text:
    WINCKOWSKI v. DODGE.
    1. Automobiles — Municipal Corporations — Negligence — In-pants — Streets—Rights op Pedestrians.
    Where plaintiff, an infant of about nine years of age, was riding in a city street upon the back of a loaded lumber wagon that was followed by an oil wagon and team, and where defendants’ employee, driving an automobile in the opposite direction, left the side of the street on which he was proceeding, in order to pass the lumber wagon which started to turn in front of the motor car at a street crossing and onto the intersecting street, and the evidence tended to show that the automobile was not going faster than 15 miles an hour and might have- stopped and permitted the wagon to pass in front of it without crossing to the wrong side of the street, that plaintiff alighted from the loaded wagon and attempted to pass to the curb, being struck by the motor car which gave no warning, and that other vehicles were passing the corner at the same time, one closely following the lumber wagon, the issue of negligence was a question for the jury, and a verdict was improperly directed for the defendants.

    2. Same — Law of Road — Personal Injuries.
    When two vehicles pass on the street it is the duty of each driver to look out for pedestrians suddenly appearing from behind the other vehicle.
    3. Same — Violation of Rule — Right Side.
    The driver who violates the law of the road by driving on - the wrong side assumes the risk of such an experiment; he is required to exercise greater caution than if he proceeded on the correct side; - if a collision takes-place, the presumption is against him.
    4. Same — Speed.
    Nor was he exempt from liability because he was not going faster than the permitted rate of speed, but, being bound to anticipate that he might meet passing pedestrians at any point, must keep a proper lookout for them and keep his machine under such control as will enable him to avoid a collision. Blowing of the horn is not sufficient if the circumstances at a given point demand other precautions.
    5. Same — Contributory Negligence — Infants.
    The confusing circumstances arising from the fact that another team followed that which plaintiff rode with and that defendant’s automobile approached down the wrong side of the street, passing around the wagon on which plaintiff was riding, which also turned across the street, made the issue of contributory negligence of the child a question of fact. The care or caution to be-required of him was to be measured by his age and capacity and he was not required to exercise the same care that the law requires of an adult.
    6. Same — Unlawful Act — Right to Rely on Due Cake.
    Contributory negligence will not be imputed to a minor for failing to anticipate a negligent or unlawful act of the defendant. And, failure to look for a vehicle passing in the wrong direction or on the wrong side of the street, would not warrant a charge of contributory negligence.
    Error to Wayne; Mandell, J.
    Submitted October 14, 1914.
    (Docket No. 96.)
    Decided December 18, 1914.
    Case by Frank Winckowski, by next friend, against John F. Dodge and another, copartners under the name of Dodge Brothers, for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      Florian, Moore & Wilson, for appellant.

      Douglas, Eaman & Barbour, for appellees.

       Upon the reciprocal duty of the operator of an automobile and a pedestrian to use care, see notes in 38 L. R. A. (N. S.) 487; 42 L. R. A. (N. SO 1178, and 51 L. R. A. (N. SO 990. And as to the duty of pedestrians to look out for. automobiles, see notes in 3 L. R. A. (N. S.) 345; 20 L. R. A. (N. S.) 232; 38 L. R. A.’ (N. S.) 488, and 42 L. R. A. (N. S.) 1179.
      The question of the rule of the road' governing vehicles proceeding in the same direction is discussed in a note in 41 L. R. A. (N. SO- 337.

   Steere, J.

This action was brought to recover damages for personal injuries alleged to have been caused by the negligence of defendants’ employee in running down plaintiff with an automobile on Joseph Campau avenue in the city of Detroit, on November 30, 1912. The accident occurred just south of where Joseph Campau avenue is crossed by Smith avenue. Joseph Campau runs north and south, is 35 feet wide, and has a double track street car line extending along it, the clear space for vehicles on either side of said tracks being about 10 feet. On the occasion in question an employee of defendants named William Wasmund was driving for them an automobile used in connection with their business, called a “pick-up” car, of 22-horse power and estimated to weigh “not over 2,500 pounds,” going south on Joseph Campau avenue. Following behind him at a distance of'about 50 feet was another pick-up car belonging to the Kelsey Wheel Company, driven by one of its employees. They were on the west, and to them the right, side of the avenue.- On the east side two horse-drawn wagons were moving north, the one in front being loaded with lumber and the one in the rear being a Standard Oil wagon. When the conditions arose which resulted in this accident the automobiles from the north and the wagons from the south were approaching and about to pass each other on opposite sides of the avenue they were traversing, near its intersection with Smith avenue.

Plaintiff, a Polish boy between eight and nine years of age, was riding on the rear end of the load of lumber, having apparently climbed upon some projecting boards, out of sight of the driver and those approaching from the north. The lumber wagon and the oil wagon were about 25 feet apart, their horses going at a walk. When the heads of the horses drawing the lumber wagon were approximately 20 feet south of Smith avenue, their driver guided them diagonally to the left, beginning to turn west on that thoroughfare. Defendants’ auto car was at that time some 60 to 70 feet to the north, beyond and approaching Smith avenue. Observing that the lumber wagon was about to cross his course, Wasmund, defendants’ driver, swung his car to the east, crossing over the railway tracks diagonally to the left, or wrong, side of the street for a person driving in the direction he was taking, and then turned westerly to cut across at the rear of the lumber wagon and in front of the oil wagon, back to the right side of the street again. As the lumber wagon was turning onto Smith avenue and Wasmund was swinging his car towards its rear to recross behind it, plaintiff alighted and ran out towards the east curb, when the. lamp or spring on the right side of defendants’ automobile struck and seriously injured him. Wasmund testified that he was but 10 or 12 feet away when he first saw the boy come from behind the wagon; that he then for the first time applied his brakes and could have stopped shortly after striking him, but the driver of the oil wagon motioned him to go ahead. If this be true, he could have easily checked down or stopped in time to allow the lumber wagon to pass before him onto Smith avenue. The driver of the auto car following him testified that they were running at a speed of 12 to 15 miles per hour, and that defendants’ car did not go any slower or faster when it started to turn out. behind the wagon and that he heard no horn blown. The driver of the oil wagon, who had driven automobiles, testified that the car which struck the boy was going, according to his judgment, 15 miles an hour, when it swung out to go across the street.

At the conclusion of the testimony a verdict was directed for defendants on the ground that plaintiff had failed to make out either a prima facie case of defendants’ negligence or his own freedom from contributory negligence. Though the driver’s own testimony tends to negative his claim that he could not check or stop his car in time to allow the wagon to safely pass in front of him, which compelled turning the car and passing to the left, and there is some conflict of testimony as to the speed at which he was running when he started to swing in behind the wagon he was meeting, those questions were clearly issues of fact, and there was ample evidence for the jury to consider, much of it undisputed, tending to show that his car struck the boy while on the wrong side of the street and of the vehicle it was passing, in violation of the law of the road and a city ordinance, near a crossing, with other following and passing conveyanees in close proximity, without giving warning of its approach to those who might not be able to see or would not anticipate its passing upon that side, and while swinging in behind the loaded wagon at the rear of which the boy was riding, running the car at such a speed that he could not. avoid any one who might come from behind the wagon, which he knew was just turning onto another street.

Irrespective of which side they pass and why, it is a settled rule of the road that:

“When two vehicles are passing it is the duty of each driver to look out for pedestrians suddenly appearing from behind the other vehicle.” Babbitt’s Law of Motor Vehicles, p. 286.

The undisputed evidence that defendants’ car was on the wrong side of the road, passing the vehicle it was meeting on the left, alone raises a presumption of negligence on the part of its driver, and when such negligence is shown to have had a causal relation to the injury inflicted upon the plaintiff, as is the case here, a prima facie case of actionable negligence is presented. Daniels v. Clegg, 28 Mich. 32; Tyler v. Nelson, 109 Mich. 37 (66 N. W. 671); Buxton v. Ainsworth, 138 Mich. 532 (101 N. W. 817, 5 Am. & Eng. Ann. Cas. 146); Bourne v. Whitman, 209 Mass. 155 (95 N. E. 404, 35 L. R. A. [N. S.] 701). If, as claimed by defendants, there were justifying circumstances tending to show it necessary for the driver to take the left side of the road, the question was of fact for the jury and not of law for the court. If facts were shown warranting the driver in passing to the left, it then became his duty to observe that degree of caution and proceed with care at such reduced speed as was commensurate with the unusual conditions.

“One who violates the flaw of the road’ by driving on the wrong side assumes the risk of such an experiment and is required to use greater care than if he had kept on the right side, * * * and if a collision takes place in such circumstances, the presumption is against the party who is on the wrong side.” Angell v. Lewis, 20 R. I. 391 (39 Atl. 521, 78 Am. St. Rep. 881).

That defendants’ automobile was not exceeding the statutory speed limit of 15 miles per hour in non-business sections of a city by no means conclusively established freedom from negligence. The driver is required to operate a motor upon all public highways at a proper and reasonable rate of speed, with regard to the traffic and use of the highway under the existing conditions, to avoid so far as possible endangering the life or limb of any person or the safety of any property. The demanded care of a driver in operating a motor upon a public highway under varying conditions is thus well stated in Thies v. Thomas (Sup.), 77 N. Y. Supp. 276:

“No owner or operator of an automobile is, therefore, exempt from liability for a collision in a public street by simply showing that at the time of the accident he did not run at a rate of speed exceeding the limit allowed by law or the ordinances. * * * He still remains bound to anticipate that he may meet persons at any point in a public street, and he must keep a proper lookout for them, and keep his machine under such control as will enable him to avoid a collision with another person also using proper care and caution. If necessary, he must slow up, and even stop. No blowing of a horn or of a whistle, * * * without an attempt to slow the speed, is sufficient, if the circumstances at a given point demand that the speed should be slackened or the machine be stopped, and such a course is practicable” to him. “Every such operator of an automobile has the right to assume, * * * that every person whom he meets will also exercise ordinary care and caution according to the circumstances, and will not negligently or recklessly expose himself to danger, but, rather, make an attempt to avoid it.”

If, as in this record, there is testimony showing or tending to show, defendants’ driver for any reason, while running at a speed of 12 to 15 miles an hour, swung his car to the left side of that narrow street to pass on the wrong side an approaching team drawing a loaded wagon, followed by another but 25 feet behind, and then turned again to go diagonally across the street through the narrow space between the two horse-drawn, loaded vehicles without slackening his speed, a jury would at least have supporting evidence for a finding that he was not driving with that due regard to the then traffic and use made of the highway demanded by the statute, to avoid endangering “the life or limb of any person or the safety of any property.” Witness Pierson well expressed the mental attitude of those who continue on at a dangerous speed under such circumstances rather than take the trouble of checking their cars to safe control in his statement:

“I suppose he did as many of us often do on that side; I often run on that side [the left] of the street myself, and it is merely a game of chance.”

If such game of chance only hazarded the safety of the driver who indulged in the game, it might be regarded with complacency, and even condoned, but such conduct is not in harmony with the rule of law requiring due care for the safety of others, although theoretically expiated, as too often occurs, by subsequent expressions of regret at a coroner’s inquest over an involuntary victim of the chance.

Neither can it be held under this testimony, viewed in the light most favorable to plaintiff, that he is shown, as a necessary legal conclusion, to have been guilty of such contributory negligence as to demand a directed verdict for defendants.

Children of his age and intelligence are held to have an understanding of the ordinary dangers incident to their playing upon or crossing public thoroughfares, and the necessity of avoiding them. In this State and elsewhere it has been held, under the facts of the respective cases then being considered, that children injured as a result of suddenly running out to cross a public street or from behind a concealing conveyance, without care or thought to look for a passing automobile or other vehicle dangerously near and which they encountered, were guilty of such contributory negligence as would, in the absence of excusing circumstances, preclude recovery; but in the instant case it may well be contended that there were confusing and excusing circumstances for one of plaintiff’s years, resulting from the driver of the lumber wagon starting to turn his team to the left and defendants’ automobile at the same time coming swiftly down upon the wrong side of the street. Plaintiff’s conduct is to be tested by his age, capacity, and understanding.

“The care and discretion to be used by children, and for which they must be held chargeable, must be proportioned to their age and capacity; and, while it must be ordinary care, it is not the ordinary care required of an adult under the same circumstances.” Wright v. Railway Co., 77 Mich. 123 (43 N. W. 765).

To what extent this boy knew and understood the rules of the road or reasoned upon the proper course which he should pursue to avoid danger is mere conjecture, but to the same extent he is held accountable under the law of contributory negligence .he must be credited with commensurate knowledge of the subject-matter. In seeking to reach the walk from near the center of the street he took the proper direction for safety, from his point of observation, according to the rules of the road, and would have been safe had defendants’ driver kept on his proper side of the street, as plaintiff had a right to presume all vehicles from that direction would do. From where he was at the rear of the load of lumber he could watch in the direction vehicles on the east side of the street should come from. The only thing in that direction for him to avoid was the oil wagon following close behind, drawn by walking horses. This first commanded his attention. He could easily estimate that danger, and know that by moving quickly he would avoid it while passing to the walk across the east side of the street, which was otherwise safe, provided the rules of the road were observed by drivers of passing vehicles.

It cannot be said under these circumstances that a child of his age was, as a matter of law, negligent in not anticipating that defendants’ automobile might come upon him without warning, running at a rapid rate upon the wrong side of the street, and then turn quickly diagonally across the way, between the two horse-drawn conveyances which were moving close together. If he thought that far, he would have the right to assume that should necessity cause the driver to take the wrong side of the street in passing, a timely warning would be given and the car slowed down to immediate control. Contributory negligence cannot be imputed to a plaintiff for failure to anticipate negligent acts of a defendant — no one need anticipate an unlawful act. In Gilbert v. Burque, 72 N. H. 521 (57 Atl. 927), this thought is thus expressed:

“Where the position of the plaintiff who was run into by a vehicle going in the opposite direction was not dangerous, until the other traveler’s act rendered it so, he is not chargeable with negligence as a matter of law because he did not see defendant or because he failed to anticipate that he would suddenly turn to the left, or because he did not instantly resort to some self-protecting expedient.”

An important consideration carrying the question of negligence into the realm of facts for the jury is that this automobile was running on the wrong side of the street when the accident occurred.

Even in the case of adults, it is held that one is not barred from recovery when run into by an automobile while crossing a street, merely because of failure to look in each direction before starting to cross. Lynch v. Rubber Co., 209 Mass. 16 (95 N. E. 400); Dugan v. Lyon, 41 Pa. Super. Ct. 52; Bradley v. Jaeckel, 65 Misc. Rep. 509, 119 N. Y. Supp. 1071. In the latter case the court said:

“Especially would it be unwarranted to hold, that when a person steps from the curb of a city street * * * he must look, not only in the direction from which vehicles may rightfully be traveling on that side of the street, but that he must look back, as well, in order to be sure that nothing is approaching from the rear on the side of the street prohibited by the rule of the road to vehicles traveling from that direction.”

In recognizing the significance of defendants’ automobile being upon the wrong side in case of accidents to children, it has even been held as a conclusion of law that a boy was not negligent in moving diagonally across a street without looking for automobiles which might come up behind him, but to do so must be. on the wrong side of the street. Burvant v. Wolfe, 126 La. 787 (52 South. 1025, 29 L. R. A. [N. S.] 677).

Ordinarily, and particularly where the defendant is traveling upon the wrong side, it is for a jury to determine whether an infant struck by an automobile and the driver, both or either of them, exercise requisite care under the facts shown. Turner v. Hall, 74 N. J. Law, 214 (64 Atl. 1060); Lynch v. Shearer, 83 Conn. 73 (75 Atl. 88); Bartley v. Marino (Tex. Civ. App.), 158 S. W. 1156.

Plaintiff’s age and intelligence clearly required, under the circumstances of this case, that his conduct should be measured and ascertained as a question of fact. It was for the jury to determine the double or mixed question of what was reasonably to be expected of an infant of his age, experience, and intelligence, so far as shown, and whether, on the occasion of the accident, his conduct reached the standard of such reasonable requirements so determined.

The judgment is reversed and a new trial granted.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
      In re TOLSMA’S ESTATE. TOLSMA v. TOLSMA’S ESTATE.
    1. Evidence — Witnesses—Vaette—Opinion Evidence.
    In proving a claim against the estate of a decedent for services rendered by claimant as housekeeper, the opinion of a neighbor as to the value of claimant’s services, with Which she was acquainted, knowing about what they were worth, was properly received in evidence by the court.
    2. Same — Receipts—Identification—Witnesses.
    Testimony of claimant showing that she and her brother found certain receipts that she had given to decedent, together with other papers, concealed in a can under the floor, was competent, not being equally within the knowledge of deceased, and the receipts were properly admitted in evidence, claimant not attempting to testify to their contents.
    3. Same — Estates of Decedents — Payment.

      Held, that the evidence which tended to show that claimant was working for compensation and claimed she had not been paid, supported a verdict for her, although there was disputed testimony tending to show that she had admitted being paid in full.
    Error to Kalamazoo; Knappen, J.
    Submitted June 22, 1914.
    (Docket No. 109.)
    Decided December 18, 1914.

      Mina Tolsma presented a claim against the estate of Henry Tolsma, deceased, for services performed. From a finding of the commissioners on claims allowing the claim in part, claimant appealed to the circuit court. Verdict for claimant. Defendant brings error.
    Affirmed.

      Claude S. Carney and Gordon Stewart, for appellant.

      Jackson & Fitzgerald, for appellee.
   Moore, J.

Henry Tolsma, deceased, was a bachelor and a farmer. His sister Mina Tolsma presented a claim against his estate. Her claim is that for 18 years, 6 months, and 18 days she kept his house, doing all the housework, making butter, raising chickens, making garden, attended to the personal wants of her brother, washed and mended his clothes, cooked his meals and meals for his hired help, and upon occasions worked out of doors picked up grubs on a new clearing, driving a horse in haying, and doing various other sorts of work for which it was agreed, to state it in the language of the claim filed by her—

“By said Henry Tolsma, deceased, and the undersigned, that the services performed as aforesaid by the undersigned, Mina Tolsma, were to be compensated and paid for by him the said Henry Tolsma, deceased, and that as such compensation the said Mina Tolsma was to have and receive the land constituting. the farm and home of said deceased in payment of the services rendered as aforesaid.”

The commissioners allowed the claim at $1,650. The claimant appealed to the circuit court, and, from a verdict and judgment of $6,770 in her favor, the case is brought here by writ of error.

We quote from the appellant’s brief:

“We will divide our brief into the following heads:
“First. Errors in the ruling of the court, made before submitting the case to the jury.
“Second. Error in overruling defendant’s motion to direct a verdict.
“Third. Error in refusing defendant’s request to charge.
“Fourth. Errors in the charge.”

1. Under this head counsel claims it was error to allow Mrs. Kakabaker to testify as to the value of the services rendered, because it was not shown she was competent. This witness testified that she had known claimant many years, and lived during the summer seasons on a farm adjoining Henry Tolsma’s farm; that she knew much about the work that claimant did; that she was acquainted with work of the character done by claimant, and thought she knew its value. We think the testimony was competent. See Ritter v. Daniels, 47 Mich. 617 (11 N. W. 409); Lathrop v. Sinclair, 110 Mich. 329 (68 N. W. 248); Fowler v. Fowler, 111 Mich. 676 (70 N. W. 336); Miller v. Township of Meade, 128 Mich. 98 (87 N. W. 131).

The claimant produced four receipts bearing her signature, the aggregate total of which was $230, and testified that she and one of her brothers found them in a tin can under the kitchen floor after Henry died, in the space about three feet high, between the earth and the kitchen floor, which space was reached by a trapdoor, and that certain other papers were found in another tin can, which, upon cross-examination, it developed were bank certificates of deposit, belonging to the dead brother, which certificates were turned over to the administrator. Miss Tolsma testified that the receipts bore her signature, and that they were made at the time the receipts bear date. It is claimed this testimony was incompetent because equally within the knowledge of the deceased, counsel citing the statute and Schratz v. Schratz, 35 Mich. 485.

It is clear that the testimony of finding the receipts was not incompetent because that occurred after the death of Henry. In the case of Schratz v. Schratz, supra, the claimant was allowed to testify to the contents of letters which had passed between claimant and deceased. The court, in holding this testimony inadmissible, said:

“There could be no question, admitting the testimony to be true, but that the contents of the letters were within the knowledge of the deceased, equally as within that of the witness. The letters, if they could have been produced, would have been admissible, but their loss or destruction would not change the rule and permit the witness to testify as to their contents.”

In the instant case the witness did not testify to the contents of the receipts, but they were put in evidence. What we have cited from the case justifies this course.

The other assignments of error may be considered together, because, if there was any question to go to the jury at all, it was submitted in a very long charge, in which the theory of defendant was stated to the jury, and the rights of the defendant as to the applicable law were carefully guarded.

The substance of the claim of appellant is stated by its counsel as follows:

“The court erred in overruling defendant’s motion for a directed verdict. The court should have directed a verdict in this case at the close of defendant’s testimony, because the plaintiff did not show that there was any contract relations existing between the plaintiff and deceased, and did not prove a case to be submitted to the jury. * * * There is absolutely no testimony to show that plaintiff was to receive anything for her work, or that the deceased ever agreed to pay her anything, or that he ever recognized that he was indebted to her. We maintain that plaintiff has not made as strong a case as in the case of Robinson v. McAfee, 59 Mich. 375 (26 N. W. 643).”

Counsel also cite Rodgers v. Lamb’s Estate, 137 Mich. 241 (100 N. W. 440). A reference to the first-named case shows, as will appear later, that it is not controlling. In the last-named case Justice Montgomery, speaking for the court, made use of this significant language:

“Passing by the discrepancy between these statements, there may be enough in the latter to indicate an admission on the part of decedent of an obligation to pay. But if we assume that there was a scintilla of evidence to carry the case to the jury, we see no escape from holding that the claim is barred by the statute of limitations. There was no evidence of a mutual, open account. In re Hiscock’s Estate, 79 Mich. 537 (44 N. W. 947).”

On the trial it was stipulated that the value of the real estate was $7,000. In the instant case it is not questioned that claimant did the work for which she put in a claim, but it was urged as a defense on the part of the estate that claimant admitted she had been paid. We quote from the testimony of a contesting brother, Alfred Tolsma:

“Mina Tolsma is my sister. I had some talk with her after Henry’s death. I had something to do with closing up the estate in the first instance. It was during the time of the petitioning the court for the appointment of an administrator. I asked her if she was going to put in a claim, and she said, ‘No;’ that she had had her pay; that Henry had paid her; that she had receipts from him — she had given him receipts. She did not say how many. She said she had an arrangement with Henry that Henry had paid her $50 a year up to the last two or three years, and then he commenced giving her $80, and she had the butter and eggs and what she would sell. This talk was back of the house on Henry Tolsma’s place.”

Miss Tolsma denied this conversation or any like conversation.

The character of the work done by Miss Tolsma was testified to by Edward Tolsma, a brother of Henry, who all the time lived within a mile and a half of the claimant. We quote part of his testimony:

_ “Mina did everything about the house and helped him on the farm at different times at different things. Henry had two houses during the time Mina lived there. He built a house when she was there; the first house he had when Mina first came. It was just a little log house. It had three rooms, I think. She did the housework in connection with that home in that house. She did everything in the line of housework, and I know she did all the housework. I always thought it was well done. He built another house a little better than the one he had, with more room, with four rooms on the lower floor and three above. I recollect that Mina, after going there the first time, went away from there and worked a little while. She went to Kalamazoo. I don’t know how long she was in Kalamazoo. She went back to his place and took up the same kind of employment doing housework.
“Q. Tell the jury what you saw her doing other than the housework?
“A. I have seen her help him in the potatoes on the farm and help put up wheat, and I think a year ago last summer she helped him draw wheat in the barn, and I have seen her helping him get corn-stalks out of the field, and I have seen her pick up grubs with him and burning them, when he was clearing up the ground. * * * She always helped every year in haying, driving the horse on the horse fork. She always did that when I was there. I had conversation with Henry about Mina at different times. I don’t remember any particular date. I put in corn there three years ago last spring and had a conversation with Henry about.Mina at that time. We were in the yard out under a shade tree.
“Q. What did he say?
“A. He said, 'She was thinking of going away_from there and going to Kalamazoo and about getting a lot and building a house on it and leaving the place.’ He said he didn’t know what he would do without her, and if she went away he would sell his farm, because he wouldn’t try to keep the farm and have anybody work it on shares.”

We quote part of the testimony of another witness:

“I worked for Tolsma two or three weeks before he died. I had a little conversation with him once about his sister Mina working there for him.
“Q. Will you tell the jury where it was, when it was, and what was said?
“A. Well, gentlemen, I will tell you. I was passing there. I had to go to town, and I saw Mr. Tolsma out in the yard, and I went over there.to see him. I knew he had been sick, and I asked him how he was getting along; and he says, T feel a little.better today than I have felt; I think in a few days I will be able to work;’ he says, ‘within a day or two.’ I says, ‘Don’t hurry yourself, and you will be around all right.’ He sat down on the barn ridge, and we talked, and he got to telling me the conversation how he started there. He told me he had 30 acres down below there, south of there, that he and his brother bought together. Well, after a few years he bought his brother out, he said; then he bought some other land, and after a while I think his parents died — his mother died; some of them — and this little girl — he called her a little girl. Those are the words he said. He says, ‘She came to live with me.’ He said, T bought this, and I cleared all this up myself, only what little my brother helped me.’ That his brother had cleared up part of the 30 acres, and, having bought the 30 acres, he did the rest of the work himself. Well, he says, I think, it was just a few months prior to that Mr. Kakabaker (that was his neighbor) had offered him $120 per acre for that 20 acres, and Kakabaker wanted it on his farm. I says, ‘That is a pretty good price.’ I says, ‘Hadn’t you better take that and sell the whole thing?’ He says: ‘No, I don’t know anything else but farming. That is all I know. If I get the money it might get away from me.’ And he says, ‘More than that, when I am through with this, it all goes to my sister.’ He says, ‘It all goes to her.’ What he meant by that I couldn’t say, but those were the very words he spoke to me. I don’t know any more than that.
“Q. Did he mention her name?
“A. No, sir; he said the little girl.
“Q. Did he state to you why it was going to her?
“A. No, sir; he didn’t, because it was all going to her.
“Q. Did he say anything about what she had done for him?
“A. He said she had helped him make it all; she had helped him make it.
“Q. Did he say that was why it was going to her?
“A. Yes, sir.
“Q. How long was that before he died?
“A. Well, I think about 2 weeks or 21/2, because I go to town once a week. It was about 2 weeks, as near as I can tell.
“Q. .Did he mention Mina’s name in connection with the little girl?
“A. Yes, sir; her name was Mina. Yes, sir; he said his sister Mina.”

Cross-examination of Mr. Harris by Mr. Carney:

“ * * * He just mentioned — he said his father —parents died. Anyhow this little girl — he called her little — she came to live with him. He says, T will tell you, Harris, when I am through with this, it will go to the girl.’ That is just what he said. Why he said it I don’t know, but that he said: ‘When I am through with this it will go to her. She has been an awful help to me. She has helped to make it.’
“Q. Was that the substance of the conversation?
“A. That was the substance. That is just'what the man said. What he meant by it I don’t know. I didn’t ask him about it. I knew nothing about his business at all. These very words Henry Tolsma said to me. ‘If she outlives me it will all go to her.’ ”

We quote some of the testimony of another witness who lived about a half mile from Henry Tolsma:

“I recollect of Henry locating on the farm there where he afterward died. I also recollect of Mina Tolsma’s coming there. I had an opportunity to observe the nature of Mina Tolsma’s employment during the time she was there. I have seen her loading hay, husking corn, loading wheat, pitching cornstalks, and helping him draw, and she always kept the yard mowed. She did the housework, the washing, and ironing. I have seen her assisting in gathering in the hay and corn. I have seen her load hay and gather it. I was well acquainted with Henry Tolsma and knew him practically all my life.
“Q. Did you ever have any conversation with him about Mina?
“A. I have.
“Q. When?
“A. If I recollect I had the first conversation with him on the subject two years ago this winter.
“Q. Will you go ahead and tell the jury where you were and the substance of what was said by Henry?
_ “A. We were in the woods cutting wood at the time, and we got to talking about the girl, and I says to_ Henry, ‘You ought to fix this thing so your sister will know what she is going to have;’ and he says, ‘We understand each other.’ Those are the words he told me.
“Q. Did he say anything about what she had done for him?
“A. He said she had done as much for him as any wife or anybody could have.
“Q. Do you recollect of him buying the last piece of land about having any conversation with him about Mina' at that time?
“A. Yes, sir.
“Q. What was that?
“A. He said he would not have bought it if it had not been for Mina.
“Q. How long ago was that?
“A. Now, I couldn’t just state when he bought that. * * !|:
“Q. State what you said and what he said.
“A. He bought it for her when he was through with it.
“Mr. Carney: I object to that. He didn’t say that; that is what you took it for; that is not what he said?
“A. He said he expected she would have it when he was through with it.
“Mr. Fitzgerald: Q. Let me ask you if you remember of Mina going away from Henry’s home and coming to Kalamazoo and working during the time she was there? Do you remember of her coming to Kalamazoo and working?
“A. Yes, sir.
“Q. Do you remember of her coming back?
“A. Yes, sir.
“Q. Did you have any conversation with Henry about her at the time or about the time she came back?
“A. I didn’t have any at the time, but I had it later on. He told me when cutting wood.
“Q. What was. that?
“A. He said he didn’t know what he would have done if he hadn’t got her back.”

It is not necessary to quote other testimony. We think what we have quoted shows that there was a question for the jury, under the following cases: O’Connor v. Beckwith, 41 Mich. 657 (3 N. W. 166); In re Williams’ Estate, 106 Mich., at page 503 (64 N. W. 490); Lathrop v. Sinclair, 110 Mich. 329 (68 N. W. 248); In re McNamara’s Estate, 148 Mich. 346 (111 N. W. 1066); Hialey v. Hialey’s Estate, 157 Mich. 45 (121 N. W. 465); In re Mitchell’s Estate, 178 Mich. 493 (144 N. W. 850).

Judgment is affirmed.

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

Ostrander, J. I think the estate should be held liable as upon an implied assumpsit.


author: Steere, J.

text:
    ESTATE OF BECKWITH v. SPOONER.
    1. Master and Servant — Workmen’s Compensation — Petition to Terminate Payments — Res Judicata.
    On the hearing of an employer’s petition to the Industrial Accident Board to terminate compensation awarded to an injured servant by the contract of employer approved by the accident board, the essential elements leading up to the award are to be taken as concluded and are not open to review. The physical condition of the injured employee is the subject of inquiry and is legally open to adjudication. Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seg.).

      2. Same — Contracts—Res Judicata.
    An employer’s agreement filed with and approved by the' accident board, granting compensation to a servant for injuries sustained in the course of his employment, is a substitute for, and under the statute is the legal equivalent of, a final award of the board, and has equal force and standing, when, to enforce recovery, it becomes necessary to put them in judgment in the circuit court.
    3. Appeal and Error — Certiorari—Workmen’s Compensation.
    Upon review of the findings and determination of the Industrial Accident Board by writ of certiorari, the findings of fact are to be taken as final and conclusive if there is evidence to support them, in the absence of fraud.
    4. Same — Industrial Accident Board — Review.
    Where an employee received compensation from his employer by a written agreement approved by the accident board, after a full opportunity to investigate the facts, and no fraud was alleged, the agreement was conclusive as to a subsequent claim of the employer that the loss of the eye, afterward, by a cataract, was not produced by the injury, which the medical testimony tended to show might have resulted from the injury, the employer claiming that the cataract resulted from a cataract on the other eye that had been removed by an operation, or was caused by senility, and that the injury did not cause the loss of sight.
    5. Same.
    Where different inferences may be drawn from the testimony before the Industrial Accident Board, and inferences which are favorable to their finding that a petition to terminate compensation should not be granted are deducible from the record, the court on certiorari will not disturb the result.
    Certiorari to the Industrial Accident Board;
    submitted November 13, 1913.
    (Docket No. 114.)
    Decided December 18, 1914.
    The estate of P. D. Beckwith, a corporation, and Fidelity & Casualty Company of New York petitioned

      the Industrial Accident Board for an order terminating the right to compensation of Alden Spooner, under an agreement with the petitioner, and from an order denying the petition they appeal.
    Affirmed.

      Charles H. Buttle, for appellants.

      Person, Shields & Silsbee, for appellee.
   Steere, J.

Plaintiffs and appellants herein seek, by certiorari, review and reversal of certain “Proceedings and Decisions and Awards,” had and made before and by the Industrial Accident Board of this State, which culminated in the following final order:

“Alden Spooner, Claimant, v.
“Estate op P. D. Beckwith & Fidelity & Casualty Company op New York, Respondents.
“This matter having come on to be heard upon the petition of the respondent filed herein, praying for relief and to stop compensation for reasons set forth in said petition, and, after full examination of the proofs, upon said petition, and hearing (argument thereon, and due consideration thereon having been had, and it appearing to the board that the facts alleged in said petition as reason for stopping compensation are not sustained by the proofs, it is ordered and adjudged that the said petition be, and the same is hereby, dismissed.”

It appears undisputed that said Alden Spooner was regularly employed as a molder by the above corporation, known as the “Estate of P. D. Beckwith,” of Dowagiac, Mich., which, as an employer of labor, had, with approval of the Industrial Accident Board, elected to come under the provisions of Act No. 10, Public Acts of 1912, Extra Session (2 How. Stat. [2d Ed.] § 3939 et seq.). While regularly engaged in its employment as a molder Spooner suffered an accident resulting in an injury to his right eye, described by his employer, in its report made under the requirements of section 16, part 3, of said act, as follows:

“Molten iron splashed into right eye, right eye burned.”

Section 5 of part 3 of said act provides:

“If the employer, or the insurance company carrying such risk, or commissioner of insurance, as the case may be, and the injured employee reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the Industrial Accident Board, and, if approved by it, shall be deemed final.and binding upon the parties thereto. Such agreements shall be approved by said board only when the terms conform to the provisions of this act.”

Pursuant to the provisions of this section the following was filed with the Industrial Accident Board, on November 14, 1913:

“Agreement in Regard to Compensation.
“We, A1 Spooner, residing at city or town of Dowagiac, Mich., and Fidelity & Casualty Co., of N. Y., have reached an agreement in regard to compensation for the iiy'ury sustained by said employee while in the employ of Estate of P. D. Beckwith, Inc., Dowagiac.
“The time, including hour and date of accident, the place where it occurred, the nature and cause of injury and other cause or ground of claim, are as follows:
“Mr. Spooner was injured Oct. 22, 1913, about 4:30 p. m. Molten iron splashed into right eye, causing bad burn in corner of eye.
“The terms of the agreement follow: $17.60 wages earned; $8.80 compensation agreed upon.
“Al Spooner.
“Fidelity & Casualty Co., op N. Y.,
“By Leo A. Donahoe,
“Witness: Wm. Hurst.
“E. A. Miecham.
“Dated at Dowagiac, Mich., this 12th day of November, 1913.”

This agreement was approved by the Industrial Accident Board on November 14, 1913, and thereafter compensation was paid accordingly from October 22, 1913, to January 14, 1914. On January 21, 1914, appellants filed with, the Industrial Accident Board a petition asking to be relieved from further payments, based upon the following letter or report, addressed to Dr. Jones, the local physician who attended Spooner professionally at the time of his injury, and who had referred him to Dr. Bonine, an eye specialist:

“January 15, 1914.
“Dr. J. H. Jones,
“Dowagiac, Mich.
“Dear Sir:
“I have had Mr. Spooner under my careful scrutiny and find the following condition: Some years ago I operated for cataract on one eye and obtained good results — above the average. The other eye shows signs of the same trouble at this time. That, however, is not strange as it is the rule with senile cataracts if they come on one eye they are quite certain to grow on the other, as you know.
“Therefore there is nothing unexpected about the remaining lens filling in, so can’t see where any one could be held responsible for present conditions, as no other pathological condition of the orbit is in evidence.
[Signed] “F. N. Bonine, M. D.”

Upon the hearing of said petition depositions of Drs. Jones and Bonine were introduced in evidence. The board thereafter made the following:

“Findings op Fact.
“(1) The respondent, Alden Spooner, was employed in the plant of the Estate of P. D. Beckwith, Inc., as a molder, and had worked there for several years in that capacity. He was 65 years old, and at the time of the injury was receiving wages of $17.60 per week.
“(2) That on October 22, 1913, respondent while attending to his duties as a molder, received an injury to his right eye by having hot sand and other substances splashed into the same, producing an inflammation necessitating immediate medical attention and causing disability to do work.
“(3) That in 1905 respondent had a cataract removed from his left eye by Dr. F. N. Bonine, and that such operation was successful and the result thereof above the average.
“ (4) That respondent’s right eye, being the one injured in October, 1913, has now developed a cataract, which is so far advanced that he can discern light, but has practically no vision. His left eye, operated on in 1905, is of little use, and he is in a condition of total disability on account of the condition of his said eyes.
“(5) That the claim of petitioners that the present condition of respondent’s right eye is due not to the injury thereof on October 22, 1913, but that such condition is due to senile cataract, is not sustained by the evidence.
“(6) That the present condition of respondent’s right eye and his resulting disability is due to the injury received by him October 22, 1913.
“(7) That all of the proposed findings of fact of petitioners, not included in these findings, are refused.”

Against the action of the Industrial Accident Board in this matter, appellants urge two major grounds of reversal: First, that the controlling findings of fact are unwarranted and unsupported by evidence; and, second, “insufficiency of proceedings.” In explanation of the latter it is stated that not the legality, but the sufficiency, of the proceedings is questioned, in the particular that, although appellants in support of their petition produced proof which established—

“Spooner was suffering with a senile cataract, and that his disability was not a result of his injury of October 22, 1913, yet the Industrial Accident Board refused to accept the unchallenged testimony of the physicians, and without any further evidence whatsoever, as to Spooner’s precise condition, with respect to his eyes, entered an order denying appellants’ petition, which order is so vague, uncertain and indefinite that it may work irreparable damage to appellants, * * * ” and “that appellee has never produced any proof that he sustained an injury while in the employ of the Estate of P. D. Beckwith, Inc.; that there is no evidence that his disability or impairment of eyesight were a result of his accident of October 22, 1913, as well as that it did not exist for some time prior to the date mentioned; that at no time has any admissible evidence been offered relative to his present condition, whether the sight of the left eye operated on in 1905 is good, or in any degree impaired, and if impaired to what extent, nor is there any testimony as to the exact condition of the right eye, in which grains of sand lodged on October 22, 1913, and whether the sight in that eye is impaired, permanently or partially, or to what degree.”

In the latter particular appellants disregard the significance of the report and agreement as to compensation filed by them, which eliminate the various statutory steps of arbitration now urged as imperative. The agreement, filed with and approved by the board, is a substitute for, and, under the statute, the legal equivalent of, an arbitral award. They have equal force and like standing when, to enforce recovery it becomes necessary to put them in judgment in the circuit court for the county where the accident occurred (section 13, part 3, of said act). The power of the board to act upon a petition such as appellants presented in this case is found in the following section (14), which authorizes it to review any weekly payment at the request of the employer, insurance company carrying the risk, commissioner of insurance, or employee, “and on such review it may be ended, diminished or increased, subject to the maximum and minimum amounts above provided, if, the board finds that the facts warrant such action.”

On the hearing of such petition for review it can be stated as a general rule that the essentials leading up to the award, or its equivalent, are to be taken as res adjudicata, except the physical condition of the injured employee, which naturally and legally remains open to inquiry. Mead v. Lockhart, 2 B. W. C. C. 398.

We discover no claim in this record that appellants were induced to enter into the agreement regarding compensation by fraudulent misrepresentations of the other party. It is established beyond question by their own representations that Spooner was injured on October 22, 1913, while working as a molder for the Estate of Beckwith, by “molten iron splashed into right eye; right eye burned;” that he was treated by Dr. Jones, one of their witnesses, on October 23d, 27th, 30th, and 31st. Dr. Jones, a physician in general practice, testified that he found small, black particles of foreign substance in the right eye and inflammation in the conjunctiva, but neither it nor the cornea were abrased or penetrated; that the inflammation was slow in disappearing, and continued over several weeks — four or five weeks before it disappeared— that he thought it a case which needed the service of a specialist, and referred the patient to Dr. Bonine. The only reference in Dr. Jones’ testimony to a cataract is found in this answer to a question, on cross-examination, whether he thought the injury he treated would cause, or help cause, a cataract.

“A. Well, upon technical points, the substance of special matters bearing upon the interior conditions of the eye, I don’t make a special work of if. I would state, however, severe injuries to the eye do cause cataracts. I do not make a practice of treating conditions that involve the interior of the eye, but I refer them to a specialist.”

We see no force in the contention that at the time of settlement Spooner was not suffering from an injury which arose out of and in the course of his employment. The manner of the accident and condition of the eye were then open to appellants’ investigation, and unquestioned. After ample time and opportunity to learn fully of the accident and history of the case from the physician in charge, the injured employee, and all other sources, the agreement was made on November 12th following. We find no testimony tending in any manner to show that prior to the accident there was any cataract or impairment of vision in, or trouble with, this right eye. Thereafter its vision was impaired, and a state of inflammation, slow in healing, led the local physician to refer the patient to a specialist, who, on December 20, 1913, discovered an immature, developing cataract, the existence of which was undisputed at the time of hearing.

Dr. Bonine testified that when he examined the injured eye, on December 20, 1913, “there was irritation of the eye that could be attributed to an inflammatory state of traumatism producing it, or hardness of the eyeball would cause a largeness of the vessels of the eye, would give it that appearance;” that he found a pretty well-advanced cataract on that eye, but could not tell how long it had been forming, because he had not seen Spooner, except casually, since he operated on his left eye for a cataract eight, years previous, in 1905. In explaining the nature of cataracts, witness stated that there were three distinct ways in which they are formed, the simplest being a traumatic cataract, caused from an injury, the second a senile cataract, caused by an interference with the nourishment of the lens through diseases of the inner tissues, and the third hereditary, or resulting from hereditary tendency; that a traumatic cataract would usually come in from one to three or four weeks after an injury, or sometimes instantly if the lens was pierced so that the aqueous humor came in contact with it; asked if this was a traumatic or senile cataract, he answered:

“A senile. * * * It is the rule when a cataract comes on one eye the tendency is to form on the other; not necessarily, but it is the rule, and not concurrent. * * *
“Q. Could you determine, in saying, whether this was a senile or traumatic cataract?
“A. The stage of inflammation had gone on until it would be a difficult matter to do that. The only indication had was irritation or flushed eyeball that I spoke of at first; that was traumatism.
“Q. Has the cataract grown since you first saw Mr. Spooner in December?
“A. From the first to the last the vision has decreased decidedly. * * *
“Q. If this was a traumatic cataract, would it have been probably fully developed by December 20th, in 8 weeks?
“A. Depending upon the severity of the injury. If the injury was slight, it would develop slowly.”

Being asked on cross-examination, “In your opinion, doctor, is there any connection between the cataract on the left eye and on the right?” he answered:

“The only connection established would be the rule of the formation of cataracts, as over 80 per cent, of cataracts that form first in one eye would later form on the other, 20 per cent, of one eye will be cataracts, a-nd the other eye not at all, so that is the only relation one eye could have to the other.”

The doctor nowhere testifies that the cataract removed by him from the left eye over eight years before was senile, but such possibly may be inferred from his testimony, especially when considered in connection with his letter to Dr. Jones.

Section 12, part 3, of said Act No. 10, under which these proceedings are had, empowers this court to review only questions of law; all questions of fact determined by the board from competent evidence being conclusive, in the absence of fraud. It must be conceded, as urged by appellants, that the record discloses no testimony, competent or otherwise, to sustain the finding:

“His left eye, operated on in 1905, is of little use, and he is in a condition of total disability on account of the condition .of his said eyes.”

This finding, however, tends only to confuse, and must be eliminated from consideration, not only because it has no evidential support in the case, but no claim was ever made for injury to the left eye, and its condition is not in issue. With it eliminated, there is sustaining evidence for the remaining findings of fact essential to support the order sought to be reversed.

The controlling issue raised before the board by appellant’s petition for review was whether they had by their evidence conclusively established that the cataract which appeared in claimant’s right eye after the injury was senile, and therefore not connected with, or attributable to, such injury. To sustain appellant’s contention here this court must therefore be able to say, from the whole record, as a conclusion of law, that the Industrial Accident Board must find, not could find, as a conclusion of fact, that the cataract in the injured right eye is senile and not traumatic, and that Spooner was not, at the time of hearing said petition, under any incapacity attributable to the accident, and resulting injury to that eye, on October 22, 1913.

We conclude that upon such issue different inferences of fact could legitimately be drawn from what the record discloses and, in such case, where the board does not find “that the facts warrant such action” as may be requested under section 14, part 3, of the act creating said board, the court cannot disturb its findings and orders thereon, made while acting within the authority there conferred.

The order complained of is therefore affirmed.

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


author: STEERE, J.

text:
    LANSING CO. v. ROGERS.
    1. Vendor and Purchaser — Land Contracts — Options.
    Equity will specifically enforce a land contract to convey a parcel of land for a price and terms stated in detail, subject to an option to purchase within' 60 days to a third person, who did not, however, exercise his right within the time limited in the option. The contract to purchase-the property was not so indeterminate or incomplete that it amounted to a mere offer, and. it was not affected or terminated by the vendors granting an extension of time to the holder of the option, which right was also suffered to lapse.
    2. Same — Specific Performance — Mistake—Contracts.
    Nor was the contract invalid because it did not include a stipulation agreed upon between the parties that the vendee should assume a mortgage covering a farm of which the land constituted a portion, and should release the balance of the real property from the lien; equity could correct the mistake.
    3. Same — Tender—Mistake.
    If the-omitted term or provision is favorable to the defendant, the omission from such writing is not a defense, provided the vendee is willing to perform the omitted provision.
    Appeal from Eaton; Smith, J.
    Submitted November 19, 1914.
    (Docket No. 132.)
    Decided December 18, 1914.
    Bill by the Lansing Company against Eria A. Rogers and Pearl Rogers for specific performance of a contract. From a decree for complainant, defendants appeal.
    Affirmed.

      Elmer N. Peters, for appellants.

      C. F. & E. T. Hammond (Russell R. McPeek, of counsel), for appellee.
   STEERE, J.

In this suit defendants have appealed from a decree imposing specific performance of a land contract given by them to complainant, covering 80 acres of land in township 3 north, of range 5 west, Eaton county, Mich.

The instrument in controversy was executed in duplicate on July 22, 1913. It was drawn by a reputable attorney, to whose office the parties went after making their agreement, for the purpose of having it put in writing. No question is raised as to the good faith of all parties at that time, nor as to the contract having been drafted as directed, while all were present and after its terms, as prepared, were fully talked over and agreed upon. It was there and then signed by defendants and the authorized agent of complainant. By its terms, briefly stated, defendants agreed to sell and convey to complainant the land therein described for the sum of $6,400 — $1 on the signing of the'contract and the balance, less a mortgage on said premises of $5,300, which the grantee was to assume, not later than August 12, 1913 — defendants to at that time furnish an abstract of title brought down to date and execute and deliver to complainant a full covenant, warranty deed in proper form conveying the absolute fee of said premises, free from all incumbrances, except said mortgage. Said contract follows the form and phraseology commonly resorted to in the preparation of such instruments and embodies the recognized essentials of a land contract, with no unusual provisions or special features, except the following clause, upon which the defense is chiefly based:

“It is specially understood and agreed that this agreement is subject to the terms of a certain contract in writing between Eria A. Rogers and Pearl Rogers, of the one part, and C. G. Stead, of Jackson, Michigan, of the other part, dated July 5, 1913, wherein said C. G. Stead is given an option to purchase said above-described premises, running thirty days from the date thereof, said option by its terms to be operative for sixty days, unless canceled by said Eria A. Rogers and Pearl Rogers subsequent to August 7, 1913, and such cancellation to be effective two days subsequent to date of such registered notice.”

It appears, undisputed, that defendants not only failed to cancel the Stead option subsequent to August 7, 1913, as they legally could have done, but they extended it until August 30th. Defendant Eria Rogers explained to complainant’s agent, who protested against it, that this was done “out of fairness to Mr. Stead,” who, he anticipated, could not or would not do anything until the option expired. Defendant Pearl Rogers testified:-

“We afterwards adjusted the matter with Mr. Stead, and got that option out of the way.”

Whatever the adjustment might have been, Stead never exercised his option. All his right under it expired, and no claim is made that he has or asserts any interest in the property. Any interest or claim which he may have once had was entirely eliminated before this suit was begun.

Previous interviews, proposals,. and requests for defendants to convey said property according to the terms of the contract, accompanied by offers of complainant to fulfill on its part, having resulted in refusal, just before this suit was begun complainant’s counsel, on or about September 9th, visited defendants and tendered a deed for their execution, together with an amount of money sufficient to pay the balance above said mortgage, which complainant was to assume. Defendants again declined to carry out the terms of the contract and refused the tender; their reason for so doing, as outlined in counsel’s brief, being that the instrument was incomplete and but an offer on the part of complainant to purchase the property not later than August 12th upon condition that’ defendants would cancel the Stead option and tender complainant a deed, that defendants were free to accept or reject the offer, and that their act in extending the Stead option, of which complainant had notice, was in legal effect a rejection of the offer.

Their claim that the contract was incomplete is based upon the fact that, at the time of signing it, defendants were the owners of a farm of 240 acres, of which the 80 in question formed a part, and the mortgage of $5,300, which complainant was to assume, covered the entire farm. This mortgage was given January 11, 1912, for the term of 10 years, interest payable semi-annually; the mortgagors, however, having the privilege of paying $100 or more on the principal at any date when interest payments fell due. As to this feature of the case, the testimony shows complainant was ready and willing to pay this mortgage in full at the first opportunity, and intended to do so the following January, when semi-annual interest fell due, had so assured defendants, and offered upon the hearing to pay into court sufficient money to liquidate said mortgage, to be so applied under and by direction of the court. The decree appealed from covers this. Specific performance is decreed only upon condition that full payment be made according to the terms of the contract, including any interest which defendants may have paid since tender and demand of a deed, and payment into court of the amount necessary to pay said mortgage in full, both principal and interest, when the next semi-annual installment of interest would fall due upon the same, at which time it could be paid in full according to its terms.

This contract is beyond question complete as to the subject-matter, the parties, and the price, and even as to the manner and terms of payment, except the claim that, through oversight, inadvertence, or mistake arising from omission to clearly express the intent of the parties, the balance of defendants’ farm is not relieved of the mortgage and might be burdened with it for years, against which it is manifest they should have been protected by express language. Even if the contract was in that particular objectionable for uncertainty, the court by its decree has eliminated that objection, acting well within its authority.

A court of equity may in many cases grant relief justified by conditions shown at the time of adjudication, and is not bound to relate its decrees to the time of instituting proceedings, as must be done when rendering judgment in a court of law. 3 Elliott on Contracts, § 2359. The provision to relieve the balance of the farm from the mortgage, which it is claimed was omitted either intentionally or by mistake, was one favorable to defendants. Complainant has more than once offered, in court and out, to perform the contract with that provision included, and the court has safeguarded that offer.

“If the omitted term or provision of the contract is one that is favorable to defendant, its omission from the writing is not a defense, if complainant is willing and ready to perform the whole agreement, including the omitted term. This is true whether the omission was intentional or by mistake.” 36 Cyc. p. 608.

See, also, 2 Story’s Equity Jurisprudence, §770a; Park v. Johnson, 4 Allen (Mass.), 259; Anderson v. Kennedy, 51 Mich. 467 (16 N. W. 816).

It is contended in behalf of the defense that this was a contract to be performed at the option of defendants, the adverse party, because it .was subject to the Stead option, which they chose not to cancel after August 7th and before August 12th, the date for performance of their contract with complainant; that no provision of the contract in express terms obligated them to cancel the Stead option, and they are therefore relieved of any duty to convey to complainant.

We are unable to place such construction upon the instrument of July 22d. At that time Stead held an option upon the 80 acres, giving him an absolute right to purchase it on or before August 7th. Subject to that right, defendants owned the land and were free to sell it, and after that time, if Stead did not call his option, they could, by taking proper steps, convey to the purchaser, whoever it might be, a good title. This contract of July 22d, if it shows anything, shows that defendants wished to sell and complainant wished to buy the property at the price agreed upon. It states in express terms that “the said parties of the first part hereby agree to sell and convey, and the said second party hereby agrees to purchase,” said property. The price, terms of payment, abstract, etc., are distinctly stated, and date of performance is set at a time when it was within the power of defendants to give a good title, if Stead has not exercised his option, and defendants agreed at that time “by a full covenant, warranty deed in proper form to convey to said second party, or its assigns, the absolute fee of the above premises, free of all incumbrances, except as above stated,” referring to the mortgage of $5,300. Stead’s option was in effect an incumbrance. Under this agreement it was their duty to place themselves in position to.perform when it was in their power to do so. They had that absolute right after August 7th and. before the time set for performance. Up to August 7th, while they did not have that right, they were protected by the terms of the contract, which for that purpose was made subject to the Stead option. The date set for consummation of this contract (August 12th) is convincing evidence of the intent of both parties and their agreement to perform as soon as it was within the power of defendants to do so.

This is not of that class of cases cited by defendants where there are interested third parties against whom specific performance cannot be enforced. All rights of Stead were ended before this bill was filed. An objection which has been fully eliminated before suit is commenced cannot be urged against specific performance. Rank v. Garvey, 66 Neb. 767 (92 N. W. 1025, 99 N. W. 666).

The decree is affirmed, with costs.

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


author: Bird, J.

text:
    SCHNELL v. MICHIGAN BONDING & SURETY CO.
    1. Intoxicating Liquors — Drunkards — Civil-Damage Act — Unlawful Sales — Death.
    In a civil-damage action under 2 Comp. Laws, § 5398 (2 How. Stat. [2d Ed.] § 5074), by a married woman, for illegal sales of liquor to her husband, a declaration averring that her husband provided for her support until a certain date after their marriage, when he began drinking intoxicants to excess; that he gradually became a common drunkard and died of excessive use of intoxicating liquors; that defendant saloon keepers sold and continued to sell to decedent such liquors, making him a drunkard, and that knowing him to be such, sold liquor to him from day to day, causing him to become worse, and that she had requested defendant liquor dealers not to furnish intoxicants to her husband, but they had failed to conform to her request, etc., stated a cause of action against them for contributing to the downfall of the decedent.
    ¡2. Same — Declaration—Duplicity—Habitual Drunkard.
    The declaration was not demurrable for duplicity, because the sales made to plaintiff’s husband were charged to have been made when he was intoxicated and when he had become an habitual drunkard, and also, when he was a common drunkard, since the pleading alleged that the sales were made to a single individual and contributed to produce a common result, i. e., the making of decedent a common drunkard.
    3. Pleading — Time—Date.
    The common law required a declaration to state a time when every material, traversible fact happened.
    4. Same — Intoxicating Liquors — Time or Date of Sale.
    A reasonable requirement, pursuant to this rule of pleading would be to state the time when some of the illegal sales took place or give dates between which the same occurred; the averment being material and important.
    5. Same- — Sales.
    The declaration was insufficient and open to demurrer, although it stated that plaintiff’s husband began to use intoxicating liquors to excess shortly after May 1, 1905, and defendants sold and continued to sell to him after he became such habitual user; dates between which the unlawful sales took place should be stated; since no bill of particulars can be demanded in tort cases, a demurrer was the proper method of raising the objection.
    Error to Kalamazoo; Knappen, J.
    Submitted June 6. 1913.
    (Docket No. 10.)
    Decided December 19, 1914.
    Case by Matilda L. Schnell against the Michigan Bonding & Surety Company and others for unlawfully selling intoxicating liquors to plaintiff’s husband. Plaintiff reviews an order sustaining demurrers to • plaintiff’s declaration by writ of error.
    Affirmed.

      William R. Fox and Robert L. Campbell, for appellant.

      A. F. Bunting, for appellee Michigan Bonding & Surety Co.

      Alfred J. Mills and Harry C. Howard, for appellees Oscar S. Anderson and others.
   Bird, J.

The plaintiff brought this suit under the civil damage act (Act No. 313, Pub. Acts 1883), § 20 (2 Comp. Laws, § 5398; 2 How. Stat. [2d Ed.] § 5074)., against 47 Kalamazoo saloon keepers and their surety, the Michigan Bonding & Surety Company, to recover damages for the loss of her support, etc., occasioned by the intemperate habits and death of her husband, Louis P. Schnell.

The declaration was demurred to by all of the defendants. The grounds of demurrer are numerous, but reliance is principally placed upon the grounds :

(1) That the declaration failed to state a cause of action against the defendants, either jointly or severally.

(2) That it is bad for duplicity.

(3) That the allegations as to the element of time are too indefinite and uncertain to enable the defendants to make ready their defense.

1. The declaration shows that plaintiff was the legal wife of Louis P. Schnell; that after their marriage in July, 1891, he was a kind and indulgent husband, and provided support for her until “shortly after May 1, 1905,” when he began drinking intoxicating liquors to excess; that the habit grew on him until he became a common drunkard; and that later, in October, 1911, he died as a result of such intoxication. The declaration then sets out in detail the period when each defendant was engaged in the saloon business in the city of Kalamazoo, the approval and filing of his bond, also the location of his business, and, if his surety was the defendant the Michigan Bonding & Surety Company, that fact is stated. It then alleged that: intoxicating liquors to excess, and ultimately made a common drunkard of the said Louis P. Schnell; that after the said Louis P. Schnell was made a common drunkard by the said defendant saloon keepers and the other saloon keepers hereinbefore named, they continued and, knowing him to be a common drunkard, and knowing that he became a common drunkard through the unlawful sales, they continued to sell him intoxicating liquors from day to day and from week to week, until his condition in that regard grew constantly worse.

“Shortly after May 1, 1905, the said Louis P. Schnell began to use intoxicating liquors to excess; which they, the said defendant saloon keepers and the other saloon keepers hereinbefore named, by their agents, servants, bartenders, and by themselves, then and there sold and continued to sell him, until the said Louis P. Schnell became and was an habitual user of
“And plaintiff further avers that she has often requested the said defendants and the other saloon keepers hereinbefore named not to sell, and has forbidden them selling intoxicating liquors to her husband, Louis P. Schnell; that the said saloon keepers and each of them, wholly disregarding her request, continued to sell and did sell thereafter intoxicating liquors to her said husband, by themselves, their agents, servants, and bartenders, thereby causing him to become an habitual drunkard as above set forth.
“Plaintiff further avers and expressly charges that the said saloon keepers and liquor dealers, well knowing that the said Louis P. Schnell had a wife, and that he was a person in the habit of getting intoxicated, through their agents, servants, and bartenders and by themselves, sold and continued to sell him intoxicating liquors; that they, the said saloon keepers and liquor dealers, well knowing the premises aforesaid, sold the said Louis P. Schnell intoxicating liquors, notwithstanding the fact that they knew he was a person in the habit of getting intoxicated, and that such sales were unlawful, and that he had a wife dependent upon him for her support and maintenance.”

Following these allegations are allegations of the capacity of her husband to earn money, the business in which he was engaged, and the disgrace, poverty, and loss of support which plaintiff suffered by reason of such wrongful sales.

These allegations are sufficient, if proven, to show that the defendants contributed, by illegal sales, to her husband’s downfall, and stated a case within the statute against them, jointly.

2. It is said that the declaration is duplicitous because it alleges sales to a person when intoxicated, to a person in the habit of becoming intoxicated, and sales making the person a common drunkard. When such allegations have reference to sales made to a single individual, and such sales are averred to have contributed to produce a certain result, namely, the making of a common drunkard of that individual, the declaration is not thereby made duplicitous.

3. Complaint is made that the declaration does not inform the defendants with reasonable certainty when the several material acts therein charged took place, and by way of specification it is asserted that no date is fixed when any illegal sale was made to plaintiff’s husband. The common-law rule of pleading requires the declaration to state “a time when every material, traversible fact happened generally.” 31 Cyc. p. 105. The averment of illegal sales by the defendants is a material and important averment in this declaration, and a reasonable compliance with the rule would require the time to be stated when they or some of them were made. Plaintiff does not contend otherwise, but meets this objection by stating that the fact is alleged under a continuendo. Such an allegation is permissible under a former holding of this court. Wood v. Lentz, 116 Mich. 275 (74 N. W. 462). But if we concede that it is so alleged, the time of the unlawful sales should be fixed between two dates, and that has not been done. The declaration states that “shortly after May 1, 1905, the said Louis P. Schnell began to use intoxicating liquor to excess,” and that the defendants sold and continued to sell to him until he became an habitual user of intoxicating liquor to excess. This allegation falls short of alleging the date of illegal sales, because after he began using intoxicating liquor to excess, and before he became an habitual user of them, the sales to him were not necessarily unlawful. “Shortly after May 1, 1905,” is the date fixed when he began to use intoxicating liquors to excess, and not when an illegal sale was made. The common-law rule with reference to the allegation of time has been much modified in recent years, especially where it was not material; but the modification has not gone so far as to relieve plaintiff from the necessity of stating some time when the acts were committed which gave rise to her cause of action. If the omission complained of could be supplied by a bill of particulars as a matter of right, it could be overlooked; but, being an action in tort, no bill can be demanded as of right. Kehrig v. Peters, 41 Mich. 475 (2 N. W. 801). Demurrer, therefore, was defendants’ only remedy to compel reasonable certainty in this respect.

The demurrer must be held good on this ground, with leave to plaintiff to amend in the trial court. Defendants will recover costs in this court.

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


author: Bird, J. Ostrander, J.

text:
    IRWIN v. TOWNSHIP OF BYRON.
    1. Municipal Corporations — Negligence—Barriers on Highway.
    It should have been determined as a matter of law that defendant township was not negligent for failing to place barriers at the side of the roadway or traveled portion of the highway, 14 feet in width, where a fill began about half way up a long steep hill, and where it had a grade of about two feet in 30, without any dangerous or abrupt descent at the side of the track, so that a person could drive at right angles to the beaten path for 30 feet without encountering danger.
    2. Same — Proximate Cause — Animals.
    Testimony that one of plaintiff’s team playfully or wilfully forced the other horse to the side of the highway and down the embankment in the dark, that the team traveled 53 feet before plaintiff could stop it, that the horse did not shy at a washout which existed farther up the hill, and that if barriers had been erected the accident would probably have occurred, heló, to present no question of negligence for a jury, and that the proximate cause was the shying of the colt.
    Error to Kent; Brown, J.
    Submitted October 9, 1913.
    (Docket No. 12.)
    Decided December 19, 1914.
    Case by Samuel Irwin against the township of Byron for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial refused.

      Earl F. Phelps, Prosecuting Attorney (E. M. Davis, of counsel), for appellant.

      Thompson & Temple and Myron H. Walker, for appellee.
   Bird, J.

The plaintiff recovered a judgment in the Kent circuit court, for personal injuries which he claims to have incurred in consequence of a defective highway in defendant township. It appears from the record that the plaintiff was the owner of two farms in Byron township. In the highway lying between them was a long, steep hill, known as Whitcomb Hill. Toward evening on the 15th day of April, 1910, plaintiff hitched his horses to a lumber wagon and started for his other farm a mile and a half away, to get several swarms of bees. His daughter and four young people accompanied him. The going part of the trip was made up the hill without incident. Late in the evening, he started home with the bees, and everything went well with him until he had gone about two-thirds of the way down the hill, when his nigh horse jumped sideways and crowded the “off” horse into the ditch, and then both started in a southwesterly course and continued for 53 feet until the wagon was stopped by an obstruction. The young people jumped out, but the plaintiff was thrown out and injured.

The negligence alleged was the failure of the township to erect barriers. The defendant contends that the trial court should have directed a verdict in its behalf, on the ground that it was obvious that the highway was in a reasonably safe condition without barriers, and also on the further ground that the proximate cause of the injury was the shying of the colt and not a lack of barriers.

The plaintiff was unable to give much of an account of how the accident occurred. He said:

“I drove very carefully until I got to the Whitcomb Hill and proceeding down that to turn around that washout, why, I supposed I was right, all right, and all to once one of the horses went down someway and the other one after him, and that is the last I could remember of that, and I went with them, and I brung up within 15 feet of the bottom of the hill.”

Plaintiff’s daughter, however, was able to give a very clear description of what took place. She testified that the three-year old colt was on the “nigh” side and the four-year old on the “off” side. She further testified:

“Q. When you got down to a point where you left the highway, the colt over here became frightened at something and started the other horse right off the other way, didn’t he?
“A. I don’t think he was frightened at anything; he just simply, as a colt, jumped sideways. I didn’t see anything for him to get frightened at; I don’t think he was frightened.
“Q. Then we will leave out whether he was frightened. He jumped sideways, and that steered the team right off in a southwesterly course, didn’t it?
“A. Yes, sir.
“Q. They turned abruptly, when this colt on the left-hand side jumped in toward the other horse, didn’t he?
“A. Yes, sir.
“Q. And that turned the team right around so they went right straight down the incline in a southwesterly direction?
“A. Not just at that moment, it didn’t.
“Q. They didn’t stop, did they?
“A. The other horse tried to keep his footing on the road, and he couldn’t.
“Q. What is the reason he couldn’t?
“A. Because there was a little bank there.
“Q. You mean that little ditch that ran along down the side of the beaten track?
“A. Yes, sir. * * *
“Q. What did he do when he got to that little ditch?
“A. He was shoved in there by the other horse, at least kind of crowded.
“Q. Crowded in there by the other horse?
“A. Yes.
“Q. And then they took a southwesterly course right down through the brush there, didn’t they?
“A. Why, that one horse tried to keep his footing and he couldn’t, and he went down that little bank, and he just simply lost his balance and he went right down the hill. * * *
“Q. And before they abruptly turned out of the highway they were right in the beaten track?
“A. As far as I can remember they were.
“Q. You couldn’t see any other reason for that colt crowding the other horse down off that incline, through that little ditch and down the incline, unless he did get scared, could you?
“A. Yes, sir.
“Q. What .is that? Because he was a colt?
“A. Yes, sir.
“Q. I see. It was because he was a colt, and colts are liable to do those things?
“A. Yes, sir.
“Q. This horse on the right-hand side, the off horse, he tried to hold the colt in the road, didn’t he?
“A. Yes, sir.
“Q. And he couldn’t do it, could he?
“A. No, sir.”

The point at which plaintiff’s team left the highway was 210 feet from the bottom of the hill. The roadbed at that point was 14 feet wide and directly west therefrom, for 30 feet, there was a fall of only about 2 feet. That stretch of ground was separated from the traveled part of the highway by a ditch, not to exceed a foot in depth. By turning abruptly as the team did, one could have driven to the west for 30 feet without encountering any serious danger. The idea of barriers is usually suggested to .the highway authorities where there are dangerous places just outside the traveled part of the highway. No such danger existed here. The team made its exit from the highway at about the point where the “cut” left off and the “fill” began, and had his team been under control he ought to have stopped them within the 30 feet. But whether he could or not, we think it can be said as a matter of law that where the wrought portion of the highway is 14 feet wide, and where one can drive with reasonable safety for 30 feet at right angles therefrom before reaching a place of danger, the highway is reasonably safe and fit for public travel without the protection of barriers. Usually in these cases the question is one for the jury to determine whether barriers should have been provided, but in this case there is no contention over the material facts, and they are such that we can say as a matter of law that no such obvious danger existed at the place in question as to require the erection of barriers. See Kingsley v. Township of Blooming dale, 109 Mich. 340 (67 N. W. 333).

The testimony of plaintiff’s daughter, which is the only clear account of how the accident happened, convinces us that the playful actions of the colt in crowding its mate off from the traveled way was the proximate cause of plaintiff’s injury, and not the lack of barriers. If barriers had been erected at that point and the colt had crowded his mate in like manner, and then both had started directly down the hill at the same rate which they went off at an angle, the results probably would have been quite as disastrous. But it is argued that the colt simply shied and there was not a loss of control; but, if there were a loss of control, it was only temporary. We think that the testimony establishes the fact that the actions of the colt were something more than shying, and that there was something more than a temporary loss of control upon the part of plaintiff, as the combined effort of plaintiff and the colt’s mate was unable to prevent the colt from leaving the traveled part of the way and going a distance of 53 feet before being brought to a stop by the wagon falling into a depression. The proximate cause of plaintiff’s injuries was clearly the shying of the colt, and, as the township was in no wise responsible for the shying, no recovery should have been permitted. Beall v. Township of Athens, 81 Mich. 536 (45 N. W. 1014); Kingsley v. Township of Bloomingdale, 109 Mich. 340 (67 N. W. 333); Doak v. Township of Saginaw, 119 Mich. 680 (78 N. W. 883); Bell v. Village of Wayne, 123 Mich. 386 (82 N. W. 215, 48 L. R. A. 644, 81 Am. St. Rep. 204).

Whether the conduct of the colt was induced by a spirit of playfulness or wilfulness is of no importance, as the township would not be responsible for its conduct in either event, and, indeed, there appears to be no claim that the township was responsible for his conduct. Something has been said in the briefs concerning a washout that was located further up the hill. The proofs show that the plaintiff was aware of the washout; that' there was a well-beaten track around it; and that he did drive around it in safety, and the point where the team left the traveled part of the way was 30 feet south of the washout. There is no claim in the declaration that it caused the shying of the colt.

We are of the opinion that the trial court was in error in refusing to direct a verdict for defendant, as either ground would have furnished a basis for so doing.

The judgment will be reversed, and no new trial granted.

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

Ostrander, J.

I concur in reversal upon the first point.


text:
    DALY v. BLAIR.
    1. Amendments — Parties—Receivers—Raieroads.
    Under the discretionary authority which is vested in the trial court, it was erroneous not to permit plaintiff, in an action against the receivers of a railroad corporation, to amend his declaration so as to make the corporation a party defendant in place of the receivers, upon a motion being made for the direction of a verdict, when it appeared that a station agent of the company had been served, with the declaration and rule to plead, and the declaration stated a cause of action against the proper defendant for personal injuries.
    2. Misnomer — Parties—Amendment.
    A corporation that is made a party to an action under a wrong name, process being served on the right agent or person, may be duly made a party by amendment at the trial.
    3. Appeal and Eeeor — Discretionary Orders — Amendment.
    The refusal of a right to amend at the trial, so as to substitute for the defendants named, a corporation for which they were receivers, is reviewable on writ of error.
    Ostrander, J., dissenting.
    Error to Berrien; Bridgman, J.
    Submitted November 20, 1913.
    (Docket No. 84.)
    Decided December 19, 1914.
    Case by John Daly against Frank Blair and others, as receivers of the Pere Marquette Railroad Company, for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      O’Hara, & O’Hara, for appellant.

      Bills, Parker, Shields & Brown (Gore & Harvey, of counsel), for appellees.
   Bird, J.

Plaintiff was injured at the intersection of a highway crossing with the Pere Marquette Railroad in Berrien county, on March 12, 1912. On April 5, 1912, receivers for the railroad were appointed. Suit was commenced by declaration on February 26, 1913. The declaration named the receivers as defendants, but counted upon a cause of action against the railroad company. The return of service shows that the declaration was duly served on the station agent of the Pere Marquette Railroad Company at St. Joseph, in Berrien county. The receivers appeared by counsel and pleaded the general issue. Upon the trial it soon developed by the proofs that the accident occurred prior to the appointment of the receivers. Defendants’ counsel moved for a directed verdict, on the ground that no recovery could be had against the receivers for injuries which were incurred prior to their appointment. It appearing to plaintiff’s counsel that this was a correct statement of the iaw, he thereupon asked the trial court for permission to amend his declaration by striking out the names of the receivers and substituting therefor the railroad company. This request was denied, but, in doing so, the court said:

“If it was a discretionary matter with the court, I should feel inclined to allow, under proper terms and conditions, such amendment, but there is, I am convinced, no power in this court to allow an amendment substituting new parties or the railway corporation; and upon that ground I place the decision.”

Verdict was accordingly directed for the defendants, and the plaintiff has assigned error in this court.

In support of his contention that the trial court had the power, under our statute of amendments, to make the amendment, plaintiff’s counsel cite several cases in which receivers have been substituted by amendment for the company, and the company for the receivers, but in nearly all the cases cited the misnomer occurred with reference to the plaintiff. In the case of a misnomer of the plaintiff, the party proposed to be substituted is usually the petitioner, and therefore no question of service of process arises. But in the case of a misnomer of the defendant, the vital question always is whether the party proposed to be substituted has been served with process. Unless it can be said that the Pere Marquette Railroad Company has been served with process in this suit, the amendment sought by plaintiff is clearly beyond the power of the courts to permit.

A rule which has been sometimes followed in correcting misnomers in pleadings is that:

“Where the right corporation has been sued by the wrong name, and service has been made upon the right party, although by a wrong name, an amendment substituting the true name of the corporation may be permitted.” 31 Cj^c. p. 488.

The declaration in the insant case clearly defined and counted upon a cause of action against the railroad company, and not against the receivers. The return of service shows that a copy of the declaration was duly served upon the railroad company. True, it named the receivers of the road as defendants, but the paper upon its face advised the agent of the railroad company that the negligence of the railroad company was relied upon for a recovery in the suit. In view of these circumstances, we think it was within the power of the trial court to allow the amendment. Solmonovich v. Tramway Co., 39 Colo. 282 (89 Pac. 57); Ward v. Construction Co., 189 N. Y. 542 (82 N. E. 1134); Bainum v. Bridge Co. (C. C.), 141 Fed. 179; Hernan v. Bridge Co., 167 Fed. 930, 93 C. C. A. 330. See, also, Welch v. Hull, 73 Mich. 47 (40 N. W. 797); Tuller v. Ginsburg, 99 Mich. 137 (57 N. W. 1099).

The point is made and argued by defendant that the order denying the motion was a discretionary one, and therefore will not be reviewed by this court, even though it should be held that the trial court had the power to grant the amendment. In support of this contention, the case of Polhemus v. Ann Arbor Sav. Bank, 27 Mich. 44, and Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), are cited. The Lyle Case is not in point, as the question there decided was that a discretionary order would not be reviewed on mandamus. Three of the five justices sitting in that case expressly held that such orders were reviewable upon writ of error. The Polhemus Case is authority for counsel’s contention, but that case must give way, so far as it is in conflict with the many cases since decided by this court, in which it is held that such discretionary orders are reviewable on writ of error. The following are a few of the many cases so holding: Pangborn v. Insurance Co., 67 Mich. 683 (35 N. W. 814); Pratt v. Montcalm Circuit Judge, 105 Mich. 499 (63 N. W. 506); St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417 (72 N. W. 249); Skutt v. Kent Circuit Judge, 136 Mich. 477 (99 N. W. 405); Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W. 1); Jones v. Wayne Circuit Judge, 141 Mich. 408 (104 N. W. 692).

In Cleveland v. Rothschild, 138 Mich. 90 (101 N. W. 62), the trial court refused to permit the amendment asked, on the ground of a mistaken want of power. This is the same reason assigned in the Polhemus Case; yet, this court reviewed it upon error. The cases of Welch v. Hull, 73 Mich. 47 (40 N. W. 797), and Wood v. Lenawee Circuit Judge, 84 Mich. 521 (47 N. W. 1103), are analogous cases as to this question.

If we consider the order made in this case as a discretionary one, it is properly here on writ of error.

The judgment will be reversed, and a hew trial granted.

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

Ostrander, J. There was no misnomer of defendants, and no question of discretion was or is involved. The court had no right to permit the elimination of the defendants named in the declaration and the substitution of a new defendant. The judgment should be affirmed.