off.

Duford worked for the American Blower Company and had come south from his home on the same car with deceased, whom he only knew by sight, having seen him from time to time as they rode on the same cars to and from their work. Duford also desired to take the Clay avenue car east to his place of employment and left the Oakland avenue car, by the rear door, behind deceased. He was a cripple and, not being able to move as rapidly as the others, fell behind. He testified, that he was within about 25 feet of the Clay avenue car when it started and had a clear view of what transpired; that the car which was going out Clay avenue had stopped that morning, at the usual place of stopping, on the south side of Clay and south of the switch. He described the accident as follows:

“When we got to the corner of Clay we got off the car, Mr. Goodyear ahead of me, and I was on the back of the car and was following him, to take the car going out Clay. There was a car standing on Clay avenue, waiting to follow the one going down town that we had gotten off of. Another car coming from town that both Mr. Goodyear .and I wanted to take to go out to work. This car I didn’t feel as though I could make it. I kind of held back, not knowing whether the car to go down town would start out while we were in the middle’ of the track or not. Anyway, we got over to the car that was going up Clay. * * * Mr. Goodyear placing his left hand —no, his right hand — on the handle of the front vestibule of this car going out Clay, and his left foot on the icy step. The car gave a jerk, throwing Mr. Goodyear to the pavement, his right foot under the front wheel. When I saw him fall I hollered or rather hollered and then I hollered, and the car at the time was in motion, and I think, if the car had stopped when both Mr. Goodyear and I — ” etc.

A witness named McCall testified:

“I was standing up about the center of the car. * * * The car started up and I felt a jar. * * * I heard some one say some one was run over. I got out of the car at the back door and Mr. Goodyear was lying on the pavement. * * * From the time the car started until it stopped it did not go over 6 or 7 feet.”

We think it clearly manifest that plaintiff’s testimony had sufficient probative force to establish his claim prima facie, and there was a conflict as to whether or not his case was made out entitling him to go to the jury.

It is urged that the verdict should be set aside because it is against the weight of evidence. But one of defendant’s witnesses, Errick, saw any part of this accident. He testified to seeing deceased falling, and that the car ran 16 to 20 feet. This is in conflict with the testimony of Duford, who says deceased fell when the car made its initial start, and of McCall, who -gives the whole distance the car ran as 6 to 7 -feet. The four other witnesses of defendant testified as to the distance the car ran before it was stopped and where deceased lay after the accident, giving evidence from which the inference would arise that he attempted to board the car while it was in motion.

The conductor and motorman, whose duty it was to watch and take precautions to guard the safety of persons entering and leaving the car, had no knowledge of the accident until it was over. The conductor, who was in the middle of the rear platform, which was crowded with standing passengers, taking care of the trolley, testified that when he gave the signal to start no one was trying to get on the front platform “as far as I could see,” and the car went 25 or 30 feet before he knew anything was wrong. Being asked, “Q. You don’t know much about the accident how it happened?” witness replied: “No, sir; I don’t.”

The motorman testifies:

“These people went in the car, right in the vestibule with me, and some of those people were standing between me and the steps.
“Q. Did you ask those people if it was all right, if there was any person there, to go ahead?
. “A. I could see that it was all right.
“Q. You could see over the heads of these people?
“A. Yes, sir.
“Q. And you saw the bottom step.
“A. No; but I could see they were all on. * * * There were men between me and the entrance; they were all holding onto the handles and feet on the steps, and they were doing that when I started the car.
“Q. You don’t know whether there was a man then on the step or hot?
“A. He was on the step.
“Q. He was on the step when you started?
“A. I don’t know whether he was on the step, but some were on the step when I started.
“Q. You don’t know whether Mr. Goodyear was there or not?
“A. I don’t know.”

It is an elementary rule that the credibility of witnesses and the weight to be given their testimony is for the jury. No attack was made upon the veracity of the various witnesses sworn, nor was any attempt made to impeach them, except as their testimony was in conflict. They were apparently disinterested witnesses, unless it were the conductor and motorman, of whom it could well be urged that their evidence was the least satisfactory and convincing. On this basic issue in this litigation the case turned upon the greater weight given by the jury to the testimony of witnesses on the one side or the other. The jury heard and saw these witnesses. On reading the evidence as a whole, we are not impressed that the same is so convincing and overwhelmingly conclusive in support of the defense as to render it imperative for the court to invade the province and customary prerogatives of the jury to set aside a verdict, rendered upon conflicting evidence, on the ground that it is unjust and'palpably against the great weight of the testimony.

One of the reasons urged in support of defendant’s motion for a new trial was the newly discovered evidence of a witness named Otto, whose affidavit was presented in support of said motion. When the motion came on to be heard, said witness was produced in open court for examination, on order of the trial judge. He testified to getting upon the Clay avenue car while it was standing and seeing a gray-haired man pass in front of the car after it had started and was moving slowly around the curve, following which the car stopped with a bump after it “had gone 5 or 6 feet or possibly more,” and some one said it had run over a man. His testimony is in conflict with that of other of defendant’s witnesses as to the distance the car ran befóre it was stopped and as to its being stationary when the Oakland car arrived. He testified:

“The car was», slowly making the turn there, and the south-bound car coming down, and people got off, running around the front end of our car and a few got on, I imagine. Amongst those running around in front of the car I noticed an old gray-haired man. * * * I didn’t inquire about what was the matter until I got to the shop, and some other fellows came in and they said it cut his leg off. * * * I could not see the bottom step from where I stood. I didn’t see Mr. Goodyear when he started to go on the car. * * *
“Q. You don’t know what the car was doing when he started to get on?
“A. No, sir.”

The material portion of his testimony strongly urged is that deceased tried to board the car after it started and was going around the curve.

In denying the motion for a new trial, the court said relative to the claim of newly discovered evidence :

“The affiant, Henry H. Otto, was produced in court pursuant to the court’s request, and his statement given. The most that can be said in its favor, I think, is that it is merely cumulative. It is not as strongly corroborative of defendant’s theory as was the testimony given by the defendant’s witnesses, who swore, at least inferentially, that the car in question was in motion when the deceased sought to board it. Had Mr. Otto been sworn upon the trial I do not see that the result would have been in any way affected; nor is it at all probable, in my view, that upon a new trial his testimony would change the outcome. Upon the authority of Branch v. Klatt I think the motion made in this respect should be denied.”

We think the trial court correct in the conclusion that the newly discovered evidence was at best cumulative and not so strong and convincing as to render a different result probable upon a retrial of the case. Those are, however, primarily questions for the trial court, who heard and saw not only the witnesses at the trial but the newly discovered witness. The appellate court will not disturb the discretion of the trial court in such cases unless it is clear that the same has been abused. Jones & Co. v. Tucker, 132 Ala. 305 (31 South. 21); Branch v. Klatt, 173 Mich. 31 (138 N. W. 263). Vide, also, 29 Cyc. pp. 1008-1010, where a large number of cases are cited on the subject of newly discovered evidence. We do not find from this record an abuse of discretion which demands interference by this court.

The judgment is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    COLBORNE v. DETROIT UNITED RAILWAY.
    1. Carriers — Negligence—Imputed Negligence — Street Railways.
    Negligence of the driver of an automobile in which plaintiff was riding is imputable to plaintiff, in an action for injuries resulting from a collision with a street car.

    2. Negligence — Automobiles—Contributory Negligence.
    It was not erroneous for the trial court, in directing a verdict for defendant, to hold that the evidence showed that defendant’s street ear was lighted, upon the testimony of all defendant’s witnesses and of one witness for plaintiff, uncontradicted except by plaintiff’s testimony and that of the owner of the automobile in which she was riding, that they did not see the street car and saw no lights, the plaintiff admitting, however, that the car was lighted immediately after the accident.
    3. Same — Directed Verdict.
    Evidence that plaintiff’s companion, driving a motor car, looked both ways before crossing defendant’s tracks but failed to see a lighted car approaching a short distance away in the block, although it was seen by a witness for plaintiff when it was nearly a block from the scene of the collision, that the automobile was proceeding slowly and under complete control, and that the evening was clear, the view unobstructed, and no passing vehicles distracted the attention of the driver, justified the direction of a verdict for defendant on the ground of contributory negligence.
    Error to Wayne; Van Zile, J.
    Submitted June 16, 1913.
    (Docket No. 89.)
    Decided September 30, 1913.
    Case by Harriet Colborne against the Detroit United Railway for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      Thomas J. Mahon and Thomas W. Thompson, for appellant.

      Corliss, Leete & Joslyn (Wm. G. Fitzpatrick, of counsel), for appellee.

       As to duty of operator of automobile when near street cars, see note in 38 L. R. A. (N. SA 493. •
      On the question of imputed negligence of driver to passenger, see note in 8 L. R. A. (N. S.) 597.

   Steere, C. J.

Plaintiff brought this action ex delicto in the circuit court of Wayne county to recover damages for personal injuries sustained by her in a collision between one of defendant’s street cars and an automobile in which she was riding. In the trial court, at the conclusion of the testimony, a verdict in favor of defendant was directed by the court, on the ground that the driver of the automobile was, as a matter of law, guilty of such contributory negligence as to preclude recovery.

This accident occurred at the intersection of Oakland and Holbrook avenues in the city of Detroit on the evening of November 13, 1910, at about 5 o’clock, just as it was getting dusk, and shortly after lights in stores and on the streets were lit.

Plaintiff was out that evening with a friend named Kolchowsky, whose wife she afterwards became, taking a pleasure ride around the city in his automobile, which he was driving. He testified that he had lived in Detroit about two years, and was familiar, in a general way, with the city, but did not know, previous to the accident, that there were car tracks on Oakland avenue. This avenue runs north and south through the city, and is traversed by double tracks of defendant’s line. Holbrook avenue crosses it at right angles.

In the course of their ride around the city, Kolchowsky was driving west on Holbrook avenue, and at its intersection with Oakland came upon defendant’s west track just at the proper time to collide with a regular car upon that track going south. The drivers of the two vehicles each testify that the other ran into him. However that may be, it is made clear that both attempted to briefly occupy, for purposes of travel, the same spot in the highway at the same time, with disastrous results to the automobile and its occupants.

The negligence charged as ground of recovery in plaintiff’s declaration is defendant’s failure to have its car lighted and display proper signal lights, giving notice to persons about to cross the track that a car was approaching, and failure to sound a gong or other alarm for the same purpose.

There was testimony produced by plaintiff tending to support portions of this charge, and positive testimony was produced by defendant to the contrary, which it may be conceded raised an issue of fact for the jury, were it shown that plaintiff was free from contributory negligence, or had the testimony of plaintiff also presented an issue of fact for the jury on the latter question. But in order to recover plaintiff must allege and prove not only the negligence of defendant, but that she herself and also the party driving the vehicle in which she was riding were free from any negligence which contributed to the accident.

The trial court held and charged that the negligence of Kolchowsky, the driver of the conveyance in which plaintiff was a voluntary passenger, was imputable to her. Counsel assign error theréon, not overlooking former decisions of this court on that subject, but urging that those decisions should be overruled and a contrary view adopted, in harmony with numerous decisions cited from other jurisdictions. Were the question new or uncertain in this State, it might call* for serious consideration; but the doctrine of stare decisis is not to be lightly disregarded. It was said in Mullen v. City of Owosso, 100 Mich. 103 (58 N. W. 663, 23 L. R. A. 693, 43 Am. St. Rep. 436), that, where a woman of mature years and discretion voluntarily entered the private conveyance of another to ride with him, and by his contributory negligence was injured, she must be held to have adopted his conveyance for the time being as her own and to have assumed the risk of his negligence, which must therefore be imputed to her. Though counsel there made the same contention as is made here, it was then said that this rule “has been too long settled to be now disturbed.” The ruling of the trial court was in harmony with that case and the authorities there cited.

Plaintiff’s crucial assignment of error and argument naturally center upon that portion of the charge in which the court directed a verdict for defendant, which is as follows:

“The undisputed proof is that the car was lit inside, so that, assuming it had no headlight, as claimed by the plaintiff, this car could have been seen on this night more than a block away when the plaintiff arrived at Oakland street curb line, because he would have a clear view from there, where he could have had an unobstructed view up that street. He was at this point at least 22 feet away from the southwest track, on which the collision happened. This machine was running 6 miles an hour, and, as he testified, the machine could have been stopped, and he would, if- in the exercise of ordinary care and prudence, have stopped his car and waited for it to pass. Had he looked when going onto the first track, he would have had 9 feet 8 inches to have stopped his car or automobile before he reached the track upon which the collision occurred. At that point the street car must have been very close, for he says that as soon as the front wheel [was] on the. first track or east rail of the collision track, the car was right on him, and struck his car at the wind shield on one side or window. So that when he was on the first rail of the first track, 9 feet 8 inches away, the street car could not have been but a very few feet away. The automobile was going at 6 miles an hour. He neither stopped or turned aside for the street car. There is no proof of due care on the part of the plaintiff, and therefore, as a matter of law, the court must find the plaintiff guilty of contributory negligence.”

It is urged that certain of the foregoing statements of facts made by the court are not undisputed, and others are but inferences drawn from evidence upon which honest judgments might differ and a jury might legitimately reach other conclusions.

Upon the subject of headlights, Kolchowsky testified that there were none on the car. When directly interrogated as to the car. being lit inside, he stated that he saw no lights. He and plaintiff testified, in a general way, that the gong was not sounded, that they saw no lights, and the car was not lighted; they also testified that they did not see the car at all until just as it struck the automobile, and she stated that the car was lighted when she looked at it immediately after the accident. On cross-examination, in answer to the question, “But this car didn’t have any lights on it or in it?” she said, “Well, I didn’t see any.” Plaintiff’s witnesses to the accident were Kolchowsky, herself, and a man named Frank Bohn. The latter witness, who gave testimony that the motorman did not sound an alarm for the crossing, also testified that he saw the car coming over a block away from where he sat on the steps of a house on Holbrook avenue; that he saw it diagonally from his position, and did not see the headlights, but that it was plainly lighted inside, enabling him to see it by the lighted windows. In addition to this, the positive evidence of numerous witnesses of defendant is overwhelming that the car was lighted. The only suggestions to the contrary of its being lighted inside is the, in effect negative, evidence of the occupants of the automobile, who say they did not see the car at all until it was upon them, and did not see any lights before it struck them, while their own witness says it was by means of the lights that he saw the car over a block away. We think the trial court not in error when assuming the evidence clear and undisputed that the car was lighted on the inside.

A map of the locality, duly proven, was in evidence, and its correctness not questioned. The statement of the court as to measurements and distances was supported by the map and accompanying testimony, which was not disputed. The evidence in that connection showed that the widening vision along Oakland avenue, to one going west on Holbrook opened an unobstructed view northerly on Oakland of 150 feet when yet 48 feet east of a line midway between the tracks ahead, and when 12 feet nearer that line the view to the north up Oakland was unobstructed. Kolchowsky admits there was nothing in the highway on Oakland to interfere with his seeing along it as far as the condition of light permitted. Irrespective of the positive statements of defendant’s witnesses as to how far the car could be seen that night if unlighted, and was seen as lighted, plaintiff’s witness Bohn supports the statement of the court that the car could have been seen more than a block away. He said, “I saw it coming a little over a block, through the windows of the car,” and that it was running about the usual rate of speed.

The testimony of plaintiff and Kolchowsky is not harmonious in certain material particulars. She testified that just before they came upon Oakland avenue they were talking together about a trip which they were planning for the purpose of visiting her brother on Thanksgiving day, a project mooted by her, and upon which Kolchowsky looked with favor, provided he could dispose of his roadster and get a touring car to journey in. The events immediately subsequent to this conversation are described by her as follows:

“Just when we come to the track, I says before we come to it, I says, ‘Here is a street car track.’ We both just looked like that, both like that, both ways. Well, we just got over that third rail, and just as our car seemed about just over the rail, and this street car track, it just seemed — I seen the other part of the car, just had a glance of it, and I hollered, and it struck the engine broadside, and it knocked him unconscious. The fire flew out of the engine, and it seemed as though I was thrown up and turned inside down, and we were both under the car and dragged. I couldn’t tell the distance we were dragged.
“Q. You could not state the distance, but how far did this street car run after it struck you?
“A. Further — a man there came and raised part of it up, and I got out from under the car.
“The Court: You were submerged under the car?
“A. Yes, we were both under the car. The car was turned upside down — the auto. They had us pinned underneath, caught underneath, and we could not see at all, so then somebody came and lifted the auto off of us. There was a piece that run into my head here, and I got hold of that and pulled it out; pulled a piece of iron out of my head. The iron .came near the right eye. My two legs were right through the bottom part of the car where the footboards are. The bottom of the car was broken, and my legs went right through. That is how I was pinned underneath the car. The man raised the side, and I got out; but then I said to them, I said: ‘There is a man in there; take him out. Oh, he is under there.’ He was under there; he was under the car.”

Kolchowsky testified that he saw the car tracks ahead on Oakland when he was 100 feet away, and slackened down to 6 miles an hour or less, keeping his engine on high speed, and that going at 6 miles an hour he could stop in from 6 to 10 feet; that when within 25 or 30 feet of the tracks he looked both ways and listened, saw and heard nothing but the rumbling of his own machine, and continued on, looking again when, as he variously states it, he was 10 or 15 feet from the last track, just before he struck the first rail, nearly on the track, and discovering nothing started up speed to go across “as if nothing was there;” that he heard a rumbling, and looking to the right saw the street car coming 15 or 20 feet away, grabbed the emergency brake, but whether it did any good did not know for the car was too near on top of him, and struck his machine just back of the engine near the wind shield, and knocked him unconscious. The probability and verity of this narration is, of course, within the realm of facts; but, taking it as he tells it, within a distance from the track in' which he could have stopped, he speeded up his car without looking again and started across as if nothing was there.

On cross-examination he testifies as to his observations and proximity to the track in part as follows:

“Q. At the time you saw this car 15 or 20 feet away from you, you were on the tracks — the tracks of the last track — the rails of the last track, I should say?
“A. Just about on the first rail, the front wheel.
“Q. The front wheel was just about on the first rail; that would be on the east rail of the southbound track?
“A. Yes, sir.'
“Q. From the time that you made your observation when you were 25 or 30 feet away from the tracks, the easterly track, the rail of the north-bound track, until the time that .you — when your front wheels were right onto the south-bound track, and the car was 15 or 20 feet away from you, did you look again?
“A. No, I just heard the noise first. * * *
“Q. And at that instant of time when you first saw and heard the car, the car was, in your best judgment, from 15 to 20 feet away from you?
“A. Just about. * * *
“Q. Then just as soon as you got near the track you shot your power on in an attempt to get by, is that it?
“A. No, I attempted to go across as if nothing was there.
“Q. Well, then, you shot your power on in attempting to go by before you heard or saw the car?
“A. Yes,-sir. * * *
“Q. Then you went about 10 feet, you think, and got so your front wheels were right on the easterly rail of the south-bound track when you saw this car or heard this car 15 or 20 feet away?
“A. Yes, sir; on the first track with the front wheels.”

Asked on redirect examination how near he was when he took his last observation to assure himself nothing was coming, he answered, “It was probably about 10 feet, or something like that, probably 15.”

Plaintiff, and Kolchowsky were motoring down Holbrook avenue in the gathering twilight, in a portion of the city with which he was not familiar, crossing streets of which he was ignorant whether or not street cars traversed them. He states, “I was out that evening to demonstrate the car.” Just before the final demonstration he was engaged in conversation with his companion, and future wife, planning to get a touring car in which they were to journey together to visit her brother on Thanksgiving. That this mutual contemplation of future events must have, to some extent, absorbed and diverted his active attention from the emergencies of their immediate environment is, at least, a legitimate inference, strengthened by plaintiff’s testimony that she made the discovery they were in close proximity to a car line. She testifies: “When we got just near the track,” also worded in another part of her testimony, “just when we came to the track, I says, ‘Here is a street car track.’ ” He states that he looked and listened twice; that it was dark. He not only saw nothing, but heard nothing except his own engine. He did not stop. If it was dark, and the car not lighted, as he claims, its approach would be ascertained only by listening. The car certainly was then approaching, and very close upon him. His first look was, as he states in one part of his testimony, at a point so far back that he “could not see up the tracks,” and again he said it was when he was “25 or 30 feet away,” and he could see along Oakland avenue as far as the darkness permitted. His last look was when he was 10 or 15 feet from the track the car was running upon; he then increased his speed, and without looking again proceeded to cross as if nothing was there. It was a clear evening and he testifies that his sight and hearing were good. He knew he was approaching a place of danger where there were double tracks, upon which cars were liable to be running either way at any time. He did not know their times of passing. He knew he was perfectly safe on either side of that short danger zone, and, however close, he was perfectly free from that distracting solicitude as to his means of transportation being frightened by a passing car, so often urged in the case of horses under like circumstances. Before passing into the line of danger from his place of safety, where he had ample opportunity to observe without obstruction, it was his duty to assure and reassure himself “that there is not a car directly upon him, of which situation the fact that he is struck is conclusive proof.” Manos v. Railway, 168 Mich. 155 (130 N. W. 664).

This is not of that class of cases in which the car has been seen, and the plaintiff, reasonably believing a crossing could safely be made, has attempted to cross, and been injured, owing to the fact that the car was run at an excessive rate of speed, or being otherwise negligently operated, and therefore the question of whether plaintiff, in the exercise of common prudence, might have reasonably judged there was sufficient time to pass became a question of fact, upon which opinions might reasonably differ. This is a case of a right angle crossing, over a double track of an electric railway line. As plaintiff approached the track, he says he saw it 100 feet away. The street was clear except for the oncoming car. There was no confusion of passing conveyances, or persons, or cars running on different tracks, to perplex. 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.

We think the conclusions reached by the trial court, in directing a verdict for defendant, find authority in principle in McGee v. Railway Co., 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Borschall v. Railway Co., 115 Mich. 473 (73 N. W. 551); Hilts v. Foote, 125 Mich. 241 (84 N. W. 139); Merritt v. Foote, 128 Mich. 367 (87 N. W. 262); Measel v. Railway, 166 Mich. 688 (132 N. W. 453); Stevenson v. Railway, 167 Mich. 45 (132 N. W. 451); Manos v. Railway, supra; Puffer v. Lighting Co., 173 Mich. 193 (139 N. W. 19); and other cases cited in these decisions.

On the record as an entirety; we find no reversible error, and the judgment is affirmed. ;

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Ostrander, J.

text:
      In re OLDENBERG’S ESTATE. OLDENBERG v. LEIBERG.
    1. Witnesses — Privilege—Physician and Patient — Waiver.
    In a will contest, it is the right of a contesting heir, under Act No. 234, Pub. Acts 1909 (5 How. Stat. [2d Ed.] § 12826), amending 3 Comp. Laws, §10181, to waive the rule of privilege as formerly applied to testimony of an attending physician employed by decedent; for that purpose such heir is a personal representative of the estate.

      2. Appeal and Error — Record — Wills — Contestants—Heirs, ■ Who Are.
    For the purpose of determining who the contestants of a will are, and whether they were heirs at law of deceased within the meaning of Act No. 234, Pub. Acts 1909, the court may rely on the recitals of the writ of error, together with the statements of the will, in the absence of affirmative testimony on the point.
    Error to Delta; Flannigan, J.
    Submitted April 8, 1913.
    (Docket No. 90.)
    Decided September 30, 1913.
    Mary Oldenberg and others proposed for probate the will of Henry Oldenberg, deceased. Lizzie Lei-berg and others contested. Proponents appealed to the circuit court from an order of the probate court disallowing the will. Judgment for proponents. Contestants bring error.
    Reversed.

      A. H. Ryall (T. A. Sanderson, of counsel), for appellants.

      Cummiskey & Spencer, for appellees.
   Ostrander, J.

In the circuit court the will of Henry Oldenberg, deceased, was allowed, reversing the decree of the probate court. The printed record does not disclose the names of the contestants or their relation to the deceased. An examination of the return to the writ of error in the clerk’s office shows that the writ of error sued out by contestants names the proponents as Mary, Carl, and Paul Oldenberg, and Martha Kleist,' and the contestants are Lizzie Leiberg, Fred, Charles, and Louis Wulf. In the instrument proposed for probate, Lizzie Leiberg is called a stepdaughter of deceased, and the only other legatee, John Oldenberg, is called a brother of deceased. The executor named in the will is Ira C. Jennings. It is to be inferred from the copy of the order made upon the petition for leave to appeal, which copy is returned with the writ of error, that Mr. Jennings is special administrator of the estate. He was a witness at the trial; but his testimony does not disclose his relation to the estate. The attorney for appellants states in the brief that the contest is between Lizzie Leiberg, one of the legatees, and four other nephews and nieces residing in Wisconsin and Canada, as contestants, on one side, and three nephews and nieces residing in Germany, “who, with the widow of the remaining legatee,” are seeking to have the will sustained. “One of the next of kin, a niece, is not a party to the contest.” In the brief for appellees, reference is made to the foregoing statement in the brief for appellants, with the remark that it nowhere appears in the record that any such relationship exists between the deceased and contestants. We have no further information upon the subject of who is proponent of the will.

Whether the rulings of the circuit court, assigned as error, were proper or improper depends upon the interpretation to be given to 3 Comp. Laws, § 10181, as amended by Act No. 234 of Public Acts of 1909 (5 How. Stat. [2d Ed.] §12826), which, as so amended, reads as follows:

“No person duly authorized to practice physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient, in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, that after the decease of such patient, in a contest upon the question of admitting the will of such patient to probate, the heirs at law of such patient, whether proponents or contestants of his will, shall be deemed to be personal representatives of such deceased patient for the purpose of waiving the privilege hereinbefore created.”

The matter added to the section by amendment is the proviso. The rulings complained about were made during the examination of Dr. Gross, decedent’s attending physician, by the attorney for contestants; the record showing the following:

“What was he suffering from?” The answer was excluded upon the objection by proponents’ counsel that it was privileged.
“Q. Did you prescribe any particular medicine or drugs to Mr. Oldenberg?
“A. Did I prescribe any particular drugs?
“Q. Or medicine for Mr. Oldenberg while you were treating him?
“A. Yes, sir.
“Q. Did you prescribe more than one drug?
“A. Yes, sir.
“Mr. Ryall: Merely for the purpose of following up the objection along that line, I want to ask this:
“Q. Do you know that any of these drugs or any part of those that you prescribed were given to Mr. Oldenberg?
“A. Yes, sir.
“Mr. Cummiskey: We object to that, for the reason that it is simply asked for the purpose of evading the statute and getting information from his doctor which is prohibited.
“The Court: I understand the objection, Mr. Cummiskey ; but the serious question in the mind_ of the court is whether this line of testimony goes quite that far. On reflection, it seems to me that whatever is necessary to enable the physician to prescribe, and the prescription must be combined and excluded together, and I will strike out the answers Of the doctor as to his having prescribed any drugs, and you may have an exception to this ruling, if you care for it— that the whole subject of the doctor’s attendance and prescription is held to be privileged.
“Mr. Ryall: I want to offer to show by Dr. Gross, irrespective of any knowledge he had in' the particular case, what would be the effect of ursemic poisoning.
“The Court: You heard what the court said on that subject before recess, and I am still of the opinion that under the circumstances of this case you should seek expert testimony from some other source.
“Mr. Ryall: Do I understand that the ruling goes to the full extent that no expert testimony can be adduced from this particular physician? If it is, I do not want to be embarrassing the court or anybody else by asking for it.
“The Court: I think the court is safe in making that ruling. You have shown no inability to procure other expert testimony.
“Mr. Ryall: My offers, I want it clearly understood, are simply along the line of expert testimony on the evidence which is legitimately and admittedly in the case.
“The Court: It ought not to be necessary for the court to keep repeating to you that the objection is made and sustained to the use as an expert of the physician who attended the patient, according to the certificate already introduced in evidence, and that you ought to call some other physician unless that situation is waived by counsel.
“Mr. Spencer: We do not waive it; no sir.
“Mr. Ryall: Note an exception.
“The Court: I wish to ask you, Mr. Ryall, and you may answer it, if you care to, whether or not there are other physicians in the city who are procurable?
“Mr. Ryall: There are other physicians here.
“The Court: Well and good. Call the other physicians.
“Mr. Ryall: Q. Between the 5th day of August and the 10th day of August, 1910, did you treat Henry Oldenberg for any other disease than mentioned in the death certificate, namely, uraemia?”

The answer was excluded.

Assuming that heirs at law of deceased are both contestants and proponents of the will — we think the recital in the writ of error warrants this assumption —may the contesting heirs, or the proposing heirs, or either or any of them, waive the statute privilege of the deceased, the patient?

Before the statute was amended, it had been held by this court that information acquired by observation while the physician was in attendance upon his patient, as well as communications made by the patient to , the physician, was excluded (Briggs v. Briggs, 20 Mich. 34), that the rule established by the statute is one of privilege, which the patient may waive (Scripps v. Foster, 41 Mich. 742 [3 N. W. 216]), and that what he may do in his lifetime those who represented him may also do for the protection of the interests they claim - under'him (Fraser v. Jennison, 42 Mich. 206 [3 N. W. 882]); but that, in & will contest between a legatee and a contesting heir at law, the heir at law is not the representative of the deceased, and is an adverse party, with no right to waive the statute privilege (In re Mansbach’s Estate, 150 Mich. 348 [114 N. W. 65]). This being the state of the law, the legislature amended the statute in the manner hereinbefore indicated, and we hold, because we think no other ruling will give effect to all provisions of the amendment, that any heir at law, proposing or contesting the probate of a will, is, for the purpose of waiving the privilege, a personal representative of the deceased. With the wisdom of the legislation we have nothing to do, and therefore do not attempt to contrast the alleged beneficial with the harmful results which may attend the application of the statute in cases which may be supposed.

The judgment is reversed, and a new trial granted.

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


text:
    DETROIT TRUST CO. v. WORMER MACHINERY CO.
    Equity — Sales—Adequate Remedy at Law — Conditional Sale —Trusts—Retaking Property by Seller.
    Defendant sold, under a contract reserving title to the property, a quantity of machinery to a motor car manufacturing company which later became insolvent. Before proceedings in bankruptcy were begun, defendant possessed itself of the machinery upon the default of the purchaser in making the stipulated payments. A resale of the property brought more than the unpaid balance, and the trustee in bankruptcy filed a bill for an accounting, claiming a substantial equity in the funds obtained at the resale, asking the court to construe the contracts and charging that possession was taken by force and without the consent of the insolvent. Held, that the averments of the bill charging a forcible seizure, etc., were not sustained by the evidence, that complainant had an adequate remedy at law and no trust existed in the proceeds obtained from the sale.
    Appeal from Wayne; Codd, J.
    Submitted June 3, 1918.
    (Docket No. 16.)
    Decided September 30, 1913.
    Bill by the Detroit Trust Company as trustee in bankruptcy of the Marvel Motor Car Company against the C. C. Wormer Machinery Company for an accounting and other relief. From a decree for complainant, defendant appeals.
    Reversed.

      Anderson, Rackham & Wilcox, for complainant.

      Denton Guinness, for defendant.
    When complainant was appointed receiver of the Marvel Motor Car Company, which was in August, 1907, it learned that certain machinery which the motor car company had purchased on contract from defendant had been removed from its plant by the defendant, and addressed to defendant a letter of inquiry, which was answered under date September 4, 1907, as follows:
    “You state in your letter that you have in your possession the original contracts which are self-explanatory. The Marvel Motor Car Co. defaulted in its payments and in pursuance of the terms of the instruments we repossessed ourselves of the machinery and the Marvel Motor Car Company’s rights therein were forfeited.”
    Thereafter, September 17, 1907, the Marvel Motor Car Company was declared bankrupt and complainant was elected trustee. On or before October 1, 1907, defendant disposed of the machinery. Two years later, complainant filed its bill in the circuit court, in chancery, for the county of Wayne, charging, among other things, that the Marvel Motor Car Company had a substantial equity in the said machinery, that defendant had denied its demand for an accounting for the same and its interest and equity in the same and in the proceeds of the sale thereof, and praying that an account be taken, construction of the contracts according to which the machinery was delivered to the said motor car company, and a decree requiring defendant to pay to it such sum as upon accounting should be found to represent the interest of the said Marvel Motor Car Company therein. It is charged in the bill that defendant repossessed itself of the machinery without demanding it, over the objections and without the consent of the Marvel Motor Car Company, and forcibly. The cause was heard in open court upon pleadings and proofs (an answer and replication having been filed) before the late Judge Rohnert, who died before making any decision. Thereupon Judge Codd, by consent of parties, examined the testimony and rendered an opinion and a decree favorable to complainant.
    The Marvel Motor Car Company executed four instruments, pursuant to each of which machinery was delivered to it by defendant, and pursuant to which defendant claimed the right to repossess itself of the machinery and to hold the same and all proceeds of the sale of the same as its own. The dates and prices stated in these instruments are:
    November 24, 1906.............1........'____ ?3,015 40
    January 2, 1907............................ 1,660 90
    February 28, 1907.......................... 768 70
    May 7, 1907................................ 1,066 52
    Total. 6,511 52
    The Marvel Motor Car Company had paid upon the purchases $3,650.52, and for the unpaid balances defendant held its 90-day notes. The sale of the machinery by defendant produced the sum of $5,284.07. Allowing defendant for the cost of taking possession the sum of $175.26, a commission of 15 per cent, for making the sales, and the balance of the purchase price $2,861, there was in its hands, as surplus, $1,481.49. Upon this sum the court allowed complainant as interest $310.65, entering a decree that defendant pay complainant the sum of $1,792.14, as'of February 28, 1912.
    The same provisions are found in each of the instruments executed by the Marvel Motor Car Company, and, excluding the list of machinery described therein, one of them is here set out:
    “Received of C. C. Wormer Machinery Co. of Detroit, Wayne Co., Mich.: * * * Which the undersigned agree, to safely keep, carefully use, and not remove from the city of Detroit, county of Wayne, State of Michigan. Also to keep the same insured in the sum of two thousand dollars for the benefit of said C. C. Wormer Machinery Co., in such company as they shall approve; also, to pay all taxes on said property during the continuance of this contract, and return same to the said C. C. Wormer Machinery Co., at its warehouse, Detroit, Michigan, free of charges and unincumbered, on demand, unless payments are made as below provided. And said undersigned further agree to pay to said C. C. Wormer Machinery Co., for said property, the sum of three thousand fifteen and 40/100 dollars with interest, from this date, at the rate of -six per cent, per annum, to wit: One thousand fifteen and 40/100 dollars in cash upon the signing of this instrument, and the remainder as follows: One note dated Nov. 24, 1906 at 90 days for $2,000.00. At maturity of this note upon payment of one-half and interest a renewal note may be given for the balance at 90 days.
    “It is hereby understood that the within contract is assumed by the Marvel Motor Car Co. according to the conditions of certain promissory notes of even date herewith, executed by the undersigned.
    “It is understood and agreed that on payment of amount stated above, including notes, renewals and interest, together with any sum or sums which the said C. C. Wormer Machinery Co. may have paid for insurance or taxes on said property, by reason of the failure or neglect of the .undersigned to heep the same insured, or pay the taxes thei'eon as above provided, then the said C. C. Wormer Machinery Co. shall execute to the undersigned a bill of sale of said property.
    - “It is expressly understood and agreed that the title to said above-described property shall remain in said C. C. Wormer Machinery Co. until the full sum herein mentioned, and all promissory notes and all renewals of notes, shall be paid. That said notes or renewals thereof shall not be considered as payments until such notes or renewals are actually paid in money; that said property shall not become a fixture by being placed in any mill or other building, or by being annexed in any manner to the realty; and that the rental value thereof is six hundred dollars per month, and which said sum the undersigned hereby agree to pay to the said C. C. Wormer Machinery Co., and if all of the several payments herein before provided for shall not be paid at the time and in the manner above provided the said C. C. Wormer Machinery Co. is authorized and empowered, at any time, to enter upon the premises, upon which said property is located, and take possession of the same either upon a violation of any of the agreements herein contained, or if the undersigned shall become an insolvent, or a bankrupt, or if any judgment be taken against the undersigned and the same shall not be paid or otherwise fully provided for to the satisfaction of the said C. C. Wormer Machinery Co., or if the said C. C. Wormer Machinery Co. should at any time during the continuance of this contract deem itself insecure; and any and all money already paid upon said machinery and property shall be considered as having been paid on account of the rental value and for the use of said property.”
    In the second instrument the rental value of the machinery was agreed to be $300, in the third $100, and in the fourth $300, a month. There was testimony concerning the rental value of machinery, the depreciation in value of new machinery after use, testimony tending to prove that the sums fixed as rental value for the machinery were intelligently agreed to by the persons acting for the purchaser, and that an exceptionally favorable resale was made of the property by defendant. The undisputed testimony is that if defendant had postponed a sale 60 days or more the selling price and the sums paid upon the contracts would not have equaled the original contract price.
   Ostrander, J.

(after stating the facts). The charge that forcible possession of the property was taken by defendant and that objections thereto were made by the Marvel Motor Car Company is not proved. On the contrary, it appears that one note fell due on August 7th, the day the removal of machinery was begun; that notice of a meeting of creditors of the Marvel Motor Car Company, to be held August 8th at 2 o’clock p. m., had been given; that defendant had information of the precarious financial condition of the Marvel Motor Car Company, had been told by the manager of the Marvel Motor Car Company that it was not possible to meet the obligations of the concern; that no objection was made by representatives of that company to the retaking of the property by defendant. It was all retaken before 2 o’clock p. m., August 8th.

The testimony compels the conclusion that on August 7, 1907, when removal of the machinery was begun, all parties in interest had concluded that only a miracle could save the Marvel Motor Car Company and that it was proper for the defendant, before further complications had arisen, to repossess itself of the machinery. Indeed, there was an understanding between the defendant and the manager of the Marvel Motor Car Company that if the miracle was worked the machinery should be available to carry on the business. It was held for some time by defendant, awaiting developments. It is said in the brief for complainant:

“The contracts when the machinery was resold were still subsisting; defendant could not declare them void and does not pray here to have them declared void or its rights defined as in Hickman v. Chaney, 155 Mich. 217 [118 N. W. 993]. This surplus was therefore created by an unauthorized appropriation of property excusing vendee from a tender of the balance due as by its own act defendant was not in a position to redeliver the machinery.”

It is further said in the brief:

“Complainant submits that under these facts and conclusions the retaking of the property and a resale created a fund which in equity imposes a trust relation between the parties hereto; that possibly the trust so imposed might give to complainant the entire sum realized on the resale but that complainant does not here urge, recognizing the rule that ‘he who comes into equity must do equity,’ and only asking that the equitable surplus be decreed to be due complainant. Counsel has made an elaborate research of the cases and fails to find a case where vendor has been shown to have a surplus under the circumstances of this case but herewith appends a synopsis of Michigan cases indicative of the conviction of the court that the vendee might have relief if the facts so warranted.”

The Marvel Motor Car Company had no interest in the machinery, certainly none which was not defeasible by demand of possession or by voluntary surrender of possession; it had, at most, after the machinery was reclaimed, a .personal claim against defendant. New Home Sewing Machine Co. v. Bothane, 70 Mich. 443 (38 N. W. 326); Ryan v. Wayson, 108 Mich. 519 (66 N. W. 370); Wiggins v. Snow, 89 Mich. 476 (50 N. W. 991); Thirlby v. Rainbow, 93 Mich. 164 (53 N. W. 159); Wood v. Kaufman, 135 Mich. 5 (97 N. W. 47); Perkins v. Grobben, 116 Mich. 172 (74 N. W. 469, 39 L. R. A. 815, 72 Am. St. Rep. 512); McBryan v. Elevator Co., 130 Mich. 111 (89 N. W. 683, 97 Am. St. Rep. 453). Rejecting, as we do, all argument based upon the idea of an unauthorized retaking of the property, we necessarily reject the conclusions referred to in the foregoing excerpt from complainant’s brief.

There is no trust fund. And there is no money due to complainant, unless, when the property was retaken, some of the money which had been paid to defendant by the Marvel Motor Car Company ought to have been returned to it. That defendant made a good second sale of the machinery concerns only the defendant; just as it alone would have been concerned if a bad sale had resulted in a loss in the entire transaction. It owed to the Marvel Motor Car Company, or its receiver, no duty to sell the machinery. It is clear, of course, that after defendant reclaimed the machinery it had both the machinery and $3,650.52 which the Marvel Motor Car Company had paid on account of the machinery. Whether it had the right to keep all or some of this money is .the question suggested by the facts, as we find them. The money which had been paid, was less than the sum which the vendee agreed to pay as rent. If the agreement to pay rent is enforceable, defendant had the right to keep all of the money. To determine this question, there was no occasion to resort to a court of equity. If defendant has money which in equity and good conscience belongs to the complainant, it is recoverable in an action of assumpsit. The contracts require no construction. They either are or are not enforceable according to their plain terms. There are apparent reasons for referring the matter to a court of law.

The decree of the court below is reversed, and a decree will be entered here dismissing the bill of complaint, with costs of both courts to defendant.

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


text:
    EARL v. JACOBS.
    1. Appeal and Error — Interlocutory Decrees — Pinal Judgment.
    In determining whether or not ah order is merely interlocutory, its effect upon the rights of the parties is the better test than the particular stage of the proceedings at which it is made: whenever such order divests a legal right, the injured party may appeal to determine whether it is legal or unauthorized.
    2. Same — Sale oe Property- — -Equity—Appealability.
    Thus, a court of chancery has no authority to enter an order permitting the trustee in bankruptcy of a stock of merchandise, adversely claimed by a mortgagee under foreclosure proceedings, to sell the merchandise at the request of the complainant, the bankrupt mortgagor, who seeks to enforce an alleged right or equity in the stock.
    3. Same — Bankruptcy—Trustee.
    The trustee stood in no better position than the bankrupt who commenced suit before adjudication of his bankruptcy and in whose stead the trustee was later substituted as party complainant.
    4. Bankruptcy — Sale—Equity.
    On appeal from an order entered in a suit in chancery to adjudicate the title of complainant to a stock of merchandise, after mortgage foreclosure, and bankrupt proceedings against complainant, it was held, improper to order the property, which was not perishable, to be sold by his trustee, and the funds held subject to a final determination of the questions involved; defendants’ rights, if any, were to the property and not the proceeds of it.
    Appeal from Kalamazoo; Knappen, J.
    Submitted June 6, 1913.
    (Docket No. 4.)
    Decided September 30, 1913.
    Bill by Samuel Fishel, in whose stead Stephen G. Earl, trustee in bankruptcy of the estate of Samuel Fishel, bankrupt, was later substituted, against Abraham Jacobs and others for an injunction and other equitable relief. From an order permitting complainant to sell the property in litigation, defendant Jacobs appeals.
    Reversed.

      Bernard B. Selling, for appellant.

      Robert L. Campbell, for appellee.
   Ostrander, J.

Samuel Fishel, as sole complainant, filed his bill of complaint in the circuit court, in chancery, for Kalamazoo county, against Charles L. Jacobs and Samuel Samuels, as defendants, charging the defendants, among other things, with being in possession of a stock of goods, etc., which in equity-belonged to complainant, of which he had been forcibly dispossessed, and which he feared defendants would dispose of or remove beyond the jurisdiction of the court. He asked for and obtained a writ of injunction restraining defendants from removing or attempting to remove any of the goods from the store building in Kalamazoo where they were then situated until the further order of the court. The bill was filed, and the injunction was granted and issued November 9, 1912. No effort to vacate or modify the injunction appears to have been made, and the store was not thereafter opened for business. Later, on November 13th, the complainant petitioned the court for an order appointing a receiver of the property, including the leasehold interest, to collect rents, to hold the property and dispose of it under direction of the court, bringing the fund created by the said collections and sales into court. An order to show cause why a receiver should not be appointed was made on the same day. The cómplainant, Earl, petitioned the court February 1, 1913, to be allowed to prosecute the suit, setting up that on December 10, 1912, in the Federal court for the western district of Michigan, upon a petition filed in said court November 20, 1912, the said Fishel had been adjudged an involuntary bankrupt, the petitioner had been duly elected trustee in bankruptcy, and had been authorized by the referee in bankruptcy to intervene in said suit. An order was made on the same day admitting said Earl to prosecute said suit as complainant.

The new complainant filed an amended bill of complaint February 6, 1913, adding to the parties defendant Alexander Friedman and Abraham Jacobs. He had also, on February 1, 1913, filed a verified petition in the cause, in which he stated that he was in possession of the said stock of goods and the store in which they were situated, that the store had been closed ' since November 9, 1912, the stock was deteriorating and would continue to do so, the rent of the store was $70 a month and a charge against the bankrupt’s estate, and that, in his opinion, the goods and lease should be sold at public or at private sale, under the direction of the bankruptcy court, and the moneys thus obtained be retained until final disposition of the cause. He prayed for an order to defendants to show cause why he should not be authorized to sell the stock and fixtures and lease as trustee in bankruptcy, under the direction of the bankruptcy court. He further stated that one Abraham Jacobs had served notice on him that if he proceeded with such a sale he would be held a tort-feasor and be made defendant in an action to recover the value of the goods. An order to show cause was made, following which, on February 13, 1913, Charles Jacobs and Alexander Friedman filed their sworn answer to the bill, and on the same day Abraham Jacobs filed his several sworn answer to the bill. No other cause being shown why the trustee in bankruptcy should not be authorized to sell the property, the court, on February 19, 1913, made an order granting leave to sell the same, under the rules and regulations of the bankruptcy court, the money received to be held until the final determination of this suit, or until otherwise ordered by the court or by “other competent authority.” From this order, defendant Abraham Jacobs claimed an appeal to this court.

It is sufficient to say, generally, that all rights of Fishel in and to the said property are denied. It is claimed that before the bill was filed it was duly sold on foreclosure of a chattel mortgage given by Fishel to Charles L. Jacobs, trustee, and that defendant Abraham Jacobs became the purchaser and is the owner of the goods. It is also claimed that many of the goods in the said stock had been furnished' by Jacobs after the sale, and had never belonged to Fishel. Further than this, it is asserted that the trustee acquired possession of the store and goods by stratagem or by force;, possession of them having theretofore been held by Abraham Jacobs. Counsel agree that the contemplated sale has been made. Complainant moved in this court to dismiss the appeal. • It appearing that the cause would regularly be for hearing upon the calendar for the June term, consideration of the motion was deferred until the cause on appeal was reached. Whether the order appealed from is a final order, and, if it is, whether it should be set aside, are the questions presented.

A test for determining whether the order is merely interlocutory is well stated in the headnote to Barry v. Briggs, 22 Mich. 201:

“The effect produced by an adjudication in a chancery suit upon the rights and interests of the parties is a better test of its character — whether it be a merely interlocutory order or a decree — than the stage of the cause at which it is made; and whenever a legal right is divested by an order of a court of chancery, an appeal lies to determine whether it is legal or unauthorized.”

See, also, Taylor v. Sweet, 40 Mich. 736.

In view of the charges in the bill and the statements in the sworn answers of defendants, it is somewhat difficult to understand why the court recognized the claim of the trustee in bankruptcy to be in possession of the property and in a position to make and control a sale thereof and to receive the proceeds of the sale. Everything which was before the court, excepting only the bare statement of the said trustee, indicated conclusively that Fishel was out of possession and some of the defendants in possession. Fishel so charged in the original bill, and the charge is not omitted in the amended bill. It was according to that theory that the injunction, which was still in force, was granted. The petition for and the form of the order suggests the idea that it was supposed the bankruptcy court had directed the trustee to assume possession, and that, with respect to possession and to control of the property claimed by Fishel to belong to him, the bankruptcy court exercised in some way a jurisdiction superior to that of the State court. It would seem as if, otherwise, the court, if it determined that a salé should be made, would have appointed some one to make it, would have required the sale to be reported and confirmed and the money received thereon to be brought into court.

When Fishel was adjudicated an involuntary bankrupt, this suit was pending. It is an adversary proceeding, involving the ownership of the property which the trustee has sold. The trustee in bankruptcy occupies no different position than Fishel would occupy if he had not been adjudicated a bankrupt. Eyster v. Gaff, 91 U. S. 521; First Nat. Bank of Chicago v. Trust Co., 198 U. S. 280 (25 Sup. Ct. 693).

The chancery court has no general power to order a sale of property, adversely claimed, upon the application of one of the adversaries. A person seeking to establish his title to property has the right, generally, upon establishing his claim, to the property itself. The right is especially valuable when the property is a stock of goods contained in a building, the leasehold right to which is claimed as going along with the title to the goods. The order for the sale divested the appellant of his asserted rights. It reserved no control of the sale or of the proceeds thereof. At best, it, and the sale made pursuant to it, operated to substitute a sum of money, the amount of which depends upon various contingencies, for the . property. The property was not perishable, and by no proper showing was it made to appear that the estate of Fishel was liable for any cost or expense of preserving or storing it.

It must be held that the order was improvidently made, was final and appealable. The motion to dismiss the appeal is denied, with costs to appellant. This court cannot set aside the sale; but appellant may have an order reversing, the order of the court below and denying complainant leave to sell the property, with costs of this appeal.

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


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    BAUER v. BAUER.
    1. Witnesses — Privilege — Evidence — Compelling Parties to Testify — Divorce.
    No privilege is conferred by statute on either party to a divorce case so as to permit one to decline to take the stand as a witness upon the request of the other. As to many subjects, with the consent of the other party, the husband or wife may be examined and may be compelled to give testimony on competent matters, not excluded by statute. Act No. 307, Pub. Acts 1909; 3 Comp. Laws, § 8652 (4 How. Stat. [2d Ed.] § 11489).
    2. Divorce — Attendance of Witnesses — Evidence.
    In divorce proceedings it is not required that the husband, being a party complainant, attend at the hearing. Without any request for a continuance or any previous effort to secure the testimony of the husband, the defendant was not entitled to a decree in her favor because of complainant’s omission to be present; and although she was entitled to compel his' attendance as a witness, in the absence of any effort on her part to do so tbe court properly refused to enter an order requiring complainant to give testimony.
    Appeal from Barry; Smith, J.
    Submitted June 10, 1913.
    (Docket No. 61.)
    Decided September 30, 1913.
    Bill by Charles Duane Bauer against Charlotte Bauer for divorce. Defendant filed a cross-bill for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Colgrove & Potter, for complainant.

      Reuben H. Rossman and Thomas Sullivan, for defendant.
   Ostrander, J.

The bill is filed for a divorce. There was an answer in the nature of a cross-bill, in which defendant also asks that the marriage be dissolved and for alimony. There was an answer to the answer. The testimony was taken in open court, and complainant had a decree, which also settled property rights.

In this court a legal proposition is advanced which demands attention. When the cause was heard, complainant did not appear in court, and the inference —the natufal one perhaps — is drawn by defendant that he was not in the State. During the hearing, defendant moved the court as follows:

“May it please the court, I want it to appear on the record that during the trial of this case and up to the present time that complainant has not been in the courtroom; that his witnesses that have been questioned do not seem to know his whereabouts, and we request an order of the court that he appear in this court to be examined by defendant’s solicitors in regard to the statement put in his mouth by Charles H. Bauer; also to be examined regarding his nervousness, or the condition of his looks, and the situation between him and Guy in regard to this dissolution of the partnership and the assignment testified to by C. H. Bauer.”

Other reasons were assigned. Later counsel for defendant said:

“We also feel, if we are required to make a defense in this case, that complainant should be required to appear in this court and submit to an examination regarding the allegations he makes against this woman; that for him to conceal himself — conceal his whereabouts and put himself in a position where we cannot even take his testimony by deposition or make him a witness in our behalf — is not only a fraud on the court, but it is an absolute fraud against the defendant in this case. For that reason we think the court ought to say at this time as to whether or not he should appear.”

The order was refused. In this court, in addition to the general proposition that a suitor in a court of equity who does not attend at the trial ought to be denied relief, it is urged that defendant had the right to the presence of her husband in court in order that she might examine him as a witness in her own behalf, under the provisions of Act No. 307, Public Acts of 1909 (5 How. Stat. [2d Ed.] § 12865). The power of the court, under the rules, to compel a party to testify in such cases (see 1 Comp. Laws, § 211 (4 How. Stat. [2d Ed.] § 11708); Hamilton v. Hamilton, 37 Mich. 603; Eaton v. Knowles, 61 Mich. 625 [28 N. W. 740]; Page v. Page, 51 Mich. 88 [16 N. W. 245]) is not involved.

Complainant defends the action of the court upon the ground that under 3 Comp. Laws, § 8652 (4 How. Stat. [2d Ed.] § 11489), the parties to a divorce suit may determine — elect—whether they will testify, that 3 , Comp. Laws, § 10213 (5 How. Stat. [2d Ed.] § 12857), confers no new rights upon either the husband or wife, nor does it modify or conflict with section 8652; and that Act No. 307, Public Acts of 1909, confers no new rights in this respect upon parties to divorce proceedings. In other words, the ruling is defended upon the ground that in divorce cases the husband and wife have the right to elect whether they will be witnesses. There is no such right; the right to refuse, generally, to testify being distinguished from the statute privilege to decline to give testimony of a .certain kind. The argument takes no account of the fact that parties to suits, divorce and other, are generally competent witnesses, and may not testify generally in divorce proceedings only because a wise public policy has imposed restrictions. As to some, and indeed as to most, matters, a husband may be examined as a witness for or against his wife with her consent. Here the wife consents, demanding that the husband be produced as a witness. If complainant had been present in court, defendant might have called him as a witness, and, subject to the statute restrictions, he would have been a competent witness, and could, and should, have been compelled to give his testimony.

But there is no rule which requires parties to a suit to attend court during the trial. If the testimony of a party is desired by the opposite party, attendance at the trial may be secured by the process of the court, or a deposition may be taken as in other cases. The probability that a party will attend court during the trial of his own cause may excuse a failure to exercise the diligence in securing his attendance usually required in securing attendance of witnesses. If, owing to inability to procure the attendance of the opposite party, a continuance is asked for, the fact that he is a party may affect the discretion of the court. As a general proposition, a party to a suit must secure the attendance of his witnesses at the trial, as well when they are opposite parties or the agents or servants of opposite parties as when they are not. Appellant did not move for a continuance. She did not ask the aid of the court to discover the whereabouts of the complainant for the purpose of taking his deposition. As she herself was seeking a divorce, it is doubtful if a continuance was desired. The ruling she did ask for was properly refused.

Upon the merits, we are of opinion that the decree should be, and it therefore is, affirmed.

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


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    DEVICH v. DICK.
    1. Trial — Argument—Conduct of Counsel.
    The action of the trial court in charging the jury not to consider improper comments of plaintiff’s counsel in arguing the ease, having reference to defendant’s wealth, cured the error, so as not to require a reversal of the judgment.
    2. Evidence — Privileged Communications — Attorneys.
    The court rightly excluded from the evidence any cross-examination of plaintiff relating to disclosures made by plaintiff to defendant’s attorney on an occasion when plaintiff visited the attorney for advice in a professional capacity before commencing suit, although the lawyer refused to accept the case.
    3. Principal and Agent — Contracts—Authority of Agent.
    Testimony that defendant hired a head bartender who conducted the business in defendant’s absence, and employed plaintiff to assist him, that he exercised the power of hiring and discharging help and defendant knew that plaintiff was working in defendant’s, saloon, that the head bartender had been told by defendant to engage assistanee, Held, to present a case for the jury as to the contract of employment.
    4. Husband and Wife — Contracts—Joint Parties.
    Where plaintiff claimed that defendant employed him and his wife at $60 a month, including $10 per month for the services of the wife in running a hoarding house, the court did not err in submitting to the jury the question whether the contract was divisible or joint, and in charging that if the contract was joint and the head bartender employed both to work for himself, plaintiff could not recover; if the former had no authority to hire plaintiff as bartender, the verdict must he for defendant; if he engaged plaintiff for $50 a month as bartender and the jury found he had authority to engage a bartender, plaintiff could recover on the contract of employment.
    Error to Gogebic; O’Brien, J., presiding.
    Submitted June 11, 1913.
    (Docket No. 81.)
    Decided September 30, 1913.
    Assumpsit in justice’s court by Mike Devich. against Frank Dick for services as defendant’s bartender. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Julius J. Patch, for appellant.

      James A. O’Neill, for appellee.
   Steere, C. J.

This is an action in assumpsit, originally brought by plaintiff in a justice’s court of Gogebic county for the purpose of recovering approximately four months’ wages as bartender, claimed to be due him from defendant. Before trial in justice’s court plaintiff declared orally on all the common counts in assumpsit, filing a bill of particulars stating his demand to be for “services rendered by plaintiff for defendant during the months of November and December, 1909, and January and February, 1910, at $50 per month, amounting to $180.” Defendant orally pleaded the general issue.

On March 25, 1910, trial was had in justice’s court, resulting in a judgment in favor of plaintiff for $180 and costs. Defendant removed the case by appeal to the circuit court of said county, .where two jury trials were had. The first trial in that court resulted in a verdict and judgment for plaintiff in the sum of $173. Defendant thereupon made a motion for a new trial, which was granted November 13, 1911; the verdict and judgment being set aside for reasons which are immaterial here. On May 22, 1912, a retrial again resulted in plaintiff’s favor; a verdict and judgment being rendered for him in the sum of $180.78. Defendant again moved for a new trial. On November 16, 1912, this motion was denied, and he has now removed the proceedings to this court for review upon a writ of error.

The services for which plaintiff recovered judgment are claimed to have been performed for defendant in the capacity of bartender in a saloon which defendant owned, located in a district of the city of Ironwood, Gogebic county, known as Jessieville. This saloon was so situated and conducted that its patronage came mostly from foreigners working in and around adjacent mines; their nationality being chiefly Croatian, Polish, and Finnish. It is undisputed that defendant owned the saloon, and the business was conducted in his name; he having complied with all the requirements of the law essential to qualify as such proprietor. He was absent from the place, however, most of the time, being manager of the Ironwood Brewery, which position, as he testified, demanded most of his time and attention. He employed in the saloon a man named Simonich, who had previously managed a saloon for others in the same building for several years. Defendant defines him as the “head bartender.” The scope of his authority is in issue.

Plaintiff is a Croatian and, prior to the time he met favor in Simonich’s sight, was a toiler in the mines. In the fore part of November, 1909, Simonich did him the honor to tender him the position of associate bartender in defendant’s saloon, which he accepted. He left the mines and was employed in and around the saloon from November 14, 1909, to February 22, 1910, which historic date takes further prominence in being adverted to by defendant and other witnesses as “the time when Simonich skipped.” The circumstances under which plaintiff terminated his connection with the institution are stated by defendant as follows:

“When I found that Simonich had gone away I went out to the saloon. Nobody was in the saloon but strangers. No bartender there at all. I went through the dining room and through the kitchen and across the alley into the house where Mrs. Simonich lived. * * * When I went back into the saloon I found the plaintiff behind the bar and I told him to get out. * * * When I went into Mrs. Simonich’s house she was crying and they were talking loud and it kind of looked to me in a threatening way by their actions. I asked Mrs. Simonich what was the matter and she said, ‘Mike is threatening me; he wants me to pay him;’ and I chased the whole outfit out of the house.”

It is the contention of plaintiff that Simonich, who was in charge of defendant’s saloon and running it as defendant’s agent, hired him to work there at $50 per month, promising that defendant would pay him; that more than one barkeeper was necessary there and Simonich had authority to employ the necessary help. Defendant denies that Simonich had such authority, claims he was only “head bartender,” and that defendant himself personally ran the saloon and hired his bartenders. This question of agency is the important issue in the case.' The court submitted it to the jury, under appropriate instructions, as an issue of fact. The testimony is quite voluminous and conflicting, and the briefs of counsel are swelled with lengthy excerpts from the testimony,, with various portions liberally italicized and capitalized. The exhaustive briefs of defendant’s counsel contain many ingenious arguments and numerous sound and settled propositions of law, more or less in point, but the case as an entirety impels to the conviction that the paramount issue is ultimately one of fact.

The principal errors relied upon and argued by defendant’s counsel are: Unfair conduct by plaintiff’s counsel calculated to prejudice defendant with the jury; refusal of the court to permit defendant to show previous contradictory claims of plaintiff; refusal of the court to direct a verdict for defendant; certain portions of the charge relative to knowledge and agency; and the refusal to grant a new trial on the ground that the verdict was against the weight of evidence.

The unfair conduct of counsel, argued as prejudicial, consists of certain references made before the jury to the alleged wealth of defendant. Certain reflections in the argument of plaintiff’s counsel along those lines were improper and hazarded the interests of his client. If they were not corrected by the court and error was properly assigned upon them, a reversal on that ground would be a subject of serious consideration, but the court cautioned the jury to disregard them; that they had “nothing to do in this case with the question of the poverty or wealth of either plaintiff or defendant;” and we find no assignment of error which properly presents the question.

Exception to the court’s refusal, to allow defendant to show previous contradictory claims of plaintiff relates to rulings made in sustaining objections to certain questions asked plaintiff on cross-examination touching communications between defendant’s counsel, who was conducting the examination, and plaintiff at a time prior to the commencement of this action, when plaintiff and his wife visited said counsel’s office to consult him in regard to this case and to engage his 'professional services. Counsel stated to the court that plaintiff then made a statement of facts, to which he listened; that he there declined to take the case and was not retained; that he proposed to show that plaintiff then made “contradictory statements.” Objection to this line of inquiry was sustained on the ground that such communications were privileged. We are of opinion that such testimony was rightly rejected. It clearly appeared that plaintiff visited counsel at his office before this action was brought to consult him professionally and retain his services. The communications then made, and which counsel sought to disclose, were made during a conference for the purpose of establishing the relation of attorney and client in this very case. Tentatively, and until counsel declined to take the case, such relation did exist. The communication related to matters in which the professional services of counsel were desired and asked.

“If a person, in respect to his business affairs or troubles of any kind, consults with an attorney in his professional capacity, with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established, and the communication made by the client, or advice given by the attorney under such circumstances, is privileged. * * * It is the consultation between attorney and client which is privileged and must ever remain so, even though the attorney, after hearing the preliminary statement, should decline to be retained further in the cause, or the client, after hearing the attorney’s advice, should decline to further employ him.” 10 Enc. of Ev. 228.

See, also, Foster v. Hall, 12 Pick. (Mass.) 89 (22 Am. Dec. 400); State v. Tally, 102 Ala. 25 (15 South. 722).

It is not essential to such relation that any fee be paid, promised, or charged, and such communications are privileged, even though the attorney who was consulted and not retained, as claimed in this case, accepts employment from the party adverse to the person making the communications. Mack v. Sharp, 138 Mich. 448 (101 N. W. 631, 5 Am. & Eng. Ann. Cas. 109); Cross v. Riggins, 50 Mo. 335.

The assignments of error based on refusal of the court to direct a verdict for defendant and to set aside the verdict rendered as against the weight of evidence present defendant’s claim that there was no evidence of Simonich’s authority as agent to hire plaintiff which could be submitted as an issue of fact to the jury; and, even should the court find that such evidence appears, the same is so weak and contradictory that a verdict based upon it cannot stand against the positive testimony of the defense to the contrary.

A careful review of the evidence shows clearly that there was abundance of conflicting testimony to present a plain issue of fact for the jury on this question. Not only do many undisputed facts and circumstances in relation to Simonich’s employment in the saloon, and the manner in which he conducted the business done there as apparent manager, raise a fair inference of fact, but there is his positive and direct testimony that he was the manager, in charge for defendant, with authority to hire and discharge bartenders; that defendant came there but once or twice a week, staying only from half an hour to an hour, and took an inventory monthly. As to Simonich’s authority to hire bartenders, he testifies in part:

“Whoever I thought could draw trade I hired them and he didn’t make no kick.
“Q. Dick gave you that authority?
“A. Yes. * * *
“Q. Then you employed Devich for Dick?
“A. Sure, Dick had to pay one bartender.
“Q. And you put Devich on Dick’s account?
“A. Yes. * * *
“Q. When you hired this plaintiff, Devich, you said you wanted him to come and work for you?
“A. Yes, sir.
“Q. You put him in there to tend bar; you told him just the same as you told any other bartender? You simply said, ‘Come to work for me.’ Is that a fact?
“A. Yes.
“Q. On various occasions you hired bartenders, didn’t you?
“A. Yes, sir; I did.
“Q. You hired them yourself?
“A. Yes, sir.
“Q. You paid them?
“A. Yes.
“Q. You had authority from Dick to do so?
“A. Yes, sir.
“Q. Did Dick ever hire a bartender?
“A. No, sir. * * *
“Q. And you fired them?
“A. Yes, if I had reason. * * *
“Q. Without consulting Dick or anybody else, you did that, did you not?
“A. Yes, if a man didn’t suit me, I fired him and told him to go to the brewery and get his money. * * *
“Q. Dick knew that you were exercising the power of hiring and firing?
“A. Yes, sir.”

Plaintiff testified positively that he was hired by Simonich to work in the saloon at $50 a month; that he worked there tending bar during the time for which he demanded pay, and that he had not been paid; that defendant had often seen him there at work; had talked with him about the amount of business done there in comparison with other saloons; and on two or three occasions plaintiff had accompanied defendant from the saloon to the street car when he had asked for some one to attend him. This testimony is disputed by defendant, who testified that he himself was in active, personal charge of the saloon; that he hired the bartenders and ran the business himself; that he never hired plaintiff nor authorized his hiring and did not know £e was employed as a barkeeper working for him; that Simonich claimed plaintiff and his wife were working for himself. Defendant also testified that his duties as manager of the brewery took most of his time; that he visited the saloon once or twice a week; that he had seen plaintiff tending bar there on certain occasions; that Simonich, without consulting him, had before hired one bartender whom defendant paid, though Simonich had orders not to hire them without doing so, except that he was given authority to hire extra ones temporarily, in times of rush, around pay days.

Without going into further details, it may be conceded that inconsistencies and contradictions of more or less importance can be pointed out in the testimony of both plaintiff’s and defendant’s witnesses, who were mostly, if not all, foreigners, but we are impressed that many of the lengthy arguments along that line found in defendant’s brief are more properly for the jury than the court. The conflicting testimony as to Simonich’s authority fairly raised the issues of fact which were left to the jury by the court.

Plaintiff testified throúgh an interpreter, and other witnesses manifestly either did not clearly understand the import of many questions asked them or they were unable or unwilling to give direct and intelligent answers. With the class of witnesses testifying on both sides in this case, the advantage of personal observation, in seeing them and listening to their evidence as it develops, becomes of more than usual importance. The trial court and the jury had this distinct advantage over one who can only read the record,, and we are far from convinced that the verdict was unjust or so against the overwhelming weight of evidence as, under the principles so often set forth in former decisions, to impel this court to overrule the discretionary action of the trial court in refusing to grant a new and fourth trial.

It was the claim and theory of the defense that Simonich hired plaintiff and his wife together for $60 a month to work for him in a boarding house run by Simonich’s wife in the same building as the saloon; plaintiff to also assist in the saloon, when wanted. There was some testimony to that effect. Plaintiff on cross-examination testified that he and his wife were hired by Simonich for $60 per month, but he also testified that his wife was hired to work in the boarding house for $10 per month and he was hired to work in defendant’s saloon for $50 a month, and that Simonich said defendant would pay him. Exception is taken to portions of the charge dealing with this phase of the case wherein the court, after stating defendant’s claim, said:

“On the other hand, plaintiff claims that while he and his wife were employed together, he was to be paid $50 a month, and that Dick was to pay him, and that his wife was to be paid $10 a month. If that was true, if Simonich had authority to employ plaintiff for Dick, and plaintiff was to be paid $50 per month, then, of course, plaintiff would be entitled to recover.”

It is urged that the court in centering his instruction upon this proposition lost sight of other facts which were material to a proper understanding of the issue. The portion of the charge quoted, read with the charge taken as a whole, was not misleading or erroneous, and, without reviewing them at length, the same is true of other extracts from the charge quoted and excepted to. Immediately following the above quotation the court further said:

“If not, and if it was simply a joint contract with no division, and Simonich employed the two of them together to work for himself, then I charge you the plaintiff cannot recover in this case. * * * If he was employed by Simonich to work for Simonich he must look to Simonich for his pay.”

After a somewhat detailed review of the case in its various aspects, with a statement of the issues involved and the general rules of law applicable to such cases, presented in different lights, the court finally said:

4To recapitulate: You will first determine whether Simonich had power and authority to hire the plaintiff as bartender to work in that saloon. If he had no such power or authority, then, gentlemen of the jury, even though he did hire the plaintiff to work as bartender, your verdict must be for defendant. If you find by a fair preponderance of the evidence that Simonich had power and authority to employ the plaintiff to work as a bartender for Dick, you may proceed to determine whether or not he exercised such power by hiring this plaintiff to work as such bartender for Dick. If you find by a fair preponderance of evidence that he did so, and that he entered into a contract with the plaintiff in behalf of Dick for plaintiff to work as bartender in that saloon for $50 a month, then, gentlemen of the jury, it would be your duty, having found those two facts in favor of the plaintiff by a fair preponderance of the evidence, to render a verdict in his favor.”

We think the charge of the court, as an entirety, was not misleading, contained no reversible error, aiid properly presented to the jury the issues of fact involved, with the rules of law by which they should be governed in passing upon them.

The judgment is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.